author: McGrath, O. J.

text:
    William Jones v. Charles H. Wisner, Circuit Judge of Shiawassee County.

      Security for costs — Constitutional law — Suit for labor.

    1. As a rule, security for costs is not' required in cases commenced by ordinary process, where it appears that the plaintiff has, a meritorious cause of action, and is unable to give the security asked for.
    2. 3 How. Stat. § 7717e, which provides that, “in any suit "brought to recover for the personal work and labor of the plaintiff, security for costs shall not be ordered in case the plaintiff shall make and file with the court an affidavit that he has a good and meritorious cause of action, and is unable to procure security for costs,” is not unconstitutional, as discriminating in favor of one class of persons at the expense of another.

      Mcmdamus.

    Submitted April 16, 1895.
    Denied July 2, 1895.
    ' Relator applied for mandamus to compel respondent to vacate an order refusing to order security for costs. The facts are stated in the opinion.

      Walter McBride and Watson & Chapman, for relator.
   McGrath, O. J.

Respondent based Ms refusal to order security for costs upon 3 How. Stat. § 7717e, and relator asks to have the order vacated, and the circuit judge directed to proceed to the consideration of the motion upon its merits. It is insisted that the section is unconstitutional, under Wilder v. Railway Co., 70 Mich. 382; Schut v. Railway Co., 70 Id. 433; Lafferty v. Railway Co., 71 Id. 35; and Grand Rapids Chair Co. v. Runnels, 77 Id. 111. The first three of these cases were under Act No. 234, Laws of 1885, and the last case was under the log lien act (No. 229, Laws of 1887).

Those cases are distinguishable from this. There the statute undertook to give to one of the litigants, in case of success, an attorney fee, to which his adversary was not entitled in case he succeeded. In those cases a burden was imposed upon one of the parties to the litigation which was not imposed upon the other. In the present case, plaintiff claims the benefit of an exemption which is granted because of the nature of the claim. Our statutes do’not require security for costs to be given in all cases. In certain cases security must be given, and in others the court may, in its discretion, direct security to be given. As a rule, it is not required in. cases commenced by the ordinary process, where it appears that plaintiff has a meritorious cause of action, and is unable to give the security. Our statutes contain many provisions discriminating in favor of claims for labor. Mechanics are given liens upon personal property in certain cases; miners’ claims for labor are made a lien upon the real and personal property of the corporation; logs, timber, poles, etc., are subject to lien for labor performed upon them; stockholders in corporations are. made personally liable for labor performed for the corporation; the amount due to a householder having a family, for personal labor, is protected from'garnishment process; and, under the voluntary assignment act, claims, of servants, clerks, and laborers for personal services á.re preferred. All discrimination is not necessarily unlawful.

Mr. Cooley, in Ms work on Constitutional Limitations (6th ed.), at page 479, says:

“Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application. They may embrace many, subjects, or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the state at large must determine whether particular rules shall extend to the whole state, and all its citizens, or, on the other hand, to a subdivision of the state, or a single class of its citizens, only. The circumstances of a particular locality, or the prevailing public sentiment in that section of the state, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may therefore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the state constitution, does not forbid. These discriminations are made constantly, and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit; and it may be a matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments. If the laws be'otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply, and they are then public in character, and of their propriety and policy the legislature must judge.”

The statute in the present case exempts all cases in which claims for labor are involved, when, from the affidavit filed, it appears that the cause of action is meritorious, and the claimant is unable to give the security. The discrimination in favor of that class of persons must-be held not to be unreasonable.

The writ must therefore be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    Edwin A. Rasch and Henry Kiesling v. Alfred E. Sheppard.

      Contempt — Appeal.
    An appeal will not lie from the order of a circuit judge, made In contempt proceedings instituted by the complainants in a judgment creditors’ suit to punish the defendant for a violation of the injunction issued on filing their bill, that the defendant is not guilty of the contempt charged; citing Schwab v. Coots, 44 Mich. 463; Montgomery v. Booming Co., 104 Id. 411.
    Appeal from Wayne. (Hosmer, J.)
    Submitted on briefs April 18, 1895.
    Decided July 2, 1895.
    Judgment creditors’ bill. Complainants appeal from order refusing to punish defendant for contempt.
    Appeal dismissed.
    The facts are stated in the opinion.

      Bowen, Douglas & Whiting, for complainants.

      Charles C. Stewart, for defendant.
   Long, J.

Complainants, on January 14, 1893, filed an ordinary judgment creditors’ bill, in which the defendant Alfred E. Sheppard was the judgment debtor. On the same day, an order for an injunction was indorsed on the bill by the circuit judge, and the subpoena and injunction immediately issued. The injunction, among other things, restrained the defendant Alfred E. Sheppard—

“From collecting, receiving, selling, transferring, assigning, delivering, or in any way or manner using, controlling, interfering, meddling with, or disposing of, any debts or demands due to said Alfred E. Sheppard, * * •* oir of any real or personal estate, goods, wares, merchandise, account books, bills, drafts-, checks, moneys, stocks, promissory notes, bonds, mortgages, judgments, or other securities, things in action, property, or effects belonging to the said. Alfred E. Sheppard.”

The writ of subpoena and the writ of injunction, together, with a copy of the bill of .complaint and notice for the appointment of a receiver, were served personally upon the other defendant, Mary G. Sheppard, the wife of the defendant Alfred E. Sheppard, upon the afternoon of January 14, 1893; and a copy of the writ of injunction was left with her at that time. This was Saturday afternoon. On Monday afternoon, January 16, 1893, after banking hours, a similar service was made upon the defendant Alfred E. Sheppard.

During the month of February, 1894, the defendant Alfred E. Sheppard was examined before one of the circuit court commissioners in this same cause as to the property in his possession or under his custody or control at the time the bill of complaint was filed against him, and he denied having any property of any kind whatsoever or any money in his possession at the time the bill was filed against him. In this examination, how-' ever, it was developed that the defendant Alfred E. Shep-' pard had borrowed $2,000 of a Mrs. Frances Wells, of Detroit, Mich., during the month of December, 1892; but the defendant claimed to have spent all the money before the bill of complaint was filed in this cause, on January 14, 1893, although he could not or refused to account specifically as to what he had done with it.

In December, 1894, a case was tried in the Wayne circuit court, in which Frances W. Wells was plaintiff, and Mary G. Sheppard, the wife of Alfred E. Sheppard, was defendant, which suit was for the recovery of this same $2,000 referred to in. the testimony of Alfred E. • Shep- ■■ pard; and the only question involved was whether Mrs. Frances W. Wells, the plaintiff, had loaned the money to Mary G-. Sheppard, or to her husband, Alfred E. Sheppard. Alfred E. Sheppard testified as a witness in behalf, of his wife in this cause. In this latter testimony, Alfred E. Sheppard claimed to have borrowed the $2,000 from Mrs. Frances Wells; that he used the money, or the bulk of it, in paying his debts, principally debts that he owed one A. B. Thomas for money that he had collected on land contracts belonging to said Thomas, and appropriated to his own use, without turning it over to the said Thomas. In all, he showed deposit slips for $1,388.52 used in this way, deposited on six different occasions with the Detroit Savings Bank, to the credit of A. B. Thomas. The last deposit was made on January 16, 1893, amounting to $122; and he admits having $100 or over of the money left after the 16th day of January, 1893, which he spent for different things, partly for household bills.

On the strength of this testimony, complainants filed their petition' with the Wayne circuit court, in chancery, for an order that the said Alfred E. Sheppard show cause why he should not be punished for contempt of court in appropriating $122 of money belonging to him, in his possession, to pay other debts, in violation of the injunction, after he had notice of the issuance of the same, and' also in. the appropriation of $100 to the payment of other debts in violation of the injunction after the same was served upon him. An order to show cause was issued, and the defendant appeared, and answered the -same, denying under oath that he had ever paid any money out belonging to him in violation of the injunction after he had notice of the issuance of the same. A hearing was had on the issue thus framed, and the testimony of Alfred E. Sheppard falten in this case before the circuit court commissioner, and his testimony taken as a witness for his wife, were read in evidence as an admission against him. He himself offered no evidence. The circuit judge on January 28, 1895, found him not guilty of contempt, and from this order complainants appeal.

The complainants had no right of appeal. The case ia ruled by Montgomery v. Booming Co., 104 Mich. 411, and Schwab v. Coots, 44 Id. 463. See, also, 2 Daniell, Ch. Prac. 1069, note (6); Jenn. Ch. Prac. p. 547.

