author: Hooker, J. Ostrander, J.

text:
    BAKKER v. FELLOWS.
    1. Drains — Establishment—Application — Freeholders — Lire Tenants.
    Under section 8787, 8 Comp. Laws, one who has an estate for life in lands is a freeholder within the meaning of section 4319, 2 Comp. Laws, providing that an application for a drain must be signed by not less than 10 freeholders.
    2. Landlord and Tenant — Lease — Validity — Execution by Lessee — Necessity.
    A lease for life, properly signed and acknowledged by the lessor, containing covenants on the part of the lessee, is valid, though not signed by the lessee, he having taken and retained possession under it. Ostrander and McAlvay, J J., dissenting. '
    3. Drains — Establishment—Application—Freeholders—Equitable Owners.
    Where a father, after promising to buy his son a farm in O. township, bought land there, taking title in himself, and afterward told the son that it was his (the son’s) farm, and the son took and retained possession, cultivating the land, building buildings, and paying the taxes, the son had in equity a right to the premises in fee, and was therefore a freeholder, under section 4319, 2 Comp. Laws, providing that an application for a drain must be signed by not less than 10 freeholders. Ostrander and McAlvay, JJ., dissenting.
    4. Same — Owners—Equitable Owners.
    One who is an equitable owner of land by virtue of part performance of an oral promise to convey, consisting of possession and the making of improvements, is an owner, under section 4319, 2 Comp. Laws, providing that an application for a drain must be signed by five or more owners of lands liable to assessment for benefits. Ostrander and McAlvay, JJ., dissenting.
    Error to Ottawa; Padgbam, J.
    Submitted January 23, 1908.
    (Docket No. 142.)
    Decided July 1, 1908.
    Certiorari by Jacob Bakker and Fred Bakker against Edwin Fellows, drain commissioner, and Edward P. Kirby, probate judge, to review proceedings for the establishment of a drain. There was judgment for defendants, and plaintiffs bring error.
    Affirmed.

      Walter I. Lillie and Charles JB. McBride, for appellants.

      ■Smedley & Corwin and Corie C. Coburn, for appellees.
   Hooker, J.

This is a cause in which we are asked to review drain proceedings, and we take this opportunity to commend counsel for the exceptionally clear and concise manner in which both record and briefs present the meritorious questions involved.

An application was duly filed with the drain commissioner on February 15, 1907. It appeared to be signed by 10 persons, alleged to be freeholders of the proper township, and it alleged that 5 of these, naming them, were owners of land liable to be assessed for the proposed drain. On March 28, 1907, the commissioner filed his first order of determination, and being unable to obtain the right of way across the premises of the appellants (all others having released), he filed his petition for special commissioners. On June 5, 1907, the appellants filed their objections. They were in brief:

First, that the application was not signed by 10 freeholders.

Second, that it was not signed by 5 or more owners of lands liable to assessment for benefits.

Third, it alleged that one Ann V. Osborne, described in the petition as such freeholder and owner, was not such a freeholder, or a “freeholder at all.”

A hearing upon the petitions was had and on July 6, 1907, the probate judge made the usual order appointing commissioners, expressly overruling the objection of appellants. On July 10, 1907, appellants filed with the probate judge a petition for rehearing based upon the further ground that another of said signers of the petition waB not a freeholder, and that the fact was unknown to them at the time of the former determination. A hearing was had upon this application on July 15th, but the probate judge denied it on the grounds that he had no authority to grant such rehearing. On July 23, 1907, the special commissioners filed their report with the probate court, finding it necessary to take appellants’ property, and awarding each $1 damage.

On July 24th a final order of determination was made and filed, and on July 31st a written notice of intention to review by certiorari was served on the commissioner by appellants. On August 7,1907, the affidavit for certiorari was filed and the writ was issued by the circuit court. The drain commissioner made a return on August 19, 1907, simply denying the allegations of the affidavit, and asserting the regularity of all proceedings. On August 23,1907, a petition was made for a further return, and the probate judge was made a party by order of the court. On the 27th of August, 1907, the probate judge made a return of the proceedings and evidence taken before him, and the commissioner filed a further return.

From these the following facts appear, viz.:

Ann V. Osborne’s interest in land was confined to such as was conveyed to her by a writing attached to the return whereby several parties, named and described as parties of the first part, in consideration of rents and covenants specified, did let and lease to George Osborne and Ann V. Osborne, his wife, parties of the second part, premises described for the term of the natural life of both said second parties on terms and conditions specified. It expressly stated that the lease should terminate only on the death of both of said second parties.
“Provided, that in case any rent shall be due and unpaid, or if default be made in any of the covenants herein contained, then it shall be lawful for the said parties of the first part, their certain attorney, heirs, representatives and assigns, to re-enter into, repossess the premises, and the said parties of the second part, and each and every other occupant, to remove and put out.
“And the said parties of the second part do hereby hire the said premises for the term as above mentioned and do covenant and promise to pay to the said parties of the first part, their representatives and assigns, for rent of said premises for said term, the sum of one ‘ ‘ Dollars ” and other good and valuable consideration paid by said second parties to said first parties, the receipt whereof is hereby acknowledged, the same having been paid in advance before the ensealing and delivering of this lease. Said parties of the second part further covenant that they will not assign nor transfer this lease or sublet said premises or any part thereof without the written assent of said parties of the first part.”

This document was signed only by the parties of the first part by whom it was also acknowledged. Nothing indicates that it was not delivered or that Mrs. Osborne was not in exclusive possession under it, as sole owner of the interest intended to be conveyed by it.

The commissioner supposed that Arend K. Brouwer was the owner of the premises occupied by him and a freeholder, and he never heard anything to the contrary until the petition for rehearing was filed. He then made inquiries and was informed that said Brouwer’s father promised to buy him a farm in Olive township; that he bought this land taking title to himself. Subsequently he told his son that it was his farm, and the son entered into and afterward continued, and was in possession at the time of these proceedings, andintheinterval he had occupied and worked the land for several years, built buildings, had it assessed to himself and paid the taxes in every respect as an owner, except that the father had never deeded the land to him.

Upon the hearing, the learned circuit judge was of the opinion that under the proofs Ann ~V. Osborne was a freeholder, and owner of lands liable to assessment and that—

“Under the showing made in this case as to the question of whether one Arend K. Brouwer was such a freeholder as claimed by plaintiffs, was not a proper subject or matter for the court’s consideration upon the record as presented.”

The order of the probate judge was affirmed. The cause is before us by writ of error.

The only questions discussed in appellants’ brief are, whether the application for the drain was jurisdictionally defective: First. Because Ann V. Osborne was not a freeholder and a landowner. Second. Because Brouwer was not a freeholder.

Freeholders. Section 4319, 2 Comp. Laws, provides for an application signed by not less than 10 freeholders of the township, 5 or more of whom shall be owners of lands liable to assessment for benefits. Under our law one who has an estate for life in land is a freeholder. See 3 Comp. Laws, § 8787; Crouse v. Michell, 130 Mich. 356. It is contended that the instrument in question was a mere unilateral agreement; but we think that, when accepted and possession taken under it, it was a good and valid lease, although not signed by the lessees. Jones on Landlord and Tenant, §§ 75, 77-79. Inasmuch as this was a valid lease for life to Mr. and Mrs. Osborne, she had a freehold estate. The case of Brouwer is different. The claim that he is a freeholder within the statute is that he had, in equity, a right to the premises in fee. We are of the opinion that this is true, under the proof, upon the authority of Maas v. Insurance Co., 148 Mich. 434, and Starkweather v. Chatfield, 149 Mich. 443.

Ownership. The remaining question relates to the title of Mrs. Osborne; counsel for the plaintiffs asserting that, although she may be called a freeholder, she was not an owner of premises liable to assessment for benefits. Inasmuch as we have reached the conclusion that Brouwer was the equitable owner in fee, it becomes unnecessary to consider Mrs. Osborne’s ownership; there being 5 owners of land subject to assessment exclusive of her.

It is unnecessary to discuss the question of waiver, but our disposition of the meritorious question regarding Brouwer’s title is not intended to imply that it was seasonably raised.

The judgment is affirmed.

Grant, C. J., and Montgomery, Moore, and Carpenter, JJ., concurred with Hooker, J. Blair, J., concurred in the result.

Ostrander, J.

