text:
    ST. JAMES v. ERSKINE.
    Deeds — Removal of Timber — Reasonable Time — Notice.
    Plaintiff deeded to defendant all the timber on certain property with the right to enter upon and cut and remove the same “at anytime thereafter.” Held, that defendant was entitled to a reasonable time after notice in which to remove the timber. Huron Land Co. v. Davison, 131 Mich. 86.
    Error to Mackinac; Shepherd, J.
    Submitted January 13, 1909.
    (Docket No. 81.)
    Decided March 3, 1909.
    Ejectment by Mary St. James against John D. Erskine. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      James McNamara & Son, for appellant.

      Benjamin & Quay, for appellee.
    Plaintiff and appellant has made no such statement as Supreme Court Rule 40 requires. However, as the case is a simple one, and the facts are found by the circuit judge, we will dispose of the case without requiring such statement. The action is ejectment. Plaintiff is the owner of the original title. Defendant obtained a tax title upon the land. A settlement was effected, by which the defendant executed a quitclaim deed to the plaintiff, and the plaintiff executed to the defendant a quitclaim deed, conveying to him “all the timber of every nature and description now standing or fallen on the land [describing it], with the right to enter upon and cut and remove said timber at any time thereafter.” This arrangement was made in 1902. The bulk of the timber had previously been cut and removed from the land by the plaintiff. The defendánt went upon the land, and took only such possession as consisted in the removal of a portion of the timber conveyed. Shortly after the settlement plaintiff removed from the State of Michigan, and has continued a nonresident since. She did not desire the premises for cultivation or personal use. She gave defendant no notice, actual or constructive, to cut and remove the timber. Defendant claimed no right, title, or interest in and to the land, except to enter, cut, and remove the timber. The court held as a conclusion of law that the plaintiff was not entitled to recover, and entered judgment for the defendant.
   Grant, J.

(after stating the facts). While the defendant had had a reasonable time, prior to the bringing of this suit, within which to remove the timber, yet th© deed from plaintiff to him gave him the right of removal at any time thereafter. As found by the trial court, the timber could all have been removed within two years. We held in Huron Land Co. v. Davison, 131 Mich. 86, under a clause in a deed “reserving all pine and hemlock timber ” (the deed being silent as to the time for removal), that the plaintiff (the owner of the timber) was entitled to reasonable time after notice to remove. This case is ruled by that.

Judgment affirmed.

Blair, C. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    GLENN v. LINE.
    Waters and Watercourses —Drains—Easements —Prescription.
    Where, on a bill to enjoin the obstruction of an open drain, it appeared that defendants and their grantor had for more than 50 years recognized complainant’s right therein; that at the time of filing the bill defendants were engaged in putting in a 4-inch tile drain to take the place of the open one; and that complainant’s acts in temporarily impeding the flow of the water was not an abuse of his rights. H'eld, that a decree making the injunction permanent unless defendants should put in a 5-inch tile was justified.

    Appeal from Livingston; Miner, J.
    Submitted January 18, 1909.
    (Docket No. 89.)
    Decided March 3, 1909.
    Bill by Rupert M. Glenn against William Line and Clyde Line to enjoin the obstruction of a drain. From a decree for complainant, defendants appeal.
    Affirmed.

      Shields & Shields, for complainant.

      Richard D. Roche and Louis E. Howlett, for defendants.
    Complainant and defendants own adjoining farms in the township of Marion, Livingston county, Mich. Complainant’s land lies south of the land owned by defendants, and upon it is a huckleberry swamp which comes up to or very near the partition line between the farms. The complainant purchased his farm 25 years ago, and the defendants 5 years ago. About the year 1852 a ditch was cut through the swamp and northerly through the defendants’ farm to lowlands beyond for the purpose of draining said swamp. This ditch ran through two ridges on defendants’ land, and was at those points some 8 or 10 feet deep. Where it went through the ridges, a box drain made of six-inch boards, nailed together, was put in. In 1875 the box drain was dug out of the northerly knoll, since which timé that portion'of the ditch has remained open. The ditch is not a natural watercourse, but is the only means of draining the complainant’s huckleberry swamp. The record shows that it was constructed upwards of 50 years ago with the consent of the defendants’ grantor. Indeed, defendants in their answer say:
    “ They admit that the said drain was constructed many years prior to the time these defendants purchased their lands described in said bill of complaint; and, as they are informed and believe, it was constructed by the joint operation of the owners of the respective lands heretofore described, and that both of said owners contributed to the cost of the construction of the same.”
    The ditch has served its purpose to the present time, work having been done upon it from time to time, both by the complainant during the past 25 years and by the defendants and their grantors. In the spring of 1907 defendants cleaned out the ditch so far as it lay upon their own premises, and laid upon the banks thereof four-inch tiling, with the intention of putting in the tile and covering up the drain. Thereupon the complainant filed his bill of ’ complaint, obtained an injunction, and, upon the hearing in the court below, the injunction was made permanent, unless the defendants put in a five-inch tile drain. From this decree the defendants appeal.

       For prescriptive rights as to flow of surface water, see note to Gray v. McWilliams (Cal.), 21 L. R. A. 607.

   Brooke, J.

(after stating the facts). It is the claim of the defendants that the complainant has not acquired a right by prescription to flow the water from the swamp across defendants’ lands; and, secondly, that, even i.f the complainant has acquired such prescriptive right, it has been forfeited by improper use thereof on the part of the complainant. The record clearly discloses the fact that, not only have the defendants’ grantors acquiesced in the complainant’s rights in the ditch for nearly 50 years, but that the defendants themselves during the time of their occupancy of the servient estate have definitely recognized this right. They have themselves, on at least one occasion, cleaned out a portion of said ditch, and have permitted the complainant on other occasions to do likewise. Indeed, the very work they were engaged in at the time the injunction was issued (that of putting in a four-inch tile drain through the southerly knoll and down to complainant’s land) was an unmistakable recognition of the complainant’s rights and their own duty in the premises ; the only contention between the parties at that time being as to the size of the tile. That an easement may be acquired by prescription to flowage of surface water collecting upon the land of one person over the lands of an adjacent proprietor is the settled law of this State. Gregory v. Bush, 64 Mich. 37; Boyd v. Conklin, 54 Mich. 583.

It is not apparent from the record that the complainant has abused his right. It is true that for the purpose of removing his crop from an adjoining field he has from time to time thrown rails, straw, and other loose material into the ditch at a point just south of the line between the two farms. These obstructions, after harvest, were removed, and when in place, apparently only impeded, but did not wholly obstruct, the flow. The complainant claimed, and the circuit judge held, upon evidence which we think satisfactory, that a four-inch tile would be of inadequate capacity.

Under the facts disclosed by the record, the complainant is entitled to the relief prayed.

Decree affirmed.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.


text:
    GRIFF v. CLARK.

    Mechanics’ Liens — Statement of Claims — Excessive Claim— -Effect.
    On a bill to enforce a mechanics’ lien, a statement of lien grossly in excess of the amount actually due is not such ‘ ‘ a just and true statement of account of the demand due ” as provided by the statute, and the bill was properly dismissed.
    Appeal from Houghton; Streeter, J.
    Submitted January 19, 1909.
    (Docket No. 105.)
    Decided March 3, 1909.
    Bill by John Griff against Ella Clark to enforce a mechanics’ lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Burritt & Burritt, for complainant.

      Larson & Galbraith, for défendant.

       Rebearing denied May 25, 1909.

   Brooke, J.

The bill in this case is filed to foreclose a contractor’s lien. The building was erected under a written contract entered into between the parties on the 12th day of September, 1905. The contract price was $1,700, subject to the privilege reserved by the defendant to make alterations in the building, she to pay for all extra labor required for such alterations. The building was substantially completed on the 7th day of December, 1905, the defendant refused to make the last .payment according to the contract, and on the 1st day of February, 1906, complainant filed a claim of lien. One thousand dollars of the contract price was paid by the defendant, but payment of the $700 balance, together with $190 claimed by the complainant as extras, was refused by defendant. The findings of the circuit judge were in part as follows:

“ The undisputed testimony in the case shows that the building was not completed according to the terms of the written contract, that changes were made in the material used and other changes were made which decreased the cost of the building.
‘ ‘ The complainant insists by his testimony that the substitution of material and the changes made in the building were all with the consent of the defendant. The defendant denies this. If the changes were made with the consent of the defendant, and if the substitution of material was done with her bnowlege and consent, the complainant ought to allow the difference between the cost of the material furnished and that contracted for to the defendant. He has not done so nor has he offered to do so. He insists that he is entitled to the full contract price, and that the lien upon the premises should be enforced to compel the payment of the full contract price.
“ The amount charged for extras upon the building, $190, is made up of several items. Some of the items were not extras at all as appears from the testimony, and as to some other of the items the testimony fails to show the value to be that claimed by the complainant. Where there is a difference of value, the difference may arise because the amount is estimated by two different people. I think there can be no question that some of the items charged as extras were known to the complainant at the time he filed his lien as not entitled to be included as extras.
“The written contract for the erection of the building mentions the kind of material to be used. The complainant was a contractor of experience, and also a lumberman. He did not show by a fair preponderance of the evidence that the changes in the material were made with the consent of the defendant. The weight of the testimony is decidedly with the defendant, that she did not know of the substitution of materials and did not consent to it. Hemlock was substituted for pine and bass wood for finishing pine. Some of the lumber used was not of the grade specified in the contract. In every instance where there was a substitution of material a cheaper one was used.
“The complainant insists that because the defendant has failed to show just the difference in the market price of the material used and just how many feet were substituted she must pay the full amount of the contract and her property must be subject to a lien for the full amount. The testimony in the case shows that the building as built by the contractor is worth from $375 to $500 less than it would be had it been completed according to the terms of the contract. The contractor knew the price of the material, but has made no deduction whatever on account of the decreased cost, and, while it may well be that the difference in the price of the substituted material and that of the contract material might not amount to $375, it is evident that the complainant has endeavored to enforce a lien for an amount much greater than he honestly believed to be due him.”

