author: Grant, J. McGrath, C. J.

text:
    The People v. Sidney Sayers.

      Assault — Justification.
    In a prosecution for an assault alleged to hare been made upon one of several men who were at the time taking up a drain, it appeared that the work was being done under the direction of the highway commissioner; that the respondent, upon his arrival, asked by whose authority the work was being done; that the commissioner replied that it was being done by his authority; and thereupon the respondent made the demonstration claimed to have amounted to an assault towards said employé, as the supposed instigator of the work. And it is held that the court did not err in instructing the jury that the evidence failed to show that said demonstration was made to prevent the 'taking up of the drain.
    Exceptions before judgment from Tuscola. (Beach, J.)
    Argued May 7, 1895.
    Decided July 2, 1895.
    Respondent was convicted of an assault.
    Conviction affirmed.
    The facts are stated in the opinions. .

      8. B. GasMll, for respondent.

      Fred A. Maynard, Attorney General, and T. W. Atwood, Prosecuting Attorney, for the people.
   Grant, J.

I think the conviction in this case should be sustained. The question whether the demonstration made by respondent towards Griffin amounted to an assault was left to the jury under a clear and fair charge. Respondent denied that he made an assault. If his version was true, he should have been acquitted. If the people’s version was true, he was properly convicted, unless the assault was justifiable. The court said to the jury:

“There is no evidence to indicate that Mr. Sayers, in making whatever demonstrations he did make, was undertaking to prevent the parties who were there, either Mr. Griffin or any one else, from taking up the tile or drain, but that, on the contrary, from his language, it indicated that he looked to Griffin as the author of the trouble, and that the demonstrations were not made for the purpose of preventing the taking up of the drain; and consequently the theory of the effort to prevent its being taken up, under the evidence, falls to the ground.”

If the evidence sustains this instruction, the conviction was correct. The work was being done under the direction of Mr. Connor, the highway commissioner. He had procured several men to assist him, including Mr. Griffin. According to the testimony of all the witnesses, Mr. Sayers, upon his arrival, jumped out of his cutter, and asked by whose authority the work was being done. Con-nor replied that it was by his authority, and Sayers then made the demonstration towards Griffin, as the supposed instigator of the work. Sayers’ story is as folows:

“When I got to the sluice I asked by whose authority that was being taken up. Mr. Connor answered, by his. I said, 'I forbid your taking that up,’ and the men stopped, and he said, ‘Take it up,’ and they took it up. I said, .‘If you take it up, I will prosecute you,’ and he says, ‘Tear it up, any way to get it out, and smash it,’ and I says, ‘If you smash it, you’ll pay for it.’ I said to Griffin: ‘Here is the -that is to blame for this being taken up. I ought to make a corpse for a Patron funeral.’ At the same time I used a gamble to point out the natural water-course as it ran in a state of nature. I told Griffin the water ran down on the west side of the road, and across his orchard, and I told him, if he would ditch his own farm, and leave mine alone, he would be better off. I told Griffin to mind his own business, and leave mine alone. Connor put his hand on my shoulder, and said: ‘Sayers, let my men alone. I want them to work.’ And I stopped, and went away home.”

I think the record contains no evidence to show that the demonstration made by Mr. Sayers towards Mr. Griffin was made for the purpose of preventing the taking up of the drain, and that, therefore, the instruction was correct. . Griffin was present in the capacity of a hired man. He had no control over the work. Sayers recognized the authority of Connor, and made no demonstration towards' him, nor towards Griffin until Connor had directed the work to proceed. He did. nothing to prevent the accomplishment of the work, except to warn Connor not to do it.

Conviction affirmed.

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

McGrath, C. J.

(dissenting). Respondent was convicted of an assault upon one Griffin. Sayers owned lands on both sides of the highway, and had constructed a culvert across the highway to carry the water from the east to the west side. Griffin owned lands immediately north of those .of respondent, the southerly line of which was some 10 or 12 rods north of the culvert. The testimony was undisputed that the culvert was in the line of the natural course of the water.; that an attempt had been made to carry the water along the east side of the highway, but the ditch had not been sufficient, and the water backed up upon respondent’s lands; that respondent had previously complained to the highway commissioner, had stated that he intended to make the culvert, and had' asked the commissioner to- make provision for carrying the water in its natural course along the west side of the highway, and then westerly; that the fall from the east, to the west side of the road is 14 inches; that the natural-course of the water is north-westerly, and at a point 12 rods north-westerly from the culvert at Griffin’s line fence there is a fall of feet; that when respondent bought his farm, some 20 years before, there was a culvert across the road; that respondent had attempted to carry the1 water along the east side, of the highway, and for that purpose had constructed the ditch on that side of the highway; that the ditch did not serve the purpose; that', the old culvert had been taken up in -1879 or 1880. At. the time of the alleged assault the. highway . commissioner, with Griffin and others, was engaged in tearing out the culvert. It appeared from the testimony of . the commissioner that he acted at the instigation of Griffin. The commissioner testified:

“While engaged in the work, respondent came up. He had a gamble stick in his hand. He stepped up to where we were taking up the ditch, and says: ‘By whose authority is this being taken up?’ -And at that time I don’t think he saw me. I turned to him, and told him it was by my authority. He said to Dorrity [one of the others engaged in the work], ‘You are interested in this business, are you?’ And Dorrity said, ‘No.’ He then turned to Griffin, and said to him: ‘You are the son of a-that is the cause of this, — of having this commissioner brought down here, — are you?’ And he jumped and sprang, with this stick — this hog gamble — in his hand, and says: ‘-your--soul! I will make a Patron corpse of you right here.’ Griffin backed up to the other side of the ditch, and Sayers followed him, and swung his club. I slapped Sayers on the shoulder, and told- him to stop, — that all the men were working under my instructions. He said to me, as he said before, that Griffin was the cause of my being there. * , * . * When I told Sayers to stop, he stopped. Sayers came close to Griffin. He did considerable flourishing with the club. I was not a bit frightened. I did not think he was going to strike Griffin. He did not strike at him. He.was,so close to him that he could put his hand on him. He might have been talking about water-courses. He said something about water-courses. He told Griffin that if he would drain his own farm he would not have any trouble!; ‘Drain as I do.’ He was talking about the drainage all of the time, with this club over his head. This water had not done any damage to the road yet., * * * I went to see it, and discovered that Sayers had dug across the highway between his two farms, and let the water across to the west side, and had dug down the west side, I should think, six or seven rods, and left a ditch, and stopped on the west side of the road. He had dug Across the highway, and thence north to the quarter line, to Grit-fin’s land; The effect it had upon the water that passed flown the ditch was that it took it across the road, to they west side. There was no provision on the west side, as I saw, for carrying the water in the ditch there. There was provision made on the east Side of the road, from Sayers’ corners down to Allen’s comers, on the township line. The ditch is four or five feet deep and five or six wide. It was cleaned out last spring. Sayers’ turning the water into the west side of the highway resulted in an injury to the highway. There was no provision to take the water away, and by having the sluice; and there was no need of it, and that would be an injury to construct a sluice across the highway when there was no need of it. I saw no necessity for the sluice. I saw no provision for carrying the water away to the north. * * * Sayers did not show me where he was taking the water to. The water was running under the highway at that time. There was not much water, — not enough to aff ect Griffin’s land. There was no ditch on the west side of the road. I think the water was running in a north-west direction across Griffin’s farm. There was a small ditch that would carry part of it. The banks were graded there. I did not examine it. I examined the west side of the road till there was no provision for it to run. I did not look further. At some time it might be a damage to the highway, if the sluice got stopped up, and the water would naturally wash the highway, and the planks would get rotten.”

Griffin testified that—

“He said that he would smash me and chuck me in the ditch. He came at me as though he intended to carry out the threat. He said a good deal, but I was more interested in his actions than in his words, so I don’t remember what he said. When he came at me as though he was going to strike me, I raised my spade to ward off the blow if he should strike. I backed up, and he followed me until the commissioner told him to stop.”

John Dorrity says:

“Mr. Sayers said to Connor that he forbade him taking up. that sluice unless he gave him an outlet on the east side of the road. Connor said he would make an outlet when he got to it. Sayers said he wanted it immediately.”

Charles Dorrity says:

“Sayers says to Griffin, ‘I ought to smash your head, and I can do it” Sayers did not strike at him.”

Defendant’s counsel presented the following requests, which were refused:

“That it is the natural servitude the lower land-owner owes to the upper land-owner to receive the natural flow of water, and he is bound by law to do so.
“That the defendant had a proprietary right of ownership to the water upon his land, and being the owner of the soil in the road, as well as upon each side of the road, he had a right to conduct this water in a drain under the road, if he did it in a manner so as not to interfere with the rights of the public, or to the damage of the highway.
“That this is a fact for the jury to determine, — whether this drain was an injury to the highway.
“That the power of the highway officers is confined entirely to draining and improving the highway, and they have no right to construct drains for the improvement or protection of private lands.
“If the jury believe the fact to be that the highway commissioner and Griffin were tearing up this drain because the water thereupon would flow upon and dam- • ' age Griffin’s land, then they would not be protected by the law.”