(dissenting). I think it doubtful if Mrs. Ann V. Osborne is shown to be a freeholder. This for the reason that it is entirely uncertain whether she has ever assumed the obligations of a life tenant with respect to the land. Bent is reserved in the lease, and is then receipted for. There is no express obligation to pay taxes. The evidence is that she holds a certain instrument, sufficiently described in the opinion of Mr. Justice Hooker, and is in possession of the land. Admitting that she is a freeholder, it seems to me to be clear that she is not an owner of the land. We may assume that the legislature might employ the word “owner” in such a connection, and for such a purpose, that it would mean something besides owner of the fee, or of the legal or equitable title. But it has not done so in the statute under consideration. On the contrary, the words “ freeholders ” and “owners ” are both employed in the statute, and in such connection that in my opinion we are obliged to give them different meanings. The term “freehold estate ” is legally definitive of both an estate for life and of an estate of inheritance. The estate of a vendee in a land contract, in possession, is an estate of inheritance. Starkweather v. Chatfield, 149 Mich. 443. So husband and wife owning land by entireties have each of them an estate for life. But one of them is not an owner, within the meaning of a statute requiring a petition for a public improvement to be signed by owners of property. Auditor General v. Fisher, 84 Mich. 128. An application for the laying out of a drain is jurisdictionally sufficient, not when it is signed by 10 freeholders, 5 of whom shall have estates in land which is liable to assessment for benefits, but there must be 5 signers who are owners of such land. It is the boundary lines of each owner’s land which the survey is required to show. The names of the owners of every tract to be traversed by the drain must appear in the application for the appointment of commissioners, and it is to owners that the citation is issued. It would seem that the owner of the fee, alone, could effectively release the right of way. The term ‘ ‘ owners of land, ” as employed in 2 Comp. Laws, § -4319, means persons with whom the drain commissioner may make final and conclusive arrangements, persons whose land is liable to be affected by levies and by the exercise of the eminent domain. If it were otherwise, the proceeding might be instituted upon the application of persons, none of whom had any estate to be affected thereby. If it were otherwise, the 5 signers, claimed to be owners, might all of them be widows, occupying dower lands. The argument that a life tenant is an owner because impeachable for waste for failure to pay the taxes seems to me to be unsound. The statute does not refer to persons who are liable to an assessment, or who by contract, or by operation of law, are obligated to the landlord or to the remainderman to pay the taxes. It refers to land which is liable to an assessment for benefits and to the owners of such land. Moreover, I am not now prepared to determine whether, in the absence of a contract, a life tenant is under obligations to pay the extraordinary and sometimes very great expenses, arising from a public improvement like a drain, assessed as for alleged benefits to land. This court has sustained applications for drains by a liberal interpretation of the term freeholder, where that term is employed in the statute. To hold that the term owner, used in the statute in the same connection, signifies nothing different in meaning, is, in my opinion, to deny to public and to private interests a safeguard which the legislature intended should exist.

Objections to the appointment of commissioners were that the application was not signed by 10 freeholders, did not have signatures of 5 owners of land liable to assessment, and that Ann V. Osborne was not a freeholder. These objections were all overruled and an order made appointing commissioners. Thereupon plaintiffs in certiorari moved in the probate court for a stay of proceedings and rehearing, setting out that Arend K. Brouwer was not a freeholder. The petition was dismissed upon the ground of want of jurisdiction to grant a rehearing. In the affidavit for the writ of certiorari it is averred that the application was not signed by 10 freeholders nor by 5 owners of land liable to an assessment for benefits; that Ann V. Osborne is not an owner and that Arend K. Brouwer is not an owner nor a freeholder; that the application is signed by but 4 owners of land; that the probate court erred in its refusal to entertain the petition for a rehearing. The answer and return denied these allegations, generally. Petition was made for an order for a further return and one was ordered. In this return it is set out that no objection was raised before the probate court on the hearing for the appointment of commissioners in regard to Arend K. Brouwer, and that, therefore, any and all objections were waived. The circuit court was of opinion that the qualifications of Brouwer were not the subject of proper inquiry and did not determine whether he was freeholder or owner. His qualifications, so far as disclosed by the record, by the return of the drain comsioner, are:

‘ ‘ And this defendant further answering says that he always supposed Arend K. Brouwer to be the owner of land in said township of Olive and a freeholder; that his name so appeared in said application for said drain, and that he never heard anything to the contrary until after the judge of probate had made his order appointing the three special commissioners, and notices had been served on them, and they were entering upon their duties as such special commissioners, when these plaintiffs appeared before the probate court and asked for a rehearing, setting up for the first time that Arend K. Brouwer was not an owner of land in the township of Olive, and that this was the first knowledge that this defendant had in regard to the same. That he made inquiries thereafter and was informed that the father of Arend K. Brouwer promised to buy him a farm in the township of Olive, and that he did buy him a piece of land and told Arend K. Brouwer that it was his, and that Arend K. Brouwer entered into the possession of the same and built buildings on the same, has occupied and worked the same for several years, has had the same assessed to him on the tax rolls, has paid the taxes on the same and in every respect is the owner of the same except that this defendant has been informed that the record title still stands in the name of the father of said Arend K. Brouwer.”

I am of opinion that the question was one to be determined by the court below. The application for the drain is signed by but 10 persons and it sets out the names of the 5 signers who are represented tó be owners of land liable to an assessment for benefits. Among the names is that of Ann Y. Osborne. Brouwer’s name is not included. Ann Y. Osborne is not an owner of land liable to assessment. Consequently, without some further showing, the probate court should have declined to appoint special commissioners. The facts in the application had been traversed and shown to be untrue. It is the drain commissioner then who, to save the application, asserts that there are, in fact, 5 signers who are owners. It is said that Brouwer is an owner. It was not so represented in the application and if he is not an owner then the drain commissioner has not shown that the application is sufficient in law. It seems to me that he is not in a position to urge that plaintiffs have waived the question of the qualifications of Brouwer. The inquiry is, and at all times has been, Is the application in fact signed by 5 owners of land liable to an assessment for benefits ? The inquiry was seasonably made, and the decision is sought to be reviewed in the statute manner. The decision was wrong unless, as asserted by the commissioner, Mr. Brouwer is an owner. In my opinion, he is not an owner. He is not an apparent owner. Reliance is placed upon the decisions of this court in Twiss v. George, 33 Mich. 253; Farmers’ Mut. Fire Ins. Co. v. Fogelman, 35 Mich. 481; Dupreau v. Insurance Co., 76 Mich. 615; Convis v. Insurance Co., 127 Mich. 616; Maas v. Insurance Co., 148 Mich. 432. Certainly these decisions are being carried far afield when used to support the proposition advanced here. Stark-weather v. Chatfield, 149 Mich. 443, is authority for no such contention. I see no occasion to refine upon the meaning of the term “ owner of land,” or to suppose the legislature intended in its use to designate other than the one in whom prima facie is the fee simple title. In any event, the statute owner must be a freeholder. Mr. Brou- ' wer is not a freeholder. His interest in the land is represented and is evidenced by his possession and by a parol promise.

The judgment below should be reversed, and the proceedings quashed.

McAlvay, J., concurred with Ostrander, J.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    SYNESZEWSKI v. SCHMIDT.
    1. Master and Servant — Personal Injuries — Negligence — Action — Violation of Statutory Duty — Employment of Children.
    Act No. 113, Pub. Acts 1901, as amended by Act No. 171, Pub. Acts 1905, prohibiting the employment of children under 14, and prohibiting the employment of children under 16 where dangerous to life or limb, though it does not expressly give a right of action to persons injured by its violation, and provides no remedy for one so injured, raises a duty to and for the benefit of persons of the class liable to be injured by its violation, and a child injured while so employed may maintain an action for his damages, if not himself a partaker in the wrong, or otherwise precluded by the principles of the common law from his proper standing in court.

    2. Same —Negligence—Assumed Risks — Contributory Negli-' genoe — Doctrines Included.
    The law of actionable negligence, as applied between master and servant, embraces the doctrine of the assumption of risks on the part of the servant and the doctrine of contributory negligence.
    3. Negligence — What Constitutes — Violation of Statutory Duty — Proximate Cause of Injury.
    Though disobedience of a statute may be conclusive evidence of negligence, a condition of recovery by one urging the disobedience is that such disobedience must be the proximate cause of the injury complained of, or that it contributed to the injury.
    4. Master and Servant — Personal Injuries — Violation of Statute — Proximate Cause.
    Where a boy under 16, employed in violation of Act No. 113, Pub. Acts 1901, was injured while so employed, the causal connection between the violation of the statute and the injury complained of was sufficient to support a recovery.

      5. Same — Fellow-Servants—Application oe Doctrine.
    The risk of injury by the negligence of fellow-servants cannot be assumed by a child under 14 employed in violation of the statute. Act No. 113, Pub. Acts 1901, as amended.
    8. Same — Employment op Children — Knowledge op Employer.
    Where defendant employed plaintiff, under 16, without obtaining the sworn statement of parent or guardian required by the statute, Act No. 113, Pub. Acts 1901, as amended, he was not relieved from liability for injury to plaintiff during the employment by the fact that plaintiff told him he was over 16 and he accepted the statement in good faith.
    Error to Wayne; Brooke, J.
    Submitted February 20, 1908.
    (Docket No. 120.)
    Decided July 1, 1908.
    Case by Czeslau Syneszewski, by nest friend, against Carl E. Schmidt and Joseph Metzger, copartners as Carl E. Schmidt & Company, for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Keena, Lightner & Oxtoby, for appellants.

      William Van Dyke, for appellee.
    Act No. 113, Public Acts 1901, prohibits employment of any child under the age of 14 years in any manufacturing establishment. Violation of the act is a misdemeanor. The statute further provides that no child under the age -of 16 years shall be employed at employment whereby its life or limb is endangered. The statute gives no right of action to persons injured by its-violation. The statute does not provide a remedy for one injured by or on account of its violation. As amended by Act No. 171, Public Acts 1905, the statute not only prohibits employment of children under 14 — contracting for their services, —but, also, that they shall not be permitted or suffered to work.
    Testimony produced on the part of plaintiff tended to prove that he attained the age of 18 years July 10, 1905, and was employed by defendants in September or October of that year to work in their tannery; that he was not asked, and made no representation concerning, his age. His duties were to take skins from the table of a machine and lay them on a wooden horse, to wash the machine ' three times a week with water, and to do other work. He was injured January 16, 1906, while assisting in cleaning the machine, a work at which he was set by the person in charge of the machine, who, he was told, was his “boss." The “boss "worked at cleaning on one side of the machine, plaintiff on the other, the machine being idle. The “boss,” without warning, started it for the purpose of reaching uncleaned portions of the machinery, and plaintiff’s fingers were caught in cogs. As the case was left to the jury, they were permitted to return a verdict for plaintiff if they found plaintiff to have been under 16 years of age, to have been employed at work dangerous to life or limb, and to have himself been free from negligence contributing to the injury. Errors assigned by defendants, appellants, raise, and they present in this court, two questions of law. It is contended, first, that defendants are not liable because the injury was caused by a fellow-servant of the plaintiff; second, that the court erred in refusing to instruct the jury as, in effect, requested to do, that if plaintiff represented himself at the time he was hired to be more than 16 years of age, and if defendants in good faith believed him to be more than 16, they were not liable, and in saying to the jury in this connection :
    “ I do not so charge you because I do not believe that is the law. That he did so represent himself and if they did in good faith believe his representations, that would relieve them of any moral responsibility touching their actions, but according to my view of the law it does not relieve them from legal liability if in fact the child was, at the time he was hired, of the age now claimed by his parents, to wit, under fourteen years of age.”
    It is contended, also, that the act of the “ boss,” and not the violation of the statute, was the proximate cause of injury.