Complainant, both in. his statement of lien filed in the office of the register of deeds and his bill of complaint, claims the sum of $890 as the amount due from the defendant over and above all the legal set-offs. Counsel for complainant makes the following claim in his brief:

“The largest amount which the defendant should recover under the pleadings and proofs would be the difference in the value of the material used and that contracted for, which would be from $75 to $100, and the difference in the cost of labor which would be from $75 to $100. This would entitle complainant to a decree for $530 and costs.”

It will be noted that the difference between this amount and the amount claimed in the lien is $360, a sum between 60 and 70 per cent, in excess of the claim made by complainant’s counsel in his brief upon consideration of the record testimony. It is apparent to us that the complainant’s statement of lien is not such “ a just and true statement of account of the demand due him over and above all legal set-offs ” as is contemplated by the statute, and we therefore hold that the circuit judge was correct in his ruling. See Gibbs v. Hanchette, 90 Mich. 657; Lamont v. La Fevre, 96 Mich. 175; Brennan v. Miller, 97 Mich. 182; Scheibner v. Cohnen, 108 Mich. 167; J. E. Greilick Co. v. Taylor, 143 Mich. 704.

Decree is affirmed.

Grant, Montgomery, Moore, and McAlvay, JJ., concurred. *


text:
    VINCENT v. ACKERMAN.
    1. Fences — Fence Viewers — Statutes.
    Under the statute (section 2419, 1 Comp. Laws), the failure of fence viewers, in their order of determination, to specify the time in which the parties should build their respective shares of fence, does not invalidate the proceedings, since, such provision not being mandatory, it becomes the duty of each, after due notice, to act within a reasonable time.
    2. Same — Fence Viewers — Determination—Recording.
    Under said statute, the filing of the original order of determination with the township clerk, and indexing in the record provided for such papers, was sufficient as between the parties to the controversy,'each having actual notice, although such order was not copied upon the records.
    3. Same — Constitutional Law.
    The statute providing for the settlement of controversies over the division of partition fences is constitutional. Gfilson v. Munson, 114 Mich. 671.
    4. Evidence — Admissibility—Action oe Fence Viewers.
    In an action of replevin for the possession of oattle distrained for trespass, evidence of the proceedings of fence viewers for the division of a partition fence is competent to show the duty of defendant to maintain the fence through which the wrongful entry was made.
    Error to Shiawassee] Smith, J.
    Submitted January 19, 1909.
    (Docket No. 116.)
    Decided March 3, 1909.
    Replevin by George A. Vincent against William Ackerman. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Byron P. Hicks, for appellant,

      Odell Chapman, for appellee.
    Plaintiff and defendant own- adjoining farms in the township of Vernon, county of Shiawassee, on which they respectively reside, and at the time this suit was brought there were about 220 rods of partition or line fence between them. No written agreement was ever made by Vincent with Ackerman or Brown, his grantor, as to the division of this fence. Attempts had been made, but had failed. On September 10, 1904, Vincent made a formal application in writing to three legally qualified fence viewers of the township of Vernon, and these fence viewers, upon receipt of this petition, issued a notice to defendant notifying him of the filing of the petition, and that they would meet on the line of the fence on the 14th day of September, 1904. This notice was served on Mr. Ackerman on the 11th day of September, and on the 14th the fence viewers met on the line of the fence. Mr. Vincent and Mr. Ackerman were both present. There was an opportunity for argument given. The fence viewers questioned Mr. Ackerman in regard to the fence, and listened to what he had to say. They did not announce their decision there on the line of the fence. They consulted among themselves, and went to Hicks’ office, where the decision was signed, which was as follows:
    “State of Michigan, 1 . County of Shiawassee. j

    “Whereas, said complaint and application has been made to the undersigned fence viewers of the township of Vernon, by Albert Vincent, asking for division between the respective occupants of a certain partition or line fence between the lands of the said Albert Vincent and the said William Ackerman, the line of said fence being described as follows: Beginning at the northeast corner of the southeast quarter of section 2 in the township of Vernon in said county, and running thence south sixty rods, thence west 64 rods, thence south 88 rods, or thereabouts; and
    “Whereas, we, the undersigned, did on this day meet and view the said fence at or about ten o’clock in the forenoon, after giving due notice to the said William Ackerman and Albert Vincent of the time and place of meeting, and the said William Ackerman and Albert Vincent both being present, and after hearing the arguments and statementa of both of said parties, we do hereby divide and apportion said fence between said parties as follows:
    “The said William Ackerman, his heirs and assigns shall forever keep and maintain the 60 rods running south from the northeast corner of the southeast quarter of section 2, and the east 24 rods of the 64 rod strip running east and west, and the said Albert Vincent, his heirs and assigns, shall forever keep and maintain the balance or remainder of the east and west line of fence, and all of the 88 rods strip running north and south.
    ‘ ‘ In witness whereof we have hereunto set our hands and seals this 14th day of September, A. D. 1904.
    “W. P. Johnson,
    “William Maudlin,
    “Frank Patchell,
    “ Fence Viewers of the Township of Vernon.”
    A copy of this paper was served on Mr. Ackerman some time in the month of December, 1904. Mr. Vincent left the original determination with the clerk of the township to have it recorded. It was recorded in a book kept for that purpose by the township clerk, but not copied, and remained in his possession and was produced in court by his successor in office. Defendant Ackerman did not keep in repair the 60 rods of fence running south from the northeast corner of the southeast quarter of section 2, and on the 5th of May, 1905, plaintiff’s cattle escaped through,said fence onto defendant’s property, and were by him impounded. Plaintiff thereupon replevied the cattle, and upon the trial the circuit judge refused to admit the determination of the fence viewers, and directed a verdict for the defendant, fixing the amount of damages at $12 and costs to be taxed; the defendant having waived return of the property.
   Brooke, J.

(after stating the facts). The defendant at the trial claimed that the proceedings of the fence viewers as above set forth were incompetent as evidence, first, because the determination did not fix the time within which the fence should be built; second, because it had not been properly recorded; and, third, because the statute under which the proceeding was had is unconstitutional. The statute in question is as follows:

‘ ‘ When any controversy shall arise about the rights of the respective occupants, in partition fences, or their obligation to maintain the same, either party may apply to two or more fence viewers of the township where the lands lie, who, after due notice to each party, may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence in the manner before provided; which assignment, being recorded in the township clerk’s office, shall be binding upon the parties, and upon all the succeeding occupants of the lands; and they shall be obliged always thereafter to maintain their respective portions of said fence.” 1 Comp. Laws, § 3419.

The determination of the fence viewers, it will be noticed, was silent as to the time within which each of the interested parties should erect or repair his share of the fence. We do not think this is a fatal objection to the determination. It will be noticed that the statute upon this point is not mandatory, and the failure of the fence viewers to specify the time within which parties should erect their respective shares of the fence will not render nugatory their action in dividing the fence and assigning to each of the parties his share thereof. Upon making their findings and giving due notice thereof to the parties, it thereupon became the duty of each to proceed within a reasonable time to comply with the determination of the fence viewers.

As to the second objection raised by the defendant, we are of opinion that inasmuch as he had actual notice of the contents of the determination of the fence viewers, it having been served upon him personally several months before the cattle were distrained, he is not in a position to raise the question. In any event, the original paper was properly filed for record with the township clerk, and the index was made in the record provided for chattel mortgages, bills of sale, and other miscellaneous papers. Under the circumstances, this was a sufficient record under the statute. See Farrington v. Bristol, 35 Mich. 28.

The constitutionality of the act under which the proceeding was taken has been passed upon contrary to defendant’s contention in Gilson v. Munson, 114 Mich. 671.

Reversed, and a new trial ordered.

Grant, Montgomery, Hooker, and Moore, JJ.5 concurred.


author: Moore, J.

text:
    GERHARD v. FORD MOTOR CO.
    1. Evidence — Conclusions—Cross-Examination.
    In an action for personal injuries, the exclusion of plaintiff’s answer, on cross-examination, to a question calling for a conclusion as to the cause of the injury, when counsel was allowed to further cross-examine the witness as to the details of the occurrence, was not error.
    2. Highways and Streets — Personal Injuries — Negligence— Automobiles.
    Plaintiff, a “jumper” on a delivery wagon, was injured by being struck by an automobile. The evidence on the part of plaintiff tended to show that before jumping off the left side of the wagon he looked back and saw no automobile coming; that his hors9 was walking and he jumped alighting about a foot and a half from the side of the front wheels, and took some parcels from the wagon and was walking slowly by the side of the wagon waiting for it to pass so that he could go back of it to the sidewalk, when he was struck in the back and left side by an automobile; that the machine knocked him to the pavement and dragged him 66 feet and ran 100 feet farther before it was stopped; that the driver of the machine had a clear space of SO feet to the left of plaintiff’s wagon in which to pass. The driver of the automobile testifled that he saw the plaintiff’s rig, knew what it was, and knew the character of the business in which it was engaged. Held, that the question of the negligence of the parties was properly submitted to the jury.

