text:
    DETROIT REAL ESTATE INVESTMENT CO. v. WAYNE CIRCUIT JUDGE.
    1. Highways and Streets — Vacation—Jurisdiction—Courts.
    The courts and the common council of Detroit have concurrent jurisdiction in vacating streets.
    2. Same — Vacation oe Streets — Conditions.
    A city council may refuse to vacate a street except upon a specified condition.
    3. Same — Courts—Common Council — Res Adjudicata.
    When a common council has acted upon a petition for the vacation of a street, the parties cannot begin another proceeding for the same purpose in the courts, unless there is some change in the circumstances to justify it.
    Mandamus by the .Detroit Real Estate Investment Company, Limited, and others, to compel Robert E. Erazer, circuit judge of Wayne county, to hear an application for the vacation of a street.
    Submitted April 12, 1904.
    (Calendar No. 20,467.)
    Writ denied July 7, 1904.

      George W. Radford, for relators.

      A. B. Hall, for respondent.
   Hooker, J.

The annexed plat shows the ground affected by the original application, which was a petition addressed to the circuit court for the county of Wayne to vacate Bancroft avenue, in the city of Detroit.

This petition came on to be heard in the circuit court, and the petitioners were in attendance with witnesses, prepared to make proof in support of their petition. Counsel for the city stated orally to the court that the common

council of said city had, some time before the filing of this petition, passed a resolution vacating said Bancroft avenue upon certain conditions, and thereupon the court adjourned the hearing, and at a later date filed- an opinion, of which the following is a copy:

“In the Circuit Court eor the County ok Wayne, in Chancery.
“Petition of the Detroit Beal Estate and Investment Company, Limited, Kate D. Allen, and George W. Bad-ford for Vacating Bancroft Avenue.
“ The claim in this petition is that Bancroft avenue ought to be vacated, for certain reasons. It appears to my satisfaction that this matter has already been presented to the common council, and that they ordered that Bancroft avenue, upon certain conditions, might be vacated. The law, as I understand it, permits a circuit court to interfere with the proceedings, and even set them aside, and act upon its own opinion as to the true merits of the case. I am satisfied that the conditions imposed by the common council are correct, and ought to be complied with, and I decline to interfere with their proceedings. I think that the determination of the common council is correct, and ought to be enforced.
“R. E. Frazer,
“ Circuit Judge.
“Feb. 5, 1904.”

Thereupon the petitioners applied to this court for a mandamus to compel the circuit judge to proceed and hear the application upon the proofs offered by petitioners, and such other proofs as should be offered. The answer of the circuit judge states that—

“ The petition filed herein under section 3376, 1 Comp. Laws, was denied for the reason that the granting or denying of such petition, in my opinion, lies in the discretion of the circuit court, and as the charter of the city of Detroit gives co-ordinate jurisdiction to the common council of the city of Detroit in the matter of vacating streets, and as the said common council had already passed upon this very question, it was not deemed advisable to interfere with the disposition of this case by that body.”

It seems to be conceded that the council and the courts have concurrent jurisdiction in the matter of vacating streets. The council has acted in this case, and made an order, which still stands. Waples’ Proceedings in Rem, § 111. It is said that this order is conditional, and therefore void, but we think otherwise. The city had been to ' expense in connection with this street. It had paved one or more intersections, and, we understand, had caused a sewer to be constructed, which is now a part of its sewer system. How much the general public might be incommoded by the vacation of the street does not appear, but, in a way, the inhabitants generally are affected by changes, as they are in the uniformity and directness of streets. Proceedings to vacate streets are proceedings in rem, and, if the petitioners in this case were not signers of the application to the council, they were doubtless in a situation to be bound by the action of the council. At all events, we have been pointed to nothing which indicates that the proceedings of the council were irregular, except that it imposed a condition upon the granting of the petition. We think it might lawfully do this, and, having acted, dissatisfied parties are not at liberty to begin another proceeding, and enforce repeated consideration of the question, either before the council or in the courts. If action can be again invoked, it must be under a showing of such a change in circumstances as will justify it, for new reasons. It is said that the condition imposed by the council cannot be performed, because the petitioners did not own the land required. The council might, in its discretion, have refused to vacate the street, and, if this action be considered to amount to a denial of the petition, this proceeding should not have been instituted. We think the condition not necessarily beyond its power. It bad a right to look after its sewers and the investment that it had made in street pavements, and perhaps the extension of Third avenue and the alley mentioned. In view of the fact that Bancroft avenue should be replaced by an alley, embracing part of its territory, it was manifestly proper that the council should be asked to take action, regarding which ordinarily a court has no authority, unless it be by way of imposing a condition.

