text:
    ROBINSON v. BRANCH CIRCUIT JUDGE.
    1. Arrest — Capias—Affidavit—Sufficiency.
    Generally speaking, an affidavit for a capias must aver, in terms, that the facts and circumstances enumerated therein are within the personal knowledge of the affiant.
    2. Same — Motion to Quash Capias — Denial—Mandamus.
    An affidavit for a capias charged relator with official misconduct, evidenced, in part, at least, by public records, and affiant stated that, according to such records, which he had examined, and of which he produced copies, certain things appeared. Relator admitted that the facts shown by the records were true, but contested only the conclusion drawn by affiant therefrom. Held, that mandamus, not being a writ of right, would not be granted to compel the vacation of an order denying a motion to quash the writ, because the affidavit was not sworn to on affiant’s personal knowledge.
    Mandamus by Tom F. Robinson to compel George L. Yaple, circuit judge of Branch county, to set aside an order denying a motion to quash capias ad respondendum proceedings.
    Submitted October 31, 1905.
    (Calendar No. 21,343.)
    Writ denied November 21, 1905.

      Reynolds & Reynolds, for relator.

      R. J. Ashdown, for respondent.
   Ostrander, J.

Relator was arrested July 6, 1903, upon a writ of capias ad respondendum,'gave a bond for his appearance, in accordance with an order indorsed upon the writ, and was released from custody. July 17, 1903, a declaration was filed in the cause. Without entering appearance, respondent, on August 15, 1903, moved to quash the proceedings, basing the motion upon his own affidavit, filed, and the records and files of the case. The particular reasons stated in the motion are:

1. That the affidavit for the writ does not show the facts therein stated to be within the personal' knowledge of affiant.

2. That such facts were not within the personal knowledge of affiant.

3. That the affidavit does not show that plaintiff, village of Union City, has a claim for damages for the cause of action stated in the writ.

4. That the said affidavit does not state any fact or facts showing fraud on the part of defendant (relator).

5. That the said affidavit is indefinite.

6. Same in substance as (1) and (2).

7. That a certified copy of the said affidavit was not served upon relator.

This motion coming on in March, 1904, to be heard, it was denied. In May, 1904, relator renewed his motion to quash, basing it upon the record and files, upon his affidavit, and the affidavits of others. Excepting the seventh, the reasons assigned in this motion are like those in the motion first made. This motion was, in July, 1905, after hearing, denied. Thereafter relator applied to this court for, and obtained, an order requiring the circuit judge to show cause why the writ of mandamus should not issue to comjpe! the setting aside of the orders denying said motion to quash and the entry of an order quashing the proceedings.

It is stated in the return, and it appears from the papers, that no reason was given for not including in the first motion all of the matters appearing in the second motion to quash. The affidavit, the sufficiency of which is questioned, was made by the president of the village of Union City for and in behalf of said village. Attached to the affidavit, and referred to in the affidavit, are certain alleged copies of village records, certified to by the proper custodian of said records under seal of the village. The affidavit, omitting formal parts, and omitting the copies of records referred to therein, reads as follows:

“ Alfred R. Barrett, of the village of Union City, in said county, being duly sworn, deposes and says that he is the duly elected and qualified, - and, as such, acting as the president of the village of Union City, county of Branch, duly incorporated as such under the laws of the State of Michigan, and as such president and officer makes this affidavit for and in behalf of said village of Union City.
“ Deponent, further says that, by virtue of his said official position, he has authority, and does, as such, and has at different times heretofore examined the books, records, and papers of all officers of said village, and all records pertaining to the business and proceedings of said village of Union City.
“ Deponent further says that he has examined the records of the council proceedings of said village of Union City, and that the.f olio wing is a true copy of a resolution, as appears of record in the journal of said council proceedings of said village of Union City:
“ ‘Council Chambers, Union City, Mich., Feb. 23, 1903.
“ ‘ On motion of Trustee Bradner, the sum of three hundred and thirty dollars was appropriated for the purchase of one thousand copies of Peerless Union City, and the payment of postage'thereon, said copies to be mailed to various parts of the country for advertising, under the direction of the clerk.’
..“Deponent further says that the foregoing resolution is the only resolution or proceeding or record of any nature of the action of said council of the said village relative to the subject-matter in said resolution contained, either before or since the date thereof.
“ Deponent further says that, as is also shown by the records of said village of Union City, at the date of said resolution, and for some time prior thereto, Tom F. Robinson was the duly elected and qualified clerk of said village, and acting as such. That said Tom F. Robinson was then and there the author and publisher, and directly interested in the compilation and the sale of, said Peerless Union City, an illustrated and descriptive publication of biographical and historical reminiscences of said village of Union City.
‘ ‘ Deponent further says that the said Tom F. Robinson, while so acting as clerk of said village, as aforesaid, and while so interested in the publication and sale of said Peerless Union City, as aforesaid, he, the said Tom F. Robinson, then and there contriving and intending to, without authority, illegally and unlawfully, secretly and fraudulently, did on the evening of said 23d day of February, 1903, the same date the aforesaid resolution bears date, did then and there draw an order or warrant in favor of and payable to himself, without the presentation of any bill or claim whatsoever in favor of himself or any other person to the said council, and without any authority from said council, or any person in behalf of said village, and did afterwards, on the 28th day of February, 1903, present to the bank said order or warrant, without having same indorsed by the president of said village, and did then and there draw the amount of three hundred and thirty dollars thereon from the funds of said village for his own use, as shown ,by the records and books of said village of Union City, a certified copy of which book record and entry on stub record, certified by the clerk of said village, is hereto annexed and made a part hereof.
“That said Tom F. Robinson, further contriving and intending to deceive and defraud said village of Union City, did on the evening of the 28th day of February, 1903, after the drawing of said order or warrant in favor of himself, and after receiving and drawing the said amount of three hundred and thirty dollars thereon, did make and submit his final annual report to the said council of said village of the amounts drawn on orders or warrants, and the financial statement of the said village, in which said report said amount of three hundred and thirty dollars and the order and warrant drawn for the same, as. aforesaid, and the amount so received by said Tom F. Robinson, as aforesaid, was suppressed and omitted, and no report thereof made to the council of said village at that time, nor at any other time since. A certified copy of which said report, certified by the clerk of said village of Union City, is hereto annexed and made a part of this affidavit.
“ Deponent further says that it was not until after the expiration of the term of office of the said Tom F. Robinson as clerk of said village, which expired on the 16th day of March, 1903, when he was succeeded in office by George Styles as clerk, that for the first time it became known to the council of said village that said sum of three hundred and thirty dollars had been received and drawn by said Tom F. Robinson, as aforesaid.
“Deponent further says no copies of said Peerless Union City publication have ever been delivered to the said village of Union City by the said Tom F. Robinson. That no claim has, of any name or nature, ever been presented to the said village by the said Tom F. Robinson for and of said copies, and of said publication delivered, or claimed to have at any time been delivered, to the said village of Union City, or to any person or persons for the expense of said village of Union City. That deponent has served a written notice and demand on the said Tom F. Robinson, notifying and requiring the said Tom F. Robinson to furnish to the present clerk of said village a mailing list of the persons to whom copies of said Peerless Union City has been mailed, if any, and also in said written notice demanding of said Tom F. Robinson to return to treasurer of said village of Union City the balance pro rata, to the amount of thirty-three cents per copy, of all copies less than one thousand that has been mailed out by the said Tom F. Robinson during the time he remained in office as the clerk of said village, which said demand and notice was made on behalf of said village, was made as a means and for the purpose of a compromise proposition on behalf of said village for a settlement of said matter between the said village of Union City and the said Tom F. Robinson.
“ Deponent further says that the said Tom F. Robinson has admitted to this deponent that he, the said Tom F. Robinson, has never at any time delivered to the said village of Union City the said one thousand copies of said Peerless Union City publication, and that he, the said Tom F Robinson, has never at any time mailed out one thousand copies of the same, but claims to have so mailed out less than three hundred copies thereof to any persons on behalf of, or at the expense of, or to the charge of, said village of Union City; which said admissions, so made, as aforesaid, by the said Tom F. Robinson, that he had not delivered or mailed said one thousand copies to said village, nor any persons for said village, were made in person by said Tom F. Robinson to this deponent, and said admissions were also made in open meeting last held by the council of said village June 29, 1903, at the time deponent served the said notice and demand, as aforesaid, on said Tom F. Robinson, which was served on the 26th day of June, 1903.
‘ ‘ Deponent further says that the said Tom F. Robinson has paid no attention at all to said notice and demand so served on him, and that he has stated and informed deponent in person that he would pay no attention to it at all. That said Tom F. Robinson has wholly refused to comply with the said notice and demand, has not accepted the opportunity therein proposed to compromise the matter, and has so informed deponent that he does not intend to.
“ Deponent further says that said Tom F. Robinson has wrongfully, willfully, and intentionally deceived, defrauded, and misappropriated to his own use, from the moneys and the funds for the said village of Union City, the sum of three hundred and thirty dollars, and has appropriated the same to his own use, he, the said Tom F. Robinson, at the time thereof being an officer of said village of Union City, being duly elected by a vote at large of the voters of said village of Union City, duly qualified and acting as such at the time thereof.
“Deponent further says that "the said Tom F: Robinson has never executed and delivered to said village any bond as such clerk, and that it has not been by said village required that the clerk of said village be required to give a bond in the past, and that therefore the said village is in no manner secured for the said amount of three hundred dollars, and affiant verily believes that the benefit of whatever judgment which the said village of Union City may obtain in a suit against the said Tom F. Robinson will be in danger of being lost unless a capias ad respondendum be issued against the said Tom F. Robinson, and unless the said Tom F. Robinson be held to bail.
‘ ‘ Affiant further states that the said village has been and is greatly damaged and has suffered damages by the misconduct, neglect, and wrongful acts in public office of the said Tom F. Robinson to the amount of three hundred and thirty dollars, which said sum deponent verily believes said village of Union City is justly entitled to recover against said Tom F. Robinson.”