    Error to Wayne; Hosmer, J.
    Submitted January 21, 1909.
    (Docket No. 159.)
    Decided March 3, 1909.
    Case by Clements Gerhard, by next friend, against the Ford Motor Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Fred L. Vandeveer, for appellant.

      Lillis & Hymers (Felton & McGee and George A. Safford, of counsel), for appellee.

      As to duty of pedestrian to look out for automobile cars, see note to Hennessey v. Taylor (Mass.), 3 L. R. A. (N. S.) 345.
      As to law governing automobiles generally, see note to Christy v. Elliott (Ill.), 1 L. R. A. (N. S.) 215.

   Moore, J.

The plaintiff was injured on September 10, 1906, at about 5:30 p. m. He was two or three months over the age of 14. The accident occurred on Piquette avenue, which runs at right angles to Woodward avenue. Plaintiff was employed as a “jumper” on a delivery wagon, and in the performance of his duties it was necessary for him to follow the instructions of his driver and deliver packages to the proper addresses. The first street east of Woodward avenue, and parallel thereto, is John R., and next east of John R. is Brush street. The delivery wagon approached Piquette avenue from the south on John R. street. Upon reaching Piquette avenue, the driver turned his horse to the right on Piquette avenue, and drove east toward Brush street. An automobile controlled by one of the employás of the defendant came to Piquette avenue from Woodward avenue coming from the south. When Piquette avenue was reached, the driver turned his automobile to the right, going in an easterly direction. When the wagon was a few feet from Brush street, the automobile attempted to pass on the north side of it, and struck the boy, who was badly injured. The case was tried before a jury who rendered a verdict for plaintiff. A motion was made for a new trial for the following reasons:

(1) That said verdict was against the clear weight of the evidence offered and received at the trial of the said cause.
(2) That the evidence establishes that the plaintiff was guilty of negligence, and that a verdict of no cause of action for the defendant should have been directed.
(3) Because of the refusal of the court to peremptorily give those instructions of the defendant which would have ended the case, and not permitted the same to have gone to the jury for its consideration and deliberations.

The court overruled the motion, .giving his reasons therefor in writing. The case is brought here by writ of error.

There are eleven assignments of error grouped by counsel under three subdivisions. The first of these, as stated by counsel, is as follows:

“The following question was asked plaintiff: ‘And this accident happened simply because you were in a real hurry to get the deliveries made and you jumped down off the wagon, didn’t you?’ Counsel feels as though it should have been permitted a good deal of latitude in the cross-examination of the plaintiff, especially in view of the testimony that had preceded this question.”

The question should be taken in connection with what preceded and what followed it. The record shows as follows:

“Q. Now, as a matter of fact, Clements, you were in a good deal of a hurry that night to make this delivery up on Brush because it was getting late, wasn’t it?
“A. Yes, sir.
“Q. It was getting late, about half past 5, wasn’t it?
“A. Yes, sir.
“Q. And the quicker you got your deliveries made the quicker you got home ?
“A. Yes, sir.
“Q. And this accident happened simply because you were in a real hurry to get the deliveries made, and you jumped down off the wagon, didn’t you ? (Objected to as incompetent and immaterial.)
The Court: I think I will exclude that. Exception to defendant.
liQ. You were in such a.hurry to get these deliveries made that you jumped down off of the wagon without stopping to look if an automobile was coming, did you not?
“A. I looked before I got down off of the wagon, first looked at the side of the wagon and did not see it, and was struck just after I got down out of the wagon. I was taken over to the north curb of the north side of Piquette avenue; that is, after being picked up after the automobile had struck me. I was on that side of the street, and it was the closest to carry me.”

It is apparent the question called for the conclusion of the witness. It is equally apparent that counsel was not prevented from cross-examining fully the plaintiff in relation to the occurrence.

The next subdivision relates to whether a verdict should have been directed in favor of defendant. In support of his contention, counsel cite 1 Moore’s Treatise on Facts,'§ 161, Payne v. Railroad Co., 136 Mo. 562, and other authorities. The law applicable to the case is not in dispute. The troublesome question is one of fact. The plaintiff claims that, before getting off the wagon to deliver his package, he looked toward Woodward avenue and saw no automobile, that the horse was then walking; that plaintiff jumped off the wagon with one bundle under his arm, alighting about l£ feet from the wagon and a few feet in advance of the front Wheels; that he then took two small packages from the bottom of the wagon just back of the dash, then began walking at the side of the wagon to let the horse pass so he could go around back of it; that he had taken about 5 or 6 steps, when the automobile struck him in the back and left side; that he was knocked to the pavement, pushed and dragged across Brush street for a distance of about 66 feet, and dropped free of the auto; that after plaintiff became free of the machine it ran about 100 feet before stopping. It is also his claim that no warning was given of the approach of the automobile, and that, when he looked, it was either so near the south curb that his point of view was cut off by the wagon or else that it was still in Woodward avenue approaching him at a great rate of speed, as was indicated by the distance the machine traveled after he was struck. It is also the claim of plaintiff that the driver had a clear space of 30 feet between the wagon and the north curb in which to pass, and that it was gross negligence to strike him with the machine when he was walking by the side of the wagon within lb-feet of it, with his back toward the oncoming machine. There ■ was testimony tending to support these various claims of the plaintiff.

In an action for injuries to a street car conductor who was struck by an automobile as he stepped from the forward end of his car to pass to rear of same, the evidence disclosed that the car which was bound south had come to a full stop before plaintiff alighted; that at that time the automobile was 15 to 18 feet distant, proceeding in a southerly direction at the rate of from 3 to 5 miles an hour, parallel and about 3 feet away from the track on which the car was standing, with a clear space of from 12 to 15 feet between the track and the curb of the westerly sidewalk; that the operator of the automobile had a clear view ahead of him; and that the plaintiff, as he stepped from the car, looked in the direction in which the car was to proceed, and it was held that questions of negligence and contributory negligence on the part of the plaintiff were for the jury. In this case the court said that the plaintiff had a right to rely upon the exercise of reasonable care on the part of the drivers of vehicles to avoid causing injuries to. persons in the street, and that his failure to anticipate the omission of such care did not render him negligent. Cœsar v. Fifth Avenue Coach Co., 90 N. Y. Supp. 359.

It has been held that one running an automobile is bound to take notice of a person standing in the roadway-conversing with a friend sitting in a carriage, and to use care not to injure him. Kathmeyer v. Mehl (N. J. Sup.), 60 Atl. 40.

There is no imperative rule of law requiring a pedestrian when lawfully using the public ways to be continuously looking or listening to ascertain if auto cars are approaching, under the penalty that upon the failure so to do, if he is injured, his own negligence must be conclusively presumed. Hennessey v. Taylor, 189 Mass. 583 (3 L. R. A. [N. S.] 345). In this case the plaintiff testified she looked to see if there was any danger, but did not observe the defendant’s automobile, nor hear any sign of its approach sounded. A witness called by her, who stood by. her side before she attempted to cross the street, had observed the defendant’s machine at some distance; but it was not shown that she communicated such information to the plaintiff. Upon such evidence the court said that no such balancing of probabilities by plaintiff, with a willingness to take the risk of safely getting over before the defendant came üp, was shown as to convict her of contributory negligence, as a matter of law; and that, even if she had seen the defendant’s machine approaching, and decided it was sufficiently distant to enable her safely to pass, she might have been found by the jury to have exercised due care, though the accident proved her judgment erroneous. See, also, Spina v. Transportation Co., 96 N. Y. Supp. 270; Buscher v. Transportation Co., 106 App. Div. (N. Y.) 493.

The testimony of the driver shows that for some time before he overtook the delivery wagon he saw it, that he knew what it was:

“I recognized the rig as a delivery wagon, but do not know as I ever saw that particular wagon on the street, but have seen that type of wagons before. I was thoroughly familiar with the kind of a wagon it was, and knew it was a wagon that was used in delivering packages, and I knew from observation about the streets of Detroit the character of the business that the people in charge of the wagon was doing. * * * I did not know whether one delivered the parcels and another drove the horse, but I did know that some one in charge of the wagon was in the habit of getting off of the wagon and running into houses to deliver parcels.”

In view of the testimony, it was not a question of law to be determined by the judge in a directed verdict, but was a question of fact to be submitted to the jury under proper instructions. The other assignments of error do not call for discussion.

Judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ,., concurred.


author: Ostrander, J.

text:
    MUIR v. KALAMAZOO CORSET CO.
    1. Appeal and Error — Evidence—Setting Aside Verdict.
    The fact that the testimony seems to the appellate court to preponderate against the verdict rendered, is not a sufficient ground for setting it aside; the weight of conflicting evidence being for the jury.
    3. Evidence — Secondary Evidence — Practice—Notice—Reasonable Time.
    Proper practice requires reasonable notice to produce papers to be given before secondary evidence of their contents is admissible, and what is a reasonable notice depends upon the circumstances of the case; and, where the appellate court is unable to determine that reasonable notice was not given for the production of a telegram, and counsel would have indulged no violent presumption in assuming that all necessary papers connected with the matter in issue would be in court, it will not set aside the verdict because secondary evidence of such telegram was received.

