text:
    EIPPER v. BENNER.

    .1. Trusts — Estates of Decedents.
    V., after the death of his wife, in order to avoid suit for an accounting in the interest of certain of her heirs, admitted in writing that he had received funds from her to a specified amount, which amount he thereby agreed, pursuant to a confessed understanding with the wife, to bequeath to such heirs. Thereafter V. made a will which was in substantial conformity with his engagement, but such will was destroyed before his death. Held, that there was a declaration of trust, entitling the beneficiaries to an allowance of their claim against the estate.
    2. Same — Statute of Frauds.
    An admission in writing of the existence of a trust resting in parol is sufficient to satisfy the statute of frauds.
    3. Same — Personalty.
    The statute of frauds does not apply to a trust in personal property.
    Error to Calhoun; Smith, J.
    Submitted April 29, 1897.
    Decided May 25, 1897.
    Mary Eipper and Julius Nagel presented a claim against the estate of Chris Ered Vogel, deceased, for money alleged to have been held in trust for them. The claim was allowed by the probate judge, acting as commissioner, and Mary E. Benner, administratrix of the estate, appealed to the circuit court. From a judgment disallowing the claim, claimants bring error.
    Reversed.

      Herbert E. Winsor, for appellants.

      John E. Foley (Taggart, Knappen & Denison, of counsel on application for rehearing), for appellee.

       Rehearing denied July 16, 1897.

   Hooker, J.

In a proceeding before the probate judge of Calhoun county, acting as commissioner, the claim of the claimants was allowed. Upon appeal the circuit judge reversed the case, and disallowed the ciaim. His finding states the facts, and is given in full:

“(1) Claimants are nephew and niece of Mary Vogel, who was the wife of Chris Fred Vogel, deceased. Julius was born in May, 1866, and his sister, Mary, is about two years younger. They are the children of a deceased brother of Mary Vogel, and were left orphans in the State of Mississippi, but at what time is not disclosed by the proof, but at a time prior to their coming into the family of Chris Fred Vogel. Mary Vogel learned of the death of her sister, and that these children were oi’phans, and took steps to find them, and bring them North, into her family, and did find them, and they lived in the family of herself and.husband about six years before her death.
“(2) Claimants had no property, and Mr. and Mrs. Vogel were at some expense in finding them and removing them to their home.
“(3) They were cared for and looked after by the Vogels as members of the family from the time they came into the family; worked out part of the time, and attended school, but not to any great extent.
“(4) At the time of the marriage of Mr. and Mrs. Vogel, he was a widower with one child, who is now living, and in whose interest this claim is contested. Mrs. Vogel was a widow without children, and died childless.
“(5) At the time of the marriage, Mrs. Vogel had several hundred dollars of property in her own right, consisting of moneys out at interest, and houses and lots in Coldwater, Michigan, where she lived. Mr. Vogel had some property, and they accumulated some by their labor, and in the management of what they had. They used their property for the joint interest of both in the care of the family, but investment's were made in the name of Mr. Vogel.
“ (6) Mrs,, Vogel died April 21, 1887, and Gottlieb East was appointed her administrator, and proceeded to settle up her estate. It was appraised at the sum of one thousand eight hundred and eighteen ($1,818) dollars, and consisted principally of real estate owned by her at the time of her marriage. The estate was duly closed in probate court, and distributed to her legal heirs, under an order of distribution made by Hon. George Ingersoll, Judge of Probate.
“ (7) The heirs at law of Mary Vogel were these claimants, children of a deceased brother, Michael Nagel, a brother, a brother in Germany, a brother in Ohio, and eight or nine children, who were the children of a deceased sister in Germany.
“(8) A day or two after her death, her brother, Michael Nagel, talked with Mr. Vogel about the property of his wife and the relations pertaining to the same as between Mr. and Mrs. Vogel. It is claimed that this talk was in the interest of claimants. Claimants knew nothing of the talk, and had no part in it. Michael was not their legally-appointed guardian, nor was he in any way authorized by them, or by any one, to make any arrangement regarding their interest in the estate of Mrs. Vogel, but acted entirely of his own motives.
“(9) In pursuance of this talk, and before Michael went home, the parties went to the probate court, and Judge Ingersoll, the probate judge of Calhoun county, prepared a paper, which Mr. Vogel signed, and which was in words and figures as follows:
‘Memoranda of unsettled matters between Chris Fred Vogel and the estate of Mary M. Vogel, his wife, as follows: Said Chris Fred Vogel has heretofore received from said Mary M. Vogel the following sums of money, to wit:
One sum of three hundred dollars. ____________( §300 00) .
One sum of three hundred and fifty dollars______( 350 00)
One sum of three hundred and seventy-five dollars__________________________________________( 375 00)
And one sum of fourteen hundred dollars------( 1,400 00)
Amounting in all to twenty-four hundred and twenty-five dollars___________________________(§2,425 00)
—And out of which he paid, at the request of said Mary M. Vogel, one hundred dollars for the benefit of Gottlieb Grimmer, and which leaves a balance of twenty-three hundred and twenty-five dollars ($2,825), and which amount I agree, in pursuance of my understanding with my said wife, to beqxieath by my will to Julius Nagel and Maggie Nagel, minors, now members of the family of Chris Fred Vogel.
“ ‘Dated, Marshall, April 27, 1887.
“ ‘ Chris Fred Vogel.
“ ‘In presence of George Ingersoll.’
“This paper was left with Judge Ingersoll, and remained with him till after the death of Mr. Vogel.
“(10) January 31, 1889, Chris Fred Vogel, on petition of Julius Nagel, and while Mr. Kast was acting as administrator of Mrs. Vogel’s estate, was cited into probate court to testify as to the property he had belonging to his deceased wife’s estate. This examination was in writing before the judge of probate, and was conducted by Hon. John C. Patterson, who represented Mr. Nagel. In this examination he denied owing his wife anything. He admitted he had considerable money, and in fact the amounts set forth in the memorandum, but claimed it had been paid out in various ways at her request. He also denied to Mr. Kast, while he was the administrator of Mrs. Vogel’s estate, any liability to her estate oi to claimants.
' “(11) In December, 1894, Mr. Vogel made a will, in which Julius and Mary, these claimants, were remembered substantially as was set forth they should be in the memorandum made by Judge Ingersoll. The contents of this will rests somewhat in memory and hearsay, and, while not in the exact terms of the memorandum, was as favorable to them as the terms of it would have been.
“ (12) This will was destroyed some time after its execution, and was not in existence at the death of Mr. Vogel.
“(13) Mr. Vogel died July 13, 1895, without a will, leaving as his only heir his daughter, Elizabeth. Administration was granted to his daughter. His property was appraised at six thousand five hundred and ninety-seven dollars ($6,597).
“(14) Claimants file a claim against his estate, which was the memorandum set forth in the ninth finding of fact herein, and to which was attached the following:
Marshall, Mich., Nov. 13, 1895.
Estate of Chris Fred Vogel, Dr.,
To Julius Nagel and Mary Nagel Eipper.
To the above claim_____________________________$2,425 00
Interest to date if allowed.
“ Law.
“Claimants have no legal claim against the estate of Chris Ered Yogel, and cannot recover. It should be certified back to the probate court for Calhoun county that this claim is disallowed, with costs to be taxed.
“Dated August 15, 1896.
“Clement Smith, Circuit Judge.”

The only question that seems to be raised by the brief of appellants goes to tifee merits, — can the order be sustained upon the finding of fact ? The finding conclusively shows that Chris Ered Yogel unqualifiedly admitted in a most solemn manner that he had money belonging to his wife to the amount of $2,425, and that he had an understanding with his wife, before her death, that he was to bequeath it to the claimants, who were her nephew and niece. Not only does it appear that he admitted that he made this promise, but that he made the writing in which the admission appears as a means of avoiding an accounting for this property belonging to his wife at a time when lier brother, one of her heirs, required it as a condition that the heirs should not compel such accounting; and it was shown that he made a will substantially in accordance with his admitted promise, which was destroyed some time after its execution, and before his death. The circuit judge was of the opinion that the admission of an “understanding” with his wife was not the admission of a promise, and that, if it can be said to amount to a promise, it was not based upon a consideration, because neither Mr. nor Mrs. Yogel was under any obligation to the claimants which would amount to a valid consideration. It is clear that the judge found that Yogel admitted that he had the sum claimed of his wife’s property, and that he had promised her to leave it to these children at his death. We are of the opinion that the facts found show that Yogel held this money in trust for these children by arrangement with his wife, and after his death it was the duty of the administrator to pay it over to them, upon allowance by the probate court. People v. Wayne Circuit Court, 11 Mich. 393, 404 (83 Am. Dec. 754); Wheeler v. Arnold, 30 Mich. 304; Nester v. Ross’ Estate, 98 Mich. 200; Frank v. Morley’s Estate, 106 Mich. 635.

This trust, though it be said that it rested in parol, was admitted in writing, which was sufficient to satisfy the statute of frauds. Patton v. Chamberlain, 44 Mich. 5. But it'would seem that the statute of frauds has no application, inasmuch as the trust fund was personalty. Bostwick v. Mahaffy, 48 Mich. 342; Calder v. Moran, 49 Mich. 14; Chadwick v. Chadwick, 59 Mich. 87; Bowker v. Johnson, 17 Mich. 42; Penny v. Croul, 76 Mich. 471.

The order of the circuit judge is reversed, and that of the probate court affirmed, with costs of both courts to the claimants against the estate. It will be so certified to the circuit and probate courts.

