text:
    PEOPLE v. SAVANT.
    1. Criminal Law—Continuance—How Avoided.
    Where the witness whose absence is the basis of an application for a continuance on behalf of the respondent in a criminal case is beyond the jurisdiction of the court, it is sufficient, to avoid a continuance, that the prosecution admit that the witness would, if present, testify as stated in the application; it not being required that they admit the truth of the proposed testimony.
    3. Same—Witnesses—Duty oe Prosecution.
    It was not incumbent upon the people in a prosecution for homicide to indorse upon the information the names of witnesses at the inquest whose only relation to the crime was that they claimed to have seen a man taller than respondent enter a store a mile from the scene of the affray, although the assaulter was traced by his tracks in the snow directly to the store.

      3. Same—Remarks of Counsel.
    A conviction will not be reversed for improper remarks of the prosecuting attorney in his argument to the jury, where they were made in reply to the argument of respondent’s counsel.
    Error to Gogebic; Haire, J.
    Submitted February 4, 1897.
    Decided April 6, 1897.
    Mike Savant was convicted of manslaughter, and sentenced to imprisonment for 10 years in the state prison at Marquette.
    Affirmed.

      C. F. Button, for appellant.

      Fred A. Maynard, Attorney General, and C. E. Miller, Prosecuting Attorney, for the people.
   Grant, J.

The respondent, under an information for murder, was convicted of manslaughter.

1. Respondent applied for a continuance on the ground of an absent witness, stating in the application what such witness would testify to. The affidavit stated that the absent witness resided in Chicago, Ill. The court stated that the case would be continued unless the prosecuting attorney would admit that the witness, if present, would testify as claimed in the affidavit. The admission was made, and the case proceeded to- trial. Counsel for the respondent insisted that the admission should be that the proposed testimony was true. The authorities are not uniform on this question. Some hold that the truth of the proposed testimony must be admitted; others, that it is- only necessary to admit that the witness, if produced, will so testify; and others, that applications for continuances are addressed to the sound discretion of the court. In some States continuances are regulated by statute. The subject will be found discussed in the following cases: State v. Henson, 81 Mo. 384; Dominges v. State, 7 Smedes & M. 475 (45 Am. Dec. 315); Olds v. Com., 3 A. K. Marsh. 465; Com. v. Knapp, 9 Pick. 515 (20 Am. Dec. 491); Comerford v. State, 23 Ohio St. 599; Dean v. State, 89 Ala. 46; Petty v. State, 4 Lea, 326; State v. Jewell, 90 Mo. 467; De Arman v. State, 77 Ala. 10; Com. v. Donovan, 99 Mass. 425 (96 Am. Dec. 765); Wheeler v. State, 8 Ind. 117; People v. Diaz, 6 Cal. 248. It is, however, unnecessary to express any opinion upon the question as presented by counsel for respondent. Where the witness whose absence is the basis of the application is beyond the jurisdiction of the court, and out of reach of its process, it is sufficient, to avoid a continuance, that the prosecution admit that the witness will testify as stated. 4 Enc. Pl. & Prac. 865-868. The ruling of the court was therefore correct.

2. It appears that the deceased was killed in the night, just outside the door of a saloon; that a quarrel was in progress in the saloon, in which the deceased and the respondent were participants; that the saloon keeper ordered the party out; and that the respondent went out, followed by the deceased and three other parties, who were witnesses. Snow had fallen. An officer was summoned. The assaulter fled, and his track led from the saloon to a candy store about a mile distant. The officer, accompanied by two of the witnesses who were in the saloon, followed the track. When they reached the candy store, they found one Joe Boggio therein. Boggio was arrested. Upon the inquest these two witnesses testified that they identified Boggio as the man who .had done the killing. The record states that Boggio was not in the saloon that night. Two persons testified at the inquest that they saw a man enter the candy store that night, whom they described as a tall man, while the respondent was a short man. The names of these witnesses were not indorsed upon the information. Counsel for the respondent asked the court to compel the prosecution to indorse these names upon the information, and produce them as witnesses. This was refused, and we think properly. These witnesses did not see the affray, and the man they saw was a mile from the scene of the affray. The man who went from the saloon to the candy shop, and whose tracks they traced in the snow, was undoubtedly the man who did the killing. The killing was done by a man who was in the saloon, and who went out with the party. The fact that Boggio was not in the saloon that night removes all suspicion from him. If the respondent desired the testimony of these witnesses, it was his place to produce them. He and his counsel knew that their names were not on the information, but they took no steps to produce them, and did not ask the court for an order to subpoena them at the expense of the people. There was no error in the ruling of the court. No testimony was introduced on the part of the respondent.

3. Objection is made to some of the remarks of the prosecuting attorney in his argument to the jury. Enough appears upon the record to show that some, if not all, of them, were in reply to the argument of counsel for the respondent. We find nothing in them which justifies a reversal of the case.

4. Objection is also made to certain instructions given by the court. The entire charge of the court appears in the record. It correctly stated the law applicable to the case. The isolated sentences upon which error is alleged, when read in connection with the entire charge, were not erroneous.

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

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CARMICHAEL v. LATHROP.
    1. Settlement Pending Appeal—Effect of.
    A settlement with one of two defendants by complainant, who has obtained a decree requiring each to pay her a specified sum, from which decree she has appealed, does not operate as an affirmance of the decree, so as to preclude her from prosecuting her appeal as against the other defendant.
    2. Wills—Advancements—What Constitute.
    Small sums of money sent to a daughter by her father after the execution of his will, when she was in great trouble and financial distress, will not be deemed advancements, in the absence of evidence that the testator regarded them as such.
    3. Same—Equity Pleading—Findings—Evidence.
    A finding that land deeded by a testator to a legatee was at the time worth only 813,500 is erroneous, where the deed recited a consideration of 814,000, and the answer of the legatee to complainant’s allegation that the land was at the date of the deed, “and still is, worth 814,000,” admits that it “is worth 814,000,” and the evidence, by a fair preponderance, shows that it was worth that sum at the date of the deed.
    Cross appeals from Wayne; Donovan, J.
    Submitted February 4, 1897.
    Decided April 6, 1897.
    Bill by Marilla B. Carmichael against Ada M. Lathrop and Emily B. Lloyd to charge the defendants with the value of certain property alleged to have been conveyed to them in partial satisfaction of their legacies under the will of Henry P. Pulling, deceased. From the decree rendered, all parties appeal.
    Modified.
    In the former decision of this case, we held that the parcels of land deeded by Dr. Pulling to the defendants, Lloyd and Lathrop, were in satisfaction, pro tanto, of the bequests made to them, and the case was remanded for further proceedings. 108 Mich. 473. Upon the second hearing the court below entered a decree that defendant Lathrop pay to the complainant the sum of $2,790.66, and that defendant Lloyd pay to her the sum of $1,476. Both parties—complainant and defendants—appealed. Pending the appeal to this court, complainant and defendant Lathrop settled, and the case is now before us on the appeal as to defendant Lloyd.

      Fraser & Gates, for complainant.

      Edwin F. Conely and Orla B. Taylor, for defendant Lloyd.
   Grant, J.

(after stating the facts). 1. It is insisted that the settlement with Mrs. Lathrop affirms the decree as to Mrs. Lloyd. In support of this contention, counsel rely upon Banks v. African M. E. Church, 81 Mich. 371. That case and this are not parallel, as an examination will readily show. In the former the appeal was dismissed in this court as to one. defendant, who was a necessary party, and without whom before the court no relief could be granted. For this reason the bill was dismissed for want of necessary parties. In this case, under the former decree, the only questions to be determined upon the second hearing were the value of the advancement to Mrs. Lloyd and to Mrs. Lathrop, and the amount that each should pay to the complainant in order to carry out the will of the testator. These amounts were found by the decree, and we see no reason why the complainant might not settle with one defendant and continue her suit as to the other.

2. The court found that Dr. Pulling, after the execution of his will, advanced to complainant $1,100, for which the decree held her responsible. In this we think the court was in error. There is no testimony tending to show that he gave complainant this money as an advancement. It was given to complainant, in sums of $100 each, to help support herself and children when she was in great trouble and financial distress on account of her husband’s financial failure and his arrest upon a •charge of crime. After the death of Mrs. Lloyd’s husband, she and her children lived for some years with her father at his home, and were mainly supported by him. There is no more reason for holding that he intended "these small sums sent to complainant for her support as an advancement upon the bequest to her than that he intended the expense for the support of Mrs. Lloyd and her children to be an advancement to her.

3. The court found that, Dr. Pulling had invested $6,500 of money belonging to Mrs. Lloyd in the house and lot conveyed to her. Upon the question of the money intrusted by Mrs. Lloyd to her father, how it was invested, and how much he paid her, there is a large amount of testimony, and it is difficult to arrive at a satisfactory conclusion. Neither kept any account of the money or the use made of it. It is very doubtful whether any of it went into this building, of whether there was any agreement in regard to it when the deed was made. It is clear that he received money from her, and she testified that he agreed to pay her 6 per cent, interest. She received payments, but cannot tell to what amount. After giving as careful an examination as possible, we have concluded not to disturb the finding of the court upon this point.