      3. Pleadings — Pendency of Another Action — Abatement.
    The defense of a former suit pending must be raised by a verified plea, and cannot be made under a plea of the general issue with notice.
    4. Actions — Splitting of Causes — Contracts.
    Plaintiff was employed by defendant as superintendent of retail departments of stores where its goods were sold, and was to receive a stated commission on gross sales. Defendant oanceled a contract with a firm, and received a bonus for the unexpired term of its contract. Plaintiff claimed an agreement with the defendant whereby he was to receive a commission on the amount paid for the cancellation of the contract. Held, that the cause of action was not a part of the original agreement, and that the pendency of a suit on the original contract did not bar an action on the later contract.
    5. Contracts — Consideration—Sufficiency.
    In such action, plaintiff’s services in mailing the settlement of cancellation, and his release of all the parties from any claim for commissions under his original contraot, was a sufficient consideration for the agreement to pay a commission on the amount received in settlement of the lease.
    Error to Wayne; Brooke, J.
    Submitted January 14, 1909.
    (Docket No. 84.)
    Decided March 3, 1909.
    Assumpsit by Erwin T. Muir against the Kalamazoo Corset Company for commissions on the sale of certain goods. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      D. B. Hayes and Harry G. Howard, for appellant.

      May & Dingeman, for appellee.
   Ostrander, J.

The parties to this suit had contract relations evidenced by a memorandum, the terms of which are here set out:

“ The said Kalamazoo Corset Co, agrees:
“ (1) To employ the said E. T. Muir as superintendent of all of the retail departments owned by the said Kalamazoo Corset Co., or that shall hereafter be acquired during the life of this contract, it being understood that said E. T. Muir is to have general supervision of said departments.
“(2) To pay said E. T. Muir as compensation for his services a commission of five per cent, on the gross sales made by all of said retail departments now owned by the said Kalamazoo Corset Co., or that may be acquired during the life of this contract. Said commissions are to be due and payable monthly as earned.
“In consideration of the above the said E. T. Muir agrees:
“ (1) To act as superintendent of the retail departments of the Kalamazoo Corset Co., and to devote his entire time to promoting the interests of said departments.
“ (2) To visit said departments as often as directed by the said Kalamazoo Corset Co.
“(B) To pay all of his expenses incurred while acting as superintendent of the retail departments for said Kalamazoo Corset Co., it being understood that the commission named above is to cover his salary and expenses.
“ This contract to be in full force and effect from November 1, 1905, to January 1, 1907.”

One of the retail departments established by defendant was in the store of Tower & Brooks, at Albany, N. Y. Tower & Brooks received an offer for their entire stock of goods, but the intending purchasers objected to subletting any part of the store or leasing any of the departments. The contract between defendant and Tower & Brooks had a considerable time to run, and' they by a letter dated November 18, 1905, asked to be released in case a sale of their stock should be made. Defendant on November 20, 1905, wrote to plaintiff, who was then in Detroit, inclosing a copy of the Tower & Brooks contract and a copy of their letter, and asked plaintiff to go to Albany, and, if possible, arrange matters so that the purchasers would retain the department, indicating that they would decline to cancel the contract except upon payment of a considerable bonus. This letter was preceded by a telephone communication to plaintiff upon the same subject. Plaintiff went to Albany. Later he was followed there by Mr. James J. Robertson, representing the defendant. The details of the negotiation there conducted are not important. Several days were spent and plaintiff paid his own expenses. It was arranged that the Tower & Brooks contract should be canceled in consideration of a sale of corsets in stock and of a bonus; the total sum received by defendant being more than $7,000. This suit is brought to recover a commission of 5 per cent, upon this sum. Plaintiff offered testimony tending to prove that, after he arrived at Albany, he communicated with Mr. Hatfield, president and general manager of defendant, at Kalamazoo, by telephone, and told him that, if the department was sold out, he, plaintiff, would lose commissions under his contract for about 14 months, and that they would amount to $1,000; that Hatfield replied that, if they sold it, they would protect him. Plaintiff offered to accept $750 if the department was sold. Hatfield offered, and plaintiff agreed to take, 5 per cent, upon any sum realized. The contentions of the defendant, appellant, in this court, are:

1. That the evidence that no such an agreement was made is so strong and the evidence in its support is so slender that the verdict should be set aside as against the weight of evidence. It will profit no one to set out and make comparisons of the testimony upon this subject. We have examined the record with care. There is no testimony on the part of defendant which is conclusive of the matter. The fact that the testimony seems to us to preponderate in favor of defendant is not a reason for setting aside the verdict. If the testimony of the plaintiff is believed, and the jury had the right to believe it, the agreement for the commission is made out.

2. Plaintiff gave secondary evidence of the contents of a telegram which he claimed Robertson sent from Albany to Hatfield at Kalamazoo. Plaintiff testified that, in substance, the telegram read: “ Muir has done the work and I have got the money;” or, Muir did do the work and we got the money.” Robertson denied, on cross-examination, that he sent such a telegram, and plaintiff, being recalled, testified as above. No objection was made to receiving the telegram in evidence, and no motion to strike it out. It is asserted in the reasons given for a new trial that the court erred in receiving secondary evidence of its contents. The questions of the relevancy and the materiality of the telegram are not presented. Notice to produce was given to defendant’s counsel at Detroit, where they had been engaged in the trial of another case between the same parties. It was stated to the court that counsel had had no time to go back to Kalamazoo and get the telegram Robertson sent, if he sent any. Proper practice requires reasonable notice to produce papers to be given before secondary evidence of their contents is admissible. What is a reasonable notice depends upon circumstances. We are not able to tell from the record whether in this case the notice to produce was given one or more days before the testimony was introduced or whether a letter or wire or telephone message to defendant’s office at Kalamazoo would have obviated any difficulty. Counsel for plaintiff would have indulged no violent presumption in assuming that defendant would have in court all papers connected with the matter in issue. We do not feel warranted in reversing the judgment upon this point.

3. The plaintiff’s declaration was filed November 4, 1907. With its plea defendant gave notice that it would show in its defense that plaintiff on January 28, 1907, brought an action in assumpsit in the same court against defendant for the recovery of commissions, etc., under the written contract hereinbefore set out, and that said suit was pending and undetermined; that, if plaintiff was at any time possessed of a cause of action for the matters and things alleged in his declaration in the case at bar, he was so possessed on January 28, 1907. If pendency of the former suit was relied upon in abatement of this suit, the issue should have been tendered by a verified plea in abatement. Ryan v. Mills, 129 Mich. 170; Sullings v. Good year Dental Vulcanite Co., 36 Mich. 313. The only manner in which any question arising upon the special notice was directly presented to the trial court was by a motion to direct a verdict upon the ground that plaintiff was attempting to split an indivisible cause of action. But it is plaintiff’s theory that the agreement relied upon here is a new agreement, a distinct cause of action, and not a mere item of recovery within the declaration in the other suit. His testimony sustains this theory. It is clear that he is not in this suit seeking to recover for his commissions upon the gross sales of corsets made by a retail department operated by defendant. A bonus of $3,500 was paid for the cancellation of the contract with Tower & Brooks. The point is not ruled by Continental Ins. Co. v. Lumber Co., 93 Mich. 139; Dutton v. Shaw, 35 Mich. 431, and like cases.

4. It is claimed that the new arrangement was without consideration. It is said that the defendant had the right to dispose as it did of the department without liability to the plaintiff, and that the services which plaintiff performed in making the sale, or settlement, were required by his written agreement. We find nothing in the agreement requiring the plaintiff to perform any such services. In performing them he was not acting as superintendent of the department. If it is assumed that defendant had the right to dispose of any and all of its retail departments without liability to the plaintiff, yet, if it employed plaintiff to dispose of them at his own expense, we think his services in that behalf and the expenses he incurred would be consideration for a promise to pay him a commission on such sales. The declaration avers the consideration to have been the release by plaintiff of the defendant and of any purchaser of said department from future liability under the contract for commissions on sales in said department and services rendered and to be rendered by plaintiff in disposing of said department. The release of the Tower & Brooks contract was executed, not only by the Kalamazoo Corset Company, by Robertson as attorney in fact, but and separately by plaintiff, who released both the sellers and the purchasers “from all claims and rights whatsoever which I may have in and by the said contract of lease.” This separate and further release was required by the attorneys who represented the parties purchasing the stock from Tower & Brooks. It is true the agreement for the particular commission, as testified to by plaintiff, indicates a demand on his part for a loss of further commissions only, not a demand based upon the fact that he was rendering special services. This fact goes strongly to the point that no agreement was made and has been considered by us in that connection. We are not required to determine whether the defendant was or was not in any manner liable in law to plaintiff in case it so disposed of the particular department. If plaintiff claimed a personal, pecuniary interest in the continuance of the contract as a reason for not releasing it, and the defendant recognized such a claim and compromised and adjusted it, there was consideration for the agreement to pay the particular commission.

The judgment is affirmed.