The other Justices concurred.


source: Caselaw Access Project

author: Long; C^ J.

license: Public Domain

text:
    PEOPLE v. ABELL.
    Criminal Law — Offer of Incompetent Proof — Prejudicial Remarks.
    Upon the trial of a druggist for an unlawful sale of intoxicating liquors, the prosecuting attorney offered to show that the complaining witness, who claimed to have procured the liquor, immediately thereafter related the circumstances to a third person, whom he proposed to call for the purpose of showing that the sale occurred at the time charged in the information. Upon objection to the statement of the proposed testimony in the presence of the jury, the court ruled that it was the right of counsel to state to the court what he proposed to prove, but that the jury should disregard his statement, and declared the testimony inadmissible for the reason that the name of the proposed witness was not indorsed on the information. The only testimony to support a conviction was that of the complaining witness; that of the respondent and of the only other person claimed to have been present being in direct denial. Held, that the remarks were, under the circumstances, prejudicial to the respondent.
    Exceptions before judgment from Van Burén; Buck, J.
    Submitted April 29, 1897.
    Decided May 25, 1897.
    Charles E. Abell, a druggist, was convicted of violating the local option law.
    Reversed.
    Osborn, Mills & Master, for appellant.

      James E. Chandler, Prosecuting Attorney, for the people.
   Long; C^ J.

Respondent is a druggist. He was chax'ged with the offense of selling two drinks of whisky, to be used as a beverage, and on trial before a jury was convicted. The whisky, it was claimed, was sold to Willard E. Symonds. He testified on cross-examination that he went into respondent’s store for the purpose of getting him to make the sale, so that he could make the complaint. In speaking of the date when the whisky was sold, the witness stated that he was trusting entii’ely to his memory. He added: “I know I went over to Mr. Hopkins’ office, and told him then what I was going to do, and I know I went back directly afterwards, and told what I had done.” The witness further stated that Mr. Hopkins was a member of the Law and Order League. The prosecuting attorney thereupon stated, “In view of the cross-examination, I will call Mr. Hopkins.” He was asked if Mr. Hopkins’ name was on the information, and admitted that it was not. The respondent’s counsel objected to his being called, whereupon the prosecuting attorney stated: “I simply want to show that this witness went to him on the 3d day of Febraary, and related what he has told counsel, on the 3d day of February,— what he told him.” Counsel for respondent excepted to this statement in the presence of the jury. The court thereupon said:

“ Counsel would have a right to state what he proposed to prove. The jury, of course, will not pay any attention to it. It'is not for the jury, but is entirely for the hearing of the court. The jury should disregard any statement of the kind. I think it would be objectionable to call him in view of the fact that his name is not on the information.”

This is claimed to be error prejudicial to the rights of the respondent.

In this contention we think counsel are correct. Mr. Symonds had testified that, when the liquor was sold, one Samuel W. Bowerman was with him, and drank one glass of whisky, which witness ordered. Mr. Bowerman was called by the people, and denied emphatically that any such thing took place as described by Symonds, or that he took a drink of whisky there with him. The prosecution made an offer to bolster up the testimony of Symonds by showing that Symonds went to Hopkins, and told him what he testified to in court as to the purchase of the whisky. This testimony was wholly incompetent, but a statement that it was a fact was permitted by the court to be made by the prosecuting attorney. When the attention of the court was called to it by counsel for respondent, the response by the court was that counsel had a right to state what he proposed to prove, but it would be objectionable to call the witness, because his name was not on the information. The fact was thus presented to the jury by the statement of the prosecuting attorney that Hopkins would, if called, testify as claimed. Symonds was the'only witness w”ho testified to the sale’s' being made, and Mr. Bowerman and respondent both contradicted him flatly that any sale was made at all. While the jury were told that the statement was made for the benefit of the court, and they should disregard it, yet it may well be imagined that such a statement coming from the court would have its effect with them, especially when the only reason given by the court for not receiving the testimony was that Mr. Hopkins’ name was not indorsed on the information.

Some other errors are claimed, but we do not regard them of sufficient importance to discuss. For the error pointed out, the verdict must be reversed, and a.new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    PEOPLE v. COLE.
    1. Bastardy — Nature of Proceedings — Amendments.
    Bastardy proceedings are so far civil in their character that they come within the general statute of amendments.

      % Same — Evidence—Physicians—Privileged Communications.
    The statement of the prosecutrix in a bastardy proceeding, to her physician, as to the paternity of her child, is not within the scope of 2 How. Stat. § 7516, prohibiting the disclosure of any information acquired by an attending physician which was necessary to enable him to prescribe for his patient as a' physician, or to do any act for him as a surgeon.

      Certiorari to St. Clair; Vance, J.
    Submitted April 29, 1897.
    Decided May 25, 1897.
    Isaac Cole was convicted of bastardy.
    Reversed.
    The respondent was convicted of bastardy upon complaint of one Stella Jordan. In her complaint she alleged that “he did beget her with child in the town of Ft. Gratiot, in the county of St. Clair, on or about the 19th day of August, A. D. 1895, at the home of the father of said Stella Jordan.” At the examination before the justice, the respondent introduced testimony to show that he was not at the home of her father on the day in question. It does not appear that she was sworn on the examination, or that any effort was then made to change the date and time fixed in the complaint. He was bound over to the circuit court, and upon the trial there evidence was offered to show that the act of intercourse resulting in the pregnancy took place on the 21st of August, 1895, “while driving on the road between Lakeport and her home.” To this counsel for the respondent objected, and denied the jurisdiction of the court to allow testimony, or to allow an amendment to the complaint, fixing any other date than the 19th, or any other place than her father’s home. The counsel for the people asked leave to amend, if necessary, but stated that he did not consider an amendment necessary. The court admitted the testimony as to the changed time and place. The prosecuting* officer stated that the mistake had been made by him in fixing the time and place in the complaint, that the girl told him that she was then living at home, and that the act occurred while she was living at her father’s house. While no amendment was in fact made, the court returns that he supposed it was made.

      Thomas H. Murphy, for appellant.

      Fred A. Maynard, Attorney General, and Joseph Walsh, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). These proceedings are not criminal in their character. It was held in Sutfin v. People, 43 Mich. 37, that “they are partly for the benefit of the complainant, and may be instituted in her name, and partly for the purpose of indemnifying the public, and may be instituted in the name of the people.” In Hamilton v. People, 46 Mich. 186, three different dates were fixed, a month apart, and the complaint was held good. It was said in People v. Harty, 49 Mich. 490, that “ bastardy proceedings are not, in this State, criminal in any correct sense, and they do not recognize the matter they deal with as a crime or misdemeanor.” It was therefore held in that case that the superior court of Grand Eapids obtained no jurisdiction over a proceeding for bastardy, because it did not fall under the title “Crimes, Misdemeanors, or Offenses.” It must therefore be held that these proceedings are so far civil in their character that they come within the general statute of amendments, and that the time and place may be amended, provided opportunity is given to the respondent to meet them. This case is distinguishable from Hull v. People, 41 Mich. 167. In that case the time and place were fixed with particularity, and the reasons given in the complaint for so fixing them. The complainant upon the trial was permitted to fix another time, several weeks earlier, in another place and under different circumstances. It is unnecessary to determine whether this amendment was considered as made, or whether it may be treated now as made, since the case must be reversed upon another point, and the amendment may be made upon a new trial.

2 How. Stat. § 7516, prohibits a disclosure of any information acquired by any attending physician, “which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.” The attending physician was asked if Miss Jordan told him who was the father of her child. This was ruled out as a confidential communication, within the prohibition of the statute. This information was not necessary to enable the physician to prescribe for her, and the testimony was therefore admissible. Campau v. North, 39 Mich. 606 (33 Am. Rep. 433).

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Long, C. J.

text:
    PEOPLE v. SNOWBERGER.
    1. Adulteration of Food — Statutory Offenses — Intent — Police Power.
    It is competent for the legislature, under the police power, to provide for the protection of the public health by making it an offense punishable by fine and imprisonment to sell adulterated food or drink, irrespective of the seller’s knowledge of the adulteration.
    2. Same.
    Act No. 193, Pub. Acts 1895, prohibits the manufacture or sale of adulterated articles of food or drink, and prescribes what shall be deemed adulteration within the meaning of the act. Section 8 forbids any person from knowingly offering for sale cheese which is falsely labeled; this being the only case in which knowledge is expressly made an element of an offense designated by such statute. Held, that proof of guilty knowledge or intent is not essential to the conviction of one who sells adulterated food.
    Exceptions before judgment from Monroe; Kinne, J.
    Submitted April 29, 1897.
    Decided May 25, 1897.
    Michael Snowberger was convicted of selling adulterated food, in violation of Net No. 193, Public Acts of 1895.
    Conviction affirmed.

      William Look and Ira O. Humphrey (Bowen, Douglas & Whiting, of counsel), for appellant.

      Willis Baldwin, Prosecuting Attorney, for the people.
   Long, C. J.

Respondent was convicted under an information charging that—

“On the 19th day of April, A. D. 1897, at the city of Monroe, and in the county aforesaid, Michael Snowberger did offer for sale, and sell, to Carl Franke, an adulterated article of food, to wit, a quantity of mustard, to wit, a quarter of a pound, colored and adulterated with tumeric, whereby the said mustard, as an article of food, was damaged, and its inferiority concealed, and whereby it was made to appear of better and of greater value than it really was, the same not being a mixture or compound recognized as ordinary articles or ingredients of articles of food, contrary to the form of the statute in such case made and provided,” etc.