4. The decree finds the value of the house and lot deeded to Mrs. Lloyd to be $12,500. We cannot concur in this finding. The bill of complaint alleges that at the date of the deed to Mrs. Lathrop, August 5, 1889, the lot deeded to her was then worth, and still is, the sum of $10,000; that the value of the lot deeded to Mrs. Lloyd was, when deeded, October 28, 1889, and still is, $14,000. The answer, signed by both defendants, denies that the lot deeded to Mrs. Lathrop was in August, 1889, or has been since, or is now, worth $10,000, and avers that it was not worth to exceed $7,500. As to the value of the lot deeded to Mrs. Lloyd, the answer says: “ They admit that the land, with the buildings thereon, described in the latter part of said paragraph fourth, is worth the sum of $14,000.” We think it too narrow a construction to be placed upon this admission in the answer to hold that it refers to the time when the answer was filed. The consideration expressed in the deed is $14,000. We also think it established by a fair preponderance of the evidence that the property was then worth that amount. It is apparent that the value as fixed in the decree is based upon the supposed cost of the land, including the buildings, rather than upon its actual value.

The decree will be modified in accordance with this opinion. Complainant will recover her costs in this court.

The other Justices concurred.


author: Hooker, J.

text:
    CITY OF DETROIT v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Rail road Companies—Opening Street—Damages—Flagman — Evidence.
    A view of the premises does not alone justify the jury in denying to a railroad company, in a proceeding tó open a street across its track, indemnification for the expense of keeping a gateman or flagman at the crossing, where the undisputed opinion evidence, as well as the surroundings, conclusively shows that it will be necessary to keep such a gateman or watchman.
    Appeal from recorder’s court of Detroit; Chapin, J.
    Submitted February 11, 1897.
    Decided April 6, 1897.
    Proceedings by the city of Detroit to open and extend Leland street across the tracks of the Detroit, Grand Haven & Milwaukee Railway Company. From an order confirming the award of damages, defendant appeals.
    Reversed.

      L. C. Stanley (E. W. Meddaugh, of counsel), for appellant.

      C. D. Joslyn, for appellee.
   Hooker, J.

In a proceeding to extend a city street across the appellant’s railroad in the city of Detroit, it was claimed on behalf of the defendant that the opening of said street would necessitate a flagman and gates. Counsel for the city argued, in substance, that the jury were authorized to act upon their opinions based upon their view of the premises, in the exclusion of the testimony, or, at all events, that they must be “satisfied beyond reasonable doubt that there is an actual present necessity for gates at the crossing.” The court instructed the jury that, if they “believed from the testimony that a gateman or flagman was necessary, the company should be awarded a sum which, at 6 per cent, interest, would produce an amount adequate to the payment of such expenses.” It is evident that the jury did not award compensation for this item, and the defendant asks a reversal of the case upon this ground. The undisputed testimony shows that a flagman was necessary at the place, and that a sum equal to the interest upon $6,000, at 6 per cent., would be required to pay the expense thereof. The court refused to grant a motion for new trial. The jury viewed the premises.

The question for us to consider is whether the jury were authorized to disregard the undisputed opinion evidence, and the undisputed testimony as to the situation, viz.: That there were three tracks, upon which 42 regular trains, besides special trains, run daily; that the view of the track is hidden by houses and a high fence in close proximity to the track; that it is a thickly-settled and populous locality; and that, at two other crossings of the streets next adjoining this one, gates and flagmen have been kept for a long time. Counsel for the city contends, in effect, that the conclusions of the jury should not be disturbed, inasmuch as the court instructed them that they must award the sum named “if they believed a gateway necessary.” There was nothing that could justify such belief unless it was their view of the premises, and counsel for the city based his opposition to this item of damage on nothing else. Without saying that in no case would a view alone justify a jury in denying an item of damage when there was some evidence in support of it, we think that it does not in this case. The evidence is quite conclusive that public safety would require precautions for the safety of the public at this point, and the court might safely have told the jury so. That the view alone is not to be acted upon by the jury is settled in the case of City of Grand Rapids v. Perkins, 78 Mich. 93.

We think the verdict and judgment of confirmation are erroneous, and they are therefore set aside, and the cause remanded for a new trial.

The other Justices concurred.


text:
    BURRELL v. GATES.
    1. Sale—Action for Commissions—Evidence.
    Upon an issue as to whether or not a purchase of logs was made under an option held by a third person, so as to entitle him to commissions, the seller’s testimony that it was so made is not inadmissible as a mere conclusion from the facts, although the better practice would, perhaps, require that the testimony be confined to what was said and done at the time of sale.
    2. Same.
    The buyer having been permitted to show all the sources of his information in regard to the logs, and to state that he did not purchase under the option, the court properly refused to allow him further to state upon what information he in fact relied in making the purchase.
    8. Same—Harmless Error.
    It being practically conceded upon the trial that defendant, if liable at all, should pay commissions upon all the logs specified in the contract, the fact that a witness who had seen a part of the logs only was permitted to state his estimate of the quantity was not reversible error.
    Error to Ogemaw; Sharpe, J.
    Submitted February 10, 1897.
    Decided April 6, 1897.

      Assumpsit by Archibald P. McKinnon and Thomas W. Burrell against Samuel G. M. Gates to recover commissions on the sale of logs. There was a judgment for plaintiffs, and defendant brought error. McKinnon died pending the appeal, and the cause was continued by Burrell as survivor.
    Judgment affirmed.

      C. L. Collins, for appellant.

      Victor D. Sprague (McDonell & Hall, of counsel), for appellee.
   Grant, J.

This case was once before in this court, and reversed. McKinnon v. Gates, 102 Mich. 618. Upon a new trial the plaintiffs again had verdict and judgment. It is unnecessary to state the facts and issues any further than they will be found in the'Other opinion.

1. The deposition of Rinaldo McConnell, one of the firm of McConnell & Tough, who sold the logs to the defendant, was taken by commission. He testified that “Mr. Gates made the purchase by virtue of the option of McKinnon & Burrell.” No objection was made to the interrogatory, nor to the answer thereto, upon the first trial. It does not appear, however, that this waived his right to object. Angell v. Rosenbury, 12 Mich. 259. The objection made is that it calls for a conclusion, instead of facts. The answer amounted to this: That the vendors and vendee were acting, in making this sale, under the option given to the plaintiffs, and we see no objection to testimony that the purchase was effected under that option. Defendant testified that he did not make the purchase under the option, and that he had no agreement whatever with the plaintiffs. While it would, perhaps, have been proper for the court to confine the parties to what was said and done at the time of the sale, still we do not think it error to permit the parties to testify under what authority or agreement they were acting.

2. Defendant, Gates, was asked by his counsel: “On this 10th of March, on whose judgment and upon what information did you rely, so far as your dealings in respect to these logs were concerned? ” This was excluded. The court permitted the defendant to show all the information he obtained from other parties in regard to these logs, but refused to permit the witness to state upon what information he relied. The witness did state, without objection, that he did not act or operate under the option received from the plaintiffs. We think the ruling was correct. Even if defendant had relied upon the judgment and information received from others, this would not necessarily conflict with the agreement to pay plaintiffs a commission. Plaintiffs held an option for the purchase of the logs, and claim that they transferred it to defendant. If the purchase was effected under this option, it was immaterial whether defendant obtained other information in regard to the quantity or quality of the logs.

3. Mr. Moulthrop, a witness for the defendant, and the manager of the Michigan' Pipe Company, was asked: “State whether or not at that conversation anything was said about the Michigan Pipe Company and Mr. Gates investigating and purchasing these logs.” The conversation referred to took place in January, 1891, nearly or quite two months before the contract between plaintiffs and defendant. Whether or not this might properly have been admitted, we need not determine. It is apparent from the cross-examination that the substance of this conversation was stated.

4. The witness Moulthrop was present on March 33d at the conversation between McConnell and Gates when the purchase was being talked over. He was asked to state whether Mr. McConnell said that there were other parties to whom he could sell. The court refused to permit an answer. It appears from the record that this witness had just testified twice that McConnell said he could sell the logs to other parties, and felt at liberty to do so. It would be absurd to reverse a case and grant a new trial where the testimony ruled out has already been given by the same witness.

5. Plaintiff Burrell had seen about 7,000,000 feet of these logs. He was an experienced lumberman, and was permitted to state his estimate of the entire quantity. It is urged that this was incompetent, because he had made no examination of all the logs. If the number of feet and the amount of the commission depended upon this testimony, its admission might be reversible error. The contract of purchase gave the number of logs and the number of feet, and it was in excess of 9,000,000. Defendant gave no evidence tending to show that the amount specifled in the contract was not correct. On the contrary, several of the witnesses on behalf of the defendant, including the defendant himself, referred to these logs as containing 9,000,000 feet. Mr. Smith referred to them as “the 9,000,000 feet of logs.” Mr. Moulthrop testified, “I learned from some source that there were 9,000,000 feet.” The defendant himself testified, “From my investigation, I found the logs that .he offered to be in the neighborhood of 9,000,000 feet.” It is evident that the case was tried upon the theory that, if the defendant was liable to pay a commission upon all the logs specified in the contract, there were about 9,000,000 feet. No request was preferred upon this question, and it is evident from the instructions given that there was no real dispute as to the amount. We therefore hold that the case should not be reversed for this error.

Several assignments of error are made to the instruction of the court. We deem it unnecessary to discuss them. The court clearly and fairly stated to the jury the claims of each party, and correctly gave them the law applicable to the case, and in accordance with our former opinion.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J. Hooker, J.

text:
    WOLCOTT v. JUDGE OF SUPERIOR COURT.
    1. Intoxicating Liquors-Qualification of Sureties—Constitutional Law.
    The provision of 3 How. Stat. § 2283d1, which precludes a person from becoming surety on more than two liquor bonds, is constitutional.
    2. Same—Insufficient Bond—Liability of Principal.
    Under 3 How. Stat. § 2283d, making it a misdemeanor for any person to engage in the liquor business without having given the bond required by the act, a saloon keeper whose bond is insufficient because one of his bondsmen is disqualified is not relieved from liability by the fact that th e officers charged with the duty of determining as to the sufficiency of. the bond have accepted and approved the same. Montgomery, J., and Long, C. J., dissenting.