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


author: Grant, J.

text:
    BESSER v. ALPENA CIRCUIT JUDGE.
    1. Costs — Separate Issues — Amendments—Statutes—Construction.
    A statute adopted verbatim from the laws of another State is presumed to have been adopted by the legislature with reference to the construction placed upon it by the courts of that State at the time of its adoption; and where, in an action of replevin for ties cut from separate descriptions of land, plaintiff failed to establish his title to one description, defendant, under section 11367, 8 Comp. Laws, was entitled to costs of the issue found in his favor, and, on motion made after judgment rendered, an amendment allowing such costs was proper.
    2. Appeal and Error — Mandamus—Judgments —Settling Bill of Exceptions — Lapse of Time.
    Mandamus will not be granted to compel the settlement of a bill of exceptions, where it appeared that for two years both parties rested upon the finality of the judgment rendered and then procured amendments to correct technical omissions in the judgment.
    Mandamus by Herman Besser to compel Frank Emerick, circuit judge of Alpena county, to sign a bill of exceptions.
    Submitted February 9, 1909.
    (Calendar No. 23,226.)
    Writ denied March 3, 1909.

      O'Brien & Francis, for relator.
    On May 29, 1902, relator brought an action of replevin against one John A. Widner to recover certainties, posts, and poles, claimed to have been unlawfully cut and removed' from certain lands of the plaintiff. Widner was not the trespasser, but had purchased the property from the alleged trespassers. Defendant filed a satisfactory statutory bond (Act No. 246, Pub. Acts 1899) to release the property from seizure pending the suit. The case was tried in December, 1902, and judgment rendered Decernber 27, 1902, in favor of plaintiff for $361.80. Plaintiff necessarily was obliged to show title in himself to all the descriptions of land from which the timber was cut, and the amount and value of the timber removed therefrom. He maintained his title to all the descriptions except one. As to the timber cut from that one description judgment went for the defendant. Subsequently plaintiff’s costs were taxed at $179.05. The jury returned a special verdict fixing the amount and value of the timber taken from the lands owned by plaintiff, and further found that “the said defendant did not unlawfully detain the cedar ties, posts, and poles from off the S. % of the S. E. i of section 12, town 30 N., range 4 E., and that the title to said land was not in the plaintiff.” A general judgment was entered for the plaintiff, including his costs and charges to be taxed. No further action was taken until March 30, 1904, when the plaintiff moved to correct the judgment so as to include the bondsmen. On December 12, 1904, the defendant moved to amend the judgment so as to give him costs of the issue found in his favor. Again the parties seem to have rested without further action until February 28, 1908, when, the motions having been argued — but when does not appear — the circuit judge handed down an opinion holding that the defendant was entitled to the costs of the issue decided in his favor, and also that the plaintiff’s motion should be granted, including judgment against the bondsmen. The judgment was so amended by proper entry on March 5, 1908. Plaintiff’s counsel thereupon obtained an extension of time in which to settle a bill of exceptions. Plaintiff’s counsel prepared a bill of exceptions, alleging errors upon the trial of the issue decided in favor of the defendant. The circuit judge refused to sign the bill of exceptions, for the reason that it is now too late to review the proceedings upon the trial. The relator seeks the writ of mandamus to compel the respondent to sign the bill.
   Grant, J.

(after stating the facts). 1. Is the defendant entitled to the costs of the issue decided in his favor ? The statute upon the question is section 11267, 3 Comp. Laws, and reads as follows:

“When there-shall be several issues in any case, and a verdict shall be rendered for the plaintiff on one or more of them, and for the defendant on another, if the plaintiff obtain judgment upon the whole record, costs shall be awarded as follows: (1) When the substantial cause of action was the same in each issue, the plaintiff shall recover costs- on those issues which were found for him, and shall not be liable to the defendant for the costs of the issue which shall have been found for the defendant. (2) When there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him, and the defendant on those which are found in his favor.”

This statute was copied verbatim from the statutes of New York. The supreme court of that State had construed the statute to apply to a case of this character. Seymour v. Billings, 12 Wend. (N. Y.) 285. In that case the declaration contained one count, covering two distinct parcels of lumber claimed to have been unlawfully detained by the defendant. As to one parcel the issue was decided for plaintiff, as to the, other, for the defendant; and the court held that the defendant was entitled to the costs of the issue decided for him. This statute is presumed to have been adopted by the legislature with reference to the construction placed upon it by the courts of that State. Preston Nat. Bank v. Wayne Circuit Judge, 142 Mich. 272. The court below properly, allowed the amendment.

2. Is the plaintiff now entitled to a bill of exceptions to review alleged errors upon the trial which took place six years ago ? His claim is based upon the theory that there was no final judgment to be reviewed until the judgment was amended in the particulars named. Plaintiff’s motion to amend was a matter of course, and could be made at any time. The defendant’s motion related to costs simply, and did not call in question any of the proceedings upon the trial. Both were technical omissions from the judgment, to be remedied upon motion.. Either party could at once, upon entry of the original judgment, have prepared a bill of exceptions, and brought the case to this court by writ of error. As to the merits <■ of the controversy, that judgment was final. Plaintiff rested upon its finality for two years. His attempt to review proceedings upon the trial comes too late.

The writ is denied.

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


text:
    CAMPBELL v. SECH.
    1. Evidence — Gifts—Gifts Inter Vivos.
    Where, on a bill by the administrator to reach funds of the estate, defendant, who claimed the amount in question as a gift, was entitled to deny alleged conversations as to admissions, to state what such conversations were, and to show that she claimed the fund as her own, such statements were not admissible as substantive evidence of the gift, but only to repel the inference of admissions .against her ownership.
    2. Same.
    Evidence of declarations and admissions of the donor are not sufficient to establish a gift, and is admissible only as corroborative of other testimony; and while very slight evidence is required to establish a gift from a parent to a child, in the absence of any suggestion of fraud or undue influence, such rule does not apply where the child stood in a fiduciary relation to the parent, and had access to, and control over, his property.
    3. Gifts — Wills—Evidence.
    Where it appears that decedent had made a will giving defendant 8800, testimony that he had stated that he had given defendant that amount was as consistent with the inference that he made such provision in the will as that of a previous gift; and where defendant’s contention, if sustained, would result in her receiving more than half of the whole estate, the evidence of such gift must be clear and convincing that it was consummated by such a delivery, either actual or constructive, that the gift was beyond the control of the donor.
    4. Same — Evidence—Presumptions.
    When one is intrusted with the funds of another to deposit in his own name, or in their joint names, and the funds have been thus treated, no presumption of a gift arises from the fact that the funds were deposited in the name of the party other than the alleged donor; and, where defendant admitted that such fund was deposited in a bank in decedent’s name until its withdrawal, and there is no evidence showing that it was withdrawn upon his order or assent, the fact that it was withdrawn by defendant and deposited in another bank in defendant’s name was no evidence of a gift to her.
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted October 16, 1908.
    (Docket No. 102.)
    Reargued February 11, 1909.
    Decided March 3, 1909.
    Bill by James Campbell, administrator with the will annexed of the estate of Christian Sech, deceased, against Nettie Sech and the Old National Bank to reach certain funds of said estate. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Taggart & Taggart, for complainant.

      Walter I. Lillie, for defendant Sech.
    Christian Sech, the deceased, died May 15, 1905. He left a will, executed August 7, 1899. By its terms he bequeathed $800 to defendant Nettie Sech, $800 to Fred Sech, and $5 to Augusta Molt. The residue he divided equally, share and share alike, among seven of his children, including defendant Nettie and her brother Fred. Mr. Sahms, his son-in-law, was made executor. He declined to serve, and the complainant, Campbell, was appointed administrator with the will annexed. The bill alleges that the defendant Nettie turned over to him as administrator $2,095.63, which she admitted she had in her hands belonging to the estate. The bill alleged that she had still other funds in her hands belonging to the estate, and particularly some money deposited in her name in the defendant bank. The defendant answered, alleging that she had paid over to the administrator all the money in her hands belonging to the estate, and that the money ($800) deposited in the defendant bank was hers, and that it was a gift made by her father to her about 1\ years before he died. The case was heard upon pleadings and proofs, and the bill dismissed, the court holding that the defendant Nettie made out a gift inter vivos.
   Grant, J.

{after stating the facts). The sole question for determination is, Has the defendant Nettie Sech established a gift inter vivos of $800 by her father to her ? Aside from this no money is. shown to be in her possession belonging to the estate. Until about six years before his death, Mr. Sech lived on his farm with his wife and children Nettie and Fred. He then leased the farm for $150 per year, and with his wife and Nettie moved to the city of Grand Rapids, and lived with his daughter Mrs. Sahms and her husband. Soon thereafter he sold the farm for $2,700, and the personal property thereon for about $500. He paid a very small amount to Mr. and Mrs. Sahms for his board, and that of his wife, who died shortly after they moved to the city. Five hundred dollars was paid in cash upon the sale, and a mortgage was given for the balance. Nettie was an industrious woman, and worked in factories, earning from $5 to $6 per week. She boarded with her sister, Mrs. Sahms, paying from $1 to $1.50 per week for board. Mornings and evenings she - took care of her father at the house of her sister. As moneys were paid in upon the mortgage they were deposited in the National City Savings Bank, the National City Bank, and the Kent County Savings Bank. The money in dispute was deposited in the defendant the Old National Bank. That account does not appear upon the record, but the substance of it is testified to by the bank teller. Defendant Nettie admits in her answer that “she did on several occasions take money for him, and deposit it in his name, and at one time he told her to deposit something like |1,400 in her name, so that she could look after it without his being present.”