       On the question of employment of children in violation of statute as negligence, see note to Rolin v. B. J. Beynolds Tobacco Co. (N. C.),7 L. R. A. (N. S.) 335

   Ostrander, J.

(after stating the facts). It is not open to question (Sipes v. Starch Co., 137 Mich. 258, Sterling v. Carbide Co., 142 Mich. 284, Beghold v. Auto Body Co., 149 Mich. 14) that this statute raises a duty to and for the benefit of persons of the classes liable to be injured by its violation. It is the general rule that a civil action is maintainable where the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court. Bishop on Non-Contract Law, §§ 132-141. The legal principles employed in enforcing a remedy are found in that body of rules known as the law of negligence, modified as the judicial conception of the legislative conception and as necessity seems to require. 1 Thompson on Negligence, § 23. The law of negligence, which means, of course, the law of actionable negligence, as applied in most jurisdictions, embraces the doctrine of the assumption of risks on the part of an employe and the doctrine of contributory negligence. It embraces, also, the doctrine, announced at an early day by this court (Billings v. Breinig, 45 Mich. 65, 71), that, although disobedience of a statute may be conclusive evidence of negligence, a condition of recovery by one urging the disobedience is that such disobedience must be the proximate cause of the injury complained of or that it contributed to the injury. For the purpose of enforcing civil remedies based upon violations of similar statutes, some courts have denied the application of the doctrine of contributory negligence. American Car & Foundry Co. v. Armentraut, 214 Ill. 509; Lenahan v. Mining Co., 218 Pa. 311 (12 L. R. A. [N. S. ] 461). In Minnesota, the questions of the assumption of risk and of contributory negligence are for the jury, the burden of proving them being with the defendant after plaintiff has shown a violation of the statute and injury resulting from the employment. Perry v. Tozer, 90 Minn. 431. So in Iowa: Bromberg v. Laundry Co., 134 Iowa, 38; in New York: Marino v. Lehmaier, 173 N. Y. 530 (61 L. R. A. 811); and in North Carolina: Leathers v. Tobacco Co., 144 N. C. 330. In the Illinois case the rule announced is the one usually applied in suits by the public to recover the statute penalty, McGutcheon v. People, 69 Ill. 601; People v. Snowberger, 113 Mich. 86; People v. Grocer Co., 118 Mich. 604, and in cases like Flint, etc., R. Co. v. Lull, 28 Mich. 510, 515. See, also, Malloy v. Leather Co., 148 Fed. 482. In giving effect to a portion of the statute we are now considering, this court held that the plaintiff did not assume the risk of violation of the statute duty. Sipes v. Starch Co., supra. In Sterling v. Carbide Co., the plaintiff was injured by machinery while doing the work he was employed to do. It was held that—

“Disregard of the inhibition of this statute, by placing the plaintiff at work at an employment where his life or limb was endangered, constituted the negligence or wrong of which plaintiff has the right to complain, and that the causal connection between that wrong and the injury to plaintiff is clear.”

It was said further thatthe question of assumption of risk was settled by the case of Sipes v. Starch Co. Upon this point I am not able to distinguish the case at bar and the Sterling Gase. A distinction sought to be made by counsel rests upon the fact, in the case at bar, that plaintiff was injured by the negligent act of a fellow-servant; that the work he was doing was not in itself dangerous and that injury would not have resulted but for such negligent act. In the argument counsel fail to give effect to two important facts. In the first place, it was not lawful for defendants to employ plaintiff in their establishment at any work. It is true the trial court did not instruct and the jury did not proceed upon this particular inhibition. But the fact is not disputed, and when the law forbids that one shall be employed as a servant it seems illogical to say that he may be a fellow-servant, or that the enmloyer can be permitted to say that one who under the terms of positive law may not be his servant is fellow-servant of his servants. It is only by becoming a servant that the risks of employment, including those arising out of the negligence of fellow-servants, is assumed. In the second place, there was in this case what may be termed a double violation of the statute. Plaintiff was injured, as was the plaintiff in the Sterling Case, while engaged in the work he was set to do. It was dangerous work if his “boss,” without warning, set the machine in motion. He did set it in motion and injury resulted. The negligence of the “boss,” who was undoubtedly a servant of the employer, was a hazard of the employment which, if assumed by plaintiff, effectually destroys his right to the enforcement of the statute duty. It was not different, so far as assuming risk is concerned, from the hazard arising from unguarded machinery. And any argument based upon the idea that the injury was caused by a fellow-servant implies that the rule obtaining in cases where injury is caused by an intervening, independent, responsible human agency has no application. See Nickey v. Steuder, 164 Ind. 189. Compare Rolin v. Tobacco Co., 141‘N. C. 300 (7 L. R. A. [N. S.] 335). Appellants’ first and last contentions are therefore overruled.

Defendant Metzger testified that after the employment of plaintiff and previous to his injury he talked with him:

Q. Did you ask this boy his age ?
“A. I did, and he said he was 16.
“Q. Did he look it?
“A. Yes, he did.”

He further testified that plaintiff at the hospital, after being injured, stated that he (plaintiff) told the foreman of defendants when he hired him that he was 16 his last birthday. Another witness testified that after the injury the mother of plaintiff stated that plaintiff told her he had a job and that he told the boss he was 16. All of this testimony was contradicted. The question is whether, assuming the testimony on the part of defendants to be true, it furnishes a defense to the action. It may be supposed that in time the statute will be perfected so as to extend the prohibitions to children and to their parents; that the legislature will more definitely point out the evidence upon which employers may rely -in employing minors at labor. It does now provide that no child under the age of 16 shall be hired or employed in any manufacturing establishment, hotel, or store—

Without there is first provided and placed on file a sworn statement made by the parent or guardian, stating the age, date and place of birth of said child, and that the child can read and write. * * * If said child have no parent or guardian, then such statement shall be made by the child, which statement shall be kept on file by the employer, * * * and which said * * * statement shall be produced for inspection on demand by any factory inspector appointed under this act: Provided, That in the city of Detroit and the city of Grand Bapids all sworn statements must be made before á deputy factory inspector.”

Some effect must be given to this provision. It is unnecessary to determine whether it is mandatory or whether a false statement made by a parent would prevent a recovery by a child unlawfully employed. It is a precaution which in furtherance of the legislative purpose the employer is in terms required to observe. It cannot be said that its observance would not tend to prevent unlawful employment of children, and, therefore, prevent violations of the law. It is calculated not alone to discover the exact age of children under 16, but, also, whether they are over or under that age. Defendants did not observe it. They say it is not required if the child is more than 16 years old. But plaintiff was not 16 years of age and was employed by them, in violation of the statute, without any precaution except to inquire his age and to judge, from his appearance, that he was telling the truth. His age was in question, they regarded the fact as of importance and they determined, upon the evidence presented, whether his employment would be lawful or unlawful. It has been suggested that the statute should be construed as providing, in effect, for a certificate and permit from the parents or guardians of children, — a construction which is aided by the words employed in the 1905 form of the statute, — in the absence of which, so far as the age of the child is concerned, employers hire children at their peril. Whatever force there may be to this suggestion, it is sufficient for the purposes of this case to say that all that defendants did they would be, in good faith, required to do in any case. But the statute does not accept the mere statement of a child as to his age and the court cannot aid one who did accept it.

The judgment is affirmed.

Grant, C. J., and Blair, Montgomery, and Moore, JJ., concurred.


author:
Moore, J.
      Hooker, J.

text:
    WOLFE v. STACK.
    1. Appeal and Error — Assignments op Error — Suppioienoy— Direction op Verdict.
    An assignment that the court erred in directing a verdict for defendant implies that upon the pleadings and evidence a prima facie case was made, and is sufficiently specific.
    2. Sales — Contracts — Construction — Partnership — Surviving Partner — Liability.
    In an action against a surviving partner for goods and supplies sold and delivered to a lumber company alleged to have been operated by the firm, evidence examined, and held, that whether the firm in fact owned and operated the company’s business, so as. to render th¿ surviving partner liable, was for the jury.
    Error to Delta; Stone, J.
    Submitted April 8, 1908.
    ( Docket No. 2.)
    Decided July 1, 1908.

      Assumpsit by Augustus W. Wolfe against John K. Stack, surviving partner of himself and John Corcoran, deceased, copartners as Stack & Corcoran, and the Escanaba Lumber Company, for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Yelland &' Norblad (Gallup & Gallup, of counsel), for appellant.