      Mandamus by Alfred Wolcott, prosecuting attorney of Kent county, to compel Edwin A. Burlingame, judge of the superior court of Grand Rapids, to vacate an order quashing an information.
    Submitted January 5, 1897.
    Writ granted April 17, 1897.

      Alfred Wolcott (W. D. Fuller, of counsel), in pro. per.

      L. E. Carroll, for respondent.
   Montgomery, J.

Relator filed an information in the superior court against one Fred Saunders, a resident of the city of Grand Rapids, charging that the respondent was engaged in the business of selling at retail spirituous liquors, etc., without first having made, executed, and delivered to the treasurer of the county the bond required by law; and that the failure to file such bond consisted in this: That the bond made and filed was not signed by two or more sureties who were not sureties upon two or more other similar bonds, but that the bond made, executed, and delivered by said Fred Saunders was signed by two sureties only, and that one of said sureties was, at the time he so signed said bond, a surety upon more than two other bonds required by the provisions of the liquor law. Upon motion, this information was quashed, and relator seeks to have the order quashing the information set aside, and the cause reinstated. The question presented is whether a bond approved by the common council of a city or village is, in all cases, a protection, or whether the party giving the bond must see to it at his peril that the bondsmen have the qualifications fixed by statute.

The statute (section 2283d1, 3 How. Stat.) reads as follows :

“Every person engaged in the sale of any spirituous, malt, brewed, fermented, or vinous liquors, except druggists, shall, before commencing such business, and on or before the 1st day of May in each and every year thereafter, make, execute, and deliver to the county treasurer of the county in which he is carrying on such business, a bond, the sufficiency of which shall be determined by the township board of the township, or the board of trustees, the council, or the common council of the village or city, in which such business is proposed to be carried on, to the people of the State of Michigan, in the sum of not less than three thousand nor more than six thousand dollars, with two or more sufficient sureties, who shall be male residents and freeholders of the township, village, or city in which such business is proposed to be carried on, neither of whom shall hold any elective or appointive office in any county, city, village, or township of this State, except notaries public, nor be a surety upon more than two bonds required by the provisions of -this act, and each of whom shall justify in real estate situated in the county in which such business is proposed to be carried on, in a sum equal to the amount of the bond, over and above all indebtedness and all exemptions from sale on execution.”

By section 2283d it is provided that—

“If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section one of this act, * * * without having made, executed, and delivered the bond required by this act, * * * such person or persons shall be deemed guilty of a misdemeanor,” etc.

It will be noted that the information does not allege that Saunders knew of the fact that the sureties whom he tendered, and who signed the bond approved by the common council, were sureties on other bonds, nor does it appear that the bond was, in any respect, informal, or that there was any failure to comply with the statute by causing to be annexed to the bond an affidavit in due form. The question, then, is whether, under the provision of the law last quoted, one who tenders in good faith a bond in proper form, purporting to be signed by sureties competent for the purpose, and who, in good faith, after filing such bond, with the approval of the common council, engages in the business of selling liquor, is liable to a criminal prosecution. We think this question should be answered in the negative. In the case of Goff v. Fowler, 3 Pick. 300, an objection was made that a license granted by the court of sessions was invalid because of irregularity in the proceedings anterior to the grant of the license. The court, by Chief Justice Parker, said:

“The objection to the license on the ground that the certificate of the selectmen was not conformable to the statute we think ought not to -prevail. The act of the court of sessions, in granting the license, is, we think, conclusive, and ought not to be vacated on account of the informality of anterior proceedings. It is the duty of that court to inspect such certificates and adjudicate thereon, and they are the proper judges of their sufficiency. It would be laying a. snare for persons who obtain a license and pay the excise thereon to leave them subject to prosecution for keeping an inn without license, by allowing any informer to unravel the proceedings of the court in order to detect some irregularity therein.”

It was held by this court in Amperse v. Winslow, 75 Mich. 234, that officers charged by statute with the approval or disapproval of liquor bonds act judicially. See, also, Parker v. Village of Portland, 54 Mich. 308. And, in Potter v. Village of Homer, 59 Mich. 13, it was held that the approving board have the power to-make inquiry beyond the averments of the affidavit of' justification, and that in this they have the same discretion, and no more, that is possessed by other persons called on to approve sureties.

The only authority cited by counsel for relator to-sustain his contention is a statement from Black on Intoxicating Liquors (section 197) to the effect that the giving of the liquor bond is an essential condition precedent to the validity of the license, and that a license-granted without the bond being given is no protection to the holder. The case upon which this doctrine rests is State v. Fisher, 33 Wis. 154, in which case no bond whatever was given by the respondent, and it was held that, under the terms of the Wisconsin statute, the council had no jurisdiction to grant a license. This, depending upon a construction of the law, was, of necessity, a fact as well known to respondent as to the board. We are not called upon to determine whether a dealer would be subject to prosecution in case the bond upon its face failed to conform to the statute, or in case it were averred and shown that on the face of the proceedings before the appi’oving board there was no jurisdiction conferred upon the board to approve the bond by reason of a failure to comply with the statute, as by the omission of the requisite justification. Such a state of facts would present a very different question. We confine our holding strictly to the case in hand.

It is contended by the respondent, upon the authority of Kuhn v. Detroit Common Council, 70 Mich. 534, that the provision of the statute which prohibits the acceptance of the same surety oh more than two bonds is unconstitutional. The authority of that case has been misapprehended. The holding in that case was that it was not lawful to preclude a person from becoming a surety on a bond because of-the fact that he was engaged in a particular business. This certainly does not go to the length of holding that it is incompetent for the legislature to limit the number of bonds of a certain kind upon which any one person may become a surety, treating all persons alike in that regard.'

For the reasons stated, we think the trial judge correctly ruled the case, and the application should be denied.

Long, C. J., concurred with Montgomery, J.

Hooker, J.

I am unable to concur in the opinion of Mr. Justice Montgomery in this case. Section 2283d of 3 How. Stat. provides that: “If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section one of this act, * * * without having made, executed, and delivered the bond required by this act, * * * such person or persons shall be deemed guilty of a misdemeanor,” etc. The next section prescribes the requisites of the bond required, and is incorporated at length in my Brother Montgomery’s opinion. I am impressed that it was the intention of the legislature to make the execution and delivery of the prescribed bond a condition precedent to sale, and to require the person desiring to engage in the business mentioned to assume the responsibility of knowing that the bond, when presented, complies in all essential particulars with the law. He must know that his sureties are males, and that they are resident freeholders of the township, village, or city in which the business is to be carried on; that they hold none of the offices prohibited by the act; and that, at the time the bond is filed, neither is a surety upon more than two bonds required by the act. The sufficiency of such bond, both as to amount (within limits fixed by the act) and as to the pecuniary responsibility of the sureties, is to be determined by the board. This is the extent of the discretion that is lodged in the board; and while they may properly refuse to approve a bond if they are not satisfied that it is in all respects valid, as well as sufficient in amount and solvency of sureties, the person giving a defective bond, as contradistinguished from one that is insufficient, cannot shelter himself behind an approval by the board, whether such' approval be the result of incompetency, cai’elessness, mistake, fraud, or collusion. The history of legislation on the subject of intoxicating liquors, and the obstacles encountered to enforcement of the law pertaining to this subject, in the light of which this statute must be read, forbid the belief that the legislature intended that the approving board should be vested with broad powers, or that upon the public, through these boards, should rest the burden of seeing that bondsmen are eligible in other particulars than responsibility. The law expressly says that a man who shall engage in business before he offers the required bond shall be punished. Certainty this is plain language, and there is, in my opinion, no necessity for holding that it means less than it says, because it gives to the public the right of supervision to make sure that such bond shall be signed by responsible sureties, or because the penalty of such bonds is not required to be the same in all cases. In the nature of things, it is as easy for the person giving the bond to ascertain whether the proposed sureties are eligible, as for the board to do so. If the responsibility is on the board, they must ascertain the necessary facts at their own or the public expense. If such is the rule, imposition is greatly facilitated, and a premium put upon it; while, if it is understood that the approval of a defective bond is no protection, the law practically enforces itself. In this view of the case, the question of intent becomes unimportant. See People v. Roby, 52 Mich. 577 (50 Am. Rep. 270).

Upon the constitutional question, I concur in the views expressed by my Brother Montgomery, and it follows that the information should not have been quashed. The writ is therefore granted.

Grant and Moore, JJ. concurred with Hooker, J.


author: Long, C. J.

text:
    CITY OF DETROIT v. WAYNE CIRCUIT JUDGE.
    1. Statutes—Amendment—Sufficiency of Title.
    An amendment to an act entitled “An act to provide a charter for the city of D., and to repeal all acts and parts of acts in conflict therewith,” requiring notice to be given to the municipal law department within a specified time after the receiving of personal injuries as a condition precedent to the right to bring suit therefor against the city, is valid under the general title of “An act to amend,” etc., the provision being one that might have been incorporated in the original act.
    2. Default—Setting Aside—Reasonableness of Conditions Imposed.
    It is not a valid exercise of the discretionary power vested in the circuit judge to set aside defaults upon such conditions as seem reasonable and just, to require the defaulting party to plead merely the general issue, without notice of special defenses.

      Mandamus by the city of Detroit to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order striking from a plea a notice of special defense.
    Submitted November 10, 1896.
    Writ granted April 27, 1897.

      Arthur Webster and Charles D. Joslyn, for relator.