The court instructed the jury as follows:

“Now, a great deal of testimony has been put into the case under the theory that there was some justification if an actual assault was committed, or, whatever demonstration was there made, there were circumstances which justified it, — all on the theory that the defendant had been undertaking to conduct his water lawfully across the highway in the direction which he did, and that whatever he did on that occasion on that day was to prevent a trespass. My own judgment of the evidence here, as we have it, is that these facts have no particular or material bearing upon the question at issue here, for the reason that none of the witnesses can give any evidence which indicates that Mr. Sayers, when he was making the demonstrations, — whatever demonstrations he did make, —was undertaking to prevent the parties who were there, either Mr. Griffin or any one else, from taking up the tile or drain, but that, on the contrary, from his language, it indicated that he locked to Griffin as the author of the trouble, and that the demonstrations were not made for the purpose of preventing the taking up of the drain, and consequently the theory of the effort to prevent the taking up of the drain, under the evidence, falls to the ground. There seems to be no warrant in the evidence, nr under the evidence, for that theory; and while the evidence may explain. Mr. Sayers’ right to be there, and his interest in the drain, and his objections to its being taken up, yet, as I say, the evidence does not disclose that whatever demonstrations he made towards Mr. Griffin had the end in view of preventing. the drain’s being taken up. Consequently, the right or the wrong of Sayers’ action there, or the right or wrong of Griffin’s presence there,— his acts under the circumstances, — have no material bearing upon the real question at issue, as to whether an assault was committed there or not.”

The court erred in the refusal to instruct as requested; and in the instructions given. There was testimony from which the jury might have found that the highway commissioner was acting in the interest of Griffin, and not in the interest of the highway or the public. A highway bed is not a natural obstruction to the course of surface water. Culverts are necessary incidents of highway construction, and a highway commissioner cannot justify the destruction of a culvert on the line of a water course on the ground that it might become clogged or out of repair. The culvert is not, per se, a nuisance, no more than was the tree in the case of Clark v. Dasso, 34 Mich. 86. The conclusion of a highway commissioner as to the necessity of doing an act to improve or protect the highway, honestly arrived at, may not be reviewable by the courts, but he must keep within the sphere allotted to him by statute. He cannot, under color of power to preserve the highway, go outside, and undertake to adjust and determine matters involving private rights. In Conrad v. Smith, 32 Mich. 429, a bill was filed to restrain the cutting by highway commissioners of a ditch along the highway. The defendants insisted that the object was the improvement of the highway. The Court said that, notwithstanding the claim of defendants that the projected drain was meant to be a mere highway ditch, the' facts did not bear them out; that the case did not serve to show the semblance of need for the ditch on account: of the road. ,

“In connection with these considerations,” say the Court, “it must be observed that the mind cannot avoid the impression, after an examination of the case, that the real motive was not to benefit the highway, but to help the surrounding lands, and that the power given to the defendants, as highway officers, was made a pretext for attempting what the laws governing such officers do not warrant.”

The Court .say, further, that the proposed drain was “an unlawful invasion of complainant’s land within the road limits.”

In Cubit v. O’Dett, 51 Mich. 347, the action was case against the overseer of highways for flooding plaintiff’s land by means of a ditch cut along the highway, whióh had the effect, while draining the lands of defendants, to cast upon plaintiff’s lands a large amount of water; which otherwise would not have flowed in that direction. The defense claimed that the cutting of the ditch was rightful, because done under the direction of the ovérseer of highways; but it was held that highway authorities have no more right than private persons to cut drains, the necessary result of which will be to flood the lands of individuals. See, also, Shue v. Highway Commissioner, 41 Mich. 638; Clark v. Dasso, supra.

The defendant’s right to have and maintain the culvert was a matter which should have been submitted to the consideration of the jury, and if they found that it was constructed on the line of the natural water course; that it was necessary, in order to prevent the water from backing up upon defendant’s land; and that the commissioner was acting, not with reference to the protection oif the highway, but in the individual interest of Griffin,— defendant’s acts were justifiable. People v. Foss, 80 Mich. 559.

The conviction should therefore be set aside, and a new trial awarded.

Long, J., concurred with McGrath, C. J.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    The People’s Mutual Benefit Society v. Alexander M. Lester.

      Foreign insurance companies — Right to sue — Failure to comply with State laws.

    Under How. Stat. § 8136, which provides that when, by the laws .'Of this State, any act is forbidden to be done by any corporation without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of or made or entered into in consideration of such act, a foreign mutual benefit society which, by reason of its noncompliance with the laws of this State, is not authorized to do business therein, cannot maintain an action in this State • to recover from an agent moneys collected by him, under an arrangement with its officers, on assessments by it made upon its Michigan members.
    Case made from Branch. (Yaple, J.)
    Argued May 8, 1895.
    Decided July 2, 1895:

      Assumpsit. Defendant assigns error.
    Reversed, and judgment entered in this Court for defendant.
    The facts are stated in the opinion.

      M. A. Merrifield {Jolm B. Shipman, of counsel), for appellant.

      E. E. Ban-low, for plaintiff.
   Hooker, J.

The plaintiff is a foreign mutual benefit society. By arrangement between its officers and the defendant, the latter collected, within the State of Michigan, from its members living in said State, money assessed by the plaintiff upon its members, for which it recovered judgment in the circuit court. The findings of fact show that at the time of the transactions out of which this litigation grows the plaintiff had not complied with the laws of this State, and was not authorized to do business herein, but, on the contrary, was forbidden, under a penalty. How. Stat. § 4225.

It is contended by plaintiff’s counsel that the illegality of the original contract does not prevent plaintiff’s recovery of money voluntarily paid to another for its use and benefit, in support of which we are cited to Willson v. Owen, 30 Mich. 474, and Richardson v. Welch, 47 Id. 309. In the latter case Mr. Justice Campbell uses this language:

“Even in cases where public, and not merely private, interests were involved, courts have refused to relieve parties who had the money of other people in their hands against accounting, when there was no question of public policy to be involved in that transaction.’’

If cases involving a question of public policy are to be considered exceptions to the rule, as this language seemingly implies, the rule could hardly be applied to the present case. See Seamans v. Temple Co., 105 Mich. 400.

But we think it unnecessary to pass upon the question, as under the statute, How. Stat. § 8136, the plaintiff is not authorized to maintain this action, because the collection of this money “arose out of” acts of the plaintiff which were forbidden, viz., the doing business and issuing certificates to citizens and residents of Michigan, and the collection of assessments by its agents within the State. See Seamans v. Temple Co., supra. Such, collection was the “transaction of the business of life insurance.” How. Stat. §§ 4225, 4237, 4244

. The judgment will be reversed, and judgment entered 'here, with costs of both courts.

The other Justices concurred.

       Amended by Act No. 148, Laws of 1891.


author: Grant, J.

text:
    Henry T. Thurber and Clifford Elliott, Executors, etc., v. Margrette Sinclair Battey.

      Construction of will — Fund for payment of legacies.

    • 1.. The rule that “the cardinal principle of interpretation of wills ' is to carry out the intention of the testator, if it is lawful, and if it can be discovered,” and that “the whole will is to be taken together, and is to be so construed as to give effect, ; if it be possible, to the whole,” is universal, and cases are of .. little value to the courts as precedents unless they substantially agree in their facts with the case under consideration, — a circumstance of rare occurrence.
    2. A testator was possessed of no other property aside from his household goods and personal effects, which were specifically bequeathed, except that mentioned in the tenth clause of his will, and that devised to him by his uncle, subject to a life = ' estate in his aunt, whose life expectancy was 20 years. After making several Requests, mainly for the support and- education of certain minor children, the testator, in the tenth ,". clause of his will, bequeathed to his executors the moneys realized- from his life insurance, his interest in certain speei- - fied firm®, and any interests he might have or be entitled to '. growing out of any business connection he then had, or into . ■ - which he might thereafter enter. The executors were to ; collect the insurance, close out the interest in any business with which the testator might be connected, invest the pro- ' ceeds, and pay the net income derived therefrom, to the testator’s sister. In case she died without leaving-lawful issue, a specified portion of the fund was bequeathed to a certain person, and tlie remainder was to be disposed of as his said sister should by her will direct. It was further provided that should the sister’s issue, her surviving, die before marriage or during their minority, the specific bequest should become operative. Shortly before his death the testator wrote to his said sister that he had made his will, that she was amply provided for at once in case of his death, and that a liberal share of the property devised to him by his uncle was hers in case of the death of his aunt and himself. This property was valued at $55,000, and was charged with the payment of $6,100 in. legacies, which, with the bequests made therefrom by the testator and those claimed by his sister to be payable therefrom, would consume nearly all of said property. The sister contended in a suit to construe the will that clause 10 was a specific bequest to her of all the property therein mentioned, and that the prior bequests must abate either wholly or until the amounts thereof could be realized from the property devised to the testator by his uncle. And it is held that, if this contention be sustained, the statement in the testator's letter that he had provided the sister with a liberal share of said property would be meaningless; that the payment of the bequests out of the property mentioned in the tenth clause of the will gives meaning to the letter, and leaves from $22,000 to $25,000 of the property received from his uncle for the sister, which construction is adopted.
    Appeal from Wayne. (Carpenter, J.)
    Argued April 30, 1895.
    Decided July 2, 1895.
    Bill to construe a will. Defendant appeals.
    Decree affirmed.
    Tbe facts a.re stated in the opinion.

      Charles B. Warren (Elliott C. Stevenson, of counsel), for complainants.

      Alfred Russell, for defendant.
   Grant, J.