The records referred to show a stub of an - order in the stub book of the general fund having printed and written thereon, “$330. No. 3, Feb. 3,1903. Name, T. F. Robinson. For 1,000 copies Peerless Union City and postage. General fund.” Also a charge in the clerk’s warrant book, under the head “ General Fund,” “Feb. 23rd, 1903. T. F. Robinson for books and postage, $330.” Also a report signed by the president and clerk, Tom F. Robinson, approved by the council March 2, 1903, which purports to be the annual financial statement of the village for the year ending February 28, 1903, which does not contain any entry of the said sum of $330, indicated by the stub book and warrant book, aforesaid. There was also before the circuit judge, upon the hearing of the second motion, the affidavit of relator, filed in support of said motion, in which it is expressly admitted by relator that he did, while clerk of the village, enter into an arrangement to sell to the village copies of a publication in which he was personally interested; that he did make such sale, and did draw the order referred to, and had it cashed on February 28, 1903, in which affidavit, also, facts are set out tending to negative misconduct, fraud, or concealment on the part of relator in connection with the' matter. . The other affidavits filed by him tend also to prove the facts stated in the affidavit for the capias, and to negative the fraudulent or improper character of the transaction.

It is manifest that the circuit judge could not try the case between relator and the village upon affidavits, and the only question here is whether the affidavit for the writ was defective, and whether relator, upon the whole record, is entitled to have the writ of mandamus issued in his favor. It is true, generally, that the affidavit must aver, in terms, that the facts and circumstances enumerated in the affidavit are within the personal knowledge of the affiant. Shaw v. Ashford, 110 Mich. 534; Sheridan v. Briggs, 53 Mich. 571. It does not follow, however, that in cases where a wrongful act is ' evidenced, in whole or in part, by public records, the remedy by capias must be denied because there is no one who can testify personally to the making of the record, or the truth of the entries found therein. The affiant states that, according to certain records, which he has examined, certain things appear, and he produces certified copies of the record to support his assertion. He avers that relator, while acting as clerk of the village of Union City, drew a certain order in his own favor on a certain day, and on a certain other day secured the money upon the order, ‘ ‘ as shown by the records and books of said village of Union City.” Affiant avers that the resolution of the council, set out in the affidavit, is the only resolution or proceeding of record relative to the subject-matter of said resolution. Having stated what the records show, and produced copies of the same, it further appearing that relator was an officer of the village and custodian of such records at the dates named, affiant reaches and states the natural conclusion. But whether or not the affidavit is technically sufficient, the writ asked for is not one of right, and, as relator made it to appear to the circuit court that the facts shown by the records set out in the affidavit are true, contesting and disputing only the conclusion of affiant, we shall decline to compel by mandamus vacation of the order denying the motion to quash.

Writ denied.

Moore, C. J., and McAlvay, Grant, and Hooker, , JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    TRAVERSE BEACH ASS’N v. TOWNSHIP OF ELMWOOD.
    'Taxation — Recovery op Taxes Paid — Payment Under Protest.
    Where property was properly assessable in the township, and the taxpayer did not appear before the board of review to object to the inequality of the assessment, and paid the tax without being forced to do so by a levy made or threatened, or by duress, and without making the written protest, specifying the grounds thereof, authorized to be made by section 3876, 1 Comp. Laws, but merely had entered on the margin of the tax roll and in the tax receipt the words “Paid under protest,” the taxpayer cannot sue the township, and recover back the tax so paid.
    Error to Leelanau; Mayne, J.
    Submitted November 8, 1905.
    (Docket No. 100.)
    Decided November 21, 1905.
    Assumpsit by the Traverse Beach Association against ■the township of Elmwood for taxes paid under protest. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Dwight D. Boot, for appellant.

      Patchin & Orotser (A. F. Bunting, of counsel), for appellee.
   Moore, C. J.

This is an action brought by the plaintiff for taxes assessed against its property for the year 1902. The judge directed a verdict in favor of defendant. The case is brought here by writ of error.