      James H. Pound, for respondent.
   Long, C. J.

In July, 1896, Augusta Ambuhl commenced suit against the relator for personal injuries. The relator failed to appear or plead within the time prescribed by the rules of court, and on August 24, 1896, its default was taken. On the next day the relator tendered a plea and notice attached thereto, together with $10 as costs, and asked to have the default set aside. This the plaintiff’s attorney refused to receive, and relator thereupon made a motion to the court to set aside the default, and that it be permitted to plead, in the cause. The court set aside the default and received the plea, but struck therefrom the notice. Relator now asks a mandamus to compel the respondent to vacate so much of the order as relates to the notice; and a return has been made by the respondent setting out the reasons why the notice should not be permitted to stand in the case, as follows:

(1) That it was within the jurisdiction of the trial court, in setting aside the default, to impose such conditions as to the court might seem reasonable and just.

(2) That no proofs would be permitted to be made under the notice, as the statute to which the notice relates is unconstitutional.

The notice is as follows:

“That on the trial of the above-entitled cause the defendant, the city of Detroit, will give in evidence in its defense that no notice in writing was given to the head of the law department or to his chief assistant of the time, place, cause, and nature of the injury set forth in plaintiff’s declaration within three months of the time of such injury, as provided by the statute in such cases.”

The statute to which this notice relates is as follows:

“There shall be added to chapter eleven of said charter of the city of Detroit a new section, as follows: ‘ Sec. 46. No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof. * * * ’ ”

The title of this act (No. 463, Local Acts 1895) is:

“An act to amend section sixty-one of chapter seven, and section forty-four of chapter eleven, and to add a new section to chapter eleven, and a new section to chapter thirteen, of an act entitled, ‘An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith,’ approved June 7,1883, as amended by acts numbered 374 and 294 of the Session Laws of 1893.”

1. This amendatory act is not open to the claim made. There is no doubt that, had this section been incorporated in the original act, it would have been valid. It is competent to introduce by amendment anything which might have been introduced in the original act. Holden v. Osceola Co. Sup’rs, 77 Mich. 202; Board of Sup’rs of Chippewa Co. v. Auditor General, 65 Mich. 408.

2. The court having determined that the city of Detroit had the right to make defense to the action, we think it was not within his discretion to limit its defense in the manner set forth.

The writ will issue as prayed.

The other Justices concurred.


author: Moore, J.

text:
    JOHNSON v. BRATTON.
    1. Mortgages—Advances—Parol Evidence.
    Though a mortgage, on its face, is for the payment of a specific sum of money to an individual, parol evidence is admissible to show that it was really intended to secure advances to be made from time to time by a firm of which the mortgagee was a member, and that payments by the mortgagor were to be credited on his general indebtedness, and not on the mortgage note.
    2. Same—Release—Want oe Consideration.
    An instrument executed by the parties to a mortgage, which recites that the mortgagor is indebted to the mortgagee in a specified sum, that he is personally responsible for such indebtedness, and that in consideration of the payment of a part of the debt only, receipt of which is acknowledged, he is released from all personal responsibility, reserving to the mortgagee the right to proceed against the property, is without sufficient consideration, and is therefore ineffectual as a release.

      3. Same—Sureties.
    The lien of a mortgage is not discharged as to a purchaser of the mortgaged premises by the mortgagee’s ineffectual attempt to release the mortgagor.
    4. Same—Removal op Building prom: Mortgaged Premises.
    A lien created by a mortgage upon a building attached to the freehold iii such a way as to make it part of the real estate is not defeated by a removal of the building to other premises.
    5. Same—Priority op Liens—Form op Degree.
    In case of the removal of buildings from mortgaged premises to other lands, which are embraced in a later mortgage, the land covered by the prior mortgage should first be sold, and, if enough money is not realized from the sale to pay the mortgage, the buildings should be sold, and from the proceeds the balance of such mortgage be first paid, and the surplus, so far as is necessary, applied to the payment of the later mortgage.
    Cross appeals from Alpena; Cobb, J., presiding.
    Submitted October 9, 1896.
    Decided April 27, 1897.
    Bill by Waldo M. Johnson and Richard O. Wheeler against David Bratton and others to foreclose a mortgage. From the decree rendered, all parties appeal.
    Modified and affirmed.

      Frank Emerick (Levi T. Griffin, of counsel), for complainants.

      J. D. Turnbull, for defendants.
   Moore, J.

This is a proceeding to foreclose a mortgage dated November 2, 1876, given by David Bratton to complainant Wheeler. The mortgage was in the usual form. It was for $1,500. The proviso was that “if the party of the first part shall pay * * * to the party of the second part the sum of fifteen hundred dollars six months from the date hereof, according to a promissory note of even date executed by said Bratton to said Wheeler, * * * to which this indenture is collateral security,” the note and mortgage were to be void. At the time the mortgage was given, defendant Slee had a mortgage upon the premises described in the Wheeler mortgage, which was on record. The Wheeler mortgage was put upon record soon after it was given. May 10, 1880, Bratton sold the premises to Sidney Case, and he sold to defendant Lizzie Johnston, April 13, 1881. When the Wheeler mortgage was given, there was a large two-story building on the land described in the mortgage, which constituted the chief value of the property; the value of the lot alone not exceeding $300. After Mrs. Johnston got the property, she moved the building to another piece of' ground owned by her. October 17, 1881, Mrs. Johnston gave a mortgage upon the lot to which she had moved the building to one Robinson. After the foreclosure proceedings were commenced, Robinson was made a party.

The bill of complaint avers that, when the Wheeler mortgage was made, the complainants were wholesale grocers in Detroit, and that Bratton was a customer of theirs at Alpena, engaged in the retail trade. It also avers that, at the date of the mortgage, Bratton was indebted to complainants in the sum of about $700; that he also wanted to buy more goods, and that the mortgage, though given to Wheeler, was in fact given for the benefit of both Johnson and Wheeler, and for the purpose of securing the indebtedness to them from Bratton, and also to secure future advances in the way of goods; that complainants were to continue to furnish goods, and that Bratton was tomate payments from time to time; that his payments should be credited on his general indebtedness, and not upon the note and mortgage. The bill further avers that complainants did supply Bratton with goods, and that he made payments upon his general indebtedness, but that he never paid the entire amount secured by the mortgage, and that there was due from him, at the time of the filing of the bill of complaint, July 24, 1882, about the sum of $1,082. The bill also sets up the various transfers of the property as heretofore stated, and claims that the removal of the building by Mrs. Johnston was done to cheat and defraud the complainants. The bill asks for a decree for the amount due from Brat-ton, and that not only the land described in the mortgage may be sold to satisfy the decree, but that the building now on the land of Mrs. Johnston may be sold, if the land does not sell for enough to pay the mortgage. It is the claim of Mr. Bratton that the mortgage was given to secure the debt he then owed, and the payment of the goods sold him at the date of the mortgage, and that he did not understand the mortgage to be given for the purpose stated by the complainants. The various defendants appeared in the case, and put in issue the averments of the bill. After this proceeding was commenced, complainants received from defendant Bratton $500, and released him from any personal liability, but reserved the right to pursue their lien on the property. The circuit judge made a decree in favor of the complainants for $776, and for a sale of the premises described in the mortgage, and dismissed the bill as to William Slee and Mr. Robinson. Both parties appeal from the decree.

After the Wheeler mortgage was made, Bratton paid to Johnson and Wheeler between three and four thousand dollars, and they furnished goods amounting in value to quite as much. A great many questions are raised by the record, but, in our view of the case, it is not necessary to discuss them all.

There was no written agreement between complainants and Bratton that the mortgage was given for the benefit of complainants, or that it was given for any other purpose than the one stated in the mortgage and note. When complainants sought to establish the case stated by them in the bill of complaint by parol testimony, objection was made upon the ground that they sought to establish by parol an entirely different contract from the one made by the parties in writing. The general rule is that you cannot import into a written agreement a parol agreement which alters the terms or legal effect of the written agreement. 1 Jones, Mortg. § 96; Adair v. Adair, 5 Mich. 210 (71 Am. Dec. 779); Jones v. Phelps, 5 Mich. 218; Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181); Kimball v. Myers, 21 Mich. 276 (4 Am. Rep. 487); Beers v. Beers, 22 Mich. 42; Gram v. Wasey, 45 Mich. 223; Kelsey v. Chamberlain, 47 Mich. 241; Seckler v. Fox, 51 Mich. 92; Parkes v. Parker, 57 Mich. 57; Kulenkamp v. Groff, 71 Mich. 675 (15 Am. St. Rep. 283); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401; Rumely & Co. v. Emmons, 85 Mich. 511; McCray, etc., Cold Storage Co. v. Woods, 99 Mich. 269 (41 Am. St. Rep. 599); Cohen v. Jackoboice, 101 Mich. 409. An exception to this rule, however, is made in relation to mortgages (17 Am. & Eng. Enc. Law, 454), and parol evidence is admissible to identify the future advances intended to be secured by a mortgage. Though the mortgage, on its face, is for the payment of a specific sum of money, parol evidence is admissible to show that it was really intended to secure future advances made from time to time. 1 Jones, Mortg. § 367a; Shirras v. Caig, 7 Cranch, 34; McKinster v. Babcock, 26 N. Y. 378; Wilkerson v. Tillman, 66 Ala. 532. In Jeffery v. Hursh, 49 Mich. 31, it was held competent to show by admissions that a deed absolute in form was a mere security for a loan. See, also, Jeffery v. Hursh, 58 Mich. 247. It has been held that—

“In the absence of any specific statement in the mortgage as to the character of the advances, parol evidence may be introduced to prove what advances were intended, * * * and, if the mortgage is made to one of the firm, evidence of the advances made by the firm would be competent; * * * and it is no objection to the evidence that it necessarily proves that the member of the firm took the deed, not in his individual capacity, but as acting for and in behalf of the firm.” Hall v. Tay, 131 Mass. 192.