The information was filed under Act No. 193, Pub. Acts 1895, entitled “An act to prohibit and prevent adulteration, fraud, and deception in the manufacture and sale of articles of food and drink.” The act provides:

Section 1: “No person shall, within this State, manufacture for sale, offer for sale, or sell any article of food which is adulterated, within the meaning of this act.”
Section 2: “The term ‘food,’ as used herein, shall include all articles used for food or drink, or intended to be eaten or drunk by man, whether simple, mixed, or compound.”
Section 3: “An article shall be deemed to be adulterated, within the meaning of this act: One, if any. substance or substances have been mixed with it, so as to lower or depreciate or injuriously affect its quality, strength, or purity; two, if any inferior or cheaper substance or substances have been substituted wholly or in part for it; three, if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it\ four, if it is sold under the name of another article; five, if it consists wholly or in part of a diseased, decomposed, putrid, infected, tainted, or rotten animal or vegetable substance or article, whether manufactured or not, or, in case of milk, if it is the product of a diseased animal; six, if it is colored, coated, polished, or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; seven, if it contains an added substance or ingredient which is poisonous or injurious to health: Provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, and are not injurious to health.”

Section 19 makes any violation of the act a misdemeanor, and provides a penalty by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail, etc.

On the trial, respondent admitted that on the 19th day of April, 1897, he, at the city of Monroe, this State, offered for sale, and did sell, to Carl Franke, a quantity of mustard, to wit, a quarter of a pound, which was afterwai'ds found upon a chemical examination to be colored and adulterated with tumeric, whereby the said mustard, as an article of food, was damaged, and its inferiority concealed, and it was thereby made to appear of greater and better value than it really was; the same not being a mixture or compound recognized as an ordinary article or ingredient of articles of food. Rut be claimed that said article of mustard so sold was purchased by him as a pure article in good faith, and that he believed at the time of the purchase by him, and also at the time of the sale to the said Franke, that the same was pure mustard, free from any coloring and adulteration with tumeric or any other coloring or adulterant, and that no inferiority was concealed whereby it was made to appear of greater or better value than it really was; that, at the time he purchased the same, he asked for pure mustard, and that the same was warranted to him as pure; that he did not make or cause to have made a chemical examination of the same, and did not inform himself or endeavor to ascertain the methods of determining pure from impure mustards, but relied upon the representations of his vendor and the appearance of the article to the eye; and that he did not intend to violate the law. From such conviction, respondent appeals.

It is the contention of counsel for respondent that it was the intent of the legislature to provide by the act that no person should be convicted and punished for selling adulterated food or drink without showing that he knew the same to be adulterated; that the information does not charge such knowledge, and the proofs disclose that respondent acted in good faith, and in the belief th§.t the article sold was pure and unadulterated. The act cannot be so construed. The offense under the act consists in selling an article intended to be eaten or drunk which is adulterated.- Section 8 of the act shows conclusively that the legislature did not intend to make criminal intent or guilty knowledge a necessary ingredient of the offense. As a rule, there can be no crime without a criminal intent; but this rule is not universal. In People v. Roby, 52 Mich. 577 (50 Am. Rep. 270), the respondent was convicted of the offense, under the statute, of keeping his. saloon open on Sunday. It was there said:

“It is contended that, to constitute an offense under the section referred to (1 How. Stat. § 2274), there must be some evidence tending to show an intent on the part of the respondent to violate it. * * * The section under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon closed. As a rule, there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”

Many cases are cited in that case where convictions were sustained although the element of guilty knowledge was lacking. Thus, in Massachusetts a person may be convicted of the crime of selling intoxicating liquor as a beverage, though he did not know it to be intoxicating ( Com. v. Boynton, 2 Allen, 160); and of the offense of selling adulterated milk, though ignorant of its adulteration (Com. v. Farren, 9 Allen, 489; Com. v. Nichols, 10 Allen, 199; Com. v. Waite, 11 Allen, 264 [87 Am. Dec. 711]; Com. v. Smith, 103 Mass. 444). In Missouri a magistrate may be liable to the penalty for performing the marriage ceremony for minors without consent of parents or guardians, though he may suppose them to be of the proper age. Beckham v. Nacke, 56 Mo. 546. Where the killing and sale of a calf und.er a specified age is prohibited, there may be a conviction though the party was ignorant of the animal’s age. Com. v. Raymond, 97 Mass. 567. In People v. Welch, 71 Mich. 548, this court, in speaking of People v. Roby, supra, said:

“When a statute does not make intent an element of the offense, but commands an act to be done or omitted which, in the absence of the statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation;” citing State v. Hartfiel, 24 Wis. 60.

In the late case in this court of Wolcott v. Judge of Superior Court, 112 Mich. 311, the relator, as prosecuting attorney of the county, filed an information against one Fred Saunders, charging him with being engaged in selling liquor without giving the bond required by the statute. The bond was fair upon its face, but one of the sureties, it appears, was disqualified, under section 2283cil, 3 How. Stat. The information did not allege that respondent had knowledge of this defect in the bond. The information was quashed by the court below, and the relator asked the aid of mandamus to compel the respondent to reinstate the case. It was said by this court in the majority opinion:

“It was the intention of the legislature to make the execution and delivery of the prescribed bond a condition precedent to sale, and to require the person desiring to engage in the business mentioned to assume the responsibility of knowing that the bond, when presented, complies in all essential particulars with the law. He must know that his sureties are males; that they are resident freeholders of the township, village, or city in which the business is to be carried on; that they hold none of the offices prohibited by the act; and that, at the time the bond is filed, neither is a surety upon more than two bonds required by the act.”

It appeared that one of the sureties was already upon more than two bonds, and the writ was granted, compelling the respondent to reinstate the case. The case of People v. Roby, supra, was cited in that case in support of the proposition that intent was not an ingredient of the offense.

These regulations are under the police power of the State. Undoubtedly, it was competent for the legislature to prohibit the sale of adulterated articles of food and drink. The police power of the State extends to the protection of the health, as well as of the lives and property, of the citizens. Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of the citizen or interferes with his liberty, it is for the courts to determine whether it relates to and is appropriate to promote such public health. Under the police power, the conduct of individuals and the use of property may be regulated, so as to interfere to some extent with the freedom of the one and the enjoyment of the other. It cannot be doubted that the legislature intended by this act to protect the public against the harmful consequences of sales of adulterated food, and, to the end that its purpose might not be defeated, to require the seller, at his peril, to know that the article which he offers for sale is not adulterated. As was said by the supreme court of Ohio in State v. Kelly, 54 Ohio St. 166: “If this statute had imposed upon the State the burden of proving * * * his knowledge of its adulteration, it would thereby have defeated its declared purpose.”

In State v. Smith, 10 R. I. 260, the court, in speaking of the offense of selling adulterated milk, said:

“Counsel for defendant asked the court to charge that there must be evidence of a guilty intent on the part of the defendant, and of a guilty knowledge, in order to convict him. Our statute, in that provision of it under which this indictment was found, does not essentially differ from the statute of Massachusetts; and there, previous to the enactment of our statute, the supreme court had determined that a person might be convicted although he had no knowledge of the adulteration, the intent of the legislature being that the seller of milk should take upon himself the risk of knowing that the article he offers for sale is not adulterated.”

Statutes in many States have been passed providing that whoever sells, or keeps or offers for sale, adulterated milk, or milk to which water or other foreign substance has been added, shall be punished, etc. Under these statutes, it has been decided many times that the risk is upon the seller of knowing that the article he offers for sale is not adulterated, and that it is not necessary in an indictment under such a statute to allege or prove criminal intent or guilty knowledge. Com. v. Smith, 103 Mass. 444; Com. v. Warren, 160 Mass. 533; People v. Cipperly, 101 N. Y. 634. The same rule that no criminal intent is necessary has been held to apply under an act forbidding the sale of oleomargarine or other imitations of dairy products unless express notice be given to the purchaser. Bayles v. Newton, 50 N. J. Law, 549; Com. v. Gray, 150 Mass. 327. The English rule is in keeping with the doctrine in this country on this subject. Roberts v. Egerton, L. R. 9 Q. B. 494.

The statute not requiring knowledge on the part of the seller to make the offense complete, we are satisfied that the conviction must be sustained. No case has been cited, and we are not able to find one, where a contrary doctrine is laid down. The act may work hardship in many cases, but that question is one to be addressed to the legislature, and not to the courts. As we have said, it was within the power of the legislature to pass the act making it an offense punishable with fine and imprisonment to sell adulterated food or drink, although the person selling the same has no knowledge that it is adulterated. Under this statute, one making sales must do so at his peril.

The conviction is affirmed.

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

       This section reads as follows: “No person shall knowingly offer, sell, or expose for sale, in any package, cheese which is falsely branded or labeled.”


text:
    GODKIN v. OBENAUER.
    Estoppel — Inspection op Lumber — Negligence.
    A lumberman who sells his lumber according to a certificate of inspection, after learning of a discrepancy between the actual measurement as shown- by the certificate and his own estimate of the quantity of the lumber, cannot recover against the party who issued the certificate, upon the basis that his own estimate was correct and the certificate wrong.
    Error to Bay; Maxwell, J.
    Submitted April 30, 1897.
    Decided May 25, 1897.
    Assumpsit by John Godkin against Henry G. Obenauer and another for failure to make a proper inspection of plaintiff’s lumber. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Plaintiff was a lumberman, and had upon the docks at his mill in Schoolcraft county piles of lumber ready for shipment. It was the custom to sell lumber in Chicago according to the certificates of inspection as to both quality and amount. The defendants were known in Chicago as accurate and experienced inspectors. Plaintiff applied to them to inspect this lumber, which was to be shipped on two vessels. They informed him that they could not do it themselves, but would send a competent man, with certificates of inspection signed by them in blank, to be filled out by the inspector. They sent an inspector named Parish, a man of experience and skill. He inspected the lumber as it was transferred to the vessels, made out his certificates, delivered them to the plaintiff, who sent them to a commission merchant in Chicago, and the lumber was sold by him according to this inspection. Plaintiff and a man named Little made an estimate of this lumber upon the docks, which was greater than the amount as determined by Parish. Plaintiff brought this suit against the defendants, alleging negligence on their part, through their agent, Parish, in making the measurements. It is alleged that he “so negligently, carelessly, and unskillfully performed said service that he failed and omitted and neglected to inspect about 50,000 feet of lumber, and inspected as cull about 50,000 feet that, if properly inspected, was worth $13.15 per thousand, but under said inspection was so graded as to bring only about $7 per thousand.” The case was submitted to the jury to determine between the estimate of plaintiff and the measurement of Parish. The jury found for the defendants.