Upon the trial the attorney for the plaintiff made a brief opening statement, in which he claimed the tax was void because of inequality of assessment, and that it was paid under protest. He sought to introduce testimony tending to show that this property was assessed higher than like property in the same township was assessed. This was objected to, because plaintiff made no claim of fraud or bad faith on the part of the assessing officer, and also because plaintiff did not appear before the board of review, and make complaint of the inequality of assessment. This objection was sustained. Plaintiff put in evidence the record of the board of review, which record did not show that any one appeared before the board on the part of the plaintiff to complain of the assessment; counsel for the plaintiff claiming that it was a presumption of law, when the record was silent, that some one did appear and object.

On the part of the defendant, it was shown by the supervisor that the plaintiff did not appear before the board of review. The record of the board of supervisors was introduced, showing the levy of a bridge tax, which it is now claimed was illegal. No evidence was introduced ¿showing that, for the purpose of collecting the tax, a levy was made or threatened, or that it was paid under duress. The only evidence that it was paid under protest which was offered is an indorsement made on the margin of the tax roll, “Paid under protest,” and a statement in the tax receipt, “Paid under protest.” No other protest was •shown to have been made.

Counsel for appellant says that where an assessment is void there is no necessity for appearing before a board of review before suing to recover the taxes paid; citing Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466. An examination of that case will show it a very different one from the case before us. In that ■case a levy was threatened, and the payment was made under protest, and to prevent a seizure of the property. Upon the hearing before the Supreme Court, no attempt was made to sustain the validity of the tax. The property upon which it was levied was not taxable in the township where the assessment was made. In the case at bar there is no claim, and could be none, that the property was not properly assessable in defendant township. It was not shown upon the trial that the payment of the taxes was involuntary. No such protest .in writing as is provided for in section 3876, 1 Comp. Laws, was shown. We know of no case where, under the facts disclosed by this record, the plaintiff was allowed to sue the township, and recover for the taxes paid by him. As to when the taxpayer must appear before the board of review, see Latham v. Board of Assessors of Detroit, 91 Mich. 509; Michigan Sav. Bank v. City of Detroit, 107 Mich. 246; Hinds v. Township of Belvidere, 107 Mich. 667. As to the effect of making a protest, See Wattles v. City of Lapeer, 40 Mich. 624; Louden v. City of Hast Saginaw, 41 Mich. 18; Aurora Iron Mining Co. v. City of Ironwood, 119 Mich. 325.

Judgment is affirmed.

McAlvay, Montgomery, Ostrander, and: Hooker, JJ., concurred.


text:
    ARMSTRONG v. RORICK.
    Action on Account — Evidence—Amount Due.
    In an action to recover a balance due for goods sold and delivered on open account, evidence examined, and held, to show the existence of the balance claimed by plaintiff to be due.
    Error to Lenawee; Chester, J.
    Submitted November 9, 1905.
    (Docket No. 106.)
    Decided November 21, 1905.
    Assumpsit by Edwin E. Armstrong, Henry I. Armstrong, and Burke M. Graham, copartners as Armstrong & Graham, against Leroy W. Rorick for goods sold and delivered. There was judgment for defendant, and plaintiffs bring error.
    Reversed.

      Smith, Baldwin & Alexander, for appellants.

      Burton L. Hart and Jacob N. Sampson, for appellee.
   Moore, C. J.

Plaintiffs are wholesale dealers in saddlery, harnesses, and horse furnishings at Detroit, Mich. Defendant and his son kept a retail harness shop in the village of Morenci, Lenawee county, Mich., for some years, up to January 1, 1900, at which time they dissolved partnership, and the business was thereafter run by L. W. ítorick. The defendant is a farmer, and the proof shows he had but little business experience prior to engaging in the harness business, and gave that business not much of his personal attention, but depended upon the man in charge, while Mr. ítorick gave his attention to his farm. This action was brought to recover a balance claimed to be due of $234.63 and interest thereon. The case was tried before a jury, which returned a verdict in favor of defendant. A motion tVas made for a new trial, which motion was overruled. The caséis brought here by writ of error.