The bill in this case is filed to obtain the construction of the will of Samuel B. Sinclair. It was executed May 7, 1892, and he died the 30th of the same month. The first and second clauses provided for his debts and funeral expenses, a headstone for his grave, and the specific bequest of his household furniture. Clauses 8 and 9 are also specific bequests. It is necessary to give tbe remainder of the will in full, and it reads as follows:

“3. I give, devise, and bequeath to my executors and trustees, hereinafter named, the sum of $12,000, in trust for the following purpose: I desire them to invest the same as, in their judgment, they deem best, and to pay the net income derived therefrom to my sister-in-law -Sinclair, wife of my brother Charles M. Sinclair, for the joint support of her and their children, and the education of their children, until the youngest child shall attain the age of 21 years, at which time I direct said $12,000 to be divided, share and share alike, between the issue of my said brother' and- Sinclair. Should there not be lawful issue of my said brother living, under which this bequest could become operative, I direct my executors and trustees to pay said $12,000 to my sister Margrette Sinclair Battey, her heirs.
“á. I give, devise, and bequeath to my executors and trustees the sum of $3,000, in trust for the following purpose: I desire them to invest said sum as they deem best, the income derived therefrom, and the principal, as fast as may be necessary, in their judgment, to be paid to Mrs. George T. Olmstead, for the education of her daughter Jennie, it being my desire that all of said sum and the income be used for the education of said Jennie Olmstead; and if is my wish that her mother apply such portion of said sum in the payment of her own expenses as to her may seem proper in accompanying her said daughter to the pursuit of her education.
“5. I give, devise, and bequeath to Frances Charlotte Dickinson and Don M. Dickinson, Jr., children of Don M. and Frances P. Dickinson, the sum of $2,500 each, to be paid to their parents, and invested by them as they may deem best; the principal and accumulation of such bequests to be turned over to said children, respectively, as she or he shall arrive at legal majority; in the event of the death of either before attaining iegal majority, the whole to go to the survivor of them.
“6. I give, devise, and bequeath to Mrs. Thomas A. Stephen, of Galt, Ontario, the sum of $1,500.
“7. I give, devise, and bequeath to my uncle David A. Sinclair my gold watch and chain, with the request that at his death he leave it to Walter S. Sinclair; also the sum of $6,000, $1,000 of which to be paid out- of that portion of my estate situate in Detroit, and $5,000 out of the estate left me by my uncle Robert P. Sinclair, as hereinafter provided; provided, however, that, when he shall receive said $5,000, he shall receive the same in lieu of the annuity in my said uncle’s will provided for him. * * *
“10. I give, devise, and bequeath to my executors and trustees all my life insurance and the moneys realized therefrom, and all my interests in the firm of Sinclair, Evans & Elliott, and all interests in the new firm of Sinclair, Elliott & Co., about to be formed, and all property and interests I may have or be entitled to growing out of any business connection I now have, or into which I may hereafter enter, in trust for the following purposes: I direct that all the moneys on my life insurance policies be collected, and my interests in any business with which I may be connected be closed out as may be convenient, and without injury to the firms in which I may be interested, and the proceeds thereof invested by my trustees as they deem best, and the net income derived therefrom to be paid to my sister Margrette Sinclair Battey, during her natural life. Should my said sister die without leading lawful issue her surviving, I give, devise, and bequeath out of said fund the sum of $25,000 to Frances Platt .Dickinson, wife of Don M. Dickinson, and her heirs, forever, the balance of said fund to go as my said sister in her last will may direct; provided, however, that should her issue, .her surviving, die before marriage or before legal majority, said bequest to Frances Platt Dickinson shall become operative.
“11. All the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath to my executors and trustees, with power to sell the same or any portion thereof as they may deem for the best interests of my estate, in trust, for the following purposes: I desire them to take possession of the same, to manage and' invest the interest derived therefrom, and accumulate a fund. I include herein the property inherited from my uncle Robert P. Sinclair, so far as may be consistent with and subject to the provisions of my said uncle’s will. I desire my executors and trustees to accumulate such portion of the income derived from said estate as may be agreed upon with the executrix named in my said uncle’s will, after the payment of all taxes, charges, and such: sums as may. be needful for. repairs and the preservation of the property, and after conforming to the provisions of said will with reference to annuities, and the allowance to my said aunt, Julia H. Sinclair, of such further sums as to my executors and trustees shall seem needful for her comfort and welfare, and add to such fund so provided. After the death of my said aunt, I desire my executors and trustees to take absolute possession of said estate, and manage the same; to add the net income derived from said estate to said fund, until said fund shall be sufficient to pay all the legacies provided to be paid in my uncle’s will, when I direct the same paid. I hereby empower my executors and trustees to sell such portion of the real and personal estate as to them shall seem best, and add the proceeds thereof to said fund, or to invest the proceeds, and add the income derived therefrom to said fund. When said legacies shall have been paid from said fund, I direct my executors and trustees to sell all the real and such portions of the personal property as to them shall seem best, and to pay from the proceeds thereof the following sums: To my cousin Walter Scott Sinclair the sum of $10,000; to my cousin Mrs. George F. Johnson, $2,500; to Mrs. Kate Chauncey, of Brooklyn, N. Y., $2,500; to Mrs. Charles E. Hill, formerly of Chicago, $2,500. Having, in clause 7th of my will, bequeathed the sum of $6,000 to my uncle David A. Sinclair, I now direct that $5,000 of said sum be paid him when the above bequests are paid, subject, however, to the conditions in said clause mentioned. All the rest,, residue, and remainder of my property I direct turned over to my sister Margrette Sinclair Battey, and her heirs, forever.”
“The cardinal principle of interpretation of wills is to carry out the intention of the testator, if it is lawful, and if it can be discovered.” Eyer v. Beck, 70 Mich. 179; Hone v. Van Schaick, 3 Barb. Ch. 488; Hibler v. Hibler, 104 Mich. 274.
“No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole.” Colton v. Colton, 127 U. S. 309.

This rule is universal, and cases are of little value to the courts unless they substantially agree in their facts with the case under consideration, — a circumstance of rare occurrence. Extraneous circumstances are sometimes proper for consideration.

The contention of the appellant is that clause 101 of the will is a specific bequest to her of all the property therein mentioned, and that the bequests in clauses 3, 4, 5, 6, and 7 must abate either wholly or until the amounts therefor can be realized from the property which was devised to the testator by the will of his uncle Robert P. Sinclair. The testator was very ill at the time of the execution of the will, and we think it a fair inference that he executed it in contemplation of death. He was possessed of no other property aside from his household goods and personal effects, which were specifically bequeathed, except that mentioned in clause 10 and that devised, to him by his uncle. Under the will of Robert P. Sinclair, his widow had a life estate in all the property, both real and personal. She was 50 years old, in good health, and, accord" ing to the life tables, had an expectancy of 20 years of life. The children of Charles M. Sinclair were, at the date' of the testator's death, 3 and 4 years old, respectively; Jennie Olmstead, 13; and the two children of Don M. Dickinson, 3 and 8 years, respectively. The testator was the sole support of his brother Charles and his family. Did the testator intend the legacies to his brother's children, as well as the other bequests, should be postponed until the death of the widow of Robert P. Sinclair, and at her death be paid out of that fund? Such.is the appellant’s contention. It is not possible to read this will and come to that conclusion. These children, for whose education he provided, would, before they could receive any benefit of these bequests, have passed the age during which children are usually educated. The two children of Mr. Dickinson would have passed the age of 21, when they were to come into the possession of the fund and it accumulations, while the intent is clear that the' fund is to take effect at his death, and be placed in' the hands of trustees to accumulate. Under appellant’s construction, there could be no fund to accumulate until the death of Mrs. Robert P. Sinclair. The statement of the facts is the strongest argument that the testator intended that the beneficiaries named should commence to receive the benefit of these legacies immediately upon his death. The property mentioned in clause 10 was of the value of about $47,500. After paying these legacies and the expenses of administration, there would still be left -from $20,000 to $25,000 to invest for the benefit of Mrs. Battey, — nearly or quite half of the Detroit property. As already stated, the testator’s interest in the Grand Rapids property devised to him was not available, and he clearly understood and intended, as appears from his own will, that that property would not and could not be used until the death of his aunt. If, therefore, it be held that he intended that these legacies should eventually be realized from that property, the beneficiaries for whose support and education he provided would be deprived of that which the terms of the will expressly gave them.

The appellant introduced a portion of a letter written to her by the testator shortly beforé his death, which shows his intention that these bequests should be paid out Of the property mentioned in clause 10. It reads as follows:

- “My own will I made since my sickness, and you are amply provided for at once in case of my death, and a liberal share of G. R. [Grand Rapids] property in case of two deaths, Julia and myself.”

The Grand Rapids property was valued at about $55,000. The legacies to be eventually paid according to the will of his uncle were $6,100. Add to this the bequests from this fund under clause 11 of Samuel B. Sinclair’s will and the bequests now in dispute, and they would consume nearly all of the Grand Rapids property. If, therefore, the contention of the appellant be sustained, *the statement in this letter that he had provided her with a liberal share of that property would be meaningless. The payment of these legacies in controversy out of the Detroit property gives meaning to the letter, and leaves from $22,000 to $25,000 of the Grand Rapids property for her.

We think that the intention of the testator clearly appears within the four comers of the instrument, and that no reasonable person can read it without concluding that the testator intended that these objects of his love and affection should at once receive the benefit of his bequests, and that they were to be provided for out of the only fund which was available for that purpose. The following cases are somewhat analogous to the present one: Thayer v. Finnegan, 134 Mass. 62; McCorn v. McCorn, 100 N. Y. 511; Bevan v. Cooper, 72 N. Y. 323.

Decree affirmed.