The appeal must be dismissed, with costs to- defendant.

The other Justices concurred.


author: Grant, J.

text:
    The City of Grand Rapids v. Max Braudy.

      Criminal law — Acquittal—Certiorari—Pawnbrokers—Police power —Validity of ordinance.

    1. The action of the court in refusing- to proceed with the trial of an appeal from a conviction in police court for. the violation of a city ordinance, and the quashing of the proceedings on the ground that the ordinance is invalid, does not amount to an acquittal, there having been no trial on the merits.
    2. While mandamus may be the more appropriate remedy by which to compel the court -t-o proceed to the trial of said appeal, the same result is reached by certiorari, which has been held the proper remedy to review convictions for violations of city ordinances; citing Swift v. Circuit Judges, 64 Mich. 487; People v. White, 53 Id. 537.
    3. The business of pawnbroker, junk dealer, or dealer in second- - hand goods and merchandise, comes expressly within the control of the police power of the State, and, while legitimate in the absence of any statute law controlling it, no inalienable right exists to carry it on without complying with those provisions and restrictions which the legislative power- of- the State has seen-'fit to require. . .
    4. The following provisions of a city ordinance licensing and regulating pawnbrokers, junk dealers, and dealers in secondhand goods, are not so unreasonable as to invalidate the ordinance:
    « — Requiring the payment by a pawnbroker of a license fee of $50 per annum, and the execution of” a bond in the penal sum of $5,000, and the payment by the other persons named in the ordinance of a fee of $25, and the execution of a bond' in a penalty of $2,000.
    6 — Prohibiting the licensee from purchasing or taking any goods, articles, or things offered him from any person under the age of 16 years, or from any intoxicated person or habitual drunkard.
    o — Reserving in the license the power of revocation at any time by the common council, for such time as they shall have prescribed therefor.

      Certiorari to superior court of Grand Rapids. (Burlingame, J.)
    Submitted April 30, 1895.
    Decided July 2, 1895.
    Respondent was complained of for the violation of an ordinance regulating the business of pawnbrokers, junk dealers, etc. The city brings certiorari to review proceedings resulting in his discharge.
    Order reversed, and court directed to proceed with the trial.
    The facts are stated in the opinion.

      Hem'y J. Fellcer and Harvey Joslin, for the city.

      Frank A. Rodgers, for respondent.
   Grant, J.

The defendant was convicted of engaging in the business of junk dealer in the city of Grand Rapids without having procured a license therefor from the common. council, contrary to the provisions of “An ordinance relative to licensing and regulating pawnbrokers, junk dealers, and dealers in second-hand goods.” The trial and conviction were had in the police court of the city. He thereupon appealed the case to the superior court of the city. The superior court, upon motion of the defendant, quashed the complaint and warrant upon the ground that the provisions of the ordinance, particularly those of sections 7, 8, and' 11, were unreasonable, and in restraint of trade. The entire ordinance is as follows:

“Section 1. No person shall engage in the business of pawnbroker) junk dealer, or dealer in second-hand goods and merchandise, except furniture, in the city of Grand Bapids, without a license therefor from the common council of said city.
“Sec. 2. Every person, and all persons, desiring to engage in the business o f pawnbrokerage or junk dealing in said city of Grand Bapids, or in the business of dealing in second-hand goods and merchandise, except furniture, in said city, shall make application in writing to said common council, specifying- (as near as may be) the street and building in which he, she, or they intend to carry on said business, signed by at least twelve freeholders, citizens of said city, of good reputation, certifying to the good reputation, fair fame, and moral character of the applicant or applicants.
“Sec. 3. After such application shall be granted, and before a license shall be issued thereon, pawnbrokers shall execute a bond to the city of Grand Bapids in the penal sum of $5,000, and junk dealers and other persons included in' this ordinance shall execute a bond to said city in the penal sum of $2,000, with one or more sufficient securities, to be approved by the mayor, conditioned that he, she, or they will in all respects comply with and faithfully observe all the requirements of the charter and ordinances of the city of Grand Bapids relative to pawnbrokers, junk dealers, and dealers in second-hand goods and merchandise, except furniture. And the said pawnbrokers shall also pay into the treasury of said city the sum of $50 per annum, and the junk dealers and secondhand dealers shall pay into the treasury of said city the sum of $25 per annum, as a license fee, before such license shall be issued.
“Sec. 4. Whenever said common council shall have determined to grant a license to such applicant or applicants, and upon the presental to the clerk of said city of the bond hereinbefore provided for, and the receipt of the treasurer of said city for the license fee, the said clerk shall issue to the said person or persons a license under the seal of the city, in which it shall be stated that the same is revocable at any time by the common council of said city for such time as the said common council shall have prescribed therefor; but before receiving such license such applicant or applicants shall pay' to said; clerk, as a fee for issuing and recording the same, the sum of one dollar, and before the said clerk shall issue any such license he shall record the same in a book to be’ provided for such purpose.
“Sec. 5. No person or persons, licensed as a pawnbroker, a junk dealer, or as a dealer in second-hand goods or merchandise, except furniture, shall by virtue of one’ license keep more than one house, shop, or place for such’ business of pawnbroker, junk dealer, or dealer in secondhand goods, except furniture; provided, however, that such person or persons may remove from one place of business to another in said city by giving immediate written notice of such removal to the chief of police of said city, and of the building (as near as may be) and of the street to which removal is made.
“Sec. 6. Every person or firm licensed under this ordinance shall cause his or her name or their firm name (as the case may be), with the words ‘licensed pawnbroker/ ‘licensed junk dealer/ or ‘licensed dealer in second hand-goods and merchandise (as the case may be), to- be printed or painted, in large legible characters, and placed over the-outside or door or entrance of his, her, or their shop-, office, or place of business.
“Sec. 7. Every person, or firm of persons, licensed to carry on either of said businesses in said city, shall keep a book, in which shall be legibly written in ink, a.t the time of the purchase or taking of any goods, article, or thing, an accurate account and description, in the English, language, of the goods, article, or other thing purchased or pledged, the amount of money paid therefor/ the time of purchasing or taking the same, the name and-residence of the person selling or pledging such goods, article, or thing, and a description of the person or persons (as near as may be) from whom the same were purchased or taken. And, when any watch is purchased or; taken, the person or firm- of persons so licensed shall also' write in such book the name of the maker thereof and its1 number; and when jewelry or gold or silver articles of any kind a.re purchased or taken, he, she, or they shall note, in said book, all letters or marks described, engraved, or cut thereon. • -:
“Sec. 8. That it shall be the duty of every person or1firm of persons aforesaid to make out and deliver to the * chief of police of said city, every day before the hour of 12 o’clock noon, a legible and correct copy from the book required in section 7 hereof, giving an accurate account and description of each and all of the articles and things purchased or taken during the preceding day, the price paid therefor, the precise time of purchase or taking, the name and residence of the person or persons from whom such purchases were made, and a description of the person or persons (a,s near as may be) from whom purchased or taken.
“Sec. 9. The book provided for in section 7 of this ordinance shall at all reasonable times be open to the inspection of the mayor of said city, or of the chief of police, or any member of the police- force thereunto authorized by the said chief of police.
“Sec. 10. It shall be the duty of every person or firm of persons, liensed as aforesaid, upon his, her, or them (as. the case may be) receiving information or learning that any goods, articles, or thing left with him, her, or his or her firm has been lost or stolen, to notify in writing the chief of police of the fact, giving the name of the person from whom he, she, or they received the same, the time when it was received, and of any other facts connected therewith, that máy tend to the discovery or conviction of the thief or thieves.
“Sec. 11. No person or firm of persons, licensed as aforesaid, shall purchase or take any goods, articles, or thing offered him, her, or them from any person under the age of 16 years, or from any person who is at the time intoxicated, or from any person who is an habitual drunkard; nor, knowingly, take or purchase from any servant or apprentice any goods, article, or thing, without first ascertaining that such article or thing is the property of the person or persons offering to> sell or pledge the same.
“Sec. 12. Any person or persons who shall violate any of the provisions or requirements of this ordinance, on conviction thereof, shall be punished by a fine of not less than five dollars nor more than fifty dollars^ and costs of prosecution, or by imprisonment at hard labor in the common jail of the county of Kent, or in any penitentiary, jail, work-house, house of correction, or almshouse of said city, in the discretion of the court or magistrate before whom the conviction may be had, for a period of not less than five days nor more than ninety days. And in case such court or magistrate shall only impose, a fine and costs, the offender may be sentenced to be imprisoned at hard labor in the common jail of the county of Kent, or in any penitentiary, jail, work-house, house of correction, or almshouse of said city, until the payment of such fine and costs, for a period of not less than five days nor more than ninety days.”