There are several assignments of error, which may safely be put under two heads: First, the refusal of the trial court to direct a verdict in favor of plaintiffs for the full amount of their claim; and, second, the refusal of the judge to grant a new trial. The record discloses that, beginning June 3, 1898, plaintiffs began to furnish defendant and his son goods, and continued to do so until January 1, 1900, when the son retired from the firm, and the business was continued by the father. At this time, it is the claim of the plaintiffs, there was due them $265.11. From January 1, 1900, until October 16, 1902, plaintiffs furnished the defendant with goods, and it is their claim that, after making all proper credits, there was due them, April 16, 1903, the sum of $234.63. It is the claim of the defendant that he does not owe plaintiffs anything. It appears from his own testimony that he did not keep any books or any memorandum which would show the amount of goods he received, or the dates and amounts of payments he made. He admitted on the cross-examination that he had received all of the goods with which he was charged, and said he could not dispute the statement that he had been credited by the plaintiffs with all the payments he had made them. Counsel for defendant say, and we quote from the brief:

“Plaintiffs’ account book was offered in evidence to prove this claim, and was taken from the ledger. Now, take the debits shown by their ledger from January 1, 1900, the date on which they admit the L. W. Borick & Son account was balanced, and they amount to $3,383.57. Taking the proper credits from the same ledger from the same date, January 1,1900, and they amount to $3,813.05; thus showing that defendant’s account with plaintiffs is overpaid by $30.48. * * *
“We submit that, from their own testimony and their own books, the jury was warranted in finding a verdict for the defendant, because, according to their own books, on which they rely, we have overpaid them $30.48, and would have been entitled to a judgment for the balance in our favor had our pleadings been drawn so as to entitle us to it.”

The fallacy of this argument is shown by a reference to the books. They show that on January 1, 1900, there was due plaintiffs $365.11. There was sold by them to defendant on January 5, 1900, a bill of goods amounting to $13, and no other bill of goods was sold until March 1st. The books also show a credit of $100 January 9th, $100 February 8th, one of $65.11 February 8th, and one of $13 March 37th. It will be observed that these amounts just balance. It will also be observed that upon February 38th payments had been made in 1900 aggregating $365.11, while only $13 worth of goods had been bought. The defendant admits that he made no payments until they became due, and, applying this statement to the situation, the conclusion is inevitable that the first three payments made in 1900 were made for the purpose of paying the balance of $365.11, shown by the books to be due January 1, 1900. When this very proper application of them is made, instead of the books showing, as claimed by counsel, an overpayment of $30.48, they show there was due plaintiffs $334.63. The plaintiffs showed the delivery of the goods and their value by testimony that did not leave the matter in doubt. The testimony of defendant, taken as an entirety, did not tend to show any different state of facts.

The judge should have directed a verdict in favor of the plaintiffs for the full amount of their claim. This ■conclusion makes it unnecessary to discuss the other branch •of the case.

The judgment is reversed, and a new trial ordered.

McAlvay, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    DAVISON v. VALIN.
    Appeal and Error — Bill op Exceptions — Necessity — Dismissal. '
    Where the record on error does not show that a bill of exoep- . tions was settled and signed by the circuit judge the writ will be dismissed.
    Error to Iosco; Connine, J.
    Submitted November 10, 1905.
    (Docket No. 118.)
    Decided November 21, 1905.
    Assumpsit by Thomas Davison against Antime Yalin for breach of a building contract. There was judgment for plaintiff, and defendant brings error.
    Dismissed.

      8. 6r. Houghton, for appellant.

      Jahraus & Bawden, for appellee.
   Per Curiam.

An examination of the record in this case does not disclose that a bill of exceptions was settled and signed by the circuit judge. For that reason the case is dismissed, , with costs in favor of the plaintiff.


author: McAlvay, J.