The other Justices concurred.


text:
    CONKEY v. CARPENTER.
    1. Credibility op Witness — Instructions to Jury.
    Where a witness is shown to have been convicted of crime, it is proper for the court to instruct the jury that they may take that fact into consideration in determining his credibility.
    2. Same.
    An instruction that the jury may consider, as bearing upon the credibility of a witness, the fact that “something has been said about his having been interfered with in some manner by the police for alleged ill treatment of his wife,” is reversible error where there is no evidence upon which to base the remark.
    3. Same — Proof of Reputation.
    The presumption is that men are truthful, and the fact that one’s character in that regard has never been discussed is cogent evidence of good reputation. It is error, 'therefore, to instruct the jury, hi a case where a witness is sought to be impeached, that a person who testifies that he has never heard the witness’ reputation for truth and veracity questioned at all is not entitled to the same consideration as one who testifies that he has heard it questioned and discussed among the neighbors of the witness.
    4. Veterinary Surgeon — Qualification—Action for Services— Burden of Proof.
    One holding himself out as a veterinary surgeon undertakes that he possesses ordinary professional skill, and therefore, in an action for services rendered in such capacity, it devolves upon > him to prove his qualification, at least so long as his right to practice is not regulated by statute.
    5. Suit for Professional Services — Proof of Competency-Admission to Practice.
    In an action for professional services, where there are no statutory regulations, the burden resting upon the plaintiff of establishing his qualification to practice may be discharged by showing his graduation from some reputable college or school, whereby a presumption of competency is created, or by proving his study and experience. There is a like presumption of qualification where one has been admitted to practice under the laws of the State; but whether, such a statute existing, plaintiff will be presumed to have been authorized to practice thereunder or must prove the fact, — quaere.
    6. Costs in Supreme Court — Printing Record.
    Costs for printing record are denied because of its undue prolixity.
    Error to Kent; Adsit, J.
    Submitted May 2, 1895.
    Decided July 2, 1895.

      Assumpsit by Leonard L. Conkey against Frank L. Carpenter for sendees as a veterinary surgeon. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Hatch & Wilson, for appellant.

      Frank L. Carpenter, in pro. per.

   Grant, J.

Plaintiff brought suit in justice’s court to recover $3.50 “for services as a veterinary surgeon, in treating a horse for the defendant.” Upon the second trial in the justice’s court plaintiff recovered a verdict. Defendant appealed to the circuit court. The case was tried twice in that court, and, upon the second trial, verdict and judgment were for the defendant; and plaintiff has now brought the case to this court by writ of error. So long as the law permits these petty oases to be appealed to this court, we have no alternative but to dispose of them upon legal principles, and reverse them for prejudicial error. The only errors assigned are upon the charge of the court. Two of the instructions were so clearly wrong that we feel compelled to reverse the judgment.

1. The court instructed the jury as follows:

“In this case the plaintiff has admitted, on his cross-examination, that he was at one time tried and convicted, in Cass county, in this State, of the crime of larceny of nine head of cattle, for which he was sentenced to imprisonment for the term of six months in the state house of correction and reformatory at Ionia, one of the penal institutions of this State; and something has been said about his haying been interfered with in some manner by the police for alleged ill treatment of 'his wife. You have a right, and it is your duty, to take all these matters into consideration in arriving at the credibility of the plaintiff in this case in Ms own behalf; and it is for you to say, under all the circumstances, whether or not you will give Ms testimony such credibility as you will the testimony of those whose lives have not been shown to have been tainted with crime.”

The comment upon the conviction and sentence was correct. The remark about his having been interfered with by the police for ill-treating his wife was error, because there was no evidence whatever upon which to base it. Yet the jury were told that this was a circumstance for them to consider in arriving at the credibility of the plaintiff.

2. Testimony was introduced to prove that the plaintiff’s reputation for truth and veracity was bad, and on his part to prove that it was good. After properly commenting upon this testimony, and saying to the jury that cross-examination usually revealed the real knowledge the witnesses possessed on the subject, the judge said:

“Of course, a witness who testifies he has never heard the reputation of a person for truth and veracity questioned at all is not entitled to that consideration in that respect that a witness is who testifies that he has heard it questioned and discussed among neighbors of such a person.”

The instruction was clearly erroneous. The presumption is 'that men are truthful. The fact that a man or a woman daily walks among his or her neighbors without an attack from even the tongue of slander, touching his or her character for honesty, truthfulness, and virtue, is evidence of good reputation in these respects. The man or . woman of unsullied character needs not to have that character discussed, questioned, or talked about in order to establish that reputation to which the neighbors may testify To discuss and talk about it may imply doubt. Absolute silence usually means confidence in one’s integrity and truthfulness, and is the sound basis of .a good reputation. The supreme court of Alabama has said:

“To acquire a knowledge of a person’s general character, it is not necessary to know all his neighbors, or to hear any one speak of his disposition to tell the truth, or his integrity drawn in question. His virtues may be universally acknowledged, and the bright spots so prominent that his reputation exhibits no dark traits. The veracity of such a man would rarely be spoken of, and, if at all, in no other than terms of commendation.” Hadjo v. Gooden, 13 Ala. 718.

See, also, Dave v. State, 22 Ala. 37; Ward v. State, 28 Ala. 53; Childs v. State, 55 Ala. 28.

The supreme court of Missouri has said:

“That reputation may with justice well be called good which no slanderer has ever ventured to even so much as question. * * * When it can be said of a man by those well acquainted with 'him that they never heard his reputation as to truth and morals discussed, denied, or doubted, it is equivalent to passing upon him the highest encomium.” State v. Grate, 68 Mo. 27.

3. The circuit judge, after stating the claims of the parties, said to the jury that the plaintiff, by holding himself out to the defendant as a veterinary surgeon, contracted to be possessed of the necessary skill and learning, and that it devolved' upon him to show by a preponderance of the evidence that he had acquired and possessed the necessary learning and skill to practice intelligently and usefully this profession to which he claimed to belong. The plaintiff, in his declaration, alleged that he was a veterinary surgeon. He held himself out to the defendant as such. Bishop, in his work on Contracts (section 1416), says:

“A physician, surgeon, or dentist undertakes in law to supplement Ms reasonable care and bonest endeavors with ordinary professional skill.”

This applies to a veterinary surgeon. It requires education to be able to treat diseases of dumb animals as well as diseases of men. There is no presumption of qualification. Plaintiff deemed it essential to allege it in Ms declaration. If it was an essential allegation, it was equally essential that he should establish it by proof. If he was simply a “quack,” without education or experience, and was employed by the defendant upon the representation that he was a qualified veterinary surgeon, he could not recover. Professional employment stands upon a different basis from other businesses. Pennock v. Fuller, 41 Mich. 153, and authorities there cited. Plaintiff admitted that he had never studied veterinary surgery except during the six months that he was confined in prison at Ionia. We are not aware that it is a part of the punishment inflicted upon convicts in that institution to study veterinary surgery, nor that they furnish a library to them for that purpose. His education and experience were peculiarly within his own knowledge. It was incumbent upon him to prove them, and not upon the defendant to disprove them. Physicians who are graduates of medical colleges, or are admitted to practice under the laws of the State, will be presumed competent, and malpractice will then be the only question to determine in the individual case.

My attention has been called to the following statement in 18 Am. & Eng. Enc. Law, p. 432:

“Where the question of license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employs him, then the license or due qualification under a statute to practice will be presumed, and the burden of proof thrown upon him who denies such qualification or license. But in case of a prosecution on behalf of the public the rule is otherwise, and in such oases license or due qualification under the statute is not presumed, and it rests with the defendant to prove it.”

The principal cases cited in support of this rule are City of Chicago v. Wood, 24 Ill. App. 40, from which the language is taken, and Williams v. People, 20 Ill. App. 92. Whatever soundness there may he in holding a presumption to exist in a civil case, but not i.n a criminal one, it is sufficient to say of these authorities that they are based entirely upon the statute. It is there said that—

“The reason why the license will be presumed where there is no evidence to the contrary rests upon the principle that, when an act is required by positive law to be done, the omission of which would be a misdemeanor, the law presumes that it has been done, and therefore the party relying on the omission must make some proof of it, though it be a negative.”

The contrary doctrine was formerly held by the same court, — City of Chicago v. Honey, 10 Ill. App. 535; but that case is overruled expressly by City of Chicago v. Wood.

In Pearce v. Whale, 5 Barn. & C. 38, also cited to sustain the above, plaintiff was an attorney, and brought suit for services as such in conducting a suit for defendant. The defense was that he haid not been readmitted an attorney of the court of king’s bench, and bad not taken out a certificate from 1814 to 1820, inclusive, as required by the statute. He was admitted an attorney of thai court in 1792. It was held that he had made a prima facie case that he was an attorney of the court of common pleas by having acted in that character, and it was therefore incumbent on the defendant to show that he haid never been readmitted as an attorney of that court.

These authorities do not bear upon the present case,, where no qualifications are prescribed by statute.

In Sutton v. Facey, 1 Mich. 243, the question arose upon the exemption of a horse claimed to have been used by Facey in his business as a physician. It was there held to be the general rule that, where the plaintiff alleged generally that he was a physician, parol proof of his having practiced as such was prima facie sufficient evidence of professional character; citing 2 Starkie, Ev. 218, and note 10. The court, after laying down this rule, say:

“But this rule assumes that practicing as such, does not constitute the person a physician, but only creates a presumption of fact that he is so, until such presumption is rebutted, and indicates the same distinction between those who are physicians and those who profess and ‘hold themselves out’ to be such without possessing the requisite qualifications.”

Speaking of another portion of the charge of the court to the jury, it is further said:

“The language used by the court below implies that, if Facey was occupied in the business of practicing physic, he was therefore a physician, within the meaning of the exemption law, whether he had any knowledge of diseases and remedies or not. In this portion of the charge, I think, the court below erred.”

In 3 Wait, Act. & Def., at page 595, it is said:

“One who offers himself for employment in a professional capacity undertakes that he possesses that reasonable degree of learning and skill which is ordinarily possessed by professors of the same art or science, and which is ordinarily regarded by the community, and by those conversant with the employment, as necessary to qualify him to engage in the business.”