      F. D. Mead, for appellee.
   Moore, J.

Suit was brought by the plaintiff, for himself and as assignee of the firms named in the title of the cause, against John K. Stack, as surviving partner of himself and John Corcoran, deceased, copartners, doing business under the firm name of “ Stack & Corcoran.” The declaration is on the common counts in assumpsit and alleges further that they were partners under the firm name of the “Escanaba Lumber Company.” The suit was brought, as stated in the bill of particulars, to recover for goods sold and delivered to the Escanaba Lumber Company: It was stipulated that plaintiff’s claim, as set out in plaintiff’s bill of particulars, was a true statement of the debit side of the account of the plaintiff and his assignors with the Escanaba Lumber Company, according to the books of that company. It was further stipulated, however, that this stipulation should in no way admit the liability of the defendant to pay the accounts or any part thereof.

It was also the claim of plaintiff that defendants took control and managed the" business under such circumstances as to make them liable for the supplies furnished by plaintiff and his assignors which it was claimed were used in the business. After plaintiff had concluded his testimony, and without defendant offering any testimony, the trial judge directed a verdict in favor of defendants. The case is brought here by writ of error.

We are confronted at the outset with the question of whether the assignment of error is a good one. The appellee claims it is too general to be considered. The assignment is: “The court erred in directing a verdict in favor of the said defendant of no cause of action.” Counsel cite Johnson v. Ballou, 25 Mich. 460, and Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 483. In the first of these cases the court considered the case and reversed it. We will refer to the last named case later. The case of Conely v. Dudley, 111 Mich. 122, is on all fours with the case at bar. In that case the court said:

“ It is contended that the assignment of error, i. e., ‘ that the court erred in directing a verdict for the defendants,’ is not special under Sup. Ct. Rule No. 12. Upon this record this assignment was equivalent to saying that there were facts in the case upon which a jury might find plaintiffs entitled to recover, — a radically different case from one where the court is said to have committed error in directing a verdict for the plaintiffs, or in refusing to direct one for the defendants.”

In the case of Jackson Bridge & Iron Co. v. Insurance Co., supra, the court referred to the case of Conely v. Dudley, supra, in the following language:

“The case of Conely v. Dudley, 111 Mich. 122, may seem exceptional, as the case was reversed upon the assignment that ‘ the court erred in directing a verdict for the defendant.’ The case appears to be in a nutshell, no testimony being offered by the defense, and there was no possible uncertainty as to what was meant. In Michigan Mut. Life Ins. Co. v. Mather, 113 Mich. 357, the assignment was that the court erred in refusing to direct a verdict for the defendant. The question does not appear to have been raised, and the case was affirmed on other points. The decisions are uniform upon the question, unless the case of Conely v. Dudley, supra, should be thought to be inconsistent. It was looked upon as exceptional, and was not intended to change the rule, but, rather, as not being within the rule, because not within its reason; the only possible question being whether there was evidence requiring the submission of the case to the jury.”

In the case before us no one has been misled. The case has been thoroughly briefed on both sides. The court and counsel both understood that the question was whether upon the testimony offered by the plaintiff the case should be submitted to the jury. Upon the record made we think the assignment sufficient.

This brings us to the important question in the case: Did the plaintiff make a case which in the absence of any testimony on the part of defendants entitled him to have his case submitted to the jury ? His testimony consisted of four written contracts, portions of an answer in a chancery case which was sworn to by Mr. Corcoran, the oral testimony of a number of witnesses, book entries and cheeks. In the second of these contracts was the following:

“ It is hereby agreed by and between the parties hereto that said parties of the first part shall dispose of lands or cut and manufacture all the timber upon said lands, to sell all chattels, materials, etc., and apply the actual amount of the money received as follows: To apply as payment on the within mentioned indebtedness or any other money said first parties may pay out for any purpose, etc. * * *
“It is further hereby agreed and understood, by and between the parties hereto, that said parties of the second part shall be entitled to a reconveyance of all the real estate and chattels or personal property which has not sooner been disposed of by said first parties, upon the payment of the amount due to said first parties by said second parties, paying all the expenses of transfer, stamps, recording, etc., any material, goods, machinery, etc., purchased to become the property of said first parties as soon as received by either parties, this to include all debts of said parties, including September 19th, 1899, and after which went to the business of said second parties, also contract between the parties hereto, dated September 19th, 1899, to continue in force.
“Dated this 18th day of February, 1901.
“ Signed,
“Stack & Corcoran,
“Isaac Lanford,
“John S. Armstrong,
“Rae F. Armstrong.”

Upon March 4, 1901, a contract was prepared by John Corcoran reading as follows:

“Articles of agreement, made and entered into this 4th day of March, in the year of our Lord nineteen hundred and one, by and between Isaac L. Lanford, John S. Armstrong and Rae F. Armstrong, copartners under the firm name of Masonville Hoop Company, of the township of Masonville, Delta county, Michigan, parties of the first part, and Joseph E. Reinger, party of the second part. _
_ “It is hereby known and understood by the parties hereto that the above named concern, Masonville Hoop Company, is owned and controlled by Stack & Corcoran of the city of Escanaba, Michigan, but, whereas, Isaac L. Lanford has put in said concern, cash to the amount of one thousand dollars, property one thousand dollars; John S. Armstrong cash five hundred dollars; Rae F. Armstrong, cash five hundred dollars, and on the payment of one thousand dollars by Jos. E. Reinger to Stack & Corcoran, to be placed on the credit of said Masonville Hoop Company, said first party assigns, sells and sets over to said second party, a one-third interest of all of our interest in said Masonville Hoop Company, which we have a contract with said Stack & Corcoran the right to redeem, release said property by paying to said Stack & Corcoran all the indebtedness due them, and on the paying up and redeeming of said property, the parties hereto would be entitled to their interests as follows:
“Isaac L. Lanford, one-third; John S. Armstrong, one-sixth; RaeF. Armstrong, one-sixth; Joseph E. Reinger, one-third; and Isaac L. Lanford would be entitled to an additional one thousand dollars from the parties hereto for property put in.
“Itis also agreed-by the parties hereto that office of said concern be kept at Escanaba, Michigan, and that Joseph E. Reinger be general manager under the directions of said Stack & Corcoran and that all business will be transacted through the Escanaba office.
“The said Joseph E. Reinger agrees to give all his time and attention to said business and any outside business he may do in the way of buying and selling lumber, shingles, poles, etc., to be done in said concern’s name, and. said business derives any profit there may be in it, which is also to be done under the supervision of said Stack & Corcoran.
“It is also understood and agreed by and between the parties hereto, that any lands, material, machinery and all other property purchased by the parties hereto, or the said Stack & Corcoran to become the property of said Stack & Corcoran as soon as purchased, all material and property sold by said parties hereto to be done in the name of said Stack & Corcoran and under their directions and all money payable to them.
“The parties hereto' are not entitled to salaries, not to exceed as follows, from this date; Isaac L. Lanford, sixty dollars; John S. Armstrong and Rae F. Armstrong, sixty dollars for John S. Armstrong’s services; Jos. E. Reinger, sixty dollars per month, the salaries are for actual services performed by the said Isaac L. Lanford, John S. Armstrong and Jos. E. Reinger, Rae F. Armstrong not to be entitled to any salary. The parties of the first part are not to have any back salaries previous to this date.
“Signed,
“Isaac L. Lanford,
“John S. Armstrong,
“Rae F. Armstrong,
“Jos. E. Reinger.”

After the making of this contract there is evidence tending to show that Lanford, Armstrong and Reinger commenced to work upon a salary, and the business of cutting and manufacturing timber upon the lands formerly owned by the Masonville Hoop Company was conducted in the name of the Escanaba Lumber Company; Joseph E. Reinger acting as the manager but under the control and management of Stack & Corcoran. Later the following agreement was made:

“Itis agreed and understood by and between the Escanaba Lumber Company and Stack & Corcoran, that any money received by said Escanaba Lumber Company, in connection with their business, is to be turned over to Stack & Corcoran as soon as received,, for which said Stack & Corcoran agree to place to the credit of said Escanaba Lumber Company; also all checks, drafts, notes or paper of any other description received by said Escanaba Lumber Company, in connection with their business to be turned over to said Stack & Corcoran as soon as received, for which said Stack & Corcoran agree to place to the credit of said Escanaba Lumber Company.
“It is understood by and between the parties hereto that said Stack & Corcoran are the only ones that have the right to purchase the lands, materials, etc., also to indorse and negotiate drafts, checks, notes or papers of any other description, received by said Escanaba Lumber Company.
“This agreement not to interfere with any previous agreement entered into.
“Dated this 12th day of.March, 1901.
“Signed,"
“Escanaba Lumber Company,
“Per Jos. E. Reinger, Mgr.”

Later Mr. Corcoran swore to an injunction bill in which Stack & Corcoran are the complainants; in which bill the various contracts are referred to. The following paragraphs occur in said bill:

“ And your orators further show unto the court that thereafter, to wit: within a few days after the execution of said last agreement, the name of the Masonville Hoop Company was changed to that of the Escanaba Lumber Company and the business of said company was thereafter conducted under the name and title of the Escanaba Lumber Company, your orators under the terms of said contracts having title to and possession of all the property, including mills, lands and offices of said Masonville Hoop Company and said Escanaba Lumber Company.
“The said Joseph E. Reinger was employed by your orators to superintend and care for the work of the said Escanaba Lumber Company, in the forests, mills and offices of the company under the direction, control, government and orders of your orators and the said Joseph E. Reinger was called and known as the manager of the Escanaba Lumber Company, and as such had under the direction of your orators, aforesaid, control and management of the operations of said company in the forests and mills. * * *
“And your orators further show unto the court that, since the 12th day of March, 1901, and down to the present time, the said Joseph E. Reinger has been permitted by your orators to manage said business, to superintend said mills and the operations in the forests, connected with the affairs of the said Escanaba Lumber Company and to have charge of the office and the books thereof, but all under the control, management and direction of your orators, * * *
“And your orators further show unto the court that, on account of said Joseph E. Reinger removing and causing to be removed the books mentioned in paragraph thirteen, and on account of said Joseph E. Reinger violating the contracts entered into by and between himself and your orators and his contract of employment, your orators on the 25th day of November, A. D. 1902, discharged the said Joseph E. Reinger from their employment, and that since said time, your orators have been in full custody and control of all of the business of said Escanaba Lumber Company, and that the said Joseph E. 'Reinger, since said discharge, has in no way had any custody or control of any of the business of said Escanaba Lumber Company, and that your orators are now in full possession and control of said business.”