text:
    DELANEY FORGE & IRON CO. v. THE WINNEBAGO.
    1. Maritime Liens — Shipbuilding—Contracts—Liens—Enforcement.
    Contracts for the building of ships, or for furnishing materials for their construction, are not maritime contracts, and liens arising under the State laws out of such contracts are not within the jurisdiction of admiralty courts, but may be enforced in the State courts.
    3. Same — Admiralty Jurisdiction — Michigan Water-Craft Law.
    The Michigan water-craft law (§10789, 3 Comp. Laws), creating a lien for materials furnished for the original construction of a vessel, and providing for the enforcement of such lien, does not contravene the provision of the Federal Constitution, by which the judicial power of the United States is extended to all causes of admiralty or maritime jurisdiction.
    3. Same — Construction of Vessels — Materials—Time of Furnishing.
    Materials furnished for the original construction of a vessel, after as well as before she is launched, entitle the furnisher to the lien provided by the statute (§ 10789, 3 Comp. Laws), the materials being furnished before the vessel is entirely completed, enrolled, and licensed.
    4. Same — Statutes—Afplioation.
    Section 10789, 3 Comp. Laws, providing a lien on a water craft used or intended to be used in navigating the waters of the State, for debts contracted for materials furnished in the construction thereof, etc., is not limited to vessels intended to be used exclusively in navigating the waters of the State, but ápplies to a craft which is at the time navigating the waters of this as well as othe r States, and as to which there is no admiralty jurisdiction.
    5. Same — Right to Lien — Subcontractors.
    Where a vessel was constructed under a contract with certain individuals, who were to form a corporation to which the vessel, when completed, was to be transferred, the title to the vessel until delivered to such corporation remained in the builder; and hence one furnishing, materials to be used in such construction under contract with the builder was not a subcontractor, and was not barred from enforcing the lien therefor conferred on the furnisher of materials under contract with the owner by the water-craft law (§ 10789, 3 Comp. Laws).
    6. Same — Charging of Materials.
    Where materials were furnished for the construction of a vessel under contract with the builder, a lien attached to the vessel therefor, as provided by section 10789, 3 Comp. Laws, as an incident to the contract, regardless of the fact that the materials were charged to the builder and not to the vessel.
    7. Same — Payment—Notes.
    Where materials were furnished for the construction of a vessel for which the materialman had a statutory lien, the fact that the builder’s note for a portion of the amount due on a general account for materials, including the materials in question, was accepted, but was not paid, did not constitute a payment for such materials, precluding the enforcement of the lien.
    8. Commerce — Enforcement of Lien on Vessel — Interstate Commerce.
    Proceedings for the enforcement of a lien on a vessel for materials used in its construction, conferred by section 10789, 3 Comp. Laws, though commenced after the vessel is enrolled, licensed, and engaged in interstate commerce, are not objectionable, as in contravention of the jurisdiction of Federal courts in admiralty.
    Appeal from Wayne; Donovan, J.
    Submitted April 14, 1905.
    (Docket No. 77.)
    Decided December 4, 1905.
    Proceedings by the Delaney Forge & Iron Company to enforce a lien under the water-craft law against the steamer Winnebago. The Iroquois Transportation Company, as principal, and the United States Fidelity & Guaranty Company, as surety, gave the statutory bond for the release of the vessel. George W. Edwards and. others intervened, claiming a similar lien. From a decree for complainant and interveners, defendants appeal.
    Affirmed.

      John O. Shaw and Herbert K. Oaks (Charles B.

      Warren, William B. Cady, and Joseph C. Hamblen, Jr., of counsel), for complainants.

      C. E. Kremer and Gray & Gray, for defendants.
   McAlvay, J.

The Delaney Forge & Iron Company, of Buffalo, N. Y., brought this proceeding under section 10789, 3 Comp. Laws, against the steamer Winnebago, claiming a lien for materials furnished for use in and about the construction of the said steamer. George W. Edwards and others are intervening complainants, claiming a similar lien. The Iroquois Transportation Company, an Indiana corporation, is owner and claimant of the vessel.

This steamer was constructed and built by the Columbia Iron works in their shipyard at St. Clair, Mich., under a contract dated March 8, 1902. The contract price was $95,000, and the Columbia Iron Works was to furnish all material and labor necessary to completely construct said steamer, and deliver the same at Port Huron, Mich., on or before October 1, 1902. Of the contract price $31,000 was to be paid in cash from time to time. This contract was made with John J. Boland and Thomas J. Prindiville, and contained a provision that they, with other stockholders, would organize a corporation to be known as the “Iroquois Transportation Company,” which, for the balance of the purchase price, would execute its notes to the amount of $16,000, and issue bonds for $48,000, to be secured by mortgage upon its property. The corporation was duly organized, and the notes, bonds, and mortgage executed and delivered as agreed. It was understood that this corporation would ultimately be the owner of the steamer. Boland and Prindiville assigned the contract to this corporation April 5, 1902. Under the contract the Columbia Iron Works proceeded with the construction of the steamer. It was launched March 21, 1903, and after it was in the water the work under contract continued. On July 18, 1903, it was inspected, measured, enrolled, and licensed to be employed in domestic and foreign trade. Said enrollment and license were issued to Columbia Iron Works, as owner. The same date an agreement was made, giving conditional possession to claimant corporation, the Iroquois Transportation Company:

For the purpose of completing and finishing up those things still remaining undone upon said steamer, and required to be done by said Iron Works by the terms of the contract for the construction of said steamer; * * * it being the sole intent and purpose of this agreement to enable the Iroquois Transportation Company to obtain immediate possession of this steamer, and without intending either to limit the extent of the obligation of said Columbia Iron Works under the original specifications.”

Final cash payment on the contract was made July 19, 1903, when the Columbia Iron Works had received the full contract price in cash, bonds, and mortgage, less $3,500, deducted as penalty provided in the contract for noncompletion of the boat within the time stipulated. On this last date a bill of sale of the steamer was made by the Columbia Iron Works to the Iroquois Transportation Company.