If this be the rule, it follows that the onus prodandi is on him.

Practically, the burden of proof upon this point was assumed by the plaintiff upon the trial, for his attorney, at the beginning, asked him about Ms experience in the business of a veterinary surgeon, and he testified that he had been engaged in it for 16 years. I think it is the common practice, when a professional man sues for services as such, to prove his qualification. This is done by showing his admission to practice under the statute, his graduation from some reputable college or school, or hi® study and experience, if his right to practice is not regulated by statute. I think the instruction was correct.

The record in this case contains 72 pages. This was wholly unnecessary. A brief statement of 5 or 6 pages, showing what the evidence tended to prove, would have been sufficient to raise all the questions. For this reason, no costs will be allowed the appellant for printing the record.

Judgment reversed, and new trial ordered.

McGrath, C. J., and Long, J., concurred with Grant, J. Hooker and Montgomery, JJ., concurred in the result.


author: Long, J.

text:
    MORAN v. MORAN.
    Deed — Mental Incompetenoy of Grantor — Ejectment.
    The deed of a mentally incompetent person, executed before he has been adjudicated to be such, is not void, but voidable only, and therefore cannot be assailed in an action of ejectment. The remedy of the grantor in such case is in equity, where the interests of all parties may be protected.
    Error to Wayne; Donovan, J.
    Submitted May 3, 1895.
    Decided July 2, 1895.
    Ejectment by William G. Moran, by John H. Thomas, his general guardian, against William B. Moran and another. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      Edwin F. Conely and Orla B. Taylor, for appellees.
   Long, J.

This is an action of ejectment commenced for the purpose of recovering possession of certain lands, and of setting aside a deed given by plaintiff to defendant William B. Moran’s grantor, on the ground that plaintiff was incompetent to execute the deed at the time it was given. On the trial in the court below, counsel for plaintiff offered to show that, — >

“From 1874 up to the year 1886, the plaintiff was a totally incompetent person mentally on the subject of property and property dealings; that in 1874 he was possessed in fee simple of the land described in the declaration, and that he never in any lucid interval executed any conveyance or divested himself of that title; that he was adjudged formally an incompetent person in the year 1887, and subsequent to the making of the deeds from plaintiff to George Hendrie, and from Hendrie to defendant, said Hendrie acting for defendant; that plaintiff intends to offer evidence tending to- sho-w to this jury that, at the time of the making of this deed to George Hendrie (April 5, 1882), he was such an incompetent person, and that the present defendant was well aware of these facts; that we are unable to tell what money plaintiff received, if any, with the exception of what has been already testified to by plaintiff’s daughter; and that the defendant William Chauvin was simply the tenant in possession of Mr. Moran, defendant, and is made a defendant because the statute requires it; that, so far as the facts and merits on which plaintiff’s case is based, we rest upon the fact that plaintiff, Moran, was incompetent to convey property at the time it is claimed that the deed was made by him to George Hendrie, through whom the defendant William B. Moran claims title; that the deed so given was and is an absolute nullity.”

After this offer of evidence was made, the court directed a verdict in favor of defendants, on the ground that the proceedings to set aside this deed should be in equity, and not in an action at law.

The facts, so far as developed on the trial, are that on December 13, 1872, the plaintiff and defendant Moran purchased private claim 696 for $6,000; that title was taken in the name of defendant. A division was thereafter made of the tract, plaintiff taking the east half. He at once went into possession with his family, and remained there until about April 5, 1882, when he sold to George Hendrie, and three days later Hendrie sold to defendant Moran. The consideration named in the deed from plaintiff to Hendrie was $7,500. Upon the trial, plaintiff’s counsel stated that he had no evidence upon the question as to whether this consideration was paid, except the cross-examination of defendant. The place was mortgaged for about $4,500. The testimony of plaintiff’s daughter shows that plaintiff’s wife applied for a divorce from him in the latter part of the year 1881. The sale of the farm was made about the time the divorce proceedings were concluded, and Mrs. Moran got about $900; and it is claimed that plaintiff must have realized something from the sale, as he traveled most of the time after that for the next two or three years. The plaintiff returned to G-rosse Pointe, and remained until November 29, 1887, when a guardian was appointed over him as an incompetent, and he was sent to the Retreat at Dearborn.

The only question raised is whether the remedy of plaintiff is in equity. It is not disputed but that the deed was given as claimed, and imports the consideration named; and it also appears that the $4,500 mortgage was paid off, and Mrs. Moran had $900 of the purchase money; and counsel insist that it is apparent that the plaintiff had quite a considerable sum of money from the sale. The sole reason for- avoiding the deed is that, at the time it was given, the plaintiff was incompetent to make it. No guardian had been appointed over him at that time, and none was appointed until 1887. As a record title the deed of defendant is perfect; but plaintiff’s counsel insists that, while a court of equity might set aside the deed, yet the question is one which is triable in a court of law, before a jury, as well.

We cannot agree with this contention. The record shows conclusively that no adjudication was had upon the incompetency of the plaintiff until after the deed had been executed. The deed was not therefore absolutely void, but voidable. Wait v. Maxwell, 5 Pick. 217; Ingraham v. Baldwin, 9 N. Y. 45; Carrier v. Sears, 4 Allen, 336; Hallett v. Oakes, 1 Cush. 296; Chew v. Bank, 14 Md. 299; Hovey v. Hobson, 53 Me. 453; Breckenridge v. Ormsby, 1 J. J. Marsh. 236; Nickol v. Thomas, 53 Ind. 42; Eaton v. Eaton, 37 N. J. Law, 108. There is not an unanimity of opinion when the deed is merely voidable on the question of the necessity of restoring the purchase money, and placing the grantee in the same position that he occupied before the execution of the deed, in cases where the grantee acted without notice of the grantor’s insanity and in good faith. In this State, however, the question is settled that an incompetent person, under such circumstances, is bound to do equity. Gates v. Cornett, 72 Mich-420.

It is not insisted in the present case that the defendant should be placed in statu quo, as a condition precedent to the commencement of suit; but it is insisted that plaintiff should place himself in that tribunal which, if it finds the deed voidable, and avoids it, can still make the amount paid a lien upon the land. In Gates v. Cornett, supra, this court set aside the contract, but made* the amount of benefit received by the incompetent a charge upon the land. It is true, as contended, that the uniform practice in this State has been to test the validity of deeds, given under the circumstances claimed in this case, by a bill to set them aside. No case is found where, under like circumstances, this court has permitted a deed for which a consideration had been paid, and which appeared to be executed with due formality, to beset aside in an action of ejectment. It has always been done in equity, where the interests of all parties could be protected. The eases of Winter v. Truax, 87 Mich, 330, and McKay v. Williams, 67 Mich. 547, relate to deeds, which were prima facie fraudulent, being in direct violation of the statute. As stated by this court in McKay v. Williams: “The transaction bears upon its face its. own condemnation; it is prima facie void.” In the present case the deed is prima facie valid. It conveys a perfect legal title, and its effect can be avoided, if at ally-only upon equitable grounds.

Counsel for plaintiff cites a large number of cases from other States in which deeds of incompetents have been set aside in actions of ejectment.. But as said by this court in Harrett v. Kinney, 44 Mich. 457: “The common-law rule, which excludes all defenses in ejectment which are not legal, has been abrogated in many parts of the Union. The courts of the United States, however, still adhere to it. Fenn v. Holme, 21 How. 481; Hooper v. Scheimer, 23 How. 235; Smith v. McCann, 24 How. 398; Johnston v. Jones, 1 Black, 209; Foster v. Mora, 98 U. S. 425.” It was further'.said in that case: “And it also remains in force in this State;” and that “a defendant in ejectment cannot interpose to the action at law the merely equitable defense that the plaintiff’s title was fraudulently obtained.” It appeared that the deed was eollusively given in execution of a land con tract, possession of which was surreptitiously obtained in the absence of the party holding it. It was held that this deed “is not absolutely void in law as for fraud, as it passes the legal title to the grantee named; and the contract purchaser cannot cause it to inure to himself, except by showing his equitable right and title as .against the grantee, and this showing cannot be made in an action of ejectment.”

In Michigan Land & Iron Co. v. Thoney, 89 Mich. 231, it was said that—

“Nothing is better settled in this State than that in an action of ejectment an equitable title cannot be set up as a defense against a legal title.”

In Paldi v. Paldi, 95 Mich. 410, it was said:

“It is claimed that Justin L. Paldi obtained the deed from the mother of defendant by fraudulent representations. This defense could not be made in an action of ejectment. Upon the execution and delivery of the deed from Angelo Paldi and his wife to Justin L. Paldi, the legal title passed to Justin L. Paldi, and the plaintiff claims under a deed from Justin L. This traces the legal title to the plaintiff.”

In th.e present case the deed passed the legal title to Hendrie. It cannot therefore be attacked in ejectment. If the plaintiff has the right to set the deed aside by reason of his incompetency at the time of its execution, he must proceed in a court where the rights of the parties can be fully adjudicated. This cannot be done except in equity.

The judgment of the court below must be affirmed.

The other Justices concurred.


author: Grant, J. Hooker, J.

text:
    DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO. v. CITY OF GRAND RAPIDS.
    1. Railroad Companies — Sale of Property for Local Assessment.
    Property of a railroad company which is necessary to the enjoyment of its franchise, such as a portion of the roadbed, cannot be sold under proceedings to collect an assessment levied thereon for a municipal improvement. Lake Shore & M. S. R. Co. v. City of Grand Rapids; 102 Mich. 374, followed.
    2. Railroad Companies — Public Improvements — Assessment as-for Benefits.
    A section of the right of way of a railroad company, occupied by its tracks and used for no other purpose, cannot be assessed for the expense of improving a street which crosses it, under a city charter requiring such assessments to be made according to benefits received. McGrath, C. J., and Hooker, J., dissenting, on the ground that the determination by the local authorities upon the question of benefits should be final.
    Appeal from.superior court of Grand Rapids; Burlingame, J.
    Submitted May 7, 1895.
    Decided July 2, 1895.