      C. L. Collins, for appellant.

      Porter & Haffey (De Vere Hall, of counsel), for appellees.
   Grant, J.

(after stating the facts). It would be necessary to discuss some of the assignments of error, provided the plaintiff had made such a case as should have been submitted to the jury. Counsel for the defendants contend that the alleged errors are immaterial, since the court should have directed a verdict. Counsel for the plaintiff contends that this question cannot be now raised, as the record does not contain all the testimony. We must hold that the record contains all the testimony under the following decisions: Hitchcock v. Burgett, 38 Mich. 508; Ironwood Store Co. v. Harrison, 75 Mich. 201. Whether or not this be so, the sole basis on which plaintiff asked to recover was the estimate. He introduced no testimony of actual measurement.

It appears that the first cargo contained 296,252 feet, and the second 201,671 feet. Before the first cargo was completed, Parish informed plaintiff that the lumber would not hold out according to his estimate. When the first cargo was loaded, Parish gave plaintiff a certificate of inspection, which he inclosed to his agent in Chicago, with directions to sell. He at the same time informed him that he would require a vessel to carry about 200,000 feet for the second cargo. Plaintiff, telegraphed for a vessel to hold that amount, and, as already shown, the cargo amounted to a little over 200,000 feet. Plaintiff therefore knew of the discrepancy between the actual measurement and his estimate. He knew of this discrepancy before the first cargo was loaded. It was his duty to secure a second inspection if he desired to hold the defendants for damages. His estimate was not, and could not be, accurate. While the lumber was in his own control, and it was in his power to have it remeasured, he chose to sell it according to the certificates of inspection. Since he chose to act under the inspection and sell his lumber by it with full knowledge of all the facts, the law will not permit him to recover upon the basis that his estimate was correct and the actual méasurement wrong. Some of these piles contained over 100 courses. The lumber was of various lengths from 12 to 16 feet, according to plaintiff’s testimony, and, according to Little and Parish, from 10 to 18 feet. The estimate was made by taking from 5 to 7 courses, measuring the width of the boards in each course, estimating the average length, and thus determining the amount in these courses. The rest of the pile was estimated by the amount thus reached. It is true that plaintiff was so confident of the correctness of his estimate that he said: “Prom my experience, my estimates and inspection have varied sometimes; but I consider the measurement wrong, not my estimate.” But he also testified that there would be some Wry heavy variations. “Sometimes there would be such a variation between my estimate and the shipment that I would have to stop them.” He was not present at all the estimates, but his employé, Little, made some of them alone. He also said: “I estimated some of the piles, and Little and myself the others. Sometimes I made up my estimate on my judgment, Little on his judgment; and sometimes we then took the combined judgment of both of us. Sometimes I might measure the boards while he might count the courses.” It is unnecessary to further state the testimony. For the reason above given, the plaintiff was not entitled to recover, and the errors were therefore harmless.

Judgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    KINNEY v. ONSTED.
    Negligence — Dangerous Premises — Liability op Proprietor.
    The proprietor of a grain elevator is not liable for injuries to a customer occasioned by the giving way of a railing about an elevated platform, even though he had knowledge of its defective condition, where the customer, at the time of the accident, was putting the railing to a use other than that for which it was intended, by leaning against it for support.
    Error to Lenawee; Lane, J.
    Submitted April 30, 1897.
    Decided May 25, 1897.
    Case by George B. Daniels against John Onsted for personal injuries. There was a judgment for plaintiff, and defendant brought error. Plaintiff died pending the .appeal, and the cause was revived in the name of his administrator, Frank D. Kinney. Judgment reversed.

      Salsbury & O’Mealey, for appellant.

      Watts, Bean & Smith, for appellee.
   Montgomery, J.

This action was instituted by George B. Daniels in his lifetime, to recover damages sustained by reason of the alleged defective condition of the defendant’s premises. The material facts in the case, as disclosed by the evidence, are that the defendant was the proprietor of a grain elevator, which consisted of a building 22 feet wide and 40 feet in length. On the south side of this building there is a bridge 12 feet in width, with an approach leading up to it at either end, of the same width. A pair of rolling doors, 7i feet wide, open from about the center of the building onto this bridge or elevated platform. One means of approach to the office, which is in the elevator building, is to follow the driveway up to the platform, and across it, through these doors. Near the edge of this platform is a railing fastened to posts spiked to the sills of the bridge or platform. The posts are 4 by 4, with 2 by 6 pieces spiked lengthways on top. The railing is 3 feet high. In front of the rolling doors a space of 10 feet wide is left, where there is no railing, having been left out to facilitate the loading of heavy articles into farmers’ wagons. The portion of the railing east of this opening is 20 feet long before the grade portion of the bridge is reached. On the west of the opening there is a railing 10 feet long, on the level part of the bridge, and another railing on the west grade, 8 feet in length. Farmers, in delivering-grain to the elevator, drove onto the bridge, and, by means of a spout attached to the wagon, ran the grain into the hopper.

The testimony tends to show that, a few days prior to the injury to the plaintiff, there had been a runaway, and the railing had been damaged, the top piece being torn off from the posts, and the posts also weakened; that the railing had been straightened up in such manner that its appearance did not indicate its weakness to the casual observer. The plaintiff, on the day in question, started to go to the elevator to buy a load of corn of the defendant. He went onto the bridge from the west approach, well to the south side of the platform, and was passing in a northeasterly direction, to go through the rolling doors into the elevator building. If he had kept on in that direction, it would have brought him on the inside of the elevator, where his business with the pi'oprietor was to be transacted; but it appears that at this time his son, Willis Daniels, and William Knapp, were on the bridge, unloading a load of wheat, and his son called to him, saying that he had some money for him. At that, plaintiff turned southeast, came up to the south side of the wagon, near the center, a distance of 15 or- 16 feet, where his son was, and got the money. After he got it, he was talking with these two men a few minutes about the horses, and, while so talking, leaned against the railing, and it gave way, and he fell to the ground, and was injured. Upon this state of facts, the plaintiff recovered, and the defendant brings error, and contends that there is no case shown by the plaintiff’s testimony entitling him to recover, and that the defendant was under no obligation to build a railing, or keep it in repair, for the plaintiff to lounge or sit upon or lean against. The plaintiff, on the other hand, contends that the case falls within the rule that where a party, expressly or by implication, invites others to come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and, to that end, he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.

This case is certainly near the dividing line. The rule is well settled that the owner or occupant of land is liable to those coming to it at his invitation, express or implied, on any business to be transacted or permitted by him, for an injury occasioned by the unsafe condition of the land or the access to it, which is known to him and not to them, and which he has negligently suffered to exist. But this duty, it is held, does not extend so far as to make such an occupant responsible for the unsafe condition of those parts of his premises not intended for the reception of visitors or customers, and where they are not expected to go. See 1 Thomp. Neg. p. 308. Applying these rules to this case, it is clear that, if the plaintiff had suffered an injury from a defect in the floorway of the platform or bridge, or, possibly, if, by misadventure, he had stumbled and fallen against this defective railing, there would be ground for holding that the defendant was responsible for the injury. But the weakness of the plaintiff’s case is that the defendant never invited him to enter upon his premises, and put the railing to the test of supporting his weight, by leaning or lounging against it.

The only cases in which a similar question has arisen, which have been called to our attention, are those of Stickney v. City of Salem, 3 Allen, 374, and Orcutt v. Bridge Co., 53 Me. 500. In Stickney v. City of Salem the action was against the city for injuries resulting to deceased caused by leaning against a fence or railing which marked the terminus of a street, and was built upon the top of a sea wall. The deceased, in company with a friend, had walked to this point to view the sea, had turned his back to and leaned against this railing, which gave way, because of defects, and he received serious injuries. The court say:

“The fact that the railing was defective, and would have proved an insufficient barrier in case it became necessary for a traveler to use it for a legitimate object, is wholly immaterial. It is a sufficient answer to the plaintiff’s case that the defendants were not bound to keep the railing in repair for the purpose for which it was used by the deceased at the time of the accident.”

The case of Orcutt v. Bridge Co. is precisely analogous to that of Stickney v. City of Salem.

It is urged by plaintiff’s counsel that a distinction exists between private premises and a public highway in this regard, and that the rule of care required of the highway authorities is based upon a different principle from that of private parties inviting persons upon their premises. We think, however, that this distinction cannot avail the plaintiff in this case. The invitation to the plaintiff was to do business in the elevator. The approach to the place of business was an elevated private way. It could not be expected any more by this defendant than Dy the city authorities of Salem in the case cited that this private way would be put to any other than the uses to which it was apparently adapted. Undoubtedly, in the case of a municipality or an individual maintaining a way, an injury resulting from a defect in the way itself, to one who stops to transact business, may be recovered for. But the weakness of the plaintiff's case arises from the fact that this railing was put to a use for which it was not intended, any more, in the present case, than were the railings in the cases cited from Massachusetts and Maine. Plaintiff’s counsel concede that the defendant was under no obligation to build or keep the railing in repair for plaintiff to lounge or sit upon or lean against, but they contend that the defendant’s liability arises out of his knowingly permitting a snare or trap, by leaving the railing in apparent good order, but .in fact so defective that one was liable to receive injury from it. But, before it could become a snare or trap, it must be assumed that its apparent good condition was an invitation to make such a use of it as the plaintiff attempted. As we have seen, its presence was not an invitation to make that use of it.