• The evidence tends to show that insurance was placed upon the property of the Escanaba Lumber Company in the name of Stack & Corcoran as owners. Also that about November 26, 1902, John Corcoran served a notice upon the postmaster at Escanaba, claiming that the Escanaba Lumber Company was owned by himself and Mr. Stack, and that they were entitled to receive the mail.

Certain oral admissions of Mr. Corcoran were shown. In November, 1902, Mr. Corcoran made a complaint before a justice of the peace, charging Joseph E. Reinger with larceny of the books of the Escanaba Lumber Company. A large number of checks of the Escanaba Lumber Company signed by Stack & Corcoran given at various time's from July 3, 1902, to December 2, 1902, were in evidence.

We have recited enough of the testimony to show that the plaintiff was entitled to have his case submitted to the jury.

Judgment is reversed, and new trial ordered.

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

Hooker, J.

{concurring). Error is assigned upon the direction of a verdict for defendant. This' implies that, upon the evidence and pleading introduced, a prima facie case was made, for the direction of the verdict implies the contrary. It is true that the ground upon which the verdict is directed may be a lack of evidence, or an insufficient declaration, and it would certainly be a convenience to know which. But if no indication is given by the trial judge, a defeated party cannot well be more specific in his assignment.

Therein an assignment of error on a direction of verdict for defendant is distinguishable from a direction for a plaintiff, or a refusal to direct, for plaintiff or defendant, for in either of the latter, cases the appellant can and must point, out a specific defect, which necessarily or at least presumptively enters into the decision.

We have pointed out this distinction in two cases, viz., Conely v. Dudley, 111 Mich. 122; Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433.

When the record affords the appellant the means of making an assignment more specific, we think it should be done, but when there is no means of doing so, as in the cases cited and in the present case, the assignment should be sufficient.

I concur with Mr. Justice Moore in reversing the judgment.


author: Grant, C. J.

text:
    SCHNEIDER v. TOWNSHIP OF BROWN.
    J. Highways and Streets — Embankments — Maintenance — Injuries to Landowner — Incompetent Evidence — Admission— Cure op Error.
    In an action by a landowner for injuries to his mill pond by the construction of an embankment therein to carry a highway across it, evidence was admitted showing the location of the culvert to be outside the original channel of the stream, and also showing the location of the mudsills, which the judge concluded was incompetent, no such claim being made in the declaration, and he instructed the jury not to consider it. Held, that no prejudice appeared.
    2. Same — Injuries to Mill Pond — Evidence—Admissibility.
    Evidence of labor performed in removing logs, of the effect of water preserving the logs when sunk, of the construction of fences by plaintiff alongside the bridge and his reason therefor, of the soundness of some of the logs taken out of the pond and sawed into lumber, of the value of the logs in the pond, of the ordinarily necessary repairs to the mill, how the embankments were constructed, and other evidence of a similar nature, held, competent as bearing upon the various issues involved.
    3. Appeal and Error — Second Appeal — Law op the Case.
    The opinion of the case on a previous appeal is the law of the case, no difference in the records being pointed out.
    Error to Manistee; Rose, J.
    Submitted April 17, 1908.
    (Docket No. 14.)
    Decided July 1, 1908.
    Case by Casper Schneider against the township of Brown for damages to a mill pond caused by the maintenance of an embankment in a highway. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Pratt & Davis, for appellant.

      Fowler & Belcher, for appellee.
   Grant, C. J.

This case is before us for the second time. (142 Mich. 45.) A full and complete statement of the case is there made, the issues involved are stated and the law governing the case established. It has been retried upon the law of the former opinion, and a verdict rendered again for the plaintiff. The appellant presents 78 assignments of error, all of which appear to be insisted upon. Thirty-four of these assignments relate to the rulings of the court upon the testimony.

Evidence was admitted showing the location of the culvert to be outside of the original channel of the stream, and also showing the location of the mudsills. Before the case was closed the trial judge concluded that this testimony was incompetent, as no such claim was set up in the declaration, and pointedly instructed the jury that they should not consider that testimony; that it was out of the case. We see no reason for holding that the jury were prejudiced or misled by the admission of the evidence.

Evidence of labor performed in removing the logs, of the effect of water preserving the logs when sunk, of the construction of fences by the plaintiff alongside the bridge and his reason therefor, of the soundness of some of the logs taken out of the pond and sawed into lumber, of the value of the logs in the pond, of the ordinarily necessary repairs to the mill, how the embankments were constructed, and other evidence of a similar nature, were competent as bearing upon the various issues involved. It would be of no benefit to the parties or to the profession to discuss all of these assignments.

Counsel for appellant do not point out wherein the present record differs from that in the former. The instruction of the court is very lengthy and undoubtedly necessarily so. It covered all the many phases of the case, and is in strict accord with our former opinion. We deem it unnecessary to discuss the case further.

We find no error in the record, and the judgment is affirmed.

Blair, Montgomery, Hooker, and Carpenter, JJ., concurred.


author: Grant, O. J. Grant, C. J.

text:
      G. F. SANBORN CO. v. ALSTON.
    1. Taxation — Tax Sales — Notice to Redeem — Sufficiency.
    A notice of the sale of land for taxes, served on the record owner pursuant to section 140 of the tax law (Act No. 229, Pub. Acts 1897), is not relieved of its invalidity for failing to state the county and State in which the lands are situated, and whether the township and range mentioned are north or south, east or west, by the facts that no town and range of the same numbers exists in any other State or Territory, and only one such in the State of Michigan, since the record owner is not required to search the records of the surveyor general’s office in Washington, or the records of other States, to determine whether there is any other like description.
    2. Same — Laches of Landowner.
    The fact that a landowner has for 15 years given his lands no attention and permitted the State to collect its taxes as best it might is not such laches as will estop him from insisting upon a substantial compliance by a tax purchaser with the provisions of section 140 of the tax law with respect to the notice of purchase.
    3. Same — Notice to Redeem — When Required — Application of Statute.
    Act No. 229, Pub. Acts 1897, as amended, requiring tax purchasers to give the record owners the notice therein prescribed, and allowing the owners six months after notice to obtain a reconveyance upon compliance with the specified conditions, applies as well to lands which before the passage of the act had been bid in to the State, and to which the State, as the law then stood, had an indefeasible title, as to lands subsequently bid in.
    ON MOTION FOR REHEARING.
    1. Taxation — Tax Sales — Redemption—Subsequent Taxes.
    Where, by reason of a technical defect in the notice to redeem, the record owner is still entitled to a reconveyance from the tax purchaser, notwithstanding the expiration of the statutory period, equity will not lend him its aid to enforce his right unless he reimburses the tax purchaser for the amount paid by him for taxes assessed upon the land subsequent to his tax purchase.

      1908] G. F. Sanborn Co. v. Alston.
    2. Equity — Maxims.
    He who seeks equity should do equity.
    3. Mortgages — Taxation—Rights of Mortgagee — Payment of Taxes.
    A mortgagee is entitled to pay taxes and to have an additional lien upon the land therefor, though the mortgage is silent as to the payment of taxes.
    4. Taxes — Payment—Rights Acquired.
    Where one pays taxes in good faith, claiming title but having none, he is entitled to reimbursement out of the land.
    Appeal from Houghton; Streeter, J.
    Submitted April 13, 1908.
    (Docket No. 60.)
    Decided July 1, 1908.
    Motion for rehearing submitted September 8, 1908.
    ( Calendar No. 22,687.)
    Former opinion modified September 15, 1908.
    Bill by the Q-. F. Sanborn Company against David M. Alston, the Worcester Lumber Company, and others, to quiet title to land, and to enjoin the removal of certain timber. Defendants Alston and the Worcester Lumber Company, Limited, filed an answer in the nature of a cross-bill to quiet title. From a decree for complainant, and dismissing the cross-bill, defendants appeal.
    Affirmed.

      Ball & Stone, for complainant.

      Ohadbourne & Bees, for defendants.