      Bill to restrain the collection of a local assessment. Complainant appeals from a decree dismissing the bill.
    Reversed.

      L. C. Stanley, for complainant.

      William Wisner Taylor, for defendant.
   Grant, J.

The defendant city opened North, Lafayette street across the complainant’s right of way. The railroad bed, which is 100 feet wide, crosses the street at an angle of less than 45 degrees. An assessment district was established by the common council, on which was assessed the cost of the improvement, under a charter requiring assessments according to benefits received. The defendant included in this district the complainant’s right of way to the distance of 100 feet on each side of the street. It divided this into three parcels, fixing the values at $1,000, $480, and $600, respectively. More than one-twentieth of the entire cost was assessed to complainant. The assessment on the $1,000 piece was $569; on the $480 piece, $373; and on the $600 piece, $68. It thus appears that on one piece nearly SO per cent, of its entire value was assessed as benefits, and on another piece more than 50 per cent.

The first question is settled by the case of Lake Shore & M. S. R. Co. v. City of Grand Rapids, 102 Mich. 374, which holds that railroad property cannot be sold for these assessments.

The right of way so assessed contains the main track and one side track. It has nothing else upon it, and is used for no other purpose. It has already been dedicated to a public use, and the question is presented whether a railroad right of way can be assessed by municipal corporations for public improvements. So far from being any benefit, it is established by the evidence that the opening and paving of the street were a damage to the complainant. A right of way cannot be benefited >by the opening and paving of a street across it. None of the buildings of the complainant are within two blocks of this crossing. We can see no benefits, immediate or prospective, to the complainant. The division of the right of way into three parcels was arbitrary, as were also the valuations and supposed benefits. The point is so clearly and concisely stated by the supreme court of Pennsylvania that we quote the opinion in City of Philadelphia v. Railroad Co., 33 Pa. St. 43:

“The municipal authorities paved the Gray’s Ferry road for a considerable distance, at a place where it lies side by side with the defendant’s railroad, and now seek to charge them with half of the cost of it; but they cannot do it. Their claim has .no foundation either in the letter of the law or in its spirit, nor in the form of the remedy. Not in the letter, because the defendants do not own the land sought to be charged, and have only . their right of way over it. Not in the spirit, because the . paving laws are means of compulsory contribution among the common sharers in a common benefit, and as a railroad cannot, from its very nature, derive any benefit from the paving, while all the rest of the neighborhood may, we cannot presume that the compulsion was intended to foe applied to them. Not in the form of the remedy, because the execution for this sort of claim is levari facias, a writ not commonly allowed against corporations, and which would hardly produce much when directed against a public right of way. It would foe strange legislation that would authorize the soil of one public road to be taxed, in order to raise funds to make or improve a neighboring one.”

The same doctrine is held in Junction R. Co. v. City of Philadelphia, 88 Pa. St. 424; State v. City of Elizabeth, 37 N. J. Law, 331; New York & H. R. Co. v. Town of Morrisania, 7 Hun, 652; City of Bloomington v. Railroad Co., 134 Ill. 451; City of Bridgeport v. Railroad Co., 36 Conn. 255; South Park Com’rs v. Railroad Co., 107 Ill. 105; New York & N. H. R. Co. v. City of New Haven, 42 Conn. 279.

Decree is reversed, and decree entered in this court for complainant in accordance with the prayer, with the costs of both courts.

Long and Montgomery, JJ., concurred with Grant, J.

Hooker, J.

(dissenting). The city of Grand Rapids caused an assessment for grading a street to be made upon two pieces of land forming a portion of the complainant’s roadbed, and the bill in this cause was filed to restrain a sale of the parcels for such assessment. The complainant’s right of way crosses the street, and 100 feet in length of said right of way on each side of the street was included in the assessment district. The bill was dismissed, and the complainant has appealed.

The decision in the recent case of Lake Shore & M. S. R. Co. v. City of Grand Rapids, 102 Mich. 374, is conclusive of this case to the extent that the premises assessed cannot be sold upon proceedings to collect the amount of said assessment.

It is insisted that the complainant’s land is not subject to assessment for the improvement, and that for that reason also the complainant is entitled to the relief asked. The case of Lake Shore & M. S. R. Co. v. City of Grand Rapids holds that the premises involved in that case were subject to assessment for a street improvement. The difference between that case and this is that in that the lands adjoining the street improved were used for depot purposes, while in this they were used for no purpose but the roadbed, consisting of the main track and one siding, and, while the * benefits to the former are apparent, it is said to be equally apparent that there are none in the latter.

The charter of the city of Grand Rapids provides for local assessment of the cost of street improvements. The council determines the amount to be assessed and the assessment district, and the board of review act as commissioners to make the assessment. Charter 1891, tit. 6, §§ 4-6. Notice of the assessment by publication is provided for, and the council hears appeals. Id. §§ 8-10. (Local Acts 1877, pp. 158-160; Local Acts 1891, pp. 526, 527.) Apparently all proceedings in this case were regular, and complainant’s right to relief depends upon the jurisdiction of the board of review and council to act in the premises upon its land. It is said that there is no jurisdiction in cases where the land is occupied for railway purposes and is used only for tracks. In other words, where the premises will not be benefited, the proceedings are said to be void for Avant of jurisdiction. If we could say, as a legal proposition, that all railroad lands are exempt from assessments, or that all such lands except depot grounds are exempt, then we might say that this land should have been excluded from the assessment district by the council as not subject to assess^ ment. But we have held that railroad lands are subject to local burdens where benefited, and whether benefited or not, and hoAV much, are questions of fact. The owner has the right to a hearing upon appeal when he feels aggrieved at the assessment, but, unless we are to say that all persons who think that their property is not benefited may ask the court of chancery to review the decision of the commissioners and council upon the facts, the determination of the council must be considered final upon the subject. To hold that there is no jurisdiction where there are no benefits would make the jurisdiction of the board depend upon whether a court of chancery could be induced, under different proofs, to differ from the board in its opinion as to benefits. This land was determined to be a part of the assessment district by the council. It was their province to determine that question. The board determined that it would be benefited. This was within their prescribed duties, and was subject to an appeal, which complainant did not avail itself of. If it was a fact that the premises were benefited, complainant’s land should be assessed; if not, it should not have been. The decision of this question by the tribunal to which it was confided should be final. South Park Com’rs v. Railroad Co., 107 Ill. 105; Brown v. City of Grand Rapids, 83 Mich. 107.

The decree of the superior court should be reversed, and a decree entered here perpetually restraining the sale of the premises named in the bill of complaint.

McGrath, C. J., concurred with Hooker, J,


text:
    GARDNER v. GARDNER.
    1. Deed — Consideration—Suit for Purchase Price.
    The consideration recited in a deed is not conclusive in an action by the vendor for the purchase price.

      2. Vendor and Vendee — Public Sale — Prior Agreement as to Purchase Price — Statute of Frauds — Interest of Infant.
    Plaintiff and her minor daughter owned certain land. Proceedings having been taken in chancery to sell the minor’s interest, plaintiff agreed with defendant that, if he should purchase at the sale, at which a. complete title was to be offered, he could have the land for a specified sum, regardless of the amount of his bid, plaintiff’s share to be computed accordingly. Held:

    (1) That plaintiff, having conveyed to defendant, who bid in the premises at a price in excess of that agreed upon, could not, in an action for the purchase price, recover upon the basis of the sum bid, on the ground that the agreement, being verbal, was void under the statute of frauds.
    (2) That, as the minor’s share was to be computed upon the amount bid, the agreement tended to defraud no one, and was binding upon the plaintiff.
    Error to St. Clair; Eldredge, J., presiding.
    Submitted May 8, 1895.
    Decided July 2, 1895.

      Assumpsit by Jennie Gardner against John W. Gardner for the purchase price of land sold -and conveyed. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Atkinson & Wolcott, for appellant.

      Avery Bros, & Walsh, for appellee.
   Long, J.

Plaintiff and her daughter, a minor, were the owners in fee of 80 acres of land. "Proceedings were taken in the circuit court in chancery of St. Clair county to sell the minor’s interest. The lands were offered for sale, and sold, and bid in by William Gardner at either $2,900 or $3,000. Some dissatisfaction seems to have arisen over the amount of the bid. John W. Gardner was desirous of purchasing the land. He and William Gardner, the first purchaser, were brothers; and Jennie Gardner, the plaintiff here, is the widow of their deceased brother, James. Plaintiff claims that John W. Gardner came to her, and wanted the first sale set aside, as he wanted to purchase the land,-and that am agreement vvas then entered into between them that he was to have the place at $3,200, on condition that he would let his brother William have the old place, which he had bought of William, at $3,200. The defendant claimed that the price agreed upon was $3,100, and that he was to have it for that price, whatever he might bid it in for at the public sale. There seems to have been ill-feeling between the two brothers, and at the sale they each bid until it was struck off to the defendant at the sum of $3,000. Defendant contends that under the agreement the minor’s interest was to be paid in full in accordance with the bid, but the amount going to the plaintiff was to be computed upon the sum of $3,100. There was a mortgage on the farm of $1,706.96. After this was deducted, it appears that there was paid to the guardian of the minor her full share, computed upon the bid of $3,600. The amount which defendant claimed was going to the widow' w'as computed upon the basis of $3,100, and paid.