She testified that some of the deposits were in the joint names of herself and her father. In the National City Bank there were deposited in the name of Nettie, in 1902, two items of $400 each — one June 3d, and the other June 5th. Interest thereon was credited to this account in July and January, 1903, and January 1, 1904. February 5, 1904, $838.60 was withdrawn, and the account marked as closed. On November 18th following, on the same deposit book, there was deposited in the name of Nettie $1,443. That account was closed, Nettie withdrawing the money and paying it over to the administrator. On February 5, 1904, Nettie opened an account with the Old National Bank, depositing $838.60. This is the amount she claims as a gift by her father to her. Complainant offered evidence to the effect that after her father’s death Nettie admitted to some witnesses that she had $3,000 in her possession, belonging to the estate, and to other witnesses that she had $2,900. She admitted that she said to some of these parties that she had $2,900, including the $800 given her by her father. These .bank statements were also introduced in evidence by the complainant.

Defendant Nettie testified in her own behalf, and was shown by her counsel the bank book of the defendant bank, showing the item of $838.60, and asked: “ That is yours, is it? A. Yes, sir.” She further testified that she told Mrs. Sahms, her sister, that her father had given her the $800. She also introduced evidence of statements made by her to other persons that he had given her $800. Nettie was entitled to deny the conversations as to her admissions, and to state what the conversations were. She also was entitled to show that she claimed the money as hers. These statements, however, were not admissible as substantive evidence of the gift, but to repel the inference of an admission against her ownership. Harris v. Cable, 113 Mich. 192; 20 Cyc. p. 1223. Complainant had given evidence of admissions, which, if true, would show that Nettie had $800 in her possession belonging to the estate. This testimony had no reference to any statements made by her father to her; neither can it be construed as referring to a gift, or to any facts equally within the knowledge of the deceased. This evidence on the part of the complainant did not open wide the door which the statute closes against testimony equally within the knowledge of the deceased. Except, therefore, as showing a claim of ownership on her part, it must be excluded from consideration. With her testimony excluded, we do not think there is evidence sufficient to establish the gift. Evidence of declarations and admissions of the donor are not sufficient to establish a gift. They are only admissible as corroborative of other testimony. 20 Cyc. p. 1225. It is true that very slight evidence is required to establish a gift from the parent to a child, where there is no suggestion of fraud or undue influence (Love v. Francis, 63 Mich. 181); but that rule does not apply to a case where the child stands in a fiduciary relation to the parent, and has access to, and control over, his property. Snyder v. Snyder, 131 Mich. 658.

A very important factor in this case is the fact that Mr. Sech had already bequeathed to his daughter $800 out of a very small property. The ordinary layman in speaking of this would naturally say, “I have given my daughter $800. ” Such language is as consistent with the idea of a will as of a previous gift. Clay v. Layton, 134 Mich. 317, 334. Under the contention of the defendant, he had given her $1,600, more than half of the property he possessed. Under all the authorities, such gifts must be consummated by a delivery, either actual or constructive, such as will place the property beyond the control of the donor, and the intention to do so must be very clear. Chambers v. McCreery, 106 Fed. 364, 45 C. C. A. 322; Casserly v. Casserly, 123 Mich. 46; Chaddock v. Chaddock, 134 Mich. 48, and authorities there cited. Where one, whether child or stranger, is intrusted with the funds of another to deposit in his own name, or in their joint names, and the funds have been thus treated, no presumption of the gift arises from the fact that the funds are deposited in the name of the party other than the alleged donor. Furthermore, it is admitted by the defendant herself that this money was deposited in the National City Bank as her father’s money, and remained as his money until it was withdrawn in 1904. There is no evidence that this money was withdrawn from the National City Bank upon the order or with the assent of Mr. Sech. The receipt is given by her and reads as follows:

“ $838.60. Grand Rapids, Mich. 2-5-04.
“ Received from the National City Bank, Savings Department, eight hundred thirty-eight and 60-100 dollars, which amount has, in my presence, been charged on my passbook No. 482.
‘' Witness: Miss Nettie Sech,
“Owner of Said Passbook.”

The clerk of the National City Bank having charge of the savings department testified:

“ This account was opened in the name of Nettie Sech, and as a convenience Christian Sech has the privilege of drawing the money. I do not know the signatures, as I have never seen the parties, nor had any dealings with the signatures.”

We are compelled to the conclusion that the decree of the learned judge of the superior court was erroneous. It is therefore reversed, and decree entered in this court directing the payment of the money on deposit in the defendant bank to be paid over to the administrator. In view of all the circumstances of this case, the decree is reversed, without costs.

Blair, C. J., and Montgomery, Ostrander, Hooker, Moore, Brooke, and MoAlvay, JJ., concurred.


author: Hooker, J.

text:
    ELECTRIC PARK AMUSEMENT CO. v. WAYNE CIRCUIT JUDGE.
    Mandamus — Issuance—Discretion—Equity.
    Mandamus is a discretionary writ and will not be issued except to enforce a clear legal right and in furtherance of justice ; and relators, who were parties defendant to a bill for the foreclosure of a mortgage, filed a plea, the material provisions of which were waived by the subsequent conduct of relators, which, on complainant’s "motion, was stricken from the files, are not entitled to a writ to set aside said order.
    Mandamus by the Electric Park Amusement Company and another to compel Alfred J. Murphy, circuit judge of Wayne county, to vacate an order appointing a trustee.
    Submitted February 13, 1909.
    (Calendar No. 23,293½.)

    Application denied March 3, 1909.

      George W. Eadford, for relators.
    On October 23, 1905, the Electric Park Amusement Company executed to the Union Trust Company, trustee, a first mortgage upon its real estate in Detroit to secure an issue of $80,000 of its first mortgage bonds. Subsequently it conveyed its said real estate to the Electric City Amusement Company, subject to said mortgage. On April 1,1907, the last-mentioned amusement company mortgaged said property to the Union Trust Company, trustee, to secure an authorized issue of $300,000 of second mortgage bonds, of which $123,100 were outstanding at the time the bill of complaint hereinafter referred to was filed. Being then the mortgagee in both mortgages, and acting under the command of a majority in amount of the bondholders secured by the first mortgage, said Union Trust Company, acting as trustee, filed a bill to foreclose said first mortgage. On May 14, 1908, the Union Trust Company gave notice to the Electric City Amusement Company of its resignation as trustee under the second mortgage, pursuant to the provisions of said mortgage, with its reason therefor, viz., its obligation to foreclose said first mortgage. The bill was filed on May 18, 1908; relators and the Union Trust Company, trustee, under the second mortgage, being made defendants. Relator thereafter, and on August 15, 1908, filed a plea, alleging, in substance, that under the provisions of said second mortgage a notice of three months was requisite to a resignation by said trustee before it could resign ; that it attempted to tender its resignation on May 14, 1908, without previous notice, but it was not thereby relieved of its trust; that in its bill filed four days later it was named as a defendant, and that its rights and interests as trustee under said two mortgages were adverse and inconsistent, and no person interested in said second mortgage as cestui que trust is made a party; and that no successor had been chosen to succeed to said trust. The plea asked that the relators be not required to answer, and that the bill be dismissed as to them. No further action was taken in said cause until January 28, 1909, when the complainant in said cause filed a motion to strike said plea from the files. The affidavit in support of said motion shows that it gave notice of its desire to resign on the 9th of May, 1908, to the relator and to the several holders of bonds secured by said second mortgage, and called a meeting of said bondholders for May 13, 1908, that at said meeting it stated that it had been directed to foreclose said first mortgage, and requested said bondholders (then and there assembled) to accept said resignation, but the counsel of said bondholders refused to accept said resignation or to recommend the appointment of a successor as trustee. Its resignation in writing was tendered, and subsequently the bill was filed as stated. Afterward repeated efforts were made to induce said bondholders and said company to accept said resignation but without avail; George W. Radford, its counsel, representing also a majority in amount of its bondholders, refusing to do so, and subsequently filing said plea on August 15th. On August 19th said resignation was accepted, and on the same day the Detroit Trust Company was appointed its successor as trustee. Thereafter said Radford was requested, but refused, to withdraw said plea. The .motion was granted. Thereupon relators representing both of said amusement companies filed the petition in this cause, asking a mandamus to compel the vacation of said order.
   Hooker, J.

(after stating the facts). The writ of mandamus is never issued unless to enforce a clear legal right and in furtherance of justice. There is abundant reason why these relators are not entitled to it. If there was any just reason for the filing of said plea (which we do not intimate), it was removed by the acceptance of the resignation and appointment of a new trustee a few days later. Both parties thereafter allowed the cause to rest, and the court might well treat the plea as waived, and strike it from the files upon the showing made. If the new trustee is not already before the court, doubtless complainant will see that it is brought in as a defendant. It would be unjust and inequitable, after the delay that has been unnecessarily occasioned, to grant this writ. People, ex rel. Board of Water Com'rs, v. East Saginaw Common Council, 33 Mich. 164.

‘ ‘ Mandamus is a discretionary writ, and will be allowed only in furtherance of justice and upon a proper case presented.” Hale v. Risley, 69 Mich. 596.
“ Judicial discretion is always involved in mandamus cases concerning the relief as well as other questions.” People, ex rel. Ayres, v. Board of State Auditors, 42 Mich. 422.

See, also, Lamphere v. Grand Lodge A. O. U. W., 47 Mich. 429. “The writ of mandamus is not one of right.” Durand v. Saginaw Circuit Judge, 76 Mich. 624.