      David M. Alston (Thomas Patterson and Frank W. Stonecipher, of counsel), in pro. per.
    Complainant owns the patent title to the lands involved in this suit, which are situated in the counties of Houghton and Baraga. Defendants own tax titles which were purchased from the State through the auditor general in 1900 and 1901. Tax deeds were issued to defendant Alston, the purchaser. The tax title owners on January 19, 1903, sold certain of the timber upon these lands to the defendant Worcester Lumber Company for $36,000, $27,000 of which was paid at the time of making the contract. That company was making preparations to lumber when this bill was filed to enjoin the cutting of the timber, alleging that the defendants had not complied with Act No. 229, Pub. Acts 1897, in serving proper notice upon the original owners of the amount of taxes due thereon, and thereby affording them an opportunity to obtain a reconveyance. Notices were prepared and served upon the then original owners, and in most cases were served by the sheriffs; in the other case service was made by registered letter and publication.
    The total amount of taxes in Houghton county set out in the notice as having been paid by Mr. Alston, in purchase of the tax title, was $648.03, and in Baraga county, $108.50, making a total of $756.53. The objection to the validity of the notices as to the lands is:
    (1) That the notices do not state in what State, Territory, or country the lands are situated.
    (2) It is claimed that, on certain of the lands in Houghton county, the notices contained an amount in excess of the requirements of the law, and that the total excess amounted to $37.25. It is alleged that in Baraga county the excess was $16.92. Complainant’s grantor, through its solicitors, Ball & Stone, deposited with the register in chancery, in order that it might acquire a reconveyance o£ the lands from the defendants, double the amount paid by Mr. Alston, less the above amount claimed to be in excess of the requirements of the law. Defendant Alston and all claiming an interest in the lands were served with a notice that the money was so deposited for them.
    (3) Objection is made to the validity of two of the notices because different parcels of land separately assessed and separately sold were grouped together, and one amount stated as the purchase price of the entire group.
    (4) Objection is made that the sheriff’s return of service is not evidence of the facts therein set forth, and, there being no other evidence of service, defendants must fail for want of proof of service.

      The court held the notices void, under Tucker v. Van Winkle, 142 Mich. 210, because they failed to state the State, county, or country in which the land was located.
    The defendants contend:
    (1) That the complainant and its grantors are guilty of such laches as to prohibit relief in a court of equity.
    (2) That as to the lands in Houghton county, they were purchased directly from the State when the State held the indefeasible title thereto, and that that title passed to the defendant Alston free from the provisions of Act No. 229, Pub. Acts 1897, and amendments thereof.
    (3) That the proofs show that there are no other townships and ranges in any State or Territory numbered to correspond with those in this case.
    (4) That the amounts specified in the notices are not in excess of those required by the law.
    (5) That the return of the sheriff is competent evidence of the service of the notice.
   Grant, O. J.

(after stating the facts). The description in the notices in this case is the same as those in Tucker v. Van Winkle, 142 Mich. 210, except that in that case the town was described as north and the range as west, while in this case the notices failed to state whether the township was north or south, or the range east or west, and are therefore more indéfinite than the description in that case. This itself, however, would be immaterial to one versed in the governmental surveys, for there is no other township or range in the State than those described in the notice. This case is ruled by Tucker v. Van Winkle, unless we are enabled to say that there are no other like descriptions of land in any of the States or Territories, and that the original owners are chargeable with knowledge of that fact. Parties are presumed to know the law, and ignorance of it is no excuse. This rule, however, does not apply to the existence or nonexistence of things which may appear upon some public records or may be shown by extrinsic evidence. This question is not to be determined as if this were a contract or deed between two parties where the intention is of importance and often determinative of the result. Undoubtedly, if the case of Tucker v. Van Winkle had been between parties where one had given a deed to the other, it would have been entirely competent to show by extrinsic evidence what land was intended. In tax cases the owner has no intent to be considered. He is proceeded against ex parte. There is no intention on his part upon which extrinsic evidence may throw light or to which operation can be given. Jones v. Pelham, 84 Ala. 208; Jackson v. Sloman, 117 Mich. 126. The average layman is unversed in surveys and could have no knowledge that there was no like description in any other State or Territory. The notice which the original owners in this case received did not specify the State or county where the lands were located. As we held in Tucker v. Van Winkle, they might well have assumed that there were similar descriptions of land in other States where similar methods of survey were followed. The law does not require them to search the records in the surveyor general’s office at Washington, or the records of other States, to determine whether there is any other like description. It is the universal custom in conveying lands in this State to describe the county and State, giving also the township and range. To hold with the defendants would be to overrule Tucker v. Van Winkle. That case has been regarded for two years and a half as the law of the State, and we are not disposed to overrule it. It follows that these notices were void on their face.

It is urged that the grantors of the original complainant have shown such laches as to preclude relief. Counsel state their position as follows:

“For 15 years the former owners have given them no attention and have permitted the State of Michigan to collect its taxes as best it might. They have known that through all this period the taxes have gone delinquent, or someone else has paid them.”

Counsel cite, in support of their contention, the language of this court in Cook v. Hall, 123 Mich. 378. The provisions of the act of 1897, requiring notice to the original owner, and giving him the right to a reconveyance upon compliance with the terms of the notice, was not involved in that case. The facts there are not the parallel of those in this, except in the fact that both neglected to pay their taxes. In that case, the original owner, knowing that his lands had been sold, that the defendants had become the purchasers of the timber, and that it had been cut and manufactured, then sought to obtain the benefit of the labor and expenditures of the defendants. In this case the plaintiff, representing the original owners, took prompt action to prevent the cutting of timber, and to prevent the tax purchasers and their grantees from enforcing any rights under their tax deeds. The act of 1897 was not designed to assist only those who had been diligent and free from fault. The failure to pay taxes is, in most cases, the result of negligence and involves laches. The statute covers all cases where the purchaser has acquired the tax title at the public sales or by purchase of the title acquired by the State. It was regarded as sufficient punishment to the original'owner and sufficient compensation to the tax purchaser to require the owner to pay double the amount which the purchaser paid and certain other items. To sustain this contention on behalf of the defendants would result in rendering the act of 1897 inapplicable to a great majority of tax titles. It may well be conceded that the complainant in this case, which stands in the shoes of the original owners, does not deserve any consideration in a forum of equity. Courts of equity, however, as well as of law, must apply legislative enactments in accordance with the plain intent and language used by the legislature. The requirements of the act are not difficult to understand, and compliance therewith is easy. He who relies upon the notices required by the statute must show a substantial compliance therewith, regardless of any fault or laches of the original owner. Had the complainant or its grantors stood by in silence and permitted defendants to proceed to cut the timber, the case of Cook v. Hall would probably be applicable.

It is urged that the lands situated in Houghton county were purchased directly from the State at a time when the State held the indefeasible ownership therein, and that therefore defendant Alston took title free and clear of any right conferred by the act of 1897. The language of that act (Act No. 229, Pub. Acts 1897, § 142), : is as follows:

“No purchaser under any tax sale hereafter made, or of any State tax land or any State bid hereafter sold, shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of his or their interest in said lands.”

Section 140, as amended by Act No. 204, Pub. Acts 1899, provides:

“ No writ of assistance * * * for the possession of any land, the title to which has been obtained under and in pursuance of any tax sale, made after the 29th day of August, A. D. 1897; or of any sale of State lands or State bids made after the said 29th day of August, 1897, * * * shall be issued until six months ” after the notice has been served and proof thereof filed.

The title to many thousands of acres of land was in the State at the time the act of 1897 was passed. The title to many other thousands has since been acquired by the State. "We think it was clearly the intention of the legislature to give to all the original owners of land the right conferred by the act of 1897, viz., to obtain a reconveyance of their land thereafter purchased, whether from the State directly or at tax sales, by paying the tax-title purchasers the amounts provided thereby. Such, we think, has been the understanding of the profession. Many cases have been before the courts where the title has been acquired from the State in the same manner as that acquired by the defendant Alston, and no question has before been raised as to the right to the benefit of the act.

The decree is affirmed, without costs to the complainant. Landowners who neglect the payment of their taxes should not receive costs when litigation has arisen through their own neglect.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.

ON MOTION FOR REHEARING.

Grant, C. J.

A motion for a rehearing is made in this case, asking for the determination of the liability of the complainant for taxes paid by the defendant Alston for four years subsequent to the service of the notice which we held to be invalid. We did not determine this question in the former opinion, for the reason that it was not essential to a determination of the case. Upon reflection, we are of the opinion that the parties are entitled to have all their rights determined in this case; and, inasmuch as the question was fully discussed in the original briefs, upon the oral argument, and now upon the motion for a rehearing, we conclude to dispose of it.

As we have repeatedly held, the original owners of land know that their lands are subject to taxation, and that it is their duty to pay the taxes imposed upon them and thus bear their share of public burdens. The owners of the land in dispute not only paid no taxes, but after the notice was served upon them under the statute notifying them that a sale of the lands had been lawfully made, and that Alston had title thereto, and that they were entitled to a reconveyance upon payment of the sums specified in the notice, still paid no attention to the payment of their taxes or exhibited any desire to'protect their interests. They made no attempt to pay either the defendant Alston in accordance with the notice, or the subsequent taxes. They were paid by Alston. It was necessary that they should be paid to protect his title, the validity of which is not questioned. By a technical defect in the notice the complainant (the grantee of the original owners) is still entitled to a reconveyance from the defendant. Is it equitable that complainant should be relieved from the payment of these subsequent taxes ? Clearly not. Can a court of equity compel complainant to do equity by reimbursing the defendant Alston for these subsequent taxes ? It seeks equity and ought to do equity. The law (section 3876, 1 Comp. Laws) provides:

“Any person having a lien on property may, after thirty days from the time the tax is payable, pay the taxes thereon, and the same may be added to his lien, and recovered with the rate of interest borne by the lien. ”

The name given to the title acquired by the tax purchaser under the provisions of the law is immaterial. Whether we call the title absolute or conditional, he has a title which it is his right to protect by payment of subsequent taxes, and, when the original owner demands a re-conveyance from him, he ought in justice and equity to be compelled to pay those taxes which the purchaser has been compelled to pay, or otherwise lose his title or lien. A mortgagee is entitled to pay taxes and to have an additional lien upon the land therefor, although the mortgage is silent as to the payment of taxes. Sidenburg v. Ely, 90 N. Y. 262; 2 Jones on Mortgages (6th Ed.), § 1080; 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1217.