The claims for which liens are here sought by complainant to be enforced are for materials furnished to enter into and be used in the original construction and building of said steamer Winnebago. The materials furnished by complainant were steel forgings supplied, according to the specifications and drawings furnished, between November 24, 1902, arid July 16, 1903, as from time to time ordered by the Columbia Iron Works, upon the purchase price of which <a balance of $1,999.90 is claimed. The complaint was filed October 6, 1903, in the circuit court for Wayne county. The Iroquois Transportation Company filed a bond, entered, an appearance, and answered. The cause was heard, and a judgment rendered in favor of complainant for the full amount and costs against the Iroquois Transportation Company, claimant and owner of said steamer, and the United States Fidelity & Guaranty Company of Baltimore, Md., its surety upon the bond furnished as provided by statute. Both parties against whom said judgment was rendered have appealed to this court, and by stipulation the cause is heard upon the testimony taken in the circuit court and returned to this court.

The first question to determine is whether the Michigan statute under which this proceeding was brought is in contravention of the Constitution of the United States. If the case is one within the admiralty and maritime jurisdiction, there is no question but that a Federal court would alone have jurisdiction,, notwithstanding the fact that the State statute in terms provided a remedy. By the Constitution the judicial powers of the United States extends to all causes of admiralty or maritime jurisdiction. The judiciary act of 1789 [U. S. Rev. Stat. § 563, subd. 8] saves to suitors in all such cases the right of a common-law remedy, where the common law is competent to give it, and declares that with this exception the Federal jurisdiction is exclusive. This,' then, would give the Federal courts exclusive jurisdiction as to the enforcement of all liens in respect to maritime contracts or maritime torts. If the lien sought to be enforced arises under a nonmaritime contract, and is created by a State statute, the authorities hold that the State courts have jurisdiction. Contracts for the building of ships, or for furnishing materials for their construction, are held by the Federal courts to be nonmaritime contracts, and therefore not within the jurisdiction of admiralty courts; and liens arising under State laws out of such contracts may be enforced in the State courts. Johnson v. Elevator Co., 119 U. S. 388; Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638; The Robert W. Parsons, 191 U. S. 17; The John B. Ketcham, 2d, 97 Fed. 872; People’s Ferry Co. v. Beers, 20 How. (U. S.) 393, 401; Roach v. Chapman, 22 How. (U. S.) 129; Edwards v. Elliott, 21 Wall. (U. S.) 532. It will be observed that, while the authorities are uniform in holding that the jurisdiction of the Federal courts is exclusive in proceedings in rem arising under maritime contracts, the decisions of the State and Federal courts are just as uniform in holding that such proceedings provided for by State statutes, arising under nonmaritime contracts, are within the jurisdiction of the State courts.

We find from proofs in the case at bar that the materials furnished were for the steamer Winnebago, and actually went into the original construction of the same, as contemplated by the original plans and specifications. The Michigan statute, in so far as it creates a lien for materials so furnished, and provides for the enforcement of such lien, does not contravene the Constitution of the United States. All the decisions make a clear distinction between those cases where the lien is for the materials furnished for the building and construction of a vessel, and where the same are furnished for repairs to a vessel.

The record shows that of these materials furnished by complainant all but four items were furnished before the date of the launching, March 21, 1903, and that these four items, one quadrant, three steel valve stems, three steel connecting rod caps, and one tiller, were furnished April 30 and July 16, 1903. These named items, from their description and the evidence, were necessary in the construction of the steamer. As is customary, the vessel was put into the water before its construction was entirely completed, and the work continued at least until July 18, 1903. The items were all furnished before the steamer was completed, and before she was enrolled and licensed, and were properly included in complainant’s claim.

The claim is made that the statute applies only to vessels intended to be used exclusively in navigating the waters of the State. One provision of section 10789, 3 Oomp. Laws, is:

“Every water craft of above five tons burthen, used, or intended to be used, in navigating the waters of this State, shall be subject to a lien thereon: First, For all debts contracted .by the owner or part owner, master, clerk, agent, or steward of such craft, on account of * * * materials furnished * * * in or about the building of such craft.”

The steamer Winnebago was built in the State of Michigan. The materials furnished in this case were furnished in its construction before enrollment and license. The vessel was licensed July 18, 1903, “to carry on the coasting and foreign trade on the northern, northeastern, and northwestern frontier, otherwise than by sea, for one year.” From the license itself it appears that the steamer was intended to be used as well in the waters of this State as other States. From the proofs it appears that the steamer was actually engaged in navigating the waters of this State, although also engaged in. interstate commerce and trading with Canadian ports, as under the license was permissible. This court has passed upon this question and construed this statute in this regard in The City of Erie v. Canfield, 27 Mich. 481, in an opinion written by Judge Cooley, holding:

“ The fact that the brig was upon a voyage from a port outside the State seems to me unimportant, except as it may bear upon the question of admiralty jurisdiction. The act referred to was unquestionably intended to give a remedy in all cases coming within its provisions in other particulars, where the vessel was at the time navigating the waters of the State, and where no remedy could be had in admiralty. The act is' not confined to the water craft used or intended to be used exclusively in navigating the waters of this State, and the brig in question was in this particular strictly within the terms of the act, and, if there is no admiralty jurisdiction, is within the reason for its enactment, notwithstanding a part of its voyage was upon the waters of another State.”