We think there was no case for the jury, and that the judgment should be reversed, and no new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    McMORRAN v. MOORE.
    1. Insolvent Debtors — Assignment for Benefit of Creditors— What Constitutes.
    An insolvent debtor deeded all of bis real estate, except bis homestead, to a firm to which he was indebted in a large amount, and at the same time executed to a member of the firm, as trustee for certain specified creditors, a chattel mortgage covering all of his personal property. This mortgage made no provision for the return of any surplus to the mortgagor. Held, that the instruments did not constitute an assignment for the benefit of creditors.
    2. Attachment — Dissolution—Burden of Proof.
    Upon proceedings to dissolve an attachment, the plaintiff has the burden of showing, affirmatively, sufficient cause for issuing the writ, existing and continuing up to the time of the hearing of the application to dissolve.
    3. Same — Absconding—Meaning of Term.
    “Absconding,” within the meaning of the attachment laws, means something more than a mere temporary absence for health. It involves the design to withdraw clandestinely, to hide or conceal one’s self, for the purpose of avoiding legal proceedings.
    4. Fraudulent Conveyances — Evidence.
    The mere fact that a transfer or series of transfers by a debtor to his creditor will necessarily hinder or delay other creditors, or prevent the collection of their claims, does not render the same fraudulent as a matter of law.
    o. Attachment — Dissolution—Evidence.
    Although, to justify the issuance of a writ of attachment on the ground of a fraudulent disposition of property, the intent to defraud must have existed at the time the writ issued, the subsequent conduct of the parties may properly be considered, upon an application to dissolve the writ, for the purpose of throwing light upon such intent.

      Certiorari to St. Clair; Vance, J.
    Submitted April 30, 1897.
    Decided May 25, 1897.

      Attachment proceedings by David McMorran and another against David Moore. Plaintiffs bring certiorari to review an order dissolving the writ.
    Reversed.

      Sparling, Laio & Moore (H. W. Stevens, of counsel), for appellants.

      Avery Bros. & Walsh (Phillips & Jenks, of counsel), for appellee.
   Hooker, J.

Upon application of the defendant, the circuit court dissolved an attachment, and the plaintiffs bring the case here for review upon the findings of the circuit judge. These are voluminous, and need not be incorporated in the opinion. The principal questions that counsel for the plaintiffs raise are:

First. That the findings show that certain instruments amount to a common-law assignment for the benefit of creditors, with a preference.
Second'. That they constituted grounds for attachment.

In brief, the finding shows that the defendant, David Moore, was engaged in the mercantile business upon his own account at Port Huron. He was also an equal partner with his brother Thomas'in a store at St. Clair, and both concerns were insolvent. On January 25, 1896, David Moore owed F. Saunders & Co. about $6,000, of which $622.85 was due from the partnership of T. & D. Moore. At the same time, David Moore owed the plaintiffs $1,386.02, and large sums to other creditors. On that day he executed to F. Saunders & Co. six warranty, deeds and two quitclaim deeds, covering all of his real estate except his homestead (which was mortgaged), for an expressed total consideration of $4,100. On the same day, he and his wife executed to Dixon, a member of the firm of F. Saunders & Co., as trustee, a chattel mortgage covering all of his personal property, in trust for the security of certain creditors therein named. This mortgage made no provision for the return of any surplus to the mortgagor. When executed, these instruments were handed to Thomas Moore, and David and his wife started for New Mexico. Thomas delivered the deeds and mortgage three days later.

We think that these instruments should not be held to be an assignment for creditors with a preference. The omission from the mortgage of a provision for the return of a possible surplus did not make the transfer absolute. In Austin v. First Nat. Bank, 100 Mich. 618, an instrument without a defeasance was held a mortgage, and what was there said is applicable to this instrument. It is definitely settled in Michigan that a debtor has a lawful right to prefer a creditor, and that the courts are not alert to deprive him and the preferred creditor of their rights, where the intention of the debtor is manifest, and the instruments do not legally constitute an assignment, and there is an ábsence of fraud. See Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; National Bank of Oshkosh v. National Bank of Ironwood, 100 Mich. 485. The discussion in these cases fully covers the subject.

It is further contended that the attachment should not have been dissolved, because the evidence showed that the transfers were fraudulent and that the defendant had absconded. In applications for the dissolution of attachment, the burden is on the plaintiff in attachment to show, affirmatively, sufficient cause for issuing the writ, existing and continuing up to the time of hearing of the application to dissolve. Macumber v. Beam, 22 Mich. 403; Brown v. Blanchard, 39 Mich. 790; Folsom v. Teichner, 27 Mich. 107. It therefore was necessary for the plaintiffs to convince the circuit court of the facts relied upon, viz., that the defendant had absconded to the injury of his creditors, or that he had fraudulently disposed of his property with intent to defraud his creditors, or one of the other causes set forth. The court found explicitly that David Moore, in going to New Mexico, did not abscond, but went for his health, intending to return; also, that the making of the deeds was not with an intent to hinder, delay, or defraud creditors. The finding of fact is quite full in respect to the minutiae of the transaction. So far as it is necessary to find a specific intent, the conclusion of the circuit judge cannot be reviewed by us. “Absconding,” in the eye of the law, means something more than a temporary absence for health. It involves a design to withdraw clandestinely, to hide or conceal one’s self, for the purpose of avoiding legal proceedings. The court not only found an absence of such intent, but the facts found are consistent with the absence of such intent.

Upon the question of fraud we may say substantially the same. The facts found do not conclusively establish an intent to hinder, delay, or defraud creditors. Counsel assign error upon certain isolated facts, substantially asking us to say that such facts, in and of themselves, are grounds for attachment, for the reason, apparently, that they conclusively show an intent to defraud; such, for instance, as the “making and delivery of the eight deeds,” the “including the partnership account in the chattel mortgage,” and other things which need not be mentioned at length. Some of these were facts which collectively or singly might have led the court to find the presence of a fraudulent intent. But we cannot say that they conclusively show it. Nor can we say that they are necessarily grounds for attachment, unless we are to adopt plaintiffs’ claim that where an act will necessarily hinder or delay creditors, or possibly prevent their collection of their claims, it is a legal fraud. Such a rule undoubtedly applies in some classes of cases, as where a voluntary conveyance is made, but we think it cannot be said of this case.

It seems that, after David Moore left, he executed another mortgage to Dixon, and consented to a sale of the partnership business. It also appeared that Dixon had not taken possession of the stock of goods under his mortgage up to the time of hearing, and that certain dealings were had with the property by T. Moore, the defendant’s agent, by F. Saunders & Co.’s consent. The judge returns that he has “not considered the effect of this chattel mortgage, or the manner of dealing with the mortgaged property, for the reason that the facts justifying the Issuance of the writ of attachment must exist at the time it issues, and not afterwards.” While the intent to defraud must have existed at the time the writ issued, the subsequent conduct of the parties to the transaction was admissible to throw light upon the intent with which the instruments were made and accepted, and, had there been a jury, it would have been error to exclude them. The Judge seems to have excluded them as immaterial to the issue. While we cannot say that they should have affected the result, we cannot say that they should not. It was the duty of the judge to consider them. Inasmuch as he did not, we have no alternative but to reverse the order of dissolution, with costs, and direct a new trial. Such an order is therefore made.

The other Justices concurred.


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    HINKLE v. COLLINS.
    1. Appeal prom Justice’s Court — Docket Entries — Conclusiveness op Return.
    Defendants who take a special appeal from a justice’s judgment, alleging as error that the docket entry, “judgment against defendant,” does not indicate against which of the defendants judgment was rendered, are bound by an amended return, made at their request, whereby it appears that the judgment was against both.
    2. Same — Names op Parties — Initials.
    That a plaintiff in justice’s court has a Christian name other than the initials by which he sues is not established, on special appeal, by the return of the justice to that effect, where there is nothing in the proceedings themselves from which the fact could be judicially ascertained.

      Error to Lenawee; Lane, J.
    Submitted April 30, 1897.
    Decided May 25, 1897.
    Trover, in justice’s court, by C. G. Hinkle against Horace M. Collins and Merritt Wing. There was a judgment for plaintiff, and, on special appeal to the circuit court, the proceedings were quashed. Plaintiff brings error.
    Reversed.

      J. C. Winne, for appellant.

      John Riley and Watts, Bean & Smith, for appellees.
   Long, C. J.

This action was commenced in justice’s court by summons issued in the name of C. G. Hinkle against H. M. Collins and Merritt Wing, doing business under the firm name of H. M. Collins & Co. The justice’s docket shows that on the return day the parties appeared by their attorneys, and, security for costs being demanded, the same was given. The parties then agreed to an adjournment. On the adjourned day plaintiff appeared by his attorney. The docket then reads: ‘ ‘ Defendant answered to his name by John Riley, his attorney.” The docket further shows that plaintiff then produced witnesses, who were sworn and examined in the cause, and cross-examined by “defendant’s counsel;” that “no evidence was offered on the part of the defendant, other than cross-questioning of plaintiff’s witnesses. After hearing the testimony and arguments of parties, judgment was rendered forthwith by me against the defendant in favor of the plaintiff for the sum of $23.16 in damages, and $9.50 cost of suit.” By special appeal the case was taken to the circuit court, the affidavit alleging as errors:

“1. That the justice, in entering the case on his docket, named plaintiff by his initials instead of his full name.
“2. That the justice, in rendering judgment against defendant, did so without specifying which defendant.
“3. That the justice, in entering the appearance of defendant on the trial day, did so without specifying which defendant appeared.”