“The writ of mandamus is a discretionary one, and will not be issued in all cases, even where a prima facie right to relief is shown; but regard will be had to the exigency which calls for an exercise of such discretion,, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing upon the particular case.” Tennant v. Crocker, 85 Mich. 328.
“ The writ of mandamus is a discretionary writ, and will not be granted to accomplish a confessedly illegal purpose, even though the officer against whom it is invoked is charged with an express duty under the statute.” Board of Sup'rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386.

See, also, Citizens’ Life-Ins. Co. v. Commissioner of Insurance, 128 Mich. 85.

“ The issuance of a writ of mandamus is a matter of discretion, and not a matter of right, and the writ should not issue until it appears that justice requires it.” MacKinnon v. Auditor General, 130 Mich. 552.

Where, on an application for mandamus to compel the trial court to allow defendant in an injunction suit his costs against complainant, whose bill was dismissed for default of service of a copy thereof on defendant’s counsel, it appealed' from the trial court’s return that the denial of costs was justified, under the rule that mandamus is a discretionary writ, and will not be granted unless abstract justice requires it, that the court did not follow the usual course as to costs is no ground for granting the writ. O'Brien v. Wayne Circuit Judge, 131 Mich. 67.

“Mandamus is a discretionary writ, and should not issue when it will work an injustice.” George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511.

In what has been said we do not mean to imply that this court will attempt to oversee and direct the nisi prius court in its pleading and practice at interlocutory stages, or that there is not an adequate remedy by appeal.

An order to show cause is denied.

Grant, Ostrander, Moore, Brooke, and McAlvay, JJ., concurred.


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    DEANE v. KENT CIRCUIT JUDGE.
    Creditors’ Bill — Intervening Creditors — Rights — Stipulations — Effect.
    On a judgment creditors’ bill against a corporation and its stockholders, a receiver having been appointed, intervening creditors, who, by order of the court, have appeared and presented their claims, have such an interest in the litigation as to preclude the complainant, as a matter of right, from discontinuing the suit without leave of the court; and where, before the hearing upon the merits, solicitors for complainant and for certain defendants stipulated that the proceedings should be discontinued without costs to any party, the court, on motion of intervening creditors, properly ordered the stipulation to be stricken from the flies.
    Mandamus by Edward M. Deane and others to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order striking a stipulation for a discontinuance.
    Submitted February 9, 1909.
    (Calendar No. 23,214.)
    Writ denied March 3, 1909.

      Heald & Montgomery, Smedley & Corwin, and O. A. Wolf, for relators.

      George C. Brown, for respondent.
    The judgment creditor of a corporation in whose favor an execution had issued and had been returned unsatisfied filed its bill of complaint against the judgment debtor and certain of its stockholders in favor of itself and of such other creditors as should make themselves parties to the proceeding, praying for an injunction, receiver, and sequestration and distribution of the judgment debtor’s property. It was charged in the bill that the defendant stockholders were liable to assessments to be made upon their holdings of stock. An injunction was' granted and a receiver appointed, who has received and holds assets of the judgment debtor. The bill was confessed by the judgment debtor, and was answered by some of the stockholders. Upon the motion of the complainant, an order was made requiring creditors of the judgment debtor to exhibit their demands and a number of creditors have filed claims. Before a hearing upon the merits, a stipulation was made by the solicitors for complainant and the solicitors for relators and for one other defendant, reciting that the bill had been taken as confessed by the judgment debtor and that service of process had not been made upon two defendants, and that “it is hereby stipulated by all of the other parties in interest * * * that the same may be and hereby is discontinued without costs to any party.” No order discontinuing was entered and no application for leave to discontinue was made to the court. Complainant denies that its solicitors had, in fact, its consent or authority to discontinue the case. Upon the application of creditors who had exhibited claims, and with the concurrence of complainant, after hearing interested parties, the court ordered the stipulation to be stricken from the files and held the case to be a pending one. Motion to vacate the order was denied. Mandamus is asked for to compel the setting aside of this order.
   Ostrander, J.

(after stating the facts). Upon this application this court will not consider the merits of the principal case, and there is involved no question concerning the authority of attorneys and solicitors generally to bind their clients, parties to an action, by stipulation entered into in good faith. Whether or not, complainant refusing, other creditors who have exhibited demands may assume the control and direction of the litigation, such creditors have at least acquired an interest in the proceeding which the court is bound to consider upon any application for leave to discontinue the suit. And this was held in a similar case where it appeared that the complainant, after procuring an injunction and the appointment of a receiver, had been satisfied. Fay v. Erie & Kalamazoo Railroad Bank, Har. (Mich.) 194. See, also, Hoffman v. Bank of Minot, 4 N. Dak. 473; Belmont Nail Co. v. Columbia Iron & Steel Co., 46 Fed. 336; and 3 Comp. Laws, §§ 9760, 9761. Upon the authority of Fay v. Erie & Kalamazoo Railroad Bank, the right of the complainant to discontinue its suit without leave of the court is denied. It appears to be contended by relators that, inasmuch as the defendant corporation is not a party to the stipulation, an order made pursuant to the stipulation would have the effect of discontinuing the suit as to relators, leaving it to stand as one pending between the complainant and the judgment debtor. But it is apparent that the purpose of the stipulation was to settle the question of costs, and it is not contended that the right of complainant to discontinue the suit grows out of the stipulation.

As the only effect claimed for the stipulation is that it entitles relators as matter of law to a discontinuance of the suit as to them, and as we are of opinion that complainant may not as matter of right discontinue the suit, it follows that relators are not injured by the order striking the stipulation from the files.

The writ of mandamus is denied, with costs to petitioners in the court below.

Hooker, Moore, Brooke, and McAlvay, JJ., concurred.


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    PEOPLE v. CLARK.
    1. Criminal Law — Trial—Appeal and Error.
    Where, on the trial of respondent charged with the crime of murder, the prosecutor and the court indicated to the jury that the question of whether or not a murder had been committed was determined by the verdict of the jury in the trial and conviction of a codefendant, held, to be prejudicial error.
    2. Same — Murder—Degree of Crime — 'Verdict—Suppioienoy.
    Under section 11472, 3 Comp. Laws, a verdict of “guilty as charged” is insufficient to support a judgment of murder in the first degree.
    Error to the recorder’s court of Detroit; Phelan, J.
    Submitted February 11, 1909.
    (Docket No. 149.)
    Decided March 3, 1909.
    Charles Clark was convicted of murder, and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      Felix A. Doetsch and James S. Doyle, for appellant.
    ' Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

The defendant, Charles Clark, was informed against at the September, 1907, term of the recorder’s court of the city of Detroit, for the murder of one Horton Warren, who was the proprietor of a rooming house, known as the “Goodrich House,” situated on the second and third floors of a three-story building at the northwest corner of Brush street and Jefferson avenue in the city of Detroit. The shooting is alleged to have taken place on the night of October 28, 1902. One Thomas McGrath was likewise implicated in the killing, and was apprehended a few months after the event, placed upon trial, and was convicted. The respondent was not arrested until nearly five years after the event.

The respondent relies upon many assignments of error, only two of which we consider.

1. The first relates to improper remarks of the court and prosecutor in the presence of the jury. It appears that the prosecuting attorney, during the examination of one of the witnesses for the people, asked the following question:

Q. Do you remember the next morning — I ask you the fact as to the next morning after this murder, whether or not your bicycle—
Mr. Doetsch: I take exception to the counsel repeat¿dly referring to that as ‘this murder.’
The Court: In what particular ?
“Mr. Doetsch: As improper and prejudicial.
‘ ‘ The Court: Why ?
Mr. Legg (counsel for defendant): It is for the jury to say whether or not it was a murder.
“Mr. Eaman (assistant prosecuting attorney): Was it an accident ?
“The Court: Is there any question in your mind but what Warren wás murdered on the night in question ?
Mr. Doetsch: There is a question.
“The Court: No; I think that has been determined, McGrath— That matter was determined; I do not think there is anything prejudicial about that.”

Thereafter, during the course of the trial, the prosecutor and court treated the question of whether or not Warren was in fact murdered as already decided by the verdict of the jury in the case where McGrath was convicted. So far as McGrath was concerned this was unquestionably true. But we think the respondent had a right to the verdict of the jury impaneled to try him upon the question of whether or not a murder had been committed, as well as whether he was the man who fired the fatal shot. The assumption, therefore, by the prosecuting attorney and the court that the respondent was foreclosed as to the fact of a murder having been committed, and the disclosure of this attitude to the jury, was prejudicial error. People v. Moyer, 77 Mich. 571. See, also, Pharr v. State, 10 Tex. App. 485; State v. Washington, 30 La. Ann. 49; Copeney v. State, 10 Tex. App. 473; Parks v. State, 59 Ga. 879.

2. The second assignment relates to the form of the verdict as accepted and recorded by the court, and the sentence based upon such verdict. The information was as follows:

“ In the name of the people of the State of Michigan, George F. Robison, prosecuting attorney in and for said county of Wayne, who prosecutes for and on behalf of the people of said State in said court, comes now here in said court, in the September term thereof, A. D. 1907, and gives the said court here to understand and be informed that Charles Clark, late of said city of Detroit, heretofore, to wit, on the 28th day of October, in A. D. 1902, at the said city of Detroit, in the county aforesaid, with a certain dangerous weapon, to wit, a revolver pistol, feloniously did commit an assault in and upon one Horton Warren, in the peace of the people of the State of Michigan, then and there being, and with the said dangerous weapon aforesaid, did then and there inflict in and upon the said Horton Warren a mortal wound, of which said mortal wound the said Horton Warren did languish, and languishing did live until the 29th day of October, 1902, on which said 29th day of October, 1902, the said Horton Warren, at the said city of Detroit, in said county and State, of said mortal wound, died; and so the said Charles Clark, in manner and form aforesaid, the said Horton Warren, feloniously, wilfully, and of his malice aforethought did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

The plea was “not guilty.” The verdict was “guilty as charged.” The defendant was sentenced to be confined in the State prison in the city of Jackson for the remainder of his life. Section 11472, 3 Comp. Laws, reads as follows:

“ The jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.”