We think it was not error to allow parol proof of what the facts were about the giving of the mortgage, what debt it was to secure, and for whose benefit it was made.

Complaint is made about the amount found to be due by the trial judge in the decree. It is conceded by the solicitors “that the printed record, and presumably the written record, seem to be somewhat deficient as to statements.” The witnesses were not agreed as to how the account secured by the mortgage stood, and we are not satisfied that the decree, in this respect, should be disturbed.

It is the claim of the solicitors for the defendants that when Bratton paid the $500, and was released from personal liability, the effect was to discharge the debt, and with it the mortgage. This would doubtless be true, if the parties intended the $500 to be a payment of the debt, and if the agreement was based upon a sufficient consideration ; but the record shows that the parties did not intend to release the debt. The agreement was that the complainants do—

“Release said Bratton from all personal responsibility upon said account so secured by said mortgage, but do not release said debt or discharge said security, and expressly reserve said indebtedness and said security, but agree to look solely to the property covered by said mortgage for the remainder of such indebtedness. Said Bratton agrees, in consideration of said personal release, that said Johnson and Wheeler may retain said indebtedness and security, and may prosecute to a final conclusion said foreclosure suit above mentioned, so commenced by said Richard O. Wheeler against David Bratton, William Slee, Clara Matilda Slee, Lizzie Johnston, and George J. Robinson (but without cost to said Bratton), and, so far as said Bratton is concerned, may subject said property so covered by said mortgage to the payment of the balance of said indebtedness due said Johnson and Wheeler from said Bratton.”

It is also urged that the relation of Bratton and a sub sequent purchaser of the land is that of principal and surety, and that when the principal is released the surety is released; citing Coyle v. Davis, 20 Wis. 564; Sexton v. Pickett, 24 Wis. 346. The record does not show what the consideration for the release of the mortgagor was, in the last case. In the first of these cases the agreement to release the mortgagor was based upon his agreement to convey the lands to a third person, which agreement he performed. Of course, such an agreement, when executed by one party, would be binding on the other, and would have the effect of releasing the mortgagor. The subsequent purchaser of the land had the right, upon the payment of the mortgage, to be subrogated to the rights of the mortgagee, which would carry with it the right to enforce the debt against the mortgagor if enough was not realized, upon foreclosure, to pay the debt. In the case before us the instrument which it is claimed releases Bratton recites that Bratton is indebted to the complainants in the sum of $1,200, and that he is personally responsible for such indebtedness. Bratton paid $500, which was applied upon that indebtedness. We do not think that was a sufficient consideration to release him from his debt, nor do we think that payment and the agreement signed by the parties released the lien created by the mortgage.

It is said to be error not to subject the building to the lien of the Wheeler mortgage; and counsel cite Turner v. Mebane, 110 N. C. 413 (28 Am. St. Rep. 697), and Partridge v. Hemenway, 89 Mich. 454 (28 Am. St. Rep. 322), and we think these cases are in point. The Wheeler mortgage was upon record when Mrs. Johnston obtained title to the land, in 1881. It was her duty to take notice of the lien created by it. We cannot subscribe to the doctrine that a lien created by a mortgage upon buildings attached to the freehold in such a way as to make them part of the real estate can be defeated by removing the buildings to another piece of real estate.

It may be urged that, as Mr. Robinson had no knowledge of the existence of the Wheeler mortgage when he took his mortgage, his mortgage should be a prior lien. We understand the rule to be that when the equities of parties are equal, and neither has the legal title, the prior equity will prevail. Wing v. McDowell, Walk. Ch. 175; Norris v. Showerman, Id. 206. Applying these doctrines to this case, we think the Wheeler mortgage is the prior equity, and must first be satisfied. The proofs show that the land covered by the mortgage and the building removed from that land are valuable enough to pay both mortgages. The land covered by the Wheeler mortgage should first be sold, and, if enough money is not realized from that sale to pay the Wheeler mortgage, the building-should then be sold, and from the proceeds the balance of the Wheeler mortgage be first paid, and the surplus, so far as necessary, be applied to the payment of the Robinson mortgage. <

The decree of the court below will be modified as here suggested, and affirmed, with costs to the complainants.

The other Justices concurred.


text:
    FISHER v. NERGARARIAN.
    Landlord and Tenant—Conditional Renewal op Lease—Notioe op Termination op Tenancy.
    A tenant who holds over after the expiration of his lease, under an agreement that his continuance in possession shall be conditioned upon the landlord’s making certain necessary repairs, is at liberty to leave without notice to the landlord, if the latter fails to carry out his agreement.
    Error to Wayne; Frazer, J.
    Submitted January 6, 1897.
    Decided April 27, 1897.

      Assumpsit by Maxwell M. Fisher against Hovhannes G. Nergararian for rent. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Bowen, Douglas & Whiting, for appellant.

      Charles Flowers, for appellee.
   Moore, J.

Plaintiff sued defendant in justice’s court, declaring in an action of assumpsit on all the common counts, and especially on a lease, claiming damages $300. Defendant pleaded the general issue. Judgment was rendered in favor of the plaintiff. An appeal was taken to the circuit court, where, by direction of the circuit judge, the jury rendered a verdict in favor of the plaintiff. Defendant appeals.

The record shows that in 1891 the plaintiff leased a store, which lease would expire April 30, 1893, unless renewed. It contained a provision for renewal. This lease was assigned to the defendant by consent of plaintiff, and he took possession. The rent provided by the lease was $150 a month, payable in advance. It is the claim of plaintiff that defendant renewed the lease for three years. This is denied by the defendant, who claims that he had no knowledge of the condition of the store when he rented it; that he hired it for store purposes. He was engaged in the business of importing and selling oriental rugs, many of which were very, valuable. It is his claim that the store leaked, that there was no cellar under the store, that the alley in the rear of the store was so high that the water during storms and periods of melting snow flooded the floor of the store, and that the result was to make the walls and floor so damp that it ruined his goods, and made the store so unhealthy that he and his brother were both sick, and that the store was untenantable. It was claimed that these things were called to the attention of the plaintiff, and that he agreed to remedy the trouble if the defendant remained after the expiration of the please, and that he was to continue n possession only in case the repairs were made. iThere was no written extension of the lease, but defendant continued to occupy the premises until June 1, 1894, paying the rent up to and including the month of May, 1894. It was the claim of the defendant that the plaintiff kept promising to make the store tenantable, and that, relying upon his promise to do so, he remained until he became satisfied that the plaintiff did not mean to do as he agreed. All this was denied by the plaintiff, who claimed that the lease was renewed without any agreement about repairs. Defendant vacated the store June 1,. 1894. Plaintiff sued him the same day. On the trial the defendant undertook to show the condition of the store, that the roof leaked, that the walls were damp, that the store was untenantable. This was objected to, and the objection sustained. The circuit judge charged the jury that the original lease had expired, and had not been renewed; that the defendant was a tenant at will, and, before he could leave the premises, he must give one month’s notice to his landlord; that, as he had not done this, the jury were instructed to return a verdict for one month’s rent and interest.

A number of assignments of error are discussed in the brief of counsel. If plaintiff’s version of the transaction was true, he was entitled to recover the amount he did recover. If, on the other hand, the premises were untenantable when the lease expired, and there was to be no extension, except on the condition that plaintiff should make the repairs necessary to make the store tenantable, the defendant was entitled to have that condition carried out. Leonard v. Armstrong, 73 Mich. 577; Pierce v. Joldersma, 91 Mich. 463. This raised an issue of fact, which should have been submitted to the jury under proper instruction.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    KALLANDER v. NEIDHOLD.
    Payment—Satisfaction of Judgment.
    In a suit by the indorser of a promissory note to restrain the enforcement of a judgment thereon, it appeared that the maker of the note had given a check to the attorney for the judgment creditor for the amount of the judgment, against a fund deposited for that express purpose, and had received from him the note upon which the judgment was rendered, with the indorsement, “Paid by check;” that the check was dishonored upon presentation, because a third person, whom the attorney had informed of the deposit, had presented a check theretofore disallowed, and had obtained the fund. It further appeared that the person obtaining the money was the real party in interest in the original suit, and that the attorney was of his selection. Held, that collection of the judgment should be restrained.
    Appeal from Gogebic; Haire, J.
    Submitted February 4, 1897.
    Decided April 27, 1897.

      Bill by Martin Kallander and another against Charles Neidhold and others to restrain the enforcement of a judgment. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Button & Norris, for complainants.

      C. E. Miller, for defendants.
   Long, C. J.

This bill was filed to restrain defendants from assigning a certain judgment, or from enforcing its payment. The cause was in this court on demurrer to the bill at the January term, 1894, the demurrer overruled, the case remanded, and defendants permitted to answer. It is reported in 98 Mich. 517. All the defendants except Ehrmanntraut filed a general and several answer, and the case was brought to hearing upon proofs taken in open court. Upon the hearing the bill was dismissed. The complainants appeal.