It is first insisted that this is a criminal case, that the action, of the court amounted to an acquittal, and that the city is therefore remediless. This position cannot be maintained. There was no trial upon the merits. The court simply refused to proceed to trial, and quashed the proceedings, because it held the ordinance invalid. This Court has repeatedly issued the writ of mandamus to compel circuit and recorder’s courts to proceed with the trial of criminal cases under similar circumstances. People v. Swift, 59 Mich. 529; Sadler v. Sheahan, 92 Id. 630. See, also, Ware v. Circuit Judge, 75 Mich. 488. While the writ of mandamus may be the more appropriate remedy, the same result is reached by the writ of certiorari, which has been held to be the proper remedy to review convictions for violations of city ordinances. Swift v. Circuit Judges, 64 Mich. 487; People v. White, 53 Id. 537.

It is next insisted that the ordinance is so unreasonable that it should be declared void. The charter expressly confers upon the common council the power to license and regulate pawnbrokers, junk dealers, and dealers in second-hand goods. Courts cannot interfere with legistive discretion, and are slow to declare ordinances invalid because unreasonable, when the power to legislate upon the subject has been conferred upon the common council. The council’s discretion, and not the court’s, must control. In such matters the city authorities are usually better judges than the courts. Fisher v. Harrisburg, 2 Grant, Gas. 291; Com. v. Robertson, 5 Cush. 438; St. Louis v. Weber, 44 Mo. 547 ; 1 Dill. Mun. Corp. § 328. “Regard must be had for all the circumstances of the particular city, the objects sought to be attained, and the necessity which exists for the ordinance.” Id. § 327. It is common knowledge that thieves resort to these places to dispose of their stolen goods, and that unscrupulous, and oftentimes criminal, persons are engaged in the business. The business," therefore, comes expressly within the control of the police power of .the State, and is properly subject to reasonable rules and regulations. A very clear abuse of this power must be shown in order to justify the court in declaring the regulations to be unreasonable and void. While this business is legitimate in the absence of any statute law controlling it, no inalienable right exists 'to carry it on without complying with those provisions and restrictions which the legislative power of the State has seen fit to require.

This brings us to the provisions complained of. Neither the license fee of $25 or $50 nor the bond is unreasonable. This was decided in Kitson v. Ann Arbor, 26 Mich. 325. The license fee in that case was $100 for keeping a saloon or restaurant, and the bond $2,000. The defense was that, if it assumed to license the sale of intoxicating liquors, the ordinance was void under the Constitution, which prohibited their sale; and, if it involved the license of a restaurant, it was void, as unreasonable, and in restraint of trade. The ordinance did not provide for or authorize the sale of intoxicating liquors. It was insisted that a saloon was necessarily a place for the sale of such liquors. The Court held otherwise, and in. illustrating the argument said:

“A pawnbroker might as well attempt to do business without a license by confining his dealings to stolen goods, or an auctioneer by making no legitimate sales, and holding none but Peter Funk auctions.”

There is nothing unreasonable in requiring such persons to keep a record of their purchases, and to furnish a statement thereof to the police department. This provis-; ion is no moré unreasonable, and certainly is as essential, for the protection of society, as the law regulating druggists, which requires them to record in a book the names of all persons applying for intoxicating liquors, the date; of sale, the amount and kind- of liquor sold, and the purpose for which the same was to he applied. Laws of 1887, Act No. 313, § 3.

The statutes of several states provide that, in order to obtain a license for the sale of intoxicating liquors, the application must be indorsed by a certain number of freeholders, certifying to the good character and reputation of the applicant. This is upon the theory that the state has the right to require that such business shall be carried on by reputable men, and not by the disreputable, vicious, and criminal classes. This provision has been universally sustained by the courts. The same principle applies to junk dealers and pawnbrokers, and we find nothing unreasonable in the requirement that the application to enter upon the business shall be indorsed by 12 freeholders.

We cannot hold unreasonable that provision prohibiting the licensee from purchasing from boys, intoxicated persons, or habitual drunkards. The reason for this provision is apparent, for it is well known that there are many young thieves in the large cities, who steal property, and resort to these places, ready to sell it for a mere nominal sum. It is also well known that habitual drunkards will use the same means to obtain money to satisfy their appetites for intoxicating liquors.

The only other provision we need to notice is that giving the power to revoke the license arbitrarily. It seems to be conceded by counsel for the city that the common council does not possess the right to revoke the license without cause shown. He says:

“It must be presumed that this right would be exercised only in cases -of violation of the conditions of the ordinance, and after an investigation of such a charge; otherwise an action of the common council in- assuming to so revoke arbitrarily could be restrained from doing- injustice to the licensee.”

No express power to revoke is conferred upon the council. In the investigation we have been able to make we find but few authorities bearing upon the subject, and counsel in their briefs have cited none. We find two authorities sustaining this power. Com. v. Kinsley, 133 Mass. 579; Martin v. State, 23 Neb. 371. But in both these cases the express power to revoke was conferred upon the city by its charter. If mo reservation of the light to revoke were reserved in the license, there would be little difficulty in reaching a conclusion. Has the common council the right to insist, as a condition precedent to the issue of the license, that the applicant shall agree that his license may be revoked at the will of the council? is the question presented. The necessity of a rigid control over this business in our large cities is clear. Convictions are difficult, though the public authorities may be well convinced that stolen goods are bought and sold at these places. The business is not necessary to the welfare of society or the public. The common council, with the knowledge of all the facts before them to a greater extent than courts can possibly have, have determined that it is well, in their judgment, to require these' conditions. While the exercise of any arbitrary power may seem harsh, still we are of the opinion that this requirement is not so unreasonable as to require the courts to declare it void. Counsel 'for defendant cites and relies upon Chaddock v. Day, 75 Mich. 527; Hughes v. Recorder’s Court, 75 Id. 574; In re Fratzee, 63 Id. 396; People v. Armstrong, 73 Id. 288. An examination of these cases will show'that in neither their facts nor principles are they like the case at bar. It is unnecessary for us to note the distinctions.

We hold the ordinance valid, and the order of the court below is reversed, and the court directed to proceed with the trial of the cause.

The other Justices concurred.


author: Montgomery, J.

text:
    Emma Ford v. Jacob Che ever

      Liquor traffic — Sales to husband — Liability of saloon keeper — Evidence — Damages—Commission to take testimony.

    1. It was not intended by wbat was said in Johnson v. Schultz, 74 Mich. 75, to imply that the wife is wholly without remedy for the wrong done her by furnishing liquors to her husband, which enabled him to continue the habit of habitual drunkenness, which he had already formed.
    2. In a suit brought by a' wife against a saloon keeper for injury to her means of support and feelings by reason of the sale of liquors to her husband, the evidence showed that the husband had been addicted to drink prior to the time the defendant engaged in the saloon business, and it was not claimed that the defendant was in any way responsible for the drunkenness of the husband prior to that time. Requests on the part of the defendant to charge the jury that if, at the time defendant first sold plaintiff’s husband liquor, he was a confirmed drunkard, the defendant would not be liable for causing or contributing to such condition, but would be only liable for such damages as plaintiff sustained, so far as actual damages were concerned, by reason of selling to him in ti»at condition, and that, if the jury should find tha^ at the time defendant first sold the husband liquor he was a confirmed drunkard, they could assess damages- only for selling to such a man, and not to a sober and industrious man, were refused, and the court instructed the jury that the defendant was not responsible for damages or injury which plaintiff might have suffered by reason of sales of liquor to her husband before defendant went into- the business, but if, after that time, he sold him liquor from which plaintiff suffered injury, even though the husband might have been, at the time when such sales commenced, a man who had -suffered much from drink, or plaintiff had suffered much by reason of the fact that her husband had been a hard drinker, still that would not relieve the defendant from responsibility for such damages as plaintiff might have suffered by reason of defendant’s action. And it is held that the jury could not have misapprehended the proper limit of the inquiry, in view of these instructions.