The claim is made that under the statute the complainant, being a subcontractor, cannot recover, for the reason that nothing was due from the owner when notice was given. Under the facts in the case this contention cannot be sustained. Complainant was not a subcontractor. The materials were furnished to the Columbia Iron Works, owner of the steamer Winnebago. This ownership continued until delivery of the vessel to the Iroquois Transportation Company. The John B. Ketcham, 2d, 97 Fed. 872.

During the time these materials were furnished by complainant for the steamer Winnebago the Columbia Iron Works was engaged in building several vessels at its yards, and complainant was furnishing a large amount of material for the construction of these vessels; the aggregate value of such materials, in June, 1903, being about $9,000. The items were all charged in the account of the Columbia Iron Works; the entries showing to which vessel each item applied. A separate'account was not kept with each vessel. A note of $5,000 was sent to complainant by Columbia Iron Works June 23, 1903. It was received by complainant. Before it became due the Columbia Iron Works made an assignment, and the note was not paid. The claim is made that these materials were not furnished with reference to a statutory lien upon the vessel, but upon the credit of the Columbia Iron Works, and that the $5,000 note was accepted in payment of the claim now sought to be enforced. '

The distinction between maritime and nonmaritime liens must not be overlooked in this case. It cannot with accuracy be said that materials, furnished, as in this case, where a statute of a State gives a nonmaritime lien, are furnished upon the credit of the vessel. Such language is only exact where reference is had to a maritime lien. The statutory lien attaches by operation of law, where the materials furnished are within the provisions of the statute. The lien attaches as an incident to the contract, and, unless such lien is waived, the provisions of the statute may be invoked for its enforcement.

It is well settled that the giving of a promissory note is no payment of an indebtedness unless it is agreed that it is so accepted, and the evidence to establish payment must be positive and satisfactory. The facts with reference to the taking of the note in this case do not show any such agreement or understanding between the parties. The acceptance of the note was, therefore, not a payment of the claim. Gardner v. Gorham, 1 Doug. (Mich.) 507; Peter v. Beverly, 10 Pet. (U. S.) 568; Sarmiento v. The Catherine C., 110 Mich. 120.

The remaining question to consider is whether the proceedings are void and in conflict with the Federal Constitution and statutes because commenced after the vessel was enrolled and licensed, and engaged in interstate commerce; it being claimed that no seizure could be made while so engaged, although within State jurisdiction. It will not be disputed that the Federal courts do not assume jurisdiction in admiralty in disputes arising from non-maritime contracts, nor will it be disputed that contracts for building ships are not maritime contracts, and cannot be the subject of litigation in admiralty. It is not sought in the case at bar to enforce payment for any material other than that which went into the building of this steamer, nor which was contracted for or furnished after the vessel was enrolled and licensed. The State is not usurping the Federal authority in enacting(laws relative to matters entirely without the jurisdiction of the Federal courts, nor will the enforcement of such laws be an interference with the exclusive jurisdiction of such courts over all admiralty and maritime causes. If it is true that because a vessel is enrolled and licensed, and may be engaged in commerce between States, it cannot be reached in proceedings brought to enforce liens lawfully created by the State authority, then the enforcement of rights under such authority is practically denied. The question to be determined in each case is whether the State had the power to make the law under which the proceeding is instituted. If such power existed, vessels of the United States may be subjected to process issued from State courts to enforce a valid lien in proceedings under such law. In this respect the law of the State is valid, and the proceedings taken under it regular.

Our conclusion and judgment, under the evidence submitted upon this hearing, is that complainant recover judgment in the same amount recovered in the court below. The cases of complainant and interveners were submitted together, as the same questions were involved.

Since writing the foregoing opinion a case involving the same questions under this statute, brought in the Wayne county circuit court to recover for materials furnished in constructing the steamer Winnebago, and removed to the United States court, has been decided in the United States circuit court of appeals for the sixth circuit, to which reference is had as further authority for the conclusions herein expressed. Iroquois Transportation Co. v. A. Harvey’s Sons Manfg. Co., 141 Fed. 945.

The judgments of the circuit court are affirmed in these cases against both appellants, with costs of both courts, and this order will be certified to the said court, where judgments will be entered accordingly against such appellants, and against all principals and sureties in any bond or bonds filed by them in said causes, as provided by law.

Moore, C. J.', and Montgomery, Ostrander, and Hooker, JJ., concurred.