It appears in the case that on May 20, 1892, Peter Ehrmanntraut gave defendant Nast two promissory notes to his order, each for the sum of $200, and each bearing the indorsement of the complainants as sureties. These notes were due, respectively, in two and three months from date, and both were indorsed by William Nast also. Suit was brought upon the three months’ note by defendants Neidhold Bros., and, shortly after, suit was brought upon the two months’ note by the same parties. Nast was not made defendant in these suits, by direction of Neidhold Bros. Defendant Miller was the attorney for the plaintiffs in those suits. The suit on the three months’ note was adjourned to October, 1892, and in the meantime Ehrmanntraut paid the two months’ note. Judgment thereafter was taken upon the three months’ note'. It appears also that Ehrmanntraut was indebted to Nast at this time in quite a large amount, which was unsecured. On October 15, 1892, Ehrmanntraut deposited $412 in the First National Bank of Bessemer, out of which he intended to pay the judgment and some other accounts. Immediately after making the deposit, Ehrmanntraut started for Ironwood, to see defendant Miller for the purpose of paying the judgment. Miller calculated the amount due, and received a check for it from Ehrmanntraut upon the bank at Bessemer, and indorsed upon the note the words, “Paid by check. C. E. Miller, Attorney,” and delivered it to Ehrmanntraut. This was on Saturday. Sometime prior to that, Ehrmanntraut had given Nast a check for $200 upon the same bank, which Nast had presented, and payment had been refused. It further appears that Miller was the general attorney for Nast in reference to all his business, and that the Neidhold brothers, in bringing suit upon the notes, consulted Nast as to the attorney they should employ, and were advised to employ Miller. The Neidholds lived at Wake-field, and, under Nast’s directions, put the notes into Miller’s hands, with instructions not to make Nast a party to the suit, though he was one of the indorsers on the notes. Upon the return day of the first suit, Ehrmanntraut and Kallander applied to Miller for an adjournment, and, as they claim, Miller referred them to Nast. This, however, is denied by Miller. The suits were adjourned without consulting with the Neidhold brothers. On the next Monday morning, after Ehrmanntraut gave the $200 check to Miller, Miller and Nast took the train for Bessemer, arriving there about 8:45 in the morning. Prior to their going, Miller had told Nast of the check he had received from Ehrmanntraut; that Ehrmanntraut had exhibited to him his bank book, showing the deposit made in the bank on that day. On arriving at Bessemer, Miller went to the hotel, and waited until about 15 minutes after time for the bank to open,'—which was at 9 o’clock,—and, when he presented the check at the bank, was advised by the bank official that Nast, only a few moments before, had presented his check theretofore dishonored, and the bank had paid it, so that there was no money remaining to pay the Miller check. These facts are not much in dispute. It is admitted by Miller that he told Nast of the deposit of these moneys, and it was also admitted by him that he was, and had been for some time, the general attorney for Nast, and that he had been directed by the Neidhold brothers not to make Nast a party defendant to the suits on the notes. Ehrmanntraut claims that Miller received the check in payment of the judgment, and agreed to discharge the judgment on the day he received it; while Miller contends that he was not to discharge the judgment until the check was paid. ,

The complainants were sureties upon the note, and the claims by their bill are:

1. That the transfer of the note from Nast to Neidhold Bros. was without consideration, and that Nast was the real party in interest in the judgment, and that this fact was within the knowledge of Miller.

2. That Miller accepted the check in satisfaction of the judgment.

3. That Miller advised with Nast to present his (Nast’s) check first, so that he might be paid upon his dishonored check, intending therewith 'to collect the judgment against the complainants, who were sureties upon the note.

4. That the Neidhold brothers, Miller, and Nast conspired and confederated together with the intention of securing to Nast the payment upon his check, while knowing the rights of complainants, and were intending to cheat and defraud them.

5. That Miller and Nast both knew, according to the undisputed evidence, that Ehrmanntraut had deposited the money in the bank for the purpose of paying this judgment, and that Miller had received the check for that purpose.

All the above claims are denied in the answers. None of the defendants were sworn in the case except Nast and Miller, aside from Ehrmanntraut, against whom the bill was taken as confessed, and who was called as a witness by the complainants.

We are satisfied that the court below was in error in dismissing complainants’ bill. It appears to us that the transfer of the note to the Neidhold brothers was for the purpose of bringing suit, though Nast was the real owner, as they took no part whatever in the suits after directing Miller not to make Nast a party; and the facts and circumstances as shown by the record satisfy us that Miller must have known all the facts, and communicated to Nast the deposit of the money in the bank, and given him the opportunity to present his check first, thus leaving no money for the payment of the Miller check. The money was deposited in the bank by Ehrmanntraut to pay this judgment. Nast and Miller both knew it, and the moneys should be thus applied. Any further statement of the case is unnecessary, as from all the surrounding circumstances we think 'the complainants are clearly entitled to be protected.

The decree of the court below will be reversed, and a decree entered in this court in favor of complainants, restraining the collection of the judgment, and also restraining the assignment of it, as prayed in the bill. The complainants will recover their costs of both courts against all the defendants except Peter Ehrmanntraut, who appears to have acted in good faith in attempting to pay the judgment.

The other Justices concurred.


text:
    FINLEY v. DUBAY.
    Estates of Decedents—Commissioners Report—Res Judicata —Mortgage Foreclosure—Evidence.
    The report of the commissioners on claims against an estate showed that a certain mortgage note was presented and disallowed. No appeal was taken from this report. Foreclosure proceedings were subsequently instituted. Complainant’s solicitor testified that the claim was never passed upon by the commissioners, but was withdrawn by him from their consideration. The commissioners testified that the claim was presented and disallowed, giving the reasons for their action, and were corroborated by other witnesses. Held, that the defense that the matter was res judicata was fairly established.
    Appeal from Wayne; Adams, J., presiding.
    Submitted November 19, 1896.
    Decided April 27, 1897.
    Bill by George Finley against Henry D. Dubay and others, administrators of the estate of William Watson, deceased, to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Reversed.

      George X. M. Collier, for complainant.

      Jasper C. Gates, for defendants.
   Long, C. J.

The bill in this case is filed to foreclose a mortgage made by William Watson to Thomas W. Cor-by, March 31, 1879. Mr. Watson purchased the land covered by this mortgage, paying $350 towards the purchase price, and giving the mortgage in controversy upon the land to secure the payment of $600, the balance due. Four months after giving the mortgage, and on July 38, 1879, Watson died, leaving five children and a widow, Caroline Watson, who married the complainant on the 3d day of April, 1880. Complainant, with his wife, took possession of the property, both real and personal, left by William Watson at his death. The mortgage above referred to was assigned August 2, 1879, by the mortgagee to Mary E. Barnard, of the State of Vermont, and on March 30, 1883, assigned by her to Caroline Finley, who on June 23, 1888, assigned it to her husband, the complainant, who now claims to be the owner, and is seeking the foreclosure.

After William Watson died, no proceedings were had in the probate court relating to his estate until February 26, 1887, when his daughter, Mary M. Dubay, filed a petition in the probate court for the appointment of an administrator, andón March 26,1887, David Trombly was appointed, and an inventory was then attempted to be made of the estate left by the deceased. That inventory shows that there were 14 acres of land valued at $1,400; 13 acres valued at $2,500; horses, cattle, and other live stock valued at $316; wagons and harnesses, $60; farming implements, $46.50; wood, $310.50; corn, oats, hay, and straw, $224; potatoes and beans, $44. The administrator says of this inventory, in a certificate annexed thereto:

“The above items of personal property are from the valuations given me by Mrs. Caroline Finley, widow of said William Watson, and are the amounts admitted to have been received by said widow after the payments of all expenses of harvesting and marketing said property; all of said property having been converted by said widow, and none of it having come into my hands.”

It is claimed by the defendants that, at the time the mortgage was assigned by Mary E. Barnard to Caroline Finley, the same was paid put of personal property left by William Watson at his death. The defendants set up, as another defense, that on the 28th day of May, 1887, the probate court for Wayne county appointed Richard Lamb and Christopher Damitio commissioners on claims in the estate of William Watson, deceased; that the commissioners had meetings as prescribed by law, the last being in November, 1887, and Caroline Finley and George Finley presented large bills against said estate, and endeavored to procure the allowance of the same by testimony introduced at that time; that the mortgage in controversy here, with the accompanying note, was one of the items which the parties sought to have the commissioners allow; that the items passed upon by the commissioners appear in their report, which was filed in the probate court on February 14, 1888. The defendants also insist that whatever claims were presented were disallowed by the commissioners upon the ground that the money had come from the sale of property belonging to the estate of William Watson, except only two small items for doctor’s and undertaker’s bills, which were allowed, and that this note and mortgage were disallowed upon the ground that they had been paid out of said estate.

The principal argument made in this court by defendants’ counsel is upon the last claim set forth; and it is contended that the commissioners on claims acted judicially in denying this claimed mortgage and note, and that the order made by the commissioners, not being appealed from, is res adjudicata. Upon the other hand, it is contended by counsel for the complainant that the note and mortgage were never paid out of the estate of William Watson, deceased, and that they were never presented to the commissioners for the purpose of allowance as a claim against the decedent’s estate, and were never passed upon by the commissioners, and that, if they were ever presented, they were withdrawn from the commissioners’ consideration, and not passed upon. The testimony was taken in open court, and a decree entered finding that the note and mortgage had never been paid, and awarding foreclosure. On the hearing the defendants called the two commissioners on claims, and they both testified that the note given with this mortgage was presented by Caroline Finley to them for allowance; that they heard testimony upon it, and disallowed it,—one of the commissioners stating that it was disallowed because Mrs. Finley testified that she had bought it with personal property belonging to Mr. Watson, her deceased husband. Other witnesses testified that the note was presented to the commissioners for allowance. It also appears from the commissioners’ report, which is dated November 30, 1887, that a note was presented for allowance, given by William Watson to William Corby, March 31, 1879, for $600, and that this note was disallowed. This report was filed in the probate court February 14, 1888. There is no controversy about the identity of this note. It was the note accompanying the mortgage here in suit. It also appears that this note and mortgage were at that time standing in the name of Caroline Finley, as her assignment to her husband was not made until June 23d following. It is true that the counsel for complainant testified that the note was withdrawn from the consideration of the commissioners, if ever presented to them for allowance. But, after a careful examination of the record, we are satisfied that the preponderance of the evidence is in favor of the defendants’ position. The record made by the commissioners is very strong evidence that the claim was presented and disallowed, and, with the other evidence offered by the defendants, is convincing that the note was presented to, and disallowed by, the commissioners. The commissioners were acting in a judicial capacity. They had jurisdiction of the parties and the subject-matter in controversy. Their decision was not appealed from, and is final. Shurbun v. Hooper, 40 Mich. 503; Green v. McCutcheon, Id. 244; Byrne v. Hume, 86 Mich. 546.