      8. Plaintiff’s attorney, in liis opening statement to the jury, stated that. plaintiff’s husband lived in another city a little over a year, and on his return to his former home, where the suit was brought, defendant again threw around him those injurious influences, .and violated the law by selling liquor to Rim. And it is held that this was a general statement of what . the plaintiff proposed- to show, and was not open to exception.
    4. Plaintiff was permitted to testify, against defendant’s objection, that her husband was, at the time of the trial, dead, to state the date of his death, and to introduce in evidence How. Stat. § 4245, containing the mortality tables. Counsel for plaintiff, on the cross-examination of one of defendant’s witnesses, was permitted, against objection, to ask if the witness had not heard that plaintiff’s husband committed suicide after, a lo-ng debauch, to which question the witness answered that he had heard that the husband was found • dead in his room, but did not know whether or not he was drunk, but, in answer to another question, he stated that he had heard that the husband was accused of being drunk. And it is held that the error in receiving the testimony relative to the death of the husband and his life expectancy was not cured by an instruction that the testimony as to the cause and circumstances of the husband’s death was stricken from 'the case, because hearsay testimony, and that there could be no recovery by reason of any injury which plaintiff might have suffered by reason of his death, whatever the circumstances might have been.
    6. The jury should be cautioned that • the added .damages in such a case should be such damages as will compensate the plaintiff for injury^ to her feelings occasioned by the wrong of the defendant.
    6. While it may not be error to refer to exemplary damages as such, yet it has never been the policy of the court to permit juries to award captiously any sum which may appear just to them, by way of punishment to 'the offender, but rather to award a sum in addition to the actual proven damages, as what, in their judgment, constitutes a just measure of compensation for injured feelings, in view of the circumstances of each particular case", citing Scripps v. Reilly, 38 Mich. 10.
    7. An objection that the return of a commissioner to a deposition does not. show that the oath was publicly administered, as required by How. Stat. § 7439, is not tenable where it appears from the return that the testimony was taken at the office of the commissioner, after the taking by-the witness of the oath prescribed by the instructions annexed to the commission, which required an oath to be publicly administered.
    Error to Lenawee. (Lane, J.)
    Argued April 30 and May 1, 1895.
    Decided July 2, 1895:
    Case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Walter O. Burridge and Watts, Bean & Smith, for appellant.

      Jacob G. Winne, for plaintiff.
   Montgomery, J.

This is an action brought under the civil damage law against defendant, who was during the years 1888, 1889, 1890, 1891, and 1892 engaged in keeping a saloon in the village of Tecumseh. The plaintiff sued to recover damages for injury sustained in her means of support and injury to feelings. She recovered a verdict of $1,500, upon which judgment was entered; and the defendant brings error, alleging a large number of errors committed on the trial.

The evidence showed that the plaintiff’s husband had been addicted to drink prior to 1888, when the defendant engaged in the saloon business, and there was no evidence to show, nor was it claimed, that the defendant was in any way responsible for his drunkenness prior to that time. The defendant asked the court to charge the jury as follows:

. “If the plaintiff’s husband, at the time the defendant first sold him liquor (if he ever did sell him any), was a confirmed drunkard, in that case the defendant would not be liable for causing or contributing to such condition, but would only be liable for such damages as the plaintiff sustained, so far as actual damages are concerned, by reason of selling to him in that condition.”

Anri, in another request, as follows:

“If you come to the question of damages, then, in considering that question, you must take the husband of plaintiff just as you find him by the testimony at the time the defendant first sold him liquor (if he ever did sell to him), and must consider that question in the light of his then condition; and, if you find him at that time a confirmed drunkard, then you can assess damages only for selling to such a man, and not to a sober and industrious man. Defendant would not be liable as for making him a drunkard.”

It was held in Johnson v. Schultz, 74 Mich. 75, that it was error to permit the jury to award damages for the loss of the companionship of the husband as a sober man, when it appeared that he had become an habitual drunkard before the occasion upon which the sales were charged to have been made by the defendant. In that case, however, the rights of the defendant were in no way guarded by an instruction which distinguished between sales made prior to the dates charged in the declaration and subsequently. But, in the present case, the judge charged the jury upon the subject as follows:

“It would be true, gentleman, that this defendant could not be held responsible for damages or injury which she may have suffered by reason of the sales of intoxicating liquor to her husband at a time before he had anything to do with it, — that is, I mean, prior to the year 1888, when Mr. Cheever went into the business; but if he did sell liquor after that time, from which the plaintiff suffered injury, even though he may have been, at the time when he began the sale of liquor to him, a man who had suffered much from drink, or she may have suffered much by reason of the fact that he had been a hard drinker, still that would not relieve the defendant from responsibility for such damages as she may have suffered by reason of his action, under the instructions I have given you.”

In another portion of the charge the court said:

“Of course, the plaintiff cannot recover for any injury to which the defendant did not contribute by the sale of intoxicating liquors which he did not either sell or contribute to.”

We do not think the jury could have misapprehended the proper limit of the inquiry in view of these instructions. They were plainly told that for any injury prior to 1888, when the sales by defendant were alleged to have commenced, the plaintiff could not recover, and that she could not recover for any injury to which sales by defendant did not contribute. We apprehend it was not intended by what was said in Johnson v. Schultz to imply that the wife is wholly without remedy for the wrong done her by furnishing liquors to her husband, which enabled him to continucthe habit of habitual drunkenness. This would imply that the saloonist might with impunity furnish liquor to an habitual drunkard when he could not to a sober man.

Plaintiff’s counsel, in his opening statement to the jury, stated that plaintiff’s husband lived in Bay City a little over a year, and, on his return from Bay City to Tecumseh, defendant again threw around him those injurious influences, and violated the law by selling liquor to him. This was objected to as incompetent, and an exception taken. This was a general statement of what the plaintiff proposed to show, and, we think, not open to exception. (

Objection was made to the introduction of the testimony of one Orrin T. Lane, taken by deposition, but we think the objection is without force. It is contended that the return of the commissioner does not show that the oath was publicly administered, as required by section 7439, How. Stat.; but the return does malee it appear that the testimony was taken at the office of the commissioner, and after having taken the oath prescribed by the instructions annexed to the commission. The instructions annexed to the commission require an oath publicly administered, and we think the return sufficient.

The plaintiff was permitted to testify against defendant’s objection that her husband was, at the time of the trial, dead, and that he died in March, 1893, and was also permitted to introduce in evidence How. Stat. § 1215, containing the mortality tables. We can conceive of .but one purpose for which this testimony was offered, which must have been with a view of charging the defendant in some way with the responsibility for the death of plaintiff’s husband. Upon no other issue in the case is it conceivable that the mortality tables could have •had anything to do with any question involved. The .circuit .judge, however,, in his instructions to the jury, stated that—

“The testimony as to the cause of the death of the husband, and the circumstances of his death, is stricken from the case, because it was hearsay testimony entirely, and there can be no recovery here upon the part of the plaintiff by reason of any injury which she may have suffered by reason of his death, whatever the circumstances of it might have been. This action was brought before the death, and there is no claim for any such damages, and consequently they cannot be recovered.”

We are not able to say that this ruling cured the error. Plaintiff’s counsel, on the cross-examination of one of defendant’s witnesses, was permitted to ask this question: “Is it not true that you heard that he [referring to plaintiff’s husband] .committed suicide in Jackson, after a long debauch?” — which was objected to, and the objection overruled by the court. The witness replied: “I heard that he was found dead in the room. I do not know whether he was drunk or not.” Question: “Did you not hear that it was the result of a long drunken debauch? Now, is that not what you heard?” — which was likewise objected to, and under exception he was permitted to say: “Why, yes, sir; kind of accused of being drunk.” When this testimony was received, it must have been considered by the jury as having some relevancy to the case; and we cannot say, particularly in view of the fact that the verdict was large when considered in connection with the proof of positive damages, ..that its admission did not prejudice the jury, or was cured by the instructions given by the circuit judge.

Ns the case must go back for a new trial,-we think it proper to say that in'defining exemplary damages to the jury, while the circuit judge was probably within the law, inasmuch as no further instructions upon that subject were asked, yet we deem it better for the court to caution the jury that the added damages in a case of this character should be such damages as will compensate the plaintiff for injury to her feelings occasioned by the wrong of the defendant. While it may not be error to refer to exemplary damages as such, yet it has never been the policy of the Court to permit juries to award captiously any sum which may appear just to them, by way of punishment to the off ender, but rather to award a sum in addition to the actual proven damages, as what, in their judgment, constitutes a just measure of compensation for injury to feelings, in veiw of the circumstances of each particular case. Scripps v. Reilly, 38 Mich. 10.