The trial judge in his charge instructed the jury as follows:

“You understand there is no manslaughter, no murder in the second degree, here. This defendant is either guilty of murder in the first degree, or he is not guilty of the crime charged.”

It is claimed by the people that under this charge of the court the jury by their verdict of “ guilty as charged” must have intended to find the respondent guilty of murder in the first degree. The statute above quoted has been directly passed on in the case of Tully v. People, 6 Mich. 273, where the court said:

“ The statute is imperative that the jury in their verdict, or the court on plea of .guilty, shall determine the degree of crime.”

See, also, People v. Hall, 48 Mich. 484; People v. Repke, 103 Mich. 459. It is apparent that the failure of the jury to fix the degree of the crime is therefore fatal.

Other errors are assigned; but, as it is improbable that they will arise upon a new trial, we do not consider them.

For the errors pointed out, the verdict is set aside, the prisoner remanded, and a new trial ordered.

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


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    McMILLAN v. WAYNE CIRCUIT JUDGE.
    Mandamus — Setting Aside Judgments — Discretion.
    Mandamus will not be granted to compel the setting' aside of . a judgment, where it appears that the trial court did not . abuse his discretion in denying the motion.
    Mandamus by Frank McMillan and another to compel George S. Hosmer, circuit judge of Wayne county, to vacate an order denying a motion to set aside a judgment.
    Submitted February 23, 1909.
    (Calendar No. 22,946.)
    Writ denied March 3, 1909.

      Sloman & Sloman and Miner & Anhut, for relators.

      David E. Heineman, for respondent.
   Grant, J.

Relators ask the writ of mandamus to compel respondent to vacate an order made by him refusing to set aside a judgment rendered against them and their codefendant, one Sloman. Judgment was rendered upon a promissory note executed by Sloman, now deceased, and indorsed by the relators. This note was given in place of another executed by the same parties, upon which suit was brought and discontinued by agreement, and the note involved in this suit given. Suit was commenced by filing declaration and rule to plead. These were duly served upon all the defendants in the suit. Sloman was intrusted with the defense of the suit, and employed the firm of Clark, Jones & Bryant, attorneys, to defend. Subsequently judgment was entered by stipulation. Sloman, it appears, gave notice of set-off, but subsequently withdrew this claim. Relators now insist that, though they charge no intentional wrong upon Sloman or the attorneys who represented them in the suit, yet they were not aware of this judgment, and they, therefore, ask to have it set aside so that they may interpose Sloman’s defense of set-off. Affidavits of parties and of their attorneys were presented for the consideration of the respondent in determining the motion. He reached the conclusion that justice did not require that he set aside the judgment. It would afford no valuable precedent to state the claims of each side and the evidence upon which they rely for their contentions. We deem it sufficient to say that the setting aside of judgments is a matter resting in the sound discretion of the circuit judge, and we find no reason for holding that the respondent abused that discretion.

The writ is denied.

Montgomery, Ostrander, Hooker,- and Moore, JJ., concurred.


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    McFARLAN v. McFARLAN.
    1. Appeal and Error — Finding of Facts — Additional Findings —Necessity for Request.
    When a case is tried before the court without a jury, exceptions cannot be taken for failure to make certain findings of fact; if additional facts are desired, such findings should be proposed by counsel.
    2. Same — Bill of Exceptions — Examination—Duty of Appellate Court.
    Where a record is certified by the trial court to contain all of the testimony given on the trial, it is not the duty of the appellate court to examine the record to determine the facts; but when facts are found which appellant insists are not supported by any evidence, the appellate court will examine the record to determine whether there is testimony to support the finding.

      3. Executors and Administrators — Removal—Grounds—Other Remedy.
    Under section 9324, 3 Comp. Laws, the widow is entitled to the first right of appointment as administratrix of her husband’s estate; and the petition of a creditor for her removal should not be granted if the creditor has another and complete remedy.
    4. Same — Proceedings by Creditors — Statutes.
    Act No. 326, Pub. Acts 1905, providing that upon the refusal of an executor or administrator to bring suit against the estate, a creditor may bring such action himself in the name of such executor or administrator, is broad enough in its terms to include the right of a creditor to bring such action where the administrator claims title to the property.
    Error to Antrim; Mayne, J.
    Submitted January 7, 1909.
    (Docket No. 26.)
    Decided March 3, 1909.
    Petition by Mary McFarlan for the removal of Euphemia McFarlan as administratrix of the estate of Henry C. McFarlan, deceased. The petition was granted and respondent appealed to the circuit court. There was judgment sustaining the order of the probate court, and respondent brings error.
    Reversed, and petition dismissed.

      Smurthwaite & Alway, for appellant.
    J. O. Wheeler and J. L. Boyd, for appellee.
   Grant, J.

This was a proceeding commenced in the probate court upon the petition of Mary McFarlan for the removal of the respondent. An order was entered in the probate court removing her. From that order she took an appeal to the circuit court. The case was heard in the circuit court without a jury, and a finding of facts and law made. The court found that the petitioner presented a claim to the probate court, and obtained its allowance, from which no appeal was taken; that the estate of Henry C. McFarlan, deceased, was insolvent; that petitioner was the only creditor of the estate; that she claims in her petition that McFarlan in his lifetime conveyed to his wife, Euphemia, certain real estate in fraud of his creditors; that petitioner asks that said administratrix be removed, and some other suitable person appointed administrator to take proceedings against Euphemia to set . aside the alleged fraudulent conveyances, and made subject to the payment of the debts of the estate. ' From this finding of facts the circuit court sustained the order of the probate court, and dismissed her appeal.

Exceptions were taken to this finding, which exceptions relate rather to the failure to find other facts, regarded by respondent as essential, than to the findings made. This is not the proper practice. The respondent should have proposed additional findings. The circuit judge certifies that the record contains all the testimony. It is not the legal duty of this court to examine the testimony under such a record and find the facts. When a fact is found by the court which the appellant insists is not supported by any evidence, then the appellate court will examine the evidence to determine whether there is any evidence to sustain the finding. The answer to the petition concedes that the respondent is the administratrix, and that the estate is insolvent. She claims, furthermore, that the deed to her was valid, and not in fraud of creditors. Respondent, under 3 Comp. Laws, § 9324, was entitled to the first right of appointment as administratrix. There is no claim that she has not properly performed her duty as such, except the failure to list a certain piece of land, which was deeded to her and her husband as tenants by the entirety, as belonging to the estate of her husband. The sole purpose of this proceeding is to secure the appointment of an administrator to act in the interests of petitioner, the sole creditor of the estate. If petitioner has another and complete remedy, the respondent, who by law is entitled to be administratrix, should not be removed from the entire management of the estate. It is insisted by the petitioner that she has no other remedy. She was the former wife of Mr. McFarlan, and obtained a decree of divorce from him in April, 1891. Mr. McFarlan died in 1903. This petition was filed July 24, 1906. Her claim is based upon that decree. At the common law the remedy of the creditor in this case would be by a direct proceeding against the administratrix.

“Where an administrator has a claim to any portion of the property alleged by the creditors to belong to the estate, and whose claim is adverse to that of the creditors, they may resort to a court of equity to have the controversy settled.” 18 Cyc. p. 910.

See, also, 7 Am. & Eng. Enc. Law (1st Ed.), p. 400; Dooling on Equitable Remedies of Creditors, p. 120; Manning v. Drake, 1 Mich. 34. It is also clearly intimated in Marshall v. Blass, 82 Mich. 518, that a creditor could under the statute institute a direct proceeding by leave of the court after the administrator has refused.

Whether the statute as it stood prior to 1905 confers the exclusive remedy upon an administrator to sue for real estate alleged by a creditor to have been conveyed in fraud of creditors, we need not determine. The statute was amended in 1905, by Act No. 326, Pub. Acts 1905. That statute expressly confers upon a creditor the right, upon the refusal of an executor or administrator to bring suit, to bring it himself in the name of the administrator or executor. This statute is broad enough to include á case where the administrator or executor claims title to the property. Under the finding of facts, the petitioner is the sole creditor interested. She can file her bill directly as such creditor against the respondent. There is no reason why respondent should be removed for the purpose of securing her rights in any other manner. The date of the deed complained of does not appear upon this record. It was evidently made several years before the petitioner commenced this proceeding. This is not the proper suit to enter upon the question of the validity of that deed. Several important questions are discussed in the briefs of counsel which have no place in this proceeding. They have argued the effect of the laches of the petitioner, the statute of limitations, and that the evidence shows that the transaction was a bona fide one between the respondent and her husband. These are proper questions for the court in chancery when the petitioner files her bill, should she do so, to set the deed aside. She is entitled to a hearing in that court upon those questions. So far as appears here, she is acting in good faith to maintain her title. It is not necessary that she be removed from her office as administratrix in order to test the question.

The order is reversed, with the costs of all the courts, and the petition dismissed.

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