The justice made a return to the circuit court, setting out a copy of his docket as above. Defendants then moved the circuit court for further return, asking the justice to state:

“1. Who became security for costs in said cause.
“2. If said plaintiff’s name is not Charles G. Hinkle; if not, to state what it is.
“3. Also return a copy of summons in said cause.
“4. Also state which defendant Mr. Riley appeared for on February 9, 1894, and state which defendant then appeared.
“5. Also state which defendant judgment was rendered against.”

The justice made further return that plaintiff’s name is Charles G. Hinkle; that both defendants appeared on the adjourned day, by John Riley, attorney; and that he entered judgment against H. M. Collins <fe Co. On the hearing of the special appeal in the circuit court, the court found that the judgment of the justice ‘ ‘ is uncertain, void, and of no effect,” and thereupon quashed the proceedings, with costs against the plaintiff and his security for costs. Plaintiff brings error.

The defendants having asked a further return, and it having been made, they are now bound by it. The amended return shows that both defendants appeared, and the judgment was rendered against both. By the appearance of the plaintiff and both the defendants the justice had jurisdiction to hear and determine the cause.

The only question, then, remaining, is whether the plaintiff could sue by the initials to his name, without stating his full Christian name. In Fewlass v. Abbott, 28 Mich. 270, it was held that the objection to the name in which the suit was brought by the plaintiff was not well taken; that it will not be presumed, for the purpose of invalidating the judgment in his favor, and in the absence of any showing upon the subject, that the plaintiff has any other name than the one used. In that case the plaintiff sued in the name of O. B. Abbott. The same rule was laid down in State v. Webster, 30 Ark. 166; Burford v. McCue, 53 Pa. St. 427; Dana v. Fiedler, 12 N. Y. 40 (62 Am. Dec. 130); Perkins v. McDowell, 3 Wyo. 328. In the latter case the court said:

“While it does not occur frequently, there are many instances when single letters constitute the only Christian name. We cannot, then, judicially know that the letters ‘J. M.’ are pot a name, and, as the petition does not disclose that the letters £J. M.’ are not the Christian name of the plaintiff, it follows that there is no defect apparent on the face of the petition.”

But counsel for defendant contend that the amended return of the justice shows that Mr. Hinkle’s Christian name is Charles. The justice’s summons, his docket entries, and the whole proceedings had before him were returned by the first return. Mr. Hinkle, as appears by the docket, was sworn as a witness, and every entry in the summons and on the docket shows that his Christian name is C. G. It is not made apparent from any of the papers how the justice could judicially know that the name was any other than C. G.

We think the court was in error in reversing the judgment of the justice. That judgment will be reversed, with costs of this court to plaintiff. Inasmuch as the circuit court had jurisdiction of the case upon the appeal of defendants, the cause must stand for hearing in that court on the merits.

The other Justices concurred.


text:
    HOFFMAN v. BAY CIRCUIT JUDGE.
    1. Attorneys at Law — Privilege—Service op Process.
    The privilege of exemption of attorneys from arrest in certain cases, given by 2 How. Stat. § 7253, is not exclusive of the common-law privilege from service of process while attending court, or while going thereto or returning therefrom.
    2. Same.
    An attorney at law is privileged from the service of process while attending upon the Supreme Court, and while going to the court, and returning therefrom to the county of his residence.

      Mandamus by Henry Hoffman to compel Andrew C. Maxwell, circuit judge of Bay county, to dismiss a suit against relator for want of proper service.
    Submitted May 18, 1897.
    Writ granted May 25, 1897.

      G. B. Brown, for relator.

      G. L. Collins, for respondent.
   Montgomery, J.

Relator is an attorney at law, and at the October term of this court appeared and argued a cause in this court, and, while on his return to his home at St. Ignace, was served with a summons at the suit of John Godkin, a party to the case pending in this court. He moved to dismiss the proceeding on the ground that he was privileged from the service of process while attending upon the court, and while going to and returning from the court to the county of his residence. The circuit judge denied the motion, and the question is before us for review on mandamus.

The only statute of this State bearing upon the subject is section 7253, 2 How. Stat., which reads:

“All officers of the several courts of record shall be liable to arrest, and may be held to bail, in the same manner as other persons, except during the actual sitting of any court of which they are officers, and, when sued with any other person, such officers shall be liable to arrest, and may be held to bail, as any other persons, during the sitting of the court of which they are officers; but no attorney, solicitor, or counselor shall be exempt from arrest during the sitting of the court of which he is an officer, unless he shall be employed in some cause pending and then to be heard in such court.”

It is said by respondent’s counsel that this statute should be held to exclude all other privilege, and that this only relates to arrest on civil process, and does not apply to the service of summons. We think the statute should not be so construed, but that if, at the common law, the attorney was privileged from the service of process- while attending upon court, that privilege has not been removed by the statute in question.

In 2 Tayl. Ev. § 1330, the common-law rule is stated:

“In order to encourage witnesses to come forward voluntarily, they are not only protected from any action for defamation with respect to such statements as they may make in the course of the judicial proceeding, but, in common with parties, barristers, solicitors, and, in short, all persons who have that relation to a suit which calls for their attendance, they are protected from arrest upon any civil process, while going to the place of trial, while attending there for the purposes of the cause, and while returning home.”

In the case of Mitchell v. Huron Circuit Judge, 53 Mich. 541, it was held by this court that, as to parties, the privilege extends to the service of summons as well as to suit commenced by arrest. It was said that “public policy, the due administration of justice, and protection to parties and witnesses alike demand it.” In Cofrode v. Wayne Circuit Judge, 79 Mich. 332, 349, Mr. Justice Campbell, referring to Jacobson v. Wayne Circuit Judge, 76 Mich. 234, said: “It has been settled that service cannot be made within the original county on any one who is there as a witness, or on any other legal errand which exempts him from process while away from his residence.” In Matthews v. Tufts, 87 N. Y. 568, the defendant attended a meeting of creditors of a bankrupt, for the purpose of proving claims in his own behalf and in behalf of others whom he represented. The court, after reviewing the authorities, say: “The plaintiff claims that the defendant was not attending as a witness, but only as a creditor. * * * Conceding that the defendant was in attendance only as a party, and as attorney of other parties, we think he was privileged from service of process or summons while so attending.” It was further said: “This immunity does not depend upon statutory provisions, but is deemed necessary to the due administration of justice.” In Central Trust Co. of New York v. Miwaukee St. R. Co., 74 Fed. 442, a subpoena was served upon a nonresident attorney while attending upon the court in another county. Upon a review of the authorities, the court held that- this was a violation of privilege. In Sherman v. Gundlach, 37 Minn. 118, it was said: “The same reasons for exempting a nonresident witness from arrest exist in favor of exempting him from the service of a summons in a civil action.” In Massey v. Colville, 45 N. J. Law, 119 (46 Am. Rep. 754), it was said: “The foundation of the rule is the impolicy of permitting an act which will deter suitors or witnesses from attending courts.” This consideration applies with equal force to an attorney. See, also, Gilbert v. Vanderpool, 15 Johns. 242; Van Alstyne v. Dearborn, 2 Wend. 586; Hurst’s Case, 4 Dall. 387; Lyell v. Goodwin, 4 McLean, 39.

The writ will be granted.

The other Justices concurred.


text:
    SHERIDAN v. COLTON.
    Log-Lien Proceedings — Service and Return — Inventory.
    It is essential to the validity of attachment proceedings under the log-lien law (Act No. 229, Pub. Acts 1887), where the property attached was not in transit, that it appear from the officer’s return that a copy of the inventory was served upon the principal defendant.
    Error to Montmorency; Kelley, J.
    Submitted April 27, 1897.
    Decided May 25, 1897.
    Attachment proceedings in justice’s court under the log-lien law, by Thomas Sheridan against Benjamin Col-ton. There was a judgment for plaintiff, which was reversed in the circuit court on certiorari. Plaintiff brings error.
    Affirmed.

      James Francis, for appellant.

      Henry K. Gustin, for appellee.
   Long, C. J.

This action was brought in justice’s court under Act No. 229, Pub. Acts 1887. The attachment was issued April 6, 1895, by the justice, whose office was in Montmorency county, and directed the officer to seize .about 14,000 pieces of cedar ties, paving, and posts banked on Gilchrist creek. The writ further directed the officer to summon Benjamin Colton to be and appear before the justice on April 17th at 4 p. m., to answer the plaintiff, etc.; and, further, that in case the defendant in the writ was not the owner of the cedar posts, etc., he was to serve the writ upon the owner, his agent or attorney, if found within the State. It appears that the plaintiff, on April 6, 1895, filed in the office of the county clerk of Montmorency county a statement of his claim of lien upon the property described in the writ for labor performed by him in cutting, skidding, hauling, and banking the cedar posts, etc., in question, and showing that the last day’s labor was performed on April 5,1895. The affidavit for the writ of attachment and the writ itself are in due form. The officer made return to the writ on the return day. The return states that, on the 8th day of April, .he seized and took into his possession 2,000 cedar ties and 400 pieces of paving, and he then certifies that—

“I served a certified copy of said writ on William Bates, the foreman of the drive on Gilchrist creek, in Montmorency county, who was then and there engaged in driving said ties and posts; that on the 11th day of April, 1895, I served the said writ by delivering to him a copy thereof, duly certified to by me, on Benjamin Colton, the within-named defendant, by delivering'to him, at the city of Alpena, Alpena county, a copy of said writ, duly certified by me, and showing him the original; and that on the said 11th day of April, 1895, I served a copy of said writ on Granville S. Fowler, to me known to be the agent of the owner of said ties and posts, and said service was made in Alpena township, of Alpena county, Michigan.”