For the error in admitting the testimony relative to the death of the husband and his expectation of life, the judgment will be reversed, and a new trial ordered.

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


text:
    Solomon Stern and Moses Stern v. Robert E. Frazer, Circuit Judge of Wayne County.

      Garnishment — Venue.
    1. It was held In Newland v. Circuit Judge, 85 Mich. 151, that, when both plaintiff and principal defendant are non-residents of this State, suit may be maintained under How. Stat. § 8087, in this State, and the credits of the defendant subjected to the jurisdiction of its courts in the county where a debtor of the principal defendant resides. -
    2. The garnishment proceedings in such cases must be had in' a county where 'the principal defendant hás property or credits subject to garnishment.
    8. The fact that the writ of garnishment was in the first instance issued against a resident of such a county, and afterwards discontinued, will not give the court jurisdiction over a resident of another county, who was joined as a garnishee defendant.

      Mandamus.

    Submitted April 30, 1895.
    Denied July 2, 1895.
    Relators applied for mandamus to compel respondent to set aside an order quashing certain garnishment proceedings. The facts are stated, in the opinion.

      Sloman, GroesbecJc & Robi/nson, for relators.
   Montgomery, J.

This is an application to require the respondent to set aside an order quashing certain garnishee proceedings pending in the Wayne circuit court, in which the relators, who reside in the state of New Y.ork, are the plaintiffs, and Moritz Block, who- also resides in the state of New York, is principal defendant, and William McCartney and Hale McCartney, of Ionia, in this State, are garnishee defendants. The principal suit was commenced on the 13th of November, 1894. There was no personal service upon the principal defendant, and no property of «the principal defendant was. subjected to process by attachment, nor was any credit of defendant, owing by a resident of Wayne county, subjected to process in garnishment. Among the persons named as garnishee was Levi Weiner, of Wayne county; but, before the disclosure filed by the McCartneys, the proceeding against Levi Weiner was' voluntarily dismissed by the plaintiffs.

It was held in Newland v. Circuit Judge, 85 Mich. 151, that, where both plaintiff and principal defendant are non-residents of . the State, suit may be maintained in this State, and the credits of the defendant subjected to the jurisdiction of the courts of- this State in the county where a debtor of the principal defendant resides. The question in this case is, in what county should such a proceeding be instituted? The proceeding in attachment in such cases must be had in the county where property of defendant may be found subject to attachment. How. Stat. § 7986. Either the garnishee statute must be construed in analogy with this statute, or it must be held that the creditor may* at his option, plant his case in any court in the State, and proceed against a garnishee defendant residing in any other county. For instance, suit may be instituted in Wayne county, and a writ of garnishment issue against a resident of Houghton county. Such a result is so clearly oppressive that we should hesitate to so construe the statute, unless it imperatively demands that construction, and we do not think it does. Nor do we think that the fact that a writ of garnishment was in the first instance issued against a resident of Wayne county, find after-wards discontinued, gives the court jurisdiction. It is true, section 8095 contemplates the issue of the writ to different counties; but this is only when there is jurisdiction of the original suit in the county where the suit is planted, obtained either by personal service of process, or attachment of property or credits within that county.

The writ will be denied, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    David S. Thomas v. Albert S. Abbott, Treasurer of the County of Antrim.

      Local option law — Validity of election — Proceedings of supervisors.

    1. The resolution of the board of supervisors, adopted in conformity to law, and the record thereof being regular, that an •election under the local option law has been prayed for by .the requisite number of electors, is conclusive of the preliminary steps necessary to set the board in motion; citing, Friesner v. Common Council, 91 Mich. 508.
    2. Under section 6 of the local option law of 1889, which provides that the order of the board of supervisors directing that an election be held “shall be entered in full upon the journal of the proceedings of the board for that day, and the same shall be signed by the acting chairman and clerk of the board before final adjournment,” it is sufficient if the journal for the day is signed after the close of the session. •
    S. The statute does not provide for the filing or keeping of any separate order, distinct from that entered upon the journal, and the provision that the board “shall thereupon issue an order directing that such election be held,” is 'complied with by the service upon the officers named in the act of copies of the order, and the publication of the same.
    4. Where, in the record of the day’s proceedings, other matters appear besides the resolution or order of the board directing the holding of a local option election, it is proper to omit such irrelevant matter from the notices served and posted, and to append thereto the 'Signatures of th^ clerk and chairman found at the close of the day’s proceedings as recorded.
    5. The law does not, in terms,, require the posting of the certified copy of the order served upon the township clerk, and it is •sufficient if said order is embodied in the notice of election . ., posted, by that officer. :
    6. Three of the inspectors signed the, original canvass of the-votes given in their township,; and apparently all joined in the returns that were canvassed by the board of supervisors. And it is held that the board had power to require an amended return if the one made was incomplete, and might, in certain cases, proceed and complete the canvass (see section 12 of the act) without a return.
    7. The commissioners of election have authority, under the more recent Australian ballot law, to provide ballots for a local option electión;' citing Double v. McQueen, 96 Mich. 39.
    8. The jurisdiction being shown by a valid record and canvass, the determination of the board of supervisors as to the . result of a local- option election is - final. - '• ’

      Certiorari to Antrim. (Corbett/J-.)'.
    Argued April 30, 1895.
    Decided July 2, 1895.

      Relator applied for mandamus to compel respondent to accept and file Ms bond as a liquor dealer, and brings certiorari to review order denying the writ.
    Affirmed.
    The fact's are stated in the opinion.

      W. 8. Mesich {Fitch B. Williams, of counsel), for relator.

      Leavitt & Gwile, for respondent.
   Hooker, J.

The relator filed his petition in the Antrim county circuit court, praying a mandamus to compel the treasurer of that county to accept and file his bond as liquor dealer, and, the writ being denied, he has brought the proceeding to this Court by certiorari. The petition for certiorari does not contain the allegations of error usual in such cases, and we find a voluminous record, raising numberless questions, some of wMch, apparently, are not relied upon, and others of which need no consideration, in view of the settled law of the State. We shall, however, overlook the absence of the allegations of error, and will consider such questions as seem to be of importance.

The main reason relied upon by respondent for his refusal to accept and file the bond is that the general-liquor law is superseded in Antrim county' by local proMbition, and it is to inquire into the validity of this that these proceedings are prosecuted. The board of supervisors met at a proper time to consider the submission of the question, and, by their action, determined, by resolution, that such election had been prayed for by the requisite number of electors. This resolution — being adopted in conformity to law, and the record thereof being regular — is conclusive of the preliminary steps necessary to set the board in motion. Not only is this made so by the law (Laws of 1889, No. 207, § 6), which provides that such determination shall be final as to the sufficiency of the petitions, and the requisite number of electors signing the same, but it has been so decided by this Court. Friesner v. Common Council, 91 Mich. 508; Covert v. Munson, 93 Id. 605.

We may therefore pass to the next question, which arises over the record of the order of election. No objection is made to the form of the order, but it is said that it was not signed by the chairman and clerk of the board of supervisors, as required by law. The resolution or order is recorded in the minutes of the board, and is followed by the statement, “Carried by ayes and nays as follows” (giving them and the result). This was followed by a resolution that the order be published, and the vote by ayes and nays upon that. Then followed the adoption of a resolution in relation to the survey of a road, and then the record of adjournment to the next day. Below this were the signatures. Section 6 of Act No. 207 provides that—

“Such order shall be entered in full upon the journal of the proceedings of the board for that day, and the same-shall be signed by the acting chairman and clerk of the board before final adjournment.”

It is contended that this means that the specific order must be signed, and that it must appear to-have been done before adjournment for the day. If this be so, the signatures must appear before the record of the vote, if the act is literally and technically complied with, and, moreover, the word “final,” before “adjournment,” is superfluous. No good reason is apparent for such a rule, and it does violence to the language “final adjournment,” as already shown. Again, the words “the same” can as consistently allude to “the journal” as to “the order.” This appears to be the common-sense construction, and was the one placed upon it by the officers. See How. Stat. § 501, which, in terms, requires all orders to be entered and signed, yet no board malees a practice of having each order signed. It accords with the usual practice of the ‘ boards in the signing of records, the journal of each daily session being signed after its close. In many instances-the records have been signed after final adjournment, as was the case in Covert v. Munson, supra. This was in-contravention of the express requirement of the law, and was so held.