It is also. held that where a party pays the taxes in good faith, claiming title but having none, he is entitled to a reimbursement out of the land. Kemp v. Cossart, 47 Ark. 62; Goodnow v. Moulton, 51 Iowa, 555. The payment of the subsequent taxes, amounting to $573.37, inured to the benefit of the original owners. The complainant (representing the original grantors), not the defendant Alston, is demanding “the pound of flesh.” Equity will not give it. Defendant Alston is entitled to be reimbursed for these taxes, with interest from the dates of payment.

The decree will be modified in accordance with this opinion.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.


author: Grant, O. J.

text:
    DAHLEM v. ABBOTT.
    1. Ejectment — Title to Support — Title by Prescription.
    Title by prescription is a complete title, and will sustain an action of ejectment as well as a record title.
    2. Same — Evidence—Title by Prescription.
    Where plaintiff in ejectment shows that her ancestor took possession with her family nearly 40 years ago under certain deeds introduced in evidence, and that her heirs have remained continuously in possession ever since, there is sufficient evidence of title by prescription to sustain a verdict.
    3. Same — Ouster—What Constitutes.
    The acquisition of a tax deed by a tenant in common, claim made thereunder, and the statement of the co-tenant in possession that she holds under the tax title holder in consequence of the tax title, are sufficient evidence of ouster of another co-tenant to support ejectment.
    Error to Muskegon; Padgham, J., presiding.
    Submitted April 17, 1908.
    (Docket No. 118.)
    Decided July 1, 1908.
    Ejectment by Lucy Dahlem against John Abbott and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Stephen H. Olink, for appellant.

      Nims, Hoyt, Erwin & Vanderwerp, for appellees.
   Grant, O. J.

This case is before us the second time. A full statement can be found in the opinion then rendered. (146 Mich. 605.)

Defendant Abbott, upon the first trial, claimed under a tax title and title by adverse possession. It was held that he had not acquired title by adverse possession, and that he could not under the facts there disclosed acquire a valid tax title as against plaintiff and the other defendants. The judgment was reversed and a new trial ordered. Upon the second trial plaintiff produced two deeds, one made to Vesula Converse and the other to Virsula Converse. Counsel for plaintiff, in his opening statement, stated that the property was formerly owned by Ursula Converse, and that she died in 1878. Plaintiff gave evidence tending to show that under these deeds Ursula Converse took possession and remained in possession until her death, about three years after, and that her heirs, the defendants, except defendant Abbott, who married one of the daughters, have remained in possession ever since, and that upon the death of Mrs. Abbott, the daughter of Mrs. Converse, in 1887, Mr. Abbott and his children moved in and lived with the others until about two years before the trial of this cause. Plaintiff also gave evidence showing that defendant Abbott claimed title by virtue of his tax deed. Defendant Matilda testified that defendant Abbott claimed to own the property, and that she held it subject to him. Defendant Abbott alone defends.

After the plaintiff had rested, the court, at the request of the defendant, directed a verdict for him upon the ground that plaintiff had failed to show a record title. We think the court erred. Title by prescription is a complete title, and will sustain an action of ejectment as well as a record title. Plaintiff’s testimony tended to show that Mrs. Converse took possession of this land with her family, under the deeds introduced in evidence, nearly 40 years ago, and that her heirs have remained continuously in possession ever since. This was evidence of title acquired by prescription. The acquisition of a tax deed, claim made thereunder, and the statement .of Matilda that she held under him in consequence of the tax title, are evidence of ouster. Whiteley v. Whiteley, 110 Mich. 556; Carpenter v. Carpenter, 119 Mich. 167.

The court erred in directing a verdict, and the judgment is reversed, and a new trial ordered.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.


author:
Carpenter, J.
      Montgomery, J.

text:
    PETERS v. EATON CIRCUIT JUDGE.
    Intoxicating Liquors — Criminal Law — Informations—Negativing Defenses — Druggists—License—Quashing Information.
    On mandamus to compel the vacation of an order quashing an information for the violation of the liquor law, the writ is denied by a divided court; Mr. Justice Carpenter, with whom concur Justices Ostrander, Hooker, and Mo Alvay, writing for a denial of the writ on the ground that the information which charges the accused with “being then and there a person whose business consists in part in the sale of drugs and medicines,” etc., is fatally defective in that it fails to set up that accused had given the bond prescribed by section 5381, 2 Comp. Laws; Mr. Justice Montgomery, with whom concur Chief Justice Grant and Justices Blair and Moore, writing for the issuance of the writ on the ground that the information charges all the essential ingredients of the offense as defined by the statute, and that if subsequent provisions of the statute introduce exceptions it is not necessary for the pleader to negative them.
    Mandamus by Elmer N. Peters, prosecuting attorney, to compel Clement Smith, circuit judge of Eaton county, to vacate an order quashing an information.
    Submitted May 5, 1908.
    (Calendar No. 22,821.)
    Writ denied by a divided court July 1, 1908.

      Elmer N. Peters, in pro. per.

      Garry C. Fox (L. H. McCall, of counsel), for respondent.
    Relator filed an information in the circuit court for the county of Eaton of which the following is the material part:
    “Fred H. Emery * * * on the 31st day of August, 1907, at the city of Charlotte, in said county, did sell, furnish and deliver to Ira Ball, certain spirituous, malt, brewed, fermented, vinous and intoxicating liquors, to wit, one bottle of beer to be used as a beverage. He, the said Fred H. Emery, being then and there a person whose business consists in part in the sale of drugs and medicines, and said liquors not being then and there sold for chemical, scientific, medicinal, mechanical or sacramental purposes only, and in strict compliance with law, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
    The respondent quashed said information upon the ground that the information charged no crime. Relator seeks a mandamus compelling the vacation of said order.
   Carpenter, J.

(after stating the facts). Under the laws of this State (2 Comp. Laws, § 5380) every person who sells liquor “ in quantities of three gallons or less, or one dozen quart bottles or less, at any one time,” is a retail liquor dealer, unless he has given the druggist’s bond prescribed by section 5381, 2 Comp. Laws, authorizing him to sell liquor for medicinal purposes. People v. Utley, 129 Mich. 628; People v. Wilcox, 152 Mich. 39. Emery, the respondent named in the information before us, is not charged with the offense of selling as a retail liquor dealer, nor could he be convicted of that offense because there is no averment in the information “that he has not given the retailer’s bond prescribed by section 5386.” People v. Utley, supra. No offense, then, is charged against respondent Emery as a retail dealer of liquors. Is lie charged with the offense of making a sale as a druggist contrary to the provisions of section 5381, 2 Comp. Laws ? To bring his case under that section, the logic of People v. Utley requires the information to show by some proper averment that he had given the bond prescribed therein authorizing him to sell liquor for medicinal purposes. It is quite clear that the information contains no such averment. It merely avers that his business “consists in part in the sale of drugs and medicines.” Surely no one would infer from this that he had given a bond authorizing him to sell liquor for medicinal purposes. We are therefore of the opinion that the information charged no offense, and that it was properly quashed by respondent.

This reasoning is not, in our judgment, opposed to People v. Curtis, 95 Mich. 212, relied upon by relator. There the information charged that respondent therein named “ being then and there a druggist * * * did then and there sell, furnish, and deliver a quantity of spirituous liquor, called ‘brandy,’ to wit, three drinks of brandy, to one Clinton D. Shoemaker, to be used as a beverage, which said brandy was then and there drank on the premises of said Orrin Curtis.” The sufficiency of this information was assailed because (I quote from the brief filed by appellant’s counsel in that case):

“ There is no charge in the information or other papers that the respondent was not then and there and at the time a saloon keeper with a license and right under the laws of the State to sell the liquor mentioned in said information.”

We overruled this contention, and that decision is authority for the proposition that it was unnecessary for the information to contain the averment insisted upon. It is true that the opinion in People v. Curtis states that “the information was sufficient.” This means, of course, merely this, that it was not open to any of the objections made by counsel. It is not to he taken as authority for the proposition that it was open to no other objection. That case may not be regarded, then, as authority for the proposition that to charge an offense under section 5381 it is sufficient to aver that the person charged with the crime was a druggist. It would certainly be better and safer practice to charge that he had given the bond permitting him to sell as a druggist liquor for medicinal purposes. Even if People v. Curtis is authority for the proposition that, to charge an offense under section 5381, it is sufficient to aver in the information that the offender is a druggist, it would not govern this case, for there is a manifest distinction between a “druggist ” and one whose business “ consists in part in the sale of drugs and medicines.”

It seems to be thought by some of the counsel in this case that the Utley Case decides — contrary to the holding in the Curtis Case — that an information charging a druggist with making an unlawful sale must negative his having given a bond as a retail liquor dealer. It does not so decide. It does decide, to repeat, that, as Utley had failed to give the druggist’s bond, he was a retail dealer of liquors, and that the information charged no offense “because it does not state that he has not given the retailer’s bond.”

Since this opinion was prepared, relator has filed a brief calling our attention to People v. Hinchman, 75 Mich. 587 (4 L. R. A. 707). There respondent Hinchman, under an information substantially like that before us, was convicted for making a sale of liquor as a druggist contrary to the provisions of section 5381, 2 Comp. Laws. We sustained that information. The only objection that was made to the information was this, “it does not show or allege that the said liquors were sold to be used as a beverage. ” The point that it failed to aver that Hinchman was a druggist was not made and that question was not, therefore, considered. For th'at reason the case has no bearing.

The mandamus is denied.