The court charged the jury that there was an agreement made by which the defendant was to have the land at either $3,100 or $3,200, and that such agreement was binding upon the plaintiff, and that—

“You should first determine whether the price to be paid w'as $3,100 or $3,200, and you will deduct from the price agreed upon, as you shall find it, the sum required to pay the mortgage, which is practically conceded to be $1,706.96. From the sum left after such deduction you will deduct the sum fixed as the share in the sum bid belonging to the minor, to wdt, $941.24. From the sum-still remaining you will further deduct such sums as the evidence satisfies you have been paid by the defendant to Mr. Jehks for the plaintiff, or to plaintiff herself, as payments on the land. And if you find, after these deductions, that the defendant has paid the full sum agreed upon as the sum to be paid in gross for the land, your verdict should be for the defendant. If he ha.s not paid the full sum, then your verdict should be for the balance found due, with interest.”

The jury returned a verdict in favor of defendant.

1. Counsel for plaintiff contend that there was no price agreed upon between the parties, and that, therefore, the plaintiff was entitled to recover upon the basis of the hid of $3,600. There was evidence of an agreement, — the defendant contended, at $3,100; the plaintiff, at $3,200. The jury found with the defendant.

2. It is claimed that the plaintiff agreed to the price only upon condition that the defendant should sell his farm to his brother William for $3,200, and that, such condition not being fulfilled, the defendant cannot now-have advantage of the price stipulated. This was not a condition which would inure to the plaintiff’s benefit, and the only evidence offered to show that it was noi fulfilled was in asking the plaintiff if she knew w'hether the defendant had made the deed to William. No further offer was made; and we regard it as wholly immaterial, if there had been, as no such claim is made in the declaration.

3. ' It is contended further that the oral agreement was void, under the statute of frauds, and that, therefore, plaintiff was not estopped from asserting her right to the full consideration recited in her deed. The consideration recited in a deed is not conclusive, but can after-wards be inquired into. Mowrcy v. Vandling, 9 Mich. 39; Shotwell v. Harrison, 22 Mich. 410. The case does not fall within the statute of frauds. The conveyance has been made. It is not a suit upon an oral contract for the sale of land, but an action for the purchase price.

4. It is further contended that the defendant’s position is a fraud upon the guardian, upon the court confirming the sale, and upon William Gardner, who bid $3,550. We can hardly understand how such an 'arrangement tended to defraud any one. - The lands were to be put up at public auction. The highest bidder would take the premises. By the agreement with plaintiff the defendant was at liberty to bid any amount he chose. The more he bid, the more the minor would receive for her share. The agreement related to the plaintiff’s interest only. This she had the right to sell at any amount sh.e might agree upon.

We find no error in the record.

Judgment affirmed.

The other Justices concurred.


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    WALKER v. CADY.
    1. Fraudulent Conveyances — Bill by Administrator op Grantor - Supficienoy.
    Where a bill to set aside a conveyance as in fraud of the creditors of a deceased person sets forth the probate proceedings, the appointment of complainant as administrator, the allowance of claims against the estate, 'and a deficiency of assets, it sufficiently appears that the bill is filed by the complainant in his capacity of administrator, under 2 How. Stat. § 5884, although there is no specific allegation to that effect.
    2. Fraudulent Conveyances — Estates op Decedents — Deficiency op Assets — Evidence.
    In a suit by an administrator to set aside a conveyance alleged to have been made by his decedent in fraud of creditors, testimony of the administrator and a son of the deceased that they know of no property belonging to the estate except the land in controversy, and another parcel claimed to have been conveyed under like circumstances, establishes a prima facie case of deficiency of assets.
    3. Same — Person Dying Outside op State — Presumption as to Assets.
    The fact that a person died in another State, where he had lived for about two years previous to his death, creates no presumption that he left property there, so as to rebut an otherwise sufficient showing of a deficiency of assets in a suit by his administrator to set aside a conveyance by the decedent as in fraud of creditors.
    4. Fraudulent Conveyances — Suit by Administrator — Existence op Adjudicated Claim.
    The granting of an order extending the time within which to move for a new trial in a case wherein judgment has been rendered against the estate of a deceased person does not suspend the right of the administrator to file a bill under 2 How. Stat. § 5884, to set aside a conveyance made by the decedent on the ground that it was void as to the claim of the judgment creditor.
    5. Fraudulent Conveyances — Consideration—Payment of Annuity-Rights op Grantee.
    A conveyance by a debtor upon consideration of an agree ment to pay him an annuity is void as to creditors who are thereby deprived of the means of enforcing their claims, though no actual fraud was intended; but the grantee will be protected to the extent of the payments made in good faith. .
    6. Fraudulent Conveyances — Bona Fide Purchaser — Notice.
    One who buys land after having been notified by an administrator that he claims the right to recover the property on the ground that it was conveyed by his decedent in fraud of creditors is not a "bona fide purchaser.

      Appeal from VanBuren; Buck, J.
    Submitted May 1, 1895.
    Decided July 2, 1895.
    Bill by Oscar Walker, as administrator of the estate of Alvah Cady, deceased, against Francis R. Cady, F. Allen Cady, Thomas W. Brainard, and others, to set aside a conveyance. From a decree for complainant, defendants appeal.
    Decree modified and affirmed.
    The bill in this case was filed under 2 How. Stat. § 5884, to set aside a deed made by Alvah Cady to F. Allen Cady, March 5, 1890. The court below held that the conveyance was voluntary, and was therefore in fraud of creditors. The defenses are:
    (1) That the bill is not filed by complainant as administrator.
    (2) That there is no proof that the claim of Jay Cady, the only one against the estate, existed at the time of the conveyance, and therefore it is not open to attack.
    (3) That there is no proof that Alvah did not retain ample means to 'pay his debts, and therefore the conveyance, though voluntary, was not void as to creditors.
    (4) That the claim was not adjudicated and allowed at the time the bill was filed.
    (5) That there is no proof that there was not other property belonging to the estate.
    (6) That F. Allen Cady was a bona fide purchaser for a valuable consideration.
    (7) That defendant Brainard was a bona fide purchaser for a valuable consideration.
    Alvah was the owner in fee of the land. It was worth $1,000. He died October 23, 1890, in Illinois.. He and his wife parted about two years before, and he then left Michigan. The consideration expressed in the deed was $500. The actual consideration was an agreement, executed by F. Allen Cady and his father, Francis R. Cady, to pay to Alvah Cady $50 annually, payable semiannually, as long as he should live. Upon this contract $50 had been paid. There was some evidence tending to show that the conveyance was in the nature of a gift, made in consequence of the kindness which the grandson, Allen, had shown to his grandmother, Alvah’s first wife.

      Heckert & Chandler, for complainant.

      Osborn, Mills & Master, for defendants.
   Grant, J.

(after stating the facts). 1. The bill of complaint sets forth very fully all the proceedings in the probate court, the appointment of complainant as administrator, the allowance of the claim of Jay Oady, the appeal to the circuit court, the recovery of verdict and judgment there, and the deficiency of assets. While there is no specific allegation that the bill is filed in Ms capacity of administrator, there exists no room for doubt that it is so filed, and that the defendants so understood. The point is too technical to require further comment.

2. There was competent evidence that the claim of Jay Oady existed at the time of the conveyance; that Alvah was not possessed of other property sufficient to pay it; and that the estate was not possessed of other assets. No other conclusion is possible from the record than that the dealings which formed the basis of the claim extended over several years prior to the conveyance. Mr. Walker and Jay Cady, Alvah’s son, testified that they knew of no property belonging to the estate except the land in controversy, and another piece of land, worth about $300, which, it is claimed, had also been conveyed by Alvah in fraud of creditors. This made a prima facie case of deficiency of assets, and there was no evidence to contradict it. The fact that he died in another State, and had lived there a short time previous to his death, creates no presumption that he left property there. This disposes of defenses Nos. 2, 3, and 5.

3. Jay Cady’s claim was allowed by the commissioners. An appeal was taken to the circuit court, wherein a verdict was rendered in his favor for $1,504.18, April 28th. Judgment was rendered upon the verdict May 2d. On the same day, an order was entered granting 10 days in which to move for a new trial. The motion was made within the 10 days, and' subsequently denied. The bill of complaint was filed May 2d. While the extension of time within which to move for a new trial may have operated to stay the issuance of an execution, it did not suspend the right to file this bill. The claim had been adjudicated and allowed, and presumptively the judgment was valid, and would remain in force. A deficiency of assets existed. These two facts are the sole essentials to the institution of a suit by the administrator to set aside conveyances which are void as to creditors.

4. We find nothing in the evidence to show that this conveyance was made with the actual intent on the part of either Alvah or Allen to defraud Jay, or to place the land beyond the reach of creditors. No intent is necessary. The law regards the transaction as a fraud. Fellows v. Smith, 40 Mich. 689; Felker v. Chubb, 90 Mich. 24; Sweet v. Converse, 88 Mich. 8; Cutcheon v. Buchanan, Id. 594. The nature of Jay’s claim is not disclosed by the record, and is immaterial. It has been established by the proper judicial tribunal that Jay was in fact a creditor of Alvah at the time. The effect of the conveyance, if valid as against Jay, was to deprive him of the debt, and to convey to Allen property worth several times the actual consideration paid. The result of such a ruling would be that a debtor may convey all his property to another upon an agreement to support him during his life, or to pay him an annuity, and thus deprive creditors of any means to enforce their claims. May a man having land worth $10,000, possessed of no other property, and owing debts to the amount of $1,000, convey it to his son, to the exclusion of his creditors, upon the agreement that he will take care of him during his life or pay him an annuity for that purpose? I find no authority to support such a proposition, nor do I think there is any reason in it. This point is, in my judgment, ruled by Pursel v. Armstrong, 37 Mich. 326. In that case an old man conveyed a farm of 240 acres to Ms son. The farm was worth $14,000. Five thousand dollars of the consideration was a promise on the part of the son to support his father and mother during their lives. After stating the facts, the court said:

“Whatever gentlemen may suppose ought to he the rule, it is certain the law cannot he reconciled with such dealing. Indeed, nothing can he clearer than complainant’s right to claim an avoidance on account of the withdrawal of the property to make voluntary provision for the debtor and his family. The case is too clear to excuse particular discussion. It is sufficient to refer to a few cases.”