It is next contended that the resolution signed by the officers upon the record is not “issuing an order,” within the language of the act. The act says that “they shall thereupon issue an order directing that such election be held,” etc. The law. goes on to provide what the order shall contain, when and where it shall be entered, and how signed, as already stated. It does not provide for the filing or keeping of any separate order, distinct from that entered upon the journal. It does not require any such to be signed, or delivered to anybody. The only issuing which the act provides for is the service of copies upon township officers, and publication of the same. This appears to have been done.

The board met and canvassed the votes, and a complete record of their action was made, including the tabulated statement provided by section 11. Objection is made to this because the entire proceedings of the day are signed, and not the canvass alone. After the canvass the board adopted a resolution of prohibition. We think that a sufficient signing. As already said, the law requires the journal for the day to be signed. See section 11.

Belator alleges that there were irregularities in the proceedings relating to the election, as follows:

1. That no proper notice of election was given,
2. That the ballots did not conform to law.
3. That the township inspectors did not properly authenticate their canvass of votes cast.
4. That votes were illegally counted.
5. That the returns by township inspectors were surreptitiously and unseasonably signed.

The notices served by the county clerk, and those posted' by the township clerks, were sufficient. The former contained copies of the order, to which were appended the ■signatures of chairman and clerk. The omission of the resolution about roads was proper. In all certified copies of portions of journals and court records, it is. usual to append the signatures found at the close of the day’s proceedings. The law does not, in terms, require the posting of the certified copy of the order. The notice must embody the order of the board, but it is a notice under the hand of the clerk. ,

Three of the inspector’s signed the original canvass of votes in the township, and apparently all joined in the returns that were canvassed by the board of supervisors, which had power to require an amended return if incomplete (see section 11); and they may, in certain cases, proceed and complete the canvass without a return (see section 12).

The law of 1889 (Act No. 207, § 8) provides for the printing of ballots by the county clerk, and it is argued that the provisions of the more recent Australian ballot law do not apply. It is alleged that the commissioners of election had no authority to provide ballots, and that ballots containing’both yes andmo votes, to be marked by a cross, were not lawful. We think otherwise, as indicated in the oases of Double v. McQueen, 96 Mich. 39; Peck v. Board of Supervisors, 102 Id. 346.

Section 13 of the act in question provides for action by the board when-the result of the county canvass shall .show that a majority of the votes cast is in the affirmative. Unless we are to hold that the validity of the local option law is subject to attack by every citizen in the county, in succession, and. liable to beheld valid one day and invalid the next, as the testimony in individual cases varies, we must conclude that the determination of the board is final. Such is the rule in county-seat cases, and this statute cited (section 13) implies as much in this case, while section 14 explicitly states that the resolution of prohibition is conclusive upon the regularity of the prior proceedings. The jurisdiction being shown by a valid record, a valid canvass, followed by the adoption of prohibition, must be held conclusive upon all. Pinkerton v. Staininger, 101 Mich. 273.

We think the circuit court was right in denying the writ, and his order will be affirmed.

Long, Grant, and Montgomery, JJ., concurred. McGrath, G. J., took no part in the decision.


text:
    Edward Kennett v. Washington A. Engle.

      Vicious dog — Action for injuries — Evidence—Expert testimony.

      1. Where, in an action brought to recover for injuries received from the bite of a dog, the facts concur of previous manifestations of malicious disposition by the dog, and knowledge or notice of this fact in the keeper, the general peaceable disposition of the animal from thence on becomes immaterial.
    2. A witness testified to having visited the defendant’s store on one occasion, and that the dog, without provocation, set upon witness, and chased him about the store, until the defendant spoke to the dog and quieted him. And it is held that it was competent for 'the defendant, for the purpose of showing that this, attack of the dog was playful, and not vicious, to show that boys were accustomed to come into the store and play with the dog.
    3. After testifying that he was not present when the boys were playing with the dog, the witness was asked on cross-examination if he did not know, as a matter of fact, that some of the boys used to go in and play with the dog, and get him to chase them. And it is held that the proposed testimony was hearsay, and properly excluded.
    4. The material question in the case was whether or not the skin on plaintiff’s leg was broken by the bite of the dog. As bearing upon this, a medical witness testified in behalf of the defendant that there was a scar on plaintiff’s leg; that he saw it immediately after plaintiff was bitten; that the scar was not attributable to the bite of the dog, and that he thought it resulted from an ulcer. Plaintiff’s counsel then exhibited a sear on his leg, and asked the witness to state what he thought caused it. The witness answered that he could not tell; that he could not say there had been an ulcer or running sore; that the sear might have been caused by one of a great many things; that it looked as if there was suppuration there; that he could not say whether the bone was injured, but it was not seriously injured. On rebuttal plaintiff’s counsel was permitted to testify, against objection, that the soar was caused by a wound he received from an ax when a boy; that a piece of bone was taken out; that there was never any running sore or discharge. And it is held that the testimony related to a collateral fact, and its admission was error.
    Error to Van Burén. (Buck, J.)
    Argued May 1, 1895.
    Decided July 2, 1895.
    Case. Defendant brings error.
    Reversed.
    Tbe facts are stated in tbe opinion.

      Boudeman & Adams, for appellant.

      Titus é McNeil (Franlc E. Knappen, of counsel), for plaintiff.
   Montgomery, J.

The plaintiff recovered a judgment for injuries arising from the bite of a dog. The evidence tended to show that tbe defendant was the keeper of tbe dog; that he was a physician and" druggist at Hartford; that the plaintiff went upon defendant’s premises to consult him as a physician.; that he was bitten by the dog; and that, as a result of the injury, he was prevented from following his business as a laborer for a considerable length of time. The judgment recovered was for $200. Defendant brings error.

We shall pass over many of tbe assignments of error, for the reason that, in our judgment, they fall within established rules. We shall notice those which we think present questions which call for discussion.

The defendant offered to show upon the cross-examination of the plaintiff’s witnesses, and by affirmative testimony, the character of the dog in question, as having a kind and peaceable disposition; and perhaps the most important question in the case is whether this testimony was admissible. It is undoubtedly - the law — and the charge of the court so laid it down — that, in addition to the facts of the injury to the plaintiff from the bite of the dog, it was incumbent upon the plaintiff to prove that the dog had on previous occasions manifested a vicious disposition, indicating a disposition to bite mankind, and that the defendant had knowledge or notice of the fact. It is contended by the defendant that there was not sufficient testimony to establish these two propositions, but, without setting it out at length in this opinion, we think there was such testimony to go to the jury. Where these facts are shown, it seems, on authority, that it is immaterial what the general character of the animal is. If he has manifested a disposition to bite mankind, the law casts the burden upon the owner or keeper to take measures to see to it that the animal is so restrained that he cannot do an injury to another. Some of the oases have gone great length in this direction. In Smith v. Pelah, 2 Strange, 1264, it was said:

“If a dog has once bit a man, find the owner, having-notice thereof, keeps the dog, and lets him go about or lie at his door, an action will lie against him at 'the suit of a person who is bit, though it happened by such person’s treading on the dog’s toes; for it was owing to his not hanging the dog on the first notice. And the safety of the king’s subjects ought not afterwards to be endangered.”

This is an extreme case, and perhaps should not be followed, and was not followed by the circuit judge in the present case, for he charged the jury, in effect, that, if the injury resulted from any fault of the plaintiff, he could not recover. But in two well-considered cases it has been determined that where the facts concur of previous manifestations of malicious disposition by the dog, and knowledge of this fact in the keeper, the general peaceable disposition of the dog from thence on becomes immaterial. See Buckley v. Leonard, 4 Denio, 500, and Mann v. Weiand, 81½ Penn. St. 243.

It is contended that, where the evidence is in dispute as to whether the facts of notice and previous manifestation of disposition exist, such testimony is admissible as bearing upon the probability of the main facts. We would say the better statement would be that, where the acts sought to be shown are such as to characterize the acts proven by the plaintiff, they are admissible. To illustrate, there was evidence given in the present case by a young man, Roy Andrews, that he visited the store of the defendant on one occasion, and that the dog, without provocation, set upon him, and chased him about the store, until the defendant spoke to him and quieted him. For the purpose of showing that this attack of the dog was playful, and not vicious, defendant called witnesses to show that boys were accustomed to come into the store and play with the dog. This testimony, we think, was competent, and the circuit judge received it for that purpose.