Ostrander, Hooker, and McAlvay, JJ., concurred with Carpenter, J.

Montgomery, J.

This is an application for a mandamus to require the circuit judge to vacate an order quashing an information filed in his court, the material part of which was as follows:

“Ered H. Emery * * * on the 31st day of August, 1907, at the city of Charlotte, in said county, did sell, furnish and deliver to Ira Ball, certain spirituous, malt, brewed, fermented, vinous and intoxicating liquors, to wit, one bottle of beer to be used as a beverage. He, the said Ered H. Emery, being then and there a person whose business consists in part in the sale of drugs and medicines, and said liquors not being then and there sold for chemical, scientific, medicinal, mechanical or sacramental purposes only, and in strict compliance with law, contrary to the statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.”

The question is whether this information charges an offense. It is to be noted that the information is in form such as has been employed in the different circuits of the State for at least 20 years. See People v. Hinchman, 75 Mich. 587 (4 L. R. A. 707); People v. Curtis, 95 Mich. 212. While this is not of controlling force, it is a circumstance that challenges careful consideration of the question.

The statute, section 5381, 2 Comp. Laws, being a portion of “an act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors,” etc., provides in terms (section 5381):

“It shall not be lawful for any druggist, nor for any person whose business consists in whole or in part of the sale of drugs and medicines, directly or indirectly, by himself, his clerk, agent or servant, at any time, to sell, furnish, give, or deliver, any spirituous, malt, brewed, fermented or vinous liquor, or any mixed liquor, a part of which is spirituous, malt, brewed, fermented or vinous, * * * nor to any other person to be used as a beverage.”

It is obvious from a casual reading of this information that it charges all the essential ingredients of the offense as defined by the statute quoted. That statute makes it an offense for any druggist, or for any person whose business consists in whole or in part of the sale of drugs and medicines, to sell liquor to be used as a beverage. In the case of People v. Curtis, supra, one of the errors assigned was that the information, which was in all material respects like the one under consideration, set forth no offense known to the laws of the State. In dealing with that question, the court, in its opinion, stated that one of the grounds of error was that the information was insufficient. The holding was that the information was sufficient, and upon the ground that all the statutory conditions which by section 5381, 2 Comp. Laws, are declared to constitute the offense, are set out. It was said:

“ It is claimed that the information should show negatively that the respondent was not licensed to keep a saloon under other sections of the statute.”

The answer to this was:

“ The rule of pleading, however, in either civil or criminal cases does not require this. [Citing cases. ] The rule is that in pleading a statute which contains an exception in the enacting clause the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party.”

The case of People v. Utley, 129 Mich. 628, is relied upon. It will be noted that the charge in that case was that he was a druggist and had sold liquors without giving a druggist’s bond. It was said that the liquor law—

“ Contains a requirement that all persons who wish to engage in the sale shall file a bond of a prescribed form, and excópts from this provision druggists who see fit to file a bond of different form, also prescribed. Until a druggist files the latter bond, he is within the former provision, and is a retailer if he sells liquor in quantities of three gallons or less.”

It was further said:

“No druggist sells liquor in compliance with law until he gives a bond.”

And it is further stated:

“The law does not prohibit a druggist from being a retailer of liquor, provided he is willing to pay the tax and give the retailer’s bond; but it does permit him to sell for certain purposes, and in certain methods, without giving the retailer’s bond, if he gives another bond, and not otherwise.”

The question presented in that case is markedly different from the one which we are considering. The question is not presented on this record as to whether the respondent on the trial might or might not be able to aver and prove that he comes within an exception to the terms of this statute by showing that under a later provision of the statute he has given a bond to engage in the business of selling liquor generally. The point is, as is held in People v. Curtis, that when the pleader has set out all the essential ingredients of the offense as defined by the statute, no exception engrafted upon that statute by a subsequent section — if by implication it be held that such an exception is engrafted upon the statute — is a matter of defense, and need not be negatived in the information.

Section 5381 contains other provisions regulating the selling of liquor by druggists. It authorizes the sale of liquor by druggists for certain purposes upon complying with certain restrictions and conditions, among which is the giving of a bond in a prescribed form. The question ' is whether, in a prosecution where the people prove that the respondent is a druggist, and that he has sold liquor as a beverage, it is essential, in order to make out the case, to show that he has violated other provisions of the same section. I think not. The language of the section quoted in this opinion very clearly defines the offense and makes the offense to consist of any druggist, or any person whose business consists in whole or in part in the sale of drugs and medicines, selling liquor to any person to be used as a beverage. If the fact is proven that the respondent is a druggist, and that he has violated this provision of the statute, it would seem that it would be but an aggravation of the offense that he had also failed to comply with other provisions of the statute relating to druggists.

The writ should issue as prayed.

Grant, C. J., and Blair, and Moore, JJ., concurred with Montgomery, J.


author: Moore, J.

text:
    HURD v. NORTHERN ACCIDENT CO.

    Life Insurance — Action on Policy — Pleading—Amendment.
    Where, in an action on a policy of insurance, the declaration counted on a polioy which had lapsed, and, in response to a demand for a bill of particulars stating specifically the date and amount of the policy referred to in the declaration, the plaintiff filed a bill which mentioned a second policy as well as the first, this, in legal effect, was the same as if both policies had been declared upon, and no amendment was necessary to make the second policy admissible in evidence.
    Error to St. Clair; Tappan, J.
    Submitted May 5, 1908.
    (Docket No. 41.)
    Decided July 1, 1908.
    Assumpsit by Martha J. Hurd against the Northern Accident Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      William T. Hosner (Lincoln Avery and Byron B. Hr shine, of counsel), for appellant.

      Henry O. Walters, for appellee.

       Rehearing denied September 10, 1908.

   Moore, J.

We state as many of the facts as are material to the questions involved here. This is an action commenced to recover upon a policy of insurance issued by the defendant to Charles L. Hurd, plaintiff’s deceased husband. The defendant company on September 20,1901, issued a policy of accident insurance to Mr. Hurd, No. 23,816, for the sum of $500. This policy was suffered to lapse. A new policy was issued on August 22, 1904, being No. 46,126, for $500. Mr. Hurd died September 3, 1904, the evidence tending to show his death was caused by an accident covered by the policy in question. His widow, on September 5th following, caused the company to be duly notified of his death by a letter written for her by Dr. Hodges, at the same time requesting it to forward ( blank ) proofs of death. Proofs of death were duly made and filed under policy No. 46,126 and no other. Liability being denied by defendant, this action was commenced by a summons in the Macomb circuit court, on January 31, 1905, and service thereof duly made on defendant. February 21st a declaration was filed. Defendant pleaded the general issue and gave notice of special defenses. Later it demanded a bill of particulars. A bill of particulars was furnished.

On the trial, plaintiff claimed that no claim whatever had been made by plaintiff under the first policy, or that any proofs of loss had been furnished thereunder, and that by mere accident the declaration referred to the date of the first policy. The trial court held that the policy of August, 1904, was inadmissible under the declaration, and that the declaration could not be amended, because it would introduce a new cause of action. The judge refused the request to amend because he thought he did not have the power to allow it. The case is brought here by writ of error.

The defendant claims the second policy was inadmissible because the declaration was upon the first policy. It insists the declaration could not be amended because it would introduce a new cause of action after the time in which suit might be brought had expired. To pass intelligently upon the questions presented, it will be necessary to state somewhat more fully the condition of the pleadings.

No policy was set out in full in the declaration. The reference made thereto which is material to the question presented is as follows:

‘ ‘ For that the said defendant, which is a corporation organized, existing and doing business under the laws of said State, and duly authorized to enter into the contract hereinafter mentioned, on, to wit, September 20th, 1901, at said county, on the application of Charles L. Hurd, the husband of said plaintiff, made a certain policy of insurance in writing, whereby the said defendant,” etc.

As before stated, the attorney for the defendant pleaded the general issue with notice of special defenses. Not content with doing this, on the 20th of December, 1905, he filed a demand in writing, for a bill of particulars, in which the following language was used:

‘ ‘ I herewith demand that you furnish the defendant with a bill of particulars of the plaintiff’s claim in this suit, stating specifically the date and amount of the policy of insurance referred to in your declaration, as required by Circuit Court Rule 3 of the Revised Rules of Practice in the Courts of Michigan, adopted October 8, 1896.”

Complying with this demand, a bill of particulars was furnished at once and before the time would expire in which suit could be brought, in which the following statement is made:

“ This action is brought to recover money due under policy issued by the defendant company to one Charles L. Hurd, Sept. 20th, 1901. Amount of policy, $500. This action is brought to recover money due under policy issued by defendant company to one Charles L. Hurd, August 22, 1904. Amount of policy, $500.”

It will be observed that the reference in the declaration to the policy of insurance did not comply with the requirements of Circuit Court Rule 3. The attorney for the defendant recognized this condition and asked for more specific information. This he got when he received the bill of particulars. At this time he was informed that plaintiff claimed defendant was liable on the policy of August 22,1904. This being the situation, we do not think it necessary to decide whether the judge had the power to permit the amendment.

We think the so-called bill of particulars filed and served in response to defendant’s request was in effect a part of the declaration. In asking for this bill of particulars, defendant said: “I demand a statement of the date and amount of the policy referred to in your declaration.” In answer, plaintiff gave the date and the amount of the second policy as well as the first. Legally speaking, this is the same as if plaintiff had stated in her declaration the dates and amounts of the two policies. There was therefore no occasion to make an amendment, and defendant had no right to insist that an amendment was necessary.

Judgment is reversed, and new trial ordered.

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