On the return day the defendant, Benjamin Colton, and the owner of the ties, posts, etc., Mr. Edward E. Ayer, appeared specially by their attorney, who filed a plea in abatement, asking the suit to be quashed, because Benjamin Colton was a resident of Alpena county, and Mr. Ayer a resident of the city of Chicago, and the justice acquired no jurisdiction over the ties and posts, and that the officer had no authority to serve the papers, that no papers were served upon Mr. Ayer, and that no service was made in accordance with law. This motion was overruled, and the cause proceeded to trial before the justice, who entered judgment in favor of plaintiff and against the defendant of #73 damages and $11.15 costs of suit. The defendant removed the case to the circuit court by certiorari, where the judgment was reversed. Plaintiff brings error.

It is contended that the justice did not acquire jurisdiction because no copy of the inventory was served upon the defendant with a copy of the writ of attachment. The officer’s return does not show that such inventory was served, though one was made. The question was raised in Federspiel v. Johnstone, 87 Mich. 303, and it was there said:

“We are of the opinion that the service mentioned in section 11 is not required in the case of a log owner who is not the defendant in attachment, and who is notified of the proceedings so that he may protect his interests in the product attached, and that the notice to be given is the one provided for in section 6.”

This question was raised again in McGuire v. McKnight, 101 Mich. 275; but in that case, as in Federspiel v. Johnstone, supra, the logs were in transit, and hence no inventory could be made. The question was also before us in White v. Prior, 88 Mich. 647, and there it was held that the proceedings were void, as the return to the writ did not show that the officer served a certified copy of the inventory of the property seized upon either the principal defendant or- the owner of the property. In the present case the property was not in transit. An inventory had been made, but no copy was served upon either the pi'incipal defendant or the owner of the property. As this must dispose of the case, we need not discuss the other questions raised.

The judgment of the court below must be affirmed.

The other Justices concurred.


author: Long, C. J. Montgomery, J.

text:
    RANDALL v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Master and Servant — Liability of Master to Third Persons —Burden of Proof.
    In an action to recover for injuries inflicted by defendant’s servant, the plaintiff has the burden of proving that the act complained of was within the scope of the servant’s employment.
    2. Railroad Companies — Ejection of Trespasser from Train— Authority of Brakeman.
    A brakeman on a freight train has no implied authority to eject trespassers. Montgomery, J., dissenting. t
    3. Same — Rules of Company.
    The fact that the rules of a railroad company prohibit the carrying of passengers upon freight trains, and that brakemen are required to familiarize themselves with the rules of the company, does not establish the authority of a brakeman upon such a train to eject one who boards the same for the purpose of taking passage thereon, where the rules further provide that brakemen shall be under the orders of the conductor. Montgomery, J., dissenting.
    Err or to Eaton; Smith, J.
    Submitted January 7,1897.
    Decided May 28, 1897.
    Case by William A. Randall against the Chicago & Grand Trunk Railway Company for personal injuries. From a judgment- for plaintiff, defendant brings error.
    Reversed.

      Geer & Williams (E. W. Meddaugh, of counsel), for appellant.

      Powers & Stine, for appellee.
   Long, C. J.

This action was brought to recover damages for injuries claimed to have been sustained by plaintiff by being compelled by a brakeman to jump from a freight train, while in motion, belonging to defendant. The injury occurred March 19,1894. The plaintiff, without permission of the defendant, got upon one of defendant’s freight trains at Charlotte, this State. When the train arrived near Olivet Hill, plaintiff was discovered by one of defendant’s brakemen between two cars, holding onto the projecting iron at the end of the car. Plaintiff claims that, while the train was running at a high rate of speed, he saw the brakeman, and climbed around upon the side of the car, taking hold of the ladder which is used to climb onto the car. The brakeman then commenced pouring black oil upon him, and said, “Are you going to get off from here ?” That his hands got so slippery from the oil that he could not hold on longer, when he jumped off, and was severely injured.

On the trial the court instructed the jury:

“If you believe from the evidence that the brakeman of defendant’s train commenced pouring oil upon the plaintiff while he was riding upon the car, and continued to pour oil upon him until his hands became so slippery from the oil that he could hold on no longer with safety, and that it was safer for him to- jump than it would be to attempt to remain hanging to the train, and he did so jump, and was injured thereby, your verdict must be for the plaintiff.”

There was verdict and judgment for plaintiff.

It appeared upon the trial that this was a through freight train, not authorized to carry passengers without special permit from the officers of the company. The company had printed rules. Certain of those rules were printed upon cards and hung in the way stations. Upon one in the station at Charlotte the following rule was printed:

“Passengers will not be carried under any circumstances upon any freight train, except such as are designated and between points named upon the time-table; nor will they be carried upon such freight trains unless provided with freight-train permits.”

This was not one of the trains named upon the timetable, and the plaintiff had no permit to ride thereon. He was a trespasser in getting upon the train. He had no right there. By rule 172 of the company it is provided, ‘ ‘ Brakemen are under the orders of the conductorand by rule 170 it is also provided, “Brakemen must make themselves thoroughly acquainted with the whole code of signals and the instructions referred to in these rules and regulations, as well as those embodied in the said timer table.” At the close of the testimony, counsel for defendant requested the court to charge the jury that their verdict must be for the defendant. This was refused, and the question was submitted to the jury for their determination as one of fact.

Counsel for plaintiff contend that the record shows that the brakeman had the authority to remove the plaintiff from the train, and having exercised that authority in a cruel and unjustifiable manner, by means of which the plaintiff was injured, a right of action exists against the defendant company. This contention is based upon the rules of the company, which were put in evidence. The claim is made that inasmuch as the rules provided that this class of trains should not' carry passengers, and the brakemen of the defendant company were required to familiarize themselves with those rules, the brakeman must have known that it was his duty, and that he was authorized by the company, to eject the plaintiff from this train, and that in ejecting him he was in the discharge of a duty which the company had imposed upon him. On the other hand, it is contended by counsel for defendant that, under rule 172, brakemen of freight trains are subject at all times to the orders of the conductors of the trains; that the rules nowhere imply that a brakenian has authority to eject, or that the company has placed upon the brakemen the duty of ejecting, even trespassers from freight trains, but that they are subject to the orders of the conductors of such trains; and that in the present case the brakeman is not shown to have received any such orders, and that, therefore, his act in ejecting the plaintiff was not the act of the defendant company; that it became necessary, in order to entitle plaintiff to recover, that he should prove, not only that he was injured because of the wrongful act of the brakeman, but also that the brakeman was acting within the scope of his employment, and in the line of his duty, in causing plaintiff to jump off. In other words, that he must show that the brakeman inflicting the injury possessed the authority to do the act which resulted in the injury. It is conceded that there is no proof in that regard, unless the rules of the company are to be construed as contended by counsel for plaintiff.

We think the rules cannot be so construed. It is true that passengers are not permitted to ride upon this class of freight trains, and that brakemen are required to familiarize themselves with these rules; but under rule 172 the brakemen must take their orders from the conductor. There is consequently no proof in the case that the brakeman here had authority from the company to do the act complained of. The burden was upon the plaintiff to show such authority. In Corcoran v. Railroad Co., 6 C. C. A. 231, 56 Fed. 1015, it appeared that plaintiff was riding on top of a freight car without having paid any fare; that he was ordered off by a person whom he assumed to be a brakeman; that the brakeman seized him and threw him off while the train was in rapid motion, whereby he was injured. The court directed a verdict in favor of defendant, and the court of appeals affirmed the ruling, saying:

“The court is o”f the opinion that plaintiff should have offered some evidence showing the scope of the alleged brakeman’s authority. He failed to do so, and for that reason the judgment must be affirmed.” ,

In Pennsylvania Co. v. Dean, 92 Ind. 459, 462, it was said:

“But if the appellee was on the train without right, being a mere trespasser, the fact that the injury was occasioned by the negligent or unlawful acts of the appellant’s employes would not make the appellant liable, unless it further appeared that the acts complained of occurred within the scope of the servants’ employment.”

In Towanda Coal Co. v. Heeman, 86 Pa. St. 418, the plaintiff, a small boy, climbed upon the cars of defendant. After the train had started, he was seen by one of the brakemen, who threw some pieces of coal, which struck the boy ih the face, in consequence of which he slipped and fell in trying to get off the car. There was no evidence given of the authority of the brakeman to eject trespassers from the train, and the defendant asked an instruction that a verdict be rendered in its favor on this ground. This the court refused, but submitted the question to the jury to determine whether the brakeman was acting within the scope of his employment. The case was appealed, and it was said by the appellate court:

“A careful examination of all the testimony has shown that not a word contained in it tended to prove that the brakeman whose conduct is complained of, in the cruel and wüínton assault he made on the plaintiff, was acting in pursuance of any authority conferred on him. The only affirmative proof was precisely in the opposite direction. * * * Upon the facts developed on the trial, although the plaintiff had no right to be on the cars, the jury would have been justified in finding, as they did, such reckless, gross, and culpable negligence as to render the defendant liable for damages, if the brakeman had been shown to have been acting in the line of his duty and within the scope of his employment. With no evidence that he was so acting, and with the testimony of the assistant superintendent to the contrary, it was a mistake to submit the question whether the wrongful act was or Was not done in the exercise of a duly-delegated authority.”

The following cases sustain this rule: International, etc., R. Co. v. Anderson, 82 Tex. 516; Texas, etc., R. Co. v. Moody, (Tex. Civ. App.) 23 S. W. 41; Bess v. Railroad Co., 35 W. Va. 492 (29 Am. St. Rep. 820); Lake Shore, etc., R. Co. v. Peterson, 144 Ind. 214; Farber v. Bailway Co., 116 Mo. 81. Under the rule laid down in these cases, the defendant was entitled to have its request given that a verdict be rendered in its favor.

The judgment must be reversed. No new trial will be ordered.

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

Montgomery, J.