Complaint is made that defendant wa,s not permitted to show this by the cross-examination of Andrews. He testified that he had not been in the store while the boys were playing with the dog. He was then asked:

‘Did you know, as a matter of fact, that some of the boys used to go in and play with the dog, and get him to chase them?”

We think there was no error in the exclusion of this testimony, for the reason that whatever information the young man may have had upon the subject must clearly have been hearsay, as it already appeared that he was not present on any of the occasions when the boys were engaged in play with the dog.

Plaintiff had called as a witness one Daniel Poole, who had testified that on one occasion, shortly before the injury to plaintiff, he had gone into the yard of defendant in the evening, and that the dog had attacked him. It was sought to show by this witness generally that the dog was of a gentle disposition, and that he had seen him playing with children. At the time this testimony was given, the testimony'of the witness Andrews was not before the jury; and the fact that the dog had played with children did not tend to throw light upon the nature of the attack which the dog had made upon the witness Poole. The testimony was, therefore, within the rule of the cases cited, and properly excluded.

The defendant called as a witness one Dr. Lawrence, who testified that he had examined the leg of plaintiff after he was bitten by the dog, and that he discovered indications that there had been an ulcer on the leg beforer and that he was able to determine this by the sca.r. Plaintiff’s counsel then exhibited to witness a scar on his-leg, and asked him to state what he thought caused that. The doctor replied:

“I could not tell wha,t caused it. One thing is certain, — the bone was not involved there. It must have been the result of a bruise or some kind of a flesh wound. I could not say that there had been an ulcer or a running sore. It might have been caused by one of a great many things. It looks as if there was suppuration i there. Could not say whether the bone wa's injured, but it was not seriously injured.”

On rebuttal, plaintiff’s counsel took the stand, and,, against the objection of defendant, testified:

“This scar I showed this morning to the jury, which the doctor said looked like an ulcer, had been one discharging pus, is a wound I received by an ax when I was a boy, and took a piece of the bone out. There never was any discharge or any running sore, but it kept me about three months laid up, so I could not walk.”

We think it was error to admit this testimony. It related to a collateral fact. It is a general rule that it is not competent to offer testimony with a view of discrediting a witness by calling other witnesses to dispute him as to collateral facts. Best, Ev, (International ed.) 603, and eases cited. And, while it is sometimes true that facts not otherwise relevant are deemed to be relevant if they support or are inconsistent with the opinions of experts when such opinions are deemed to be relevant (see 7 Amer. & Eng. Enc. Law, p. 80), yet, in the present case, it is to be borne in mind that the doctor did not undertake to speak with certainty as to the nature'of the injury to counsel’s leg, or that the sear upon his leg corresponded with that upon the leg of plaintiff, or was due to a like cause. Under these circumstances, we think the issue was clearly a collateral one. The material question was whether the skin was broken on the plaintiff’s leg by the bite of the dog. As bearing upon this, the doctor testified that there was a scar on the plaintiff’s leg, and that he saw it immediately after he was bitten, that was not attributable to the bite of the dog; that he thought this was a scar resulting from an ulcer. If he had stated that the scar upon the leg of counsel resulted from the same cause, there would be more room for saying that the testimony given by the counsel tended to contradict his statements; but he did not so state, and the testimony, therefore, was not admissible.

We regret the necessity for reversing the case on this ground, as it appears that the circuit judge carefully guarded the rights of the defendant, and it is at least doubtful whether the testimony was of a nature which worked any injury to the defendant, and yet we are not prepared to say that it did not. The effort, evidently, was to make it appear to the jury that the doctor, whose testimony appears to be candid, was confounded by the testimony of a layman, and that by testimony which had no business in the case. On the whole, we do not feel that we can overlook the error, but we feel constrained to say that it was wholly unnecessary for the defendant to present a record of the volume which was presented in this case in order to raise this question. The fact .that an error of this kind has crept into a trial ought not to be made the means of inflicting punishment upon the party, and we shall limit the taxation of costs for the brief and record to 30 pages.

Judgment reversed.

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


author:
Montgomery, J.
      Grant, J.

text:
    The People v. Edwin N. Rathbun.

      Criminal laiv — Motion in arrest of judgment — Aiding escape of prisoner — Sufficiency of information.

    1. A motion in arrest of judgment has always been proper practice in a criminal ease.
    2. The denial of such a motion is reviewable on error, notwithstanding the failure of the circuit judge to give his reasons for such ruling.
    3. Such a case is distinguishable from McRae v. Lumber Co., 102 Mich. 488, which arose under Act No. 134, Laws of 1893, which provides for the incorporation in the bill 'of exceptions of the reasons of the circuit judge for refusing a new trial.
    4. The use of the word “unto,” instead of the word “into,” in an information for a violation of How. Stat. § 9245, which provides that “every person who shall convey into any jail, prison, or other like place of confinement, any disguise, or any instrument, tool, weapon, or other thing, adapted or useful to aid any prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, * * * shall be punished,” etc., Is a fatal defect, and may be taken advantage of by a motion in arrest of judgment.
    5. Such a defect, not being the mere omission of a word necessarily implied from the text, cannot be cured by amendment, nor can the omission of the statutory word be overlooked.

      Exceptions before judgment from Van Burén. (Buck, J.)
    Argued May 7, 1895.
    Decided July 2, 1895:
    .Respondent was convicted of unlawfully conveying into a jail certain keys with intent to aid in the escape of a prisoner.
    Conviction reversed, and prisoner discharged.
    The facts are stated in the opinion.

      Heclcert & Ghmdler, for respondent.

      Fred A. Maynard, Attorney General, and L. E. Titus, Prosecuting Attorney, for the people.
   Montgomery, J.

Section 9245 of Howell’s Statutes provides that—

“Every person who shall convey into any jail, prison, or other like place of confinement, any disguise, or any instrument, tool, weapon, or other thing, adapted or useful to aid any prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, * * * shall be punished,” etc.

■ The information in this case charged that the respondent, on the 26th day of October, 1893,— *

“Did feloniously and unlawfully convey unto the jail aforesaid, to wit, four keys, the said keys being adapted and useful to aid any prisoner in making his escape, with intent to facilitate the escape of the said George W. Deuel from said jail, he-being such-prisoner as’aforesaid.”

The respondent was convicted, and, after conviction, moved in arrest of judgment, alleging, as one ground for the motion, that the information did not cover the offense defined by the statute. The motion for arrest of judgment was overruled. It is contended by the counsel for the people that under the rule laid down in McRae v. Lumber Co., 102 Mich. 488, this question cannot be passed upon in this Court, for the reason that the circuit judge, in refusing a new trial, did not give his reasons. That case, however, was based upon a statute relating to a review of motions for a new trial. In the present case the question raised is one which was open to review by the Court before the enactment of this statute. A motion in arrest of judgment has always been proper practice in a criminal case.

We think this motion should have prevailed. How. Stat. § 9537, permits an amendment in the name of any county or place stated in the indictment, in the name or description of any person or body stated to be the owner of any property which is the subject of the offense charged, in the Christian or sur name of any person, in the name or description of any thing, in the name or description of any writing, in the ownership of any property described in the indictment, “and in all cases whenever the variance between the facts alleged in the indictment and those proved by the evidence are not material to the merits of the case.” Section 9539 provides that, when the offense charged has been created by any statute, the indictment shall, after verdict, be held sufficient to Avarraint the punishment prescribed by the statute, if if describes the offense in the words of the statute. The practice of the Court has been liberal in allowing amendments under section 9537 in the particulars especially authorized by statute. See People v. Hamilton, 76 Mich. 212; People v. McCullough, 81 Id. 25; People v. Waller, 70 Id. 237; People v. Mott, 34 Id. 81. It is very clear that the respondent might have been guilty of all the acts charged in the information, and yet not be brought within the terms of the statute defining the offense. Were the defect a mere omission of a word which -is necessarily implied from the test, it might be supplied by amendment, or the omission overlooked. Garvin v. State, 52 Miss. 207. But such is not the case here.

The judgment will be reversed and respondent discharged.

MoCrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.

Grant, J.

(dissenting). Bespondent was convicted under section 9245, How. Stat. The information was filed and conviction had under the first clause, which makes it an offense “to convey into any jail, prison, or other like place of confinement, any disguise, or any instrument, tool, weapon, or other thing, adapted or useful to aid any prisoner in making his escape, with intent to facilitate the_ escape of any prisoner there lawfully committed or detained.” The record contains many assignments of error, but they are grouped by respondent’s counsel under two heads, and we will treat them in the same way.