It follows that the decree of the court below must be reversed, the bill dismissed, and a decree entered here directing the discharge of the mortgage, with costs of both courts in favor of defendants.

The other Justices concurred.


text:
    TRYON v. PINGREE.

    1. False Imprisonment—Warrant Fair on its Face.
    An action for false imprisonment will not lie where the detention was by virtue of a warrant issued by a court having jurisdiction of the subject-matter, and regular on its face.
    2. Criminal Law—Obstructing Public Officer.
    A combination of two or more persons for the purpose of obstructing the mayor of a city in the exercise of his right to examine, in his official capacity, the books of a city office, is indictable as a conspiracy at the common law.
    3. Malicious Prosecution—Public Officers—Evidence.
    Whether the mayor of a city was acting officially or in his private capacity in attempting to examine the books in a city office is a material inquiry in an action for malicious prosecution based upon the commencement by him of criminal proceedings for an alleged conspiracy to obstruct him in the exercise of his right, and evidence tending to show that he was merely seeking to aid a newspaper reporter in obtaining access to the records is relevant to this issue.
    4. Trial—Instructions.
    The refusal of instructions which correctly state the law as to an issue which would not be material otherwise may constitute error if the court gives other instructions on that issue which may mislead the jury.
    Error to Wayne; Frazer, J.
    Submitted October 7, 1896.
    Decided April 27, 1897.
    Case by James E. Tryon against Hazen S. Pingree for false imprisonment and malicious prosecution. From a judgment for defendant, plaintiff brings error.
    Reversed.

      George Gartner (Fred C. Harvey and Fred A. Baker, of counsel), for appellant.

      Thomas T. Leete, Jr., and Eli R. Sutton (C. A. Kent, of counsel), for appellee.

       Rehearing denied June 18, 1897.

   Moore, J.

This is an action for malicious prosecution and false imprisonment. Verdict and judgment were given for defendant, and plaintiff brings the case into this court.

In August, 1894, the plaintiff was secretary of the board of fire commissioners of the city of Detroit, and had the custody of its books and papers. The defendant at this time was mayor of the city of Detroit. The act creating the board of fire commissioners provided: “The books and accounts kept by said board shall at all times be subject to the inspection of the mayor and controller.” Mr. Greusel was employed by the Detroit Tribune, a leading paper of Detroit, to look up and prepare matter for publication pertaining to the fire department. An article was published which the commissioners claimed untruly reflected upon the management of the department, and they directed the secretary not to permit Mr. Greusel to examine any more of the books belonging to the department. Upon the refusal of Mr. Tryon to permit an examination of the books by Mr. Greusel, the managing editor of the Tribune wrote a letter to the mayor, stating the refusal by Mr. Tryon to allow Mr. Greusel to examine the books, and saying that they had information which led them to believe that serious irregularities existed in the management of the fire department, and asked the mayor to request Controller Moore to make an examination of the books in the presence of Mr. Greusel. It was also claimed by the mayor that he had received information of irregularities from other sources.

The mayor and the controller visited the office of the fire department, and found the assistant secretary in charge. He was informed by the mayor that he had come, as mayor, to examine the books. A few books and papers were examined, but those in the safe were not produced for his inspection. The next day the mayor, accompanied by Mr. Greusel, visited the office, and found the plaintiff in charge. The mayor requested that Mr. Greusel be allowed to examine the books as his representative. This was refused. He then demanded to see the books himself, and was told that he could not do so until Mr. Goodfellow, president of the commission, was notified. Later in the day, Mr. Pingree, accompanied by his secretary, two policemen, and Mr. Greusel, again visited the office. Mr. Tryon was not there. The books were not produced for examination, and, after a delay of an hour, the mayor and his secretary left the office. Mr. Greusel remained, with written authority from the mayor to examine the books in his behalf.

After leaving the office, Mr. Pingree met Mr. Tryon and Mr. Goodfellow on their way to the fire department. Some conversation ensued. The mayor stated that he had left Mr. Greusel to examine the books. He was informed by Mr. Goodfellow that the commission was in charge of that office, and that he would go down and throw Greusel out; and the defendant stated he would go along and see him thrown out. A whispered conversation occurred between Mr. Tryon and Mr. Goodfellow, and Mr. Tryon went on ahead of the others. When Mr. Pingree and Mr. Goodfellow reached the offices, they were closed, and the doors locked. A controversy arose. A number of firemen were called by Mr. Goodfellow to eject Mr. Greusel. Mr. Pingree attempted to protect him. Then Mr. Elliott and others seized and held Mr. Pingree, and Mr. Greusel was thrown downstairs. Mr. Pingree remained for a time, and demanded to see the books. His demand was refused. About 6 o’clock of the same day, Mr. Pingree, with his secretary, Mr. McLeod, and several policemen, again visited the offices of the fire department, and demanded to see the books. His demand was refused, upon the ground that it was after office hours. On the evening of the same day, Mr. Pingree summoned to his office Mr. Flowers, a lawyer, Police Justice Sellers, John G. Hawley, a lawyer, and others. It is claimed by the defendant that he fully and fairly stated all of the facts of which he was advised to Mr. Hawley, his lawyer, and that he was advised by Mr. Hawley that the plaintiff and Mr. Goodfellow, Mr. Elliott, and other persons were guilty of a conspiracy. Mr. Hawley dictated a complaint charging conspiracy, in the presence of both of the police justices. The complaint was sworn to by Mr. Pingree. Police Justice Sellers issued a warrant. It is claimed that this ended his connection with the criminal case. On the part of the plaintiff it is claimed that, at the examination, he was represented by private counsel, and that he instigated the. arrest and the subsequent prosecution of the case. Mr. Tryon was arrested, gave bail, and at the examination, after the witnesses were sworn, upon advice of the prosecuting attorney, was discharged. He then brought this suit, with the result already stated.

A good many questions are raised by the record and briefs. It is admitted that the mayor had the right to examine the books in his official capacity; but it is claimed by the plaintiff that, in all he did, he was not acting as mayor, but was seeking to help Mr. Greusel personally, and- was actuated by improper motives. It is also claimed by the plaintiff that the mayor could not delegate his right to examine the books to Mr. Greusel. It is urged that Mr. Pingree did not fully and fairly state all the facts he knew to Mr. Hawley. It is contended that to obstruct an executive officer is not a crime, either at common law or by statute, and that the complaint which was made did not charge an offense. A large number of assignments of error were taken. These have all had careful consideration; but it will not be necessary, in our view of the case, to discuss all of them.

The charge of the trial judge, so far as it is necessary to quote it, was as follows:

“I give you defendant’s sixth request, as modified: 'That, the warrant having been issued by a court having jurisdiction of the preliminary examination of all offenders or offenses committed in Detroit, the judgment of the court that there is such a crime as the one charged, and that there was reason to think the persons charged had committed it, protects all persons concerned in the issue or execution of the warrant, as far as false imprisonment is concerned.’ I charge you that it is the law of this case that there can be no recovery as against the defendant on the count in this declaration for false imprisonment. I understand it to be the law as laid down in Wheaton v. Beecher, 49 Mich. 348, that, when the offense stated in the warrant is such an offense that the justice has jurisdiction of the subject-matter, the warrant will protect the officer serving it, and also all parties making the complaint. I charge you that in this case the justice did have jurisdiction of the subject-matter for which this warrant was issued, and that, having jurisdiction of the subject-matter, there can be no recovery in this case upon any ground of false imprisonment. The question that I shall leave to you is simply one question for you to determine, or two questions, rather, and that is upon the count in this declaration charging the defendant with malicious prosecution. Indeed, in order to sustain an action for malicious prosecution, it is necessary that two things should be proven: First, that there should be malice,—and, in a case of malicious prosecution, I understand malice to be an intentional wrongdoing. This malice may be inferred from want of probable cause; that is, if there was no probable cause for the issuing of the warrant, then a jury may infer from that a malice such as is required by law. But, gentlemen of the jury, want of probable cause is to be inferred or to be proven or established before you in this case on these premises: I charge you that if the defendant in this case, Mr. Pingree, fully, fairly, and honestly stated the facts as they appeared to him, and as he knew them, to John G. Hawley, or to the police magistrate, and that, upon such a statement, this warrant was issued, then there can be no recovery in this case for malicious prosecution, even if the advice of John G. Hawley was wrong, or the warrant was issued without authority of law, or the warrant did not state any offense against the law. The principle which governs in this case is laid down by the Supreme Court of the State, and is as follows: ‘Every man of common information is presumed to know that it is not safe in matters of importance to trust to the legal opinion of any but recognized lawyers. When a person resorts to the best means in his power for information, it will be such proof of honesty as would disprove malice, and operate as a defense proportionate to his diligence.’ And in Perry v. Sulier, 92 Mich. 75, it is said that ‘the person seeking and receiving such advice is, in law and in morals, justified in acting upon it, provided that he fully and fairly states the facts to the attorney.’ Now, that is the question for you to decide, and the sole question involved in this case for your determination. And this language also has been used by the Supreme Court, which covers the law in this case which I think it necessary to submit to your consideration, and the rule fully stated, that, if a prosecutor has fairly submitted to his counsel all the facts that he knows, capable of proof, and he has acted bona fide on the advice given, he negatives the want of probable cause, and is not liable in an action of malicious prosecution. * * * If you shall find that the statement made by Mayor Pingree or Mr. Pingree, of the facts as they were shown to him, and as he knew them, and of all the facts, was fairly stated to John G. Hawley, and the warrant obtained after that statement, then the defendant in this case is not liable for any damages; but if you shall find the facts were not fairly stated, that he was actuated by malice, that he did not conduct himself in a bona fide way, or did not come up to any of the principles laid down in the law as I have stated it to you, then the plaintiff would be entitled to recover such damages as you shall see fit to give him under the rule that I have already laid down in giving the requests of the plaintiff on the subject of damages, which is needless for me here to repeat.”