Several authorities are then cited. The farm in that case was subject to a mortgage of $3,000. See, also, Stone v. Welling, 14 Mich. 514; Dixon v. Hill, 5 Mich. 404; Rynearson v. Turner, 52 Mich. 7; Blanchard v. Tyler, 12 Mich. 339; Herschfeldt v. George, 6 Mich. 456; Warner v. Whittaker, Id. 133.

The law does not permit a debtor to put his property beyond the reach of his creditors. It gives him certain exemptions, but, beyond these, requires him to keep his property subject to the claim of existing creditors. Ionia County Savings Bank v. McLean, 84 Mich. 629. The law will protect the purchaser to the extent of the payments made in good faith, but will compel him to give up the remainder to answer the just claims against the vendor. In this way exact justice and equity can be done. Stalker v. McDonald, 6 Hill, 96; Pickett v. Barron, 29 Barb. 508. It is no defense on the part of the vendee to say that he was ignorant that his vendor was in debt, and thus he be permitted to take property worth $1,000 on the actual payment of only $50. Such a result would be a reproach to the law, and serve as a convenient cover for insolvent debtors to convey away their property, and secure for themselves a competency

5. Allen conveyed the land to his father, Francis, and the latter conveyed a portion of the land to defendant Thomas W. Brainard. The deed to Brainard expressed a consideration of $250. The bill alleges and the proofs show that complainant, as administrator, notified Mr. Brainard, before his deed was executed, that he claimed the right to recover the property, explained to him the situation, and forbade his trespassing upon the land. Mr. Brainard then claimed that he had rented it. This notice was sufficient to warn Mr. Brainard, and to protect the rights of creditors." He was not a bona fide purchaser. It is significant that it is not alleged in the answer, which is signed by all the defendants except Rebecca and Jay, that the $250 or any other amount was paid. None of the defendants were sworn, nor was any evidence introduced by them touching the real merits of the controversy.

Except as above modified, the decree will be affirmed, and the case remanded to the court below, with direction to take such further proofs as may be necessary touching payments, taxes, etc. The costs will be paid out of the estate.

McGrath, C. J., and Long, J., concurred with Grant, J. Montgomery, J., concurred in the result. Hooker, J., did not sit.


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    PEOPLE v. BURWELL.
    T. Criminal Law — Continuance.
    The denial of a continuance in a criminal case cannot be said to have been an abuse of discretion on the part of the trial judge, where the application did not state what respondent proposed to prove by the witnesses whose presence he desired, and several of them afterwards testified.

      2. Criminal Law — Indorsing Names of Witnesses Upon Information.
    A respondent is not prejudiced by the action of the prosecuting attorney in indorsing the names of several witnesses upon the information after it had been filed, where the only one of such witnesses sworn on the trial is one because of whose absence respondent moved for a continuance.
    3. Incest — Essentials of Offense.
    To constitute the crime of incest, the assent of both parties is necessary,

      4. Admission to Bail — Authority of Justices of the Peace— Rape.
    Under article 6, § 29, of the Constitution, which provides that “all persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason when the proof is evident or the presumption great,” and 2 How. Stat. § 9479, which authorizes justices of the peace to let to bail in all cases where the punishment for the offense charged shall be less than imprisonment for life in the state prison, a justice may admit to bail a person charged with a crime the punishment for which is imprisonment for life or for any number of years, as in case of rape.
    3. Rape — Sufficiency of Preliminary Examination — Motion to >Quash.
    A complaint and warrant charged both rape and incest, but the evidence adduced upon the preliminary examination tended to establish the former crime only. The magistrate returned that it appeared that “the offense charged” had been committed, and that there was probable cause to believe the respondent guilty thereof. An information was filed which followed the complaint and warrant, but the prosecution elected to proceed to trial upon the count for rape. Held, that a motion to quash the information on the ground that no preliminary examination had been had upon such charge was properly overruled.
    6. Rape — Evidence.
    In a prosecution for rape committed by the respondent upon his 17-year-old daughter, evidence that he had abused and beaten her before, and that he was abusive to his wife and other children, and of the language used on such occasions, is admissible to show that the prosecutrix yielded through fear.

      Error to Sanilac; Beach, J.
    Submitted May 8, 1895.
    Decided July 2, 1895.
    James R. Burwell was convicted of rape, and sentenced to imprisonment in the state prison at Jackson for 15 years.
    Judgment affirmed.

      Phillips & Jenks, for appellant.

      Fred A. Maynard, Attorney General, for the people.
   Grant, J.

The respondent was convicted of the crime-of rape upon his own daughter. The complaint and warrant charged both rape and incest. The evidence upon the examination was sufficient to justify the magistrate in binding him over to the circuit court for trial upon the charge of rape. It would not sustain the crime of incest upon the ground of the mutual consent of both the parties; The respondent introduced no evidence upon the examination. The testimony of the complaining witness, -was the sole evidence upon which the magistrate was justified in holding him to the circuit court for trial. This testimony is found in the record, and is as follows r.

“There was no one present except myself and father, and he proposed what he wished to do, and I refused, and said I was not willing. He said there was no use of me refusing. He said I had to do just as he said. He said he knew better what was good for my health than I did, and that was what was good for my health; and when I cried, and said I did not want to give up, and did not -want to do any such thing, he said there was no use of my acting so or making a fool of myself, that I had to do as -he said; and, when I refused again, he took hold of my arm, and led me part of the way, and then he pushed me the other part of the way, into the bedroom, and ordered me to sit down on the bed, for he wanted to talk with me. He said he wanted to explain -to me, and to stop crying, as there was no use of my crying. Then lie ordered me to lay down on the bed; and, when I refused to, he told me to again, in cross words. I done so, because I was afraid of him, and I did not dare to refuse any further. Well, he done just as he pleased, and I could not help myself.”

This testimony excludes the theory of consent upon her part. The magistrate did not specify in his return for which crime he held him, but stated that it appeared that the offense as charged had been committed, and found probable cause to believe the respondent guilty thereof.

The information contained two counts, — one for rape, and one for incest. Respondent refused to plead, and a plea of not guilty was entered by order of the court. Afterwards he moved to quash the information, for the reason that it contained inconsistent counts. This motion was overruled, but the court required the people to elect upon which count they would proceed to trial. They elected the count for rape. The respondent further objected to proceeding to trial for the reason that he had had no preliminary examination for this charge. This objection was overruled. He then moved for a continuance, which was denied.

1. The application for a continuance was within the discretion of the circuit judge. The application did not state what respondent proposed to prove by the witnesses whose presence he desired. Several of them were produced and testified. People v. Anderson, 53 Mich. 61; People v. Foote, 93 Mich. 40.

2. The respondent was not prejudiced by the action of the prosecuting attorney in failing to indorse upon the information, at the time of filing it, the names of all his witnesses. Only one witness whose name was after-wards indorsed was sworn on behalf of the people, and he was one of those whose presence the respondent desired, according to his affidavit for a continuance.

3. It is settled in this State that the assent of both parties is required to establish the crime of incest. People v. Jenness, 5 Mich. 321; De Groat v. People, 39 Mich. 124. There are many decisions to the contrary. See 10 Am. & Eng. Enc. Law, 339, and note 5, and authorities there cited. The crime is purely statutory, and the statute in this State is found in De Groat v. People, supra. The conflict in the decisions may possibly be accounted for by the difference in the language of the statutes.

Objection is made that the information contained two counts, setting forth two distinct -crimes; that the respondent had no examination upon the charge of which he was convicted. The reason relied upon by counsel for respondent to sustain this claim is that the justice had no jurisdiction to admit the respondent to bail upon the examination for the crime of rape. In this we think the learned counsel are in error. The Constitution (article 6, § 29) provides that “all persons shall,before conviction, be bailable by sufficient sureties, except for murder and treason when the proof is evident or the presumption great.” 2 How. Stat. § 9479, authorizes justices of the peace to let to bail in all cases where the punishment for the offense charged shall be less than imprisonment for life in the state prison. The punishment provided for the crime of rape is imprisonment for life or any number of years. Under these provisions, the justice had authority to fix bail for the respondent when he bound him over for trial. Brownell v. People, 38 Mich. 734.

The transaction for which the respondent was tried is identical with the transaction for which he' was examined. The offense for which he was tried and convicted was set forth in the complaint and warrant. We think the case is ruled by People v. Annis, 13 Mich. 515, and People v. Aikin, 66 Mich. 460, and that no error was committed in refusing to quash the information.

4. No such physical force was used as is ordinarily required to constitute the crime of rape. The claim of the prosecution was that the prosecutrix yielded on account of threats and fear. Evidence tending to show that the respondent had abused and beaten her before, that he was abusive to his wife and other children, and the language used on these occasions, was competent and

important for the jury to consider in determining whether she yielded under those circumstances which under the law are the equivalent of force.

We find no error, and the judgment is affirmed.

The other Justices concurred.