The complaint charged respondent with carrying unto the jail certain keys, etc. The warrant and information followed the complaint in the use of the word “unto^’ instead of “into.” It is now insisted that the word “unto” has a different meaning from “into,” and that, therefore, no offense, is charged. This question was raised for the first time by a motion in arrest of judgment. The court, in its instruction, used the word “into,” and it is apparent that throughout the trial was conducted upon the understanding that the offense wa.s properly set forth. Had the attention of the court been called to it, an amendment would have been allowed. The objection, even if it were good, comes too late.

It is insisted that no offense was established by the proofs. Bespondent had just completed the service of a sentence in the jail. Early in the evening of the day of his discharge, he appeared at the entrance door of the jail, in the hall running east and west. The jail proper was on the north side of this hall, and the living rooms of the jailer were on the south side. There was another entrance to the jail on the west, which opened into a yard with a high board fence around it. The evidence on the part of the people showed that respondent requested one Frank Ormsbee to accompany him to the jail, and play for the inmates on an instrument called a “mouth organ.” Ormsbee went, and, while he was playing, respondent was talking with the prisoner whom, it is claimed, he was trying to assist in escaping. After talking with him a few moments, respondent went into the residence portion of the jail, and returned with a bunch of keys, with which he tried to .open the jail door. The keys could not be passed inside the room where the prisoners were confined, because of a strong wire netting over the bars of the door. A bunch of jail keys disappeared from the jail that day. It contained the keys which opened the west door, but not the south door, — the usual entrance. Respondent was familiar with the residence portion of the jail, and there is evidence from which it may be inferred that he knew where the keys were usually kept. Respondent testified that in a joke he took a key from his pocket, and made a mock attempt to open the door.

The real purpose of respondent was the proper subject of inquiry and determination by the jury. The obtaining of the keys, and bringing them to the door, with the intent to use them himself, or to let others use them, to assist an escape, was a bringing into the jail, within the meaning of the statute. The hall must be considered a part of the jail. The fact that they would not unlock the door is not conclusive that they were not adapted or useful for the purpose intended. The law does not mean that '.the keys or other tools must be so nicely made as to accomplish the escape with the least possible delay or effort. The law means such tools as, when properly .constructed, are adapted or useful for the purpose. If one secures or makes a key which he believes is or may be adapted or useful for the puipose, and conveys it into the jail with the evil design described in the statute, it would be a strange rule which would acquit him because the key would not fit.

I find no error, and the conviction should be affirmed.


author: McGrath, C. J.

text:
    The People v. Charles Oscar, Jr.

      Criminal law — False pretenses — Information—Defenses.
    1. A complaint in a false pretense case alleged, in substance, that respondent represented, that there was a house of the value of $1,200 upon certain lots which the respondent mortgaged to secure a loan of money, whereas there was in fact no house on the lots. And it is held that the complaint set forth an offense of which the statement alleged to have been made by respondent respecting value, which might be regarded as a mere opinion, was not an essential element.
    2. On the cross-examination, additional matter, namely, “that the said lots were of the value of $1,200, and that there was then and there and at that time a new house of the value of $1,200 on said lots, and that said house was new, and that it cost more than $1,200 to build the same,” was brought out. And it is held that such new matter was a part of the same transaction, and properly set forth in the information; citing People v. Annis, 13 Mich. 510.
    8. It is immaterial in such a case whether or not the respondent had any other property than that concerning which the representations were made, nor will he be permitted to excuse himself by saying that, if the party defrauded had chosen, he could have sued the respondent and recovered his money.
    Exceptions before judgment from Ionia. (Davis, J.)
    Argued May 8, 1895.
    Decided July 2, 1895.
    Respondent was convicted of obtaining money by means of false pretenses.
    Conviction affirmed.
    The facts are stated in tbe opinion.

      Burbanh & Pealce {A. A. Ellis and Charles P. Loche, of counsel), for respondent.

      Fred A. Maynard, Attorney General, and B. A. Haioley, Prosecuting Attorney, for the people.
   McGrath, C. J.

Respondent was convicted of obtaining money upon false pretenses. The complaint set forth that respondent, with intent to cheat and defraud one Seig, and fraudulently obtain from him $350, applied to Seig for a loan of said amount, and did represent that he was the owner óf a one-half interest in two lots of land, and to induce Seig to loan him the said $350, and to take a mortgage as security on said lots, and with intent to cheat and defraud said Seig, he represented that “the said lots were of the value of $1,200, and that there was then and there and at that time a house of the value of $1,200 on said lots, * * * whereas, in truth and in fact, at the time the said Charles Oscar, Jr., made the said false and fraudulent representations aforesaid, said lots were not worth the sum of $1,200, and were not worth to exceed $100. There was not then and there any house Whatever on said lots.” The warrant and return of the justice set forth the offense in the same language. An examination was had, and the respondent bound over. The justice made return that — •

“It appearing to me upon the examination of said Charles Oscar, Jr., that the offense so charged in the complaint and warrant, as aforesaid, has been committed, and that said offense is not cognizable by a justice of the • peace, and that there is probable cause to believe the said Charles Oscar, Jr., to be guilty of the commission thereof, I,” etc.

The information charged, in addition to what is set forth in the complaint, warrant, and return, that respondent represented—

“That the said lots were of the value of $1,200, and that there was then and there and at that time a new house of the value of $1,200 on said lots, and that said house was neto, and that it cost more than $1,200 to build the same.”

Upon the arraignment of the respondent, his attorneys moved to quash the information, for the reason—

1. That respondent had never had any preliminary examination of and concerning said charges in the said information, and.had never waived the same.
. 2.- Because the original complaint charged no offense known to the law.

,' The motion was overruled.

■ The court was right in denying the motion. The complaint alleged, in substance, that respondent represented that there was a house of the value of $1,200 upon the lots, whereas there was in fact no house thereon. The complaint' did set forth an offense of which the statements alleged • to have been made by respondent respecting values, which might be regarded as mere opinions, were, not essential elements. The additional matters set up in, the information, as brought out upon the examination, related to that offense, and was a part of the same transaction. People v. Annis, 13 Mich. 510. The testimony, clearly tended to show that there was no house, in the sense that the word is generally used, upon the premises; that the dwelling upon the lots had been destroyed by fire some time before; that the premises were situate in a distant county, and that there was upon the lots an old building, the estimated cost of the construction of which was $30. The court instructed the jury that the representations as to value were not material allegations for the purpose of obtaining a conviction upon, and that “as to whether he made a statement of its value [referring to the value of the lots], and as to what its true value may be, is only a circumstance to be considered by you in determining the intent with -which he made the other statement,; — as to there being a new house upon the land, and what it cost to build it.”

Complaint is made that the court instructed the jury:

“Something has been said, gentlemen, about this man haying other property, and about Seig not commencing any. private action to recover his money. It matters not whéthér respondent had any other property or not, in this case. If he made the false pretenses as claimed by the people, in the manner claimed by the people, he is guilty, if they have established it beyond a reasonable doubt. The crime charged was the false pretenses in regard to this particular property, not in regard to something else. Mr. Seig was entitled as a man and a citizen, in the reception of that mortgage, to the truth in regard to the security that was being offered. A man cannot come in at a later day, if he is guilty, and excuse his' guilt or wipe it away by saying, ‘I had other property; if you had chosen you could-have sued me and recovered.’ Mr. Seig was not obliged to do that. I speak of that, gentlemen, in connection with the fact that something has been said by counsel in regard to it.”

This instruction states the correct rule. Seig declined to part with his money unless its payment was secured. The offer of security, which was represented to be ample, was the means employed to induce him to part with his money. As is said in Com. v. Coe, 115 Mass. 481, 502:

“The offense consists in obtaining property from another by false pretenses. The intent to defraud is the intent, by the use of such false means, to induce another to part with his possession and confide it to defendant, when he would not otherwise have done so. Neither the promise to repay nor the intention to do so will deprive the false and fraudulent act in obtaining it of its criminality. The offense is complete when the property or money has been obtained by such means, and would not be purged by subsequent restoration or repayment. Evidence of ability to make the repayment is therefore immaterial and inadmissible. The possession of the means of payment is entirely consistent with the fraud charged. The evidence offered on this point did not touch the question of falsity and fraud of the means by which the loan was obtained, and was properly rejected.”

The conviction is affirmed.

The other Justices concurred.