(dissenting). There is a conflict in the authorities upon the question presented in this case, namely, whether a brakeman on a freight train has implied authority to eject a trespasser. On principle, I am of opinion that such authority is to be implied from the nature of his employment. In the present case it was shown that the rules of the company prohibited the carrying of passengers upon the train in question, and it was shown that it was by another rule provided that it was the duty of the brakemen of the company to familiarize themselves with all its rules. In Patt. Ry. Acc. Law, § 111, it is said to be the doctrine of most of the'* cases that when a railway servant is put in charge of any of the property of the railway, as a station master in charge of a station, or a conductor in charge of a train, or an engine driver or fireman in charge of an engine, or a brakeman in charge of a car, that servant is necessarily charged with the duty of protecting that particular property, and he is therefore, for that purpose, vested with an implied authority to remove trespassers therefrom. This doctrine is approved in Brevig v. Railway Co., 64 Minn. 168, 172, where it is said that: “The duties of a freight-train brakeman do not consist merely of turning the brakes. By universal custom, he has police duties as to the cars immediately under his charge.”

It was said in Hoffman v. Railroad Co., 87 N. Y. 25, 30 (41 Am. Rep. 337), speaking of the brakeman:

“His duties do not primarily pertain to the protection of the cars against intruders; but he is'a servant of the company on the train, concerned in its management, and fully cognizant of the obvious fact that intruders, who jump upon the train for a ride, without intention of becoming passengers, are wrongfully there.”

See, also, St. Louis, etc., R. Co. v. Reagan, 52 Ill. App. 488; Vertrees’ Adm’r v. Railway Co., 95 Ky. 314; Houston, etc., R. Co. v. Bolling, 59 Ark. 395; Kansas City, etc., R. Co. v. Kelly, 36 Kan. 655 (59 Am. Rep. 596); Smith v. Railroad Co., 95 Ky. 11.

A distinction was attempted to be drawn on the argument between a freight train and a passenger train, favorable to the defendant’s contention. In my opinion, the authority of the freight brakeman is quite as clear as would be that of a passenger brakeman. It may be said with some force that, before the brakeman would have implied authority to eject an apparent trespasser from a passenger train, the conductor should be consulted, for the reason- that it is the conductor who is to determine who are authorized to ride upon the train, while in the case of a freight train not carrying passengers it is at once apparent to the brakeman that a stranger boarding the train is a trespasser.


author: Moore, J. Montgomery, J.

text:
    HARTIGAN v. MICHIGAN CENTRAL RAILROAD CO.

    Railroad Companies — Ejection of Trespassers on Trains — Liability for Injuries.
    A railroad company is not liable for injuries to a trespasser ejected from a train by a brakeman who had no authority to eject him.
    Error to Calhoun; Smith, J.
    Submitted January 15, 1897.
    Decided May 28, 1897.
    Case by George Hartigan against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Hulbert & Mechera, for appellant.

      L. B. Tompkins (Herbert E. Winsor, of counsel), for appellee.

       Rehearing denied June 18, 1897.

   Moore, J.

November 17, 1895, the plaintiff boarded an extra freight train belonging to the defendant, which was not allowed to, and did not, carry passengers, with the intention of stealing a ride. His version of what occurred, briefly stated, is that he was discovered by a brakeman while he was standing on a bumper, holding fast to the ladder which was on the side of a freight car, and was ordered to get off the train while it was going too fast for him to do so with safety. He claims the brakeman threatened to kick him off if he did not go, and started down the ladder as though to put his threat into execution. The plaintiff says that, believing the brakeman meant to do what he had threatened to do, and that it would be safer for him to jump than to remain on the car, he did jump, and received very serious injuries. The plaintiff does not claim the brakeman either struck or kicked him. The brakeman’s version of what occurred was a denial of the account given of the transaction by the plaintiff. He says he told the plaintiff that he was going back to set the brakes, to slow up the train for signals, and, if the train went slow enough, for him to get off, and, if not, that he would have to get off at Concord, where the train stopped. The plaintiff sued the defendant to recover for the injuries received by him. When the testimony was all in, the attorneys for the defendant asked the court to direct a verdict for the defendant upon the ground that plaintiff had not shown that the brakeman had authority to remove trespassers like Hartigan, and because it appeared affirmatively that he did not have such authority, and that, if he did what plaintiff claimed he did, he was acting outside of the scope of his authority, and the defendant would not be liable for his acts. The trial judge declined to accept this view, and submitted the case to the jury, who rendered a verdict for the plaintiff. Defendant appeals.

The only way this case differs from the case of Randall v. Railway Co., ante, 115, is that in this case it appears affirmatively that the brakeman did not have the authority to eject trespassers from, extra freight trains unless so directed to do by his superiors, while in the Randall Case that fact did not appear affirmatively. The opinion in Randall v. Railway Co. discusses so fully the principles of law involved in this case that it is not necessary to repeat them here.^

The judgment is. reversed, and no new trial ordered.

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

Montgomery, J.

(dissenting). My views upon the main question involved in this case are sufficiently expressed in Randall v. Railway Co., ante, 120.


text:
    O’CONNELL v. MENOMINEE BAY SHORE LUMBER CO.
    1. Constitutional Law — Justices of the Peace — Jurisdiction-Service of Process.
    2 How. Stat. § 7317, which authorizes the service of process, in. certain classes of cases, in counties adjoining that in which the court issuing the process is held, does not, as applied to justices of the peace, operate as an unconstitutional enlargement of the jurisdiction of constitutional officers, in view of the express provision of the Constitution that the powers and duties of justices shall be defined and regulated by law.

      2. Same — Class Legislation.
    Such statute, however, is invalid as class legislation, in that it gives special privileges to suitors upon specified classes of claims, and also excludes corporations, and, so far as the jurisdiction of justices of the peace is concerned, associations of individuals, from the benefit of its provisions.
    Error to Dickinson; Stone, J.
    Submitted February 3, 1897.
    Decided May 28, 1897.

      Assumpsit by Patrick O’Connell against the Menominee Bay Shore Lumber Company for work and labor performed. From a judgment for plaintiff, defendant brings error.
    Reversed.

      B. J. Brown, for appellant.

      Cook & Pelham, for appellee.
   Hooker, J.

2 How. Stat. § 7317, permits the service of process, in certain classes of cases, in counties adjoining that within which the court issuing the process is held. These classes of cases are trespass and injuries to lands, cases for the unlawful conversion of crops, and actions wherein the demand is principally for labor or services performed by any individual or company. The defendant is a corporation, and was sued before a justice of the peace in a county adjoining that in which it was domiciled, the process being a short summons. Its counsel contends that this statute enlarges the jurisdiction of justices, which cannot be done under the Constitution. It is said that they are constitutional officers, with well-known powers, which may not be changed. We consider the Constitution itself a sufficient answer to this, in that it expressly provides that the “powers and duties [of justices] shall be defined and regulated by law. ”

Next it is said that this is class legislation. The obvious purpose of this statute is to afford special privileges to suitors upon specified classes of claims, by permitting a different and more effective use of the courts and their process than is permitted in other cases. It is true that it permits everyone (except as hereinafter shown) who may possess a claim that falls within the classes mentioned to avail himself of the privilege, but the design and practical effect is plainly to give to one class in the community special facilities for the collection of money which others do not enjoy. Under this act, one who has a claim for services rendered by an individual or company (but not a corporation) may have the jurisdiction of a justice extended to half a dozen or more counties, while merchants, manufacturers, and others cannot. A farmer or other person who sells a load of wood in an adjoining county cannot have the benefit of this act, though the man to whom he sells it may compel him to answer a claim for services away from home. It has always been the rule that an alleged debtor could not be compelled to go away from his own county to defend a personal action under ordinary circumstances, and it is one of the unfortunate signs of the times that special advantages, especially to the extent of discrimination between the suitors of one and the same court, should be deemed necessary. It is true that any one can have the benefit of this act (except as indicated) who chooses to perform service, or, perhaps, to purchase such a claim; and so, in a technical sense, it may be said to apply to every one, and therefore not to be class legislation. But, whatever may be thought of this, the act itself excepts from its benefits to a certain extent all companies, thus denying to firms or other associations, as well as to corporations, the privilege which is given to single suitors. It discriminates against the persons who unite in their labor or in purchasing such claims. It first gives the privileges to companies as well as individuals, and afterwards, by a proviso, limits its application to companies, by excluding the right in actions before justices,— another indication that the design was to give to certain classes special privileges.

In Wilder v. Railway Co., 70 Mich. 382, the statute providing for the recovery of an attorney fee against railroads in actions for damages for killing cattle was held unconstitutional, upon the ground “that the legislature had attempted to grant special advantages to one class, at the expense of and to the detriment of another, and had undertaken to make the courts themselves the active agents in this injustice.” In that case any one who might own and have cattle killed by a railroad was entitled to the benefit of the act, yet the court had no difficulty in saying that the law was intended “to grant a special benefit to a class.” A similar law giving an attorney fee in actions for wages was declared unconstitutional by the supreme court of Ohio in the case of Coal Co. v. Rosser, 53 Ohio St. 12 (29 L. R. A. 386). The same doctrine is held in Grand Rapids Chair Co. v. Runnels, 77 Mich. 104; Schut v. Railway Co., 70 Mich. 433; Rinear v. Railroad Co., Id. 620; Lafferty v. Railway Co., 71 Mich. 35. In these cases the discrimination between classes of suitors related to the amount of costs taxable. In the present case it relates to the territorial jurisdiction of the court, and does not appear to be based on any necessity. Mr. Justice Mobse indicated a doubt of the constitutionality of this act in the case of Antcliff v. June, 81 Mich. 492 (21 Am. St. Rep. 533). We think it unconstitutional.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.