We must assume that the provision of the charter of Detroit (chapter 16, § 24), authorizing the mayor to examine the books of the fire commissioners at all times, was designed to promote the public interest, by securing honesty and accuracy in the management of the affairs of the department under the control of the fire commissioners. Any obstacle that should be unlawfully interposed to prevent such an examination for a proper purpose would be an obstruction of the functions of government, and indictable as such at the common law. It is said that the offense of obstruction of officers is confined to court officers, bailiffs, etc., and does not extend to officers who have to do with executive duties, as contradistinguished from those having judicial functions, and those who are charged with the enforcement of judicial mandates, conservators of the peace, etc., and that no case can be found where one has been convicted for such an offense. This does not necessarily imply that acts constituting an obstruction of government are not indictable at common law, and we should be reluctant to hold that acts of trespass, not otherwise criminal, would not become criminal if the object and effect were to prevent the governor, or legislators, or other State officers from performing the duties pertaining to their respective departments. We cannot think that the mother country, which punishes seditious libels and slanders, would have tolerated acts which actually interrupted official action; and it is possible that the English law would justify the conclusion that such an act would be punishable as a contempt against the king’s prerogative, by fine and imprisonment, at the discretion of the king’s court of justice. 4 Bl. Comm. 122. Mr. Bishop, in dealing with the question, has no apparent hesitancy in saying that the obstruction of governmental functions is criminal, where the act is of sufficient magnitude to deserve notice. 1 Bish. New Cr. Law, § 457. He says (section 480) that “of natures akin to treason, yet of inferior rank, are the various obstructions of the governmental machinery. The leading ones have been particularized in this chapter, but all other obstructions of the like sort and magnitude are also common law offenses. ” It is fair to say that he adds: ‘ ‘ Practically, the law of this chapter is greatly circumscribed by the rule that it does not notice small things.” Just where the line is which marks the limit of crime, and separates it from the realm of “small things which the law does not punish,” is hard to say; but we are impressed with the gravity of an act which prevents executive officers of the nation, State, or cities from performing the duties of their offices.

If it be a fact that it was suspected that irregularities existed in the management and use of the funds of the fire department of Detroit, the public was interested in knowing the truth, and had the right, through its mayor, to ascertain' it; and, if interested parties were able to prevent it, with impunity, there would be no means of protecting the government in its rights except the slow process and uncertain efficiency of civil proceedings. Whether the charge was well or ill founded is another question. The warrant was sufficient to charge a most flagrant case, and being, in our opinion, good upon its face, the plaintiff’s remedy then, if he had been wronged, was confined to an action for malicious arrest or prosecution, and the trial court did not err in directing a verdict for the defendant upon the count for false imprisonment.

While we are convinced that obstruction of the performance of an official duty is an offense at common law, we understand that the inquiry may always be made in a court of justice whether the obstruction is of an official or a private act. If the latter, it cannot be said that it is an obstruction of, or interference with, governmental functions. Hence evidence tending to show the defendant’s object should not have been excluded. 2 Bish. New Cr. Law, § 1010, and cases cited.

It was claimed in this case that the circumstances showed that Mr. Greusel, a reporter of a daily paper, desired an opportunity to examine the books, for the purpose of making public such facts pertaining to the department as might be thought of interest to the public; that, being refused the opportunity, he invoked the aid of the defendant, who was willing to aid him, by means of bis official privileges; and that it was for this purpose only, and not for any purpose connected with his office, that he made the demand; and that this question should have been submitted to the jury. It was no part of the official duty of Mr. Pingree to aid individuals in obtaining their rights, if they had any, as to the examination of books. It was within his province to investigate those books, and give the public information concerning the condition of affairs, if lie thought best. We have no right to determine this question unless we can say that the undisputed evidence shows one thing or the other? and as, in our opinion, it does not, it was for the jury to determine, from all of the circumstances shown.

Counsel for the plaintiff requested the court to charge the jury that—

“If, therefore, the defendant demanded the right to inspect otherwise than in his official capacity and for official purposes, then any refusal on the part of the commission or its agents would not constitute the offense of obstructing, hindering, and preventing a public official in the discharge of his duty.”

And again:

“If the defendant, in going to the office of the fire commission, did not go in good faith and for official purposes solely, but for the purpose of helping out Greusel and aid the Tribune in getting up a story, then you are instructed that there was no probable cause in instituting the prosecution, and the advice of counsel is no defense to his action.
“In determining the question of malice, the jury are at liberty to infer malice from the want of probable cause, and they may also take into consideration what the real purpose of defendant was in going to the office of the fire commission, whether for official or for other purposes.”

And again:

“The defendant had no right to use his official power to secure an investigation of the books and records of the fire commission by Greusel for the Detroit Tribune, that newspaper and Greusel having a right to seek such remedies in the courts as they were in law entitled to.”

And again:

“The defendant had no right to delegate his power as mayor to investigate the books and records of the fire commission to Greusel, or to any other private party.”

These requests show clearly enough the claim that was made on behalf of the plaintiff, and he was entitled to have it presented, unless the case was submitted in such a way as to make it unnecessary. But it was not presented, and, instead, the court said:

“I charge you also that it is the law of this case that the mayor had the right to examine the books of the fire commission; that this right is conferred upon him by the charter of this city; and it is contended that Mr. Greusel, taken down there by the mayor, under the circumstances related by these witnesses, was not included in this privilege, or this permission, or this right which is conferred upon the mayor by the charter of this city. I was of that opinion when the law of this case was argued to me by counsel, but since then a decision of the Supreme Court has been called to my attention, which changes my opinion on this question; and, on the authority of Burton v. Tuite, 78 Mich. 363, I charge you that it is the law of this case that Mayor Pingree had the right to take down with him, for the purpose of conducting the examination of the books of the fire commission, Mr. Greusel, or any other person that suited his convenience to conduct this examination. I think, under the authority of that decision, this record is a public record, entitled and open to inspection, and that, under the facts in this case, the mayor of this city was justified in taking some person that he saw fit for the purpose of making an examination of the records of this office.”

It having been shown that the defendant caused the criminal action to be commenced, and that it was terminated by the discharge of the defendant therein (the plaintiff here), it became material to inquire whether the commencement of the prosecution was malicious or not. And if it was shown that the defendant made a full, fair statement of the facts in the case to counsel, and was advised that they constituted an offense, and believing and relying upon such advice, and in the guilt of the plaintiff, commenced the proceeding, the defendant cannot be said to have maliciously prosecuted the plaintiff. If, as counsel for the defendant contend, it was proper for the case to go to the jury upon these two questions alone (which questions the charge shows were submitted to the jury), there was no necessity to give the requests above quoted, because the advice of counsel and defendant’s good faith would be a complete defense, whether the advice were good or not, and defendant could not be found guilty, although he should be mistaken and misinformed as to his right to aid Greusel in his endeavor to see the books, and it became unnecessary for the jury to inquire whether Greusel had the right to see these books for his own purposes, or to trouble themselves with the question whether Mr. Pingree was there officially or not, because, as already stated, the advice of counsel and good faith of defendant were an ample shield, and conclusive of the case. But the judge did not stop with his instructions upon these questions. He proceeded to discuss the rights of Greusel and the authority of the mayor in a way that would naturally lead the jury to infer that the defendant did not transcend the bounds of his authority, and, consequently, that the defendant did not need the advice of counsel to justify his complaint, and that they might find probable cause from those facts, and acquit the defendant, although not satisfied that he had made a full and complete statement to counsel, or acted upon such advice. In doing this, the court refused to instruct the jury in accordance with the requests, some of which were correct statements of the law, and important to be laid before the jury if they were going into the question mentioned, even if the plaintiff had not a'right to have that question presented, and which it is evident that plaintiff’s counsel sought to have presented. The situation would not be improved by'saying that the court did not submit the case upon the two questions alone, and that the question raised by the plaintiff’s requests was left to the jury. In either case the court permitted the jury to infer that, if the defendant went there solely to aid Greusel in securing his alleged rights, it was an official act, and they would be likely to understand (1) that the mere refusal to permit an inspection of the books would amount to a justification for issuing the warrant, without regard to the other elements essential to a criminal conspiracy; (2) that, if the purpose of the defendant was merely to enable Greusel to obtain access to the books for his personal purposes, the refusal constituted an offense.

The judgment of the circuit court is reversed, and a new trial ordered.

The other Justices concurred.