, The statute authorizing the vacation of plats by courts of justice has been construed to confer the power to vacate streets. This is perhaps anomalous, for such power is generally confided to the municipal authorities, whose action in such cases is discretionary. See cases cited in 27 Am. & Eng. Enc. Law (2d Ed.), 114, and note 7. We have indicated in the Case of Albers, 113 Mich. 642 (71 N. W. 1110), that the proceeding is not technically an action or suit, but a statutory one, and its determination must ordinarily, as in the case of action by the council, involve the discretionary consideration of public interests, and can seldom, if ever, rest on a claim of private right, to the exclusion of other considerations.

There was enough before the circuit court to justify his refusal to proceed in this matter.

The writ is denied.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
      McKENZIE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Live Stock — Delay in Transportation.
    A railroad company is not chargeable with the common-law liability of a common carrier in the transportation of live stock, and is bound only to carry the same with reasonable dispatch.
    2. Same — Live Stock — Assumption op Risk.
    Shippers of live stock assume the risk of unavoidable accidents and delays:
    3. Same —Live Stock — Care Taker — Opportunity to Feed — Negligence.
    Where the shipper of live stock sent a care taker with them, and he made no request of the railroad company for an opportunity to water and feed them, in the absence of a special agreement, the company is not liable for neglect to afford such an opportunity.
    Error to Shiawassee; Smith, J.
    Submitted April 12, 1904.
    (Docket No. 44.)
    Decided July 7, 1904.
    Assumpsit by George McKenzie against the Michigan Central Railroad Company for an alleged breach of a contract to transport certain live stock. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      J uly 2,1902, plaintiff shipped a car load of cattle, sheep, calves, and hogs from Chesaning and Owosso. The destination was Detroit. The car left Owosso at 3 p. m., arriving at Jackson at 8:30 p. m., over the Saginaw division of defendant’s road. When the train containing plaintiff’s car reached Jackson, a through freight train from' Chicago, known as “ No. 58,” containing a full complement of 60 cars, was ready to leave for Detroit. It was held báck to permit a regular passenger to precede it. It left Jackson at 9:37 p. m., and arrived at Dexter at 12:36 a. m. In accordance with the rule and custom of defendant, an extra train of live stock coming into Jackson from different divisions of the road was made up for shipments east. It consisted of 13 cars, and left Jackson July 3d at 1:45 a. m. Heavy rains fell during the night, and caused several washouts in the vicinity of Chelsea and Dexter, rendering the tracks temporarily impassable. Gangs of men were promptly placed to repair the washouts as soon as possible; the west-bound track being first repaired. The repairs to the east-bound track were not completed until about 8 p. m. of the same day. Transfers from the west-bound track were made over the east-bound track as rapidly as possible. No. 58 left Dexter at 12:42 p. m. The train containing plaintiff’s car left between 2 and 3 p. m. the same day, arriving in the Detroit stockyards about 8 p. m. Plaintiff, alleging negligence on the part of the defendant, sued, and recovered damages. ■

      Clarence D. Clark, for appellant.

      Watson & Chapman, for appellee.
   Grant, J.

(after stating the facts). The evidence establishes beyond controversy that the defendant exercised due diligence in repairing its road and in moving the blockaded trains upon the east and west of the washouts as soon as the track was repaired. The defendant was therefore not responsible for the delay, and was guilty of no negligence in this regard. The defendant was not chargeable with' the common-law liability of a common . carrier, and was bound only to transport the stock with reasonable dispatch. Heller v. Railway Co., 109 Mich. 53 (66 N. W. 667, 63 Am. St. Rep. 541).

Plaintiff sent a care taker with the stock. He made no request for an opportunity to water and feed them.The defendant had not contracted to do so. Defendant was not chargeable with the neglect to afford an opportunity to feed and water them until it was requested by the care taker so to do and had refused. But, if it had been impossible to feed and water them, the defendant would not have been liable. Shippers of live stock assume the risk of unavoidable accidents and delays. Heller v. Railway Co., supra; Hengstler v. Railroad Co., 125 Mich. 530 (84 N. W. 1067).

■Reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    OLK v. SHUGARS.
    Conveyances — Undue Influence — Breach of Conditions.
    A decree setting aside a deed for breach of condition and as having been obtained through undue influence, held to have been justified by the evidence.
    Appeal from Van Buren; Carr, J.
    Submitted April 13, 1904.
    (Docket No. 51.)
    Decided July 7, 1904.
    Bill by Mathias Oik against Ervin B. Shugars and Frances E. Shugars to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Thomas J. Cavanaugh, for complainant.

      Barnard & Lewis, for defendants.
   Hooker, J.

The complainant, a man of advanced age, deeded his property to the defendants, upon an undertaking on their part to support him. They resided on the place at the time. When the trouble arose between them, they complied with his demand to leave the place. Thereupon the complainant filed the bill to set aside the deed, upon the ground of undue influence and other grounds.

It is not clear that the defendants are alone to blame for the disagreement, but we are of. the opinion that they did not live up to the spirit, if they did to the letter, of their promise, and we agree with the circuit judge that they solicited this conveyance persistently and unseasonably. He saw and heard the witnesses, and we think the case one which justifies his conclusions.

The decree is affirmed, with costs.

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


text:
    THURKETTLE v. FROST.
    1. Evidence — Possession oe Land — Title to Buildings.
    Where plaintiff claims that he purchased the right to occupy land at the time that he bought the buildings thereon, the bill of sale to plaintiff’s vendor and the chattel mortgage back are admissible to show that he had no title to the land, and that his purchase was with knowledge that the buildings had always been treated as personal property.

      % Malicious Prosecution — Advice oe Counsel — Question oe Fact.
    Where defendant, in an action for malicious prosecution, based upon an arrest in proceedings to compel him to keep the peace, claimed the advice of counsel constituted a defense, it was proper to refuse to direct a verdict in his favor, as it was for the jury to determine whether he truly stated the facts to counsel, and whether he was actually in fear that the plaintiff would execute his threat if he was not restrained by legal proceedings.
    3. Same — Probable Cause — Advice of Counsel — "Withholding Facts.
    In an action for malicious prosecution, the jury, in determining the question of probable cause, may consider all the facts and circumstances concerning the dispute between the parties,, whether the defendant fully and fairly stated all the facts to his counsel and acted in good faith on his advice, and whether he willfully withheld any material fact from the justice in. making the complaint.
    A Same — Reputation of Defendant.
    In an action for malicious prosecution, plaintiff’s previous good reputation is admissible as bearing upon the question of probable cause.
    5. Same — Malice—Evidence.
    The fact that the defendant had other land which he might use than that from which he was trying to evict the plaintiff is inadmissible to show malice.
    Error to Kent; Wolcott, J.
    Submitted April 15, 1904.
    (Docket No. 71.)
    Decided July 7, 1904.
    Case by Henry Thurkettle against Shepherd P. Erost for malicious prosecution. There was 'judgment for plaintiff, and defendant brings error.
    Reversed.

      Crane, Norris & Drew, for appellant.

      Smedley & Corwin, for appellee.
   Hooker, J.

For many years a private ferry was maintained across Grand river. The first ferryman was one John Everhard, and in 1884 he obtained a license from the highway commissioner to build a habitation in the highway, at the river bank. Everhard sold his ferry and house to Rosegrant, and Rosegrant sold to Meyer, who gave back to Rosegrant a chattel mortgage upon the house and other property, including some outbuildings, boats, etc. Meyer sold to the plaintiff, no writings being given, and yielded possession to him in the year 1900. •He lived in the house from that time until the disagreement which led to this action arose. Smedley, plaintiff’s counsel, became the owner of the chattel mortgage in the meantime.

The Allendale Timber Company owned 800 acres of land lying on the bank of the river, both north and south of the highway referred to. They purchased in 1898. The buildings occupied by the plaintiff were upon this •land, only feet of the house being within the limits of the highway. The Allendale Timber Company was engaged in logging operations at this place, the defendant being its manager. The highway extends to the river at the point where the ferry landing was established, on its west bank. The ground sloped upward from the river, forming a side hill, upon which were plaintiff’s house and other buildings. The house was almost 5 rods from the river, which runs approximately north and south at that point, and the outbuildings were about 88 feet south of the house.

At the time plaintiff purchased the ferry, it was agreed by his vendor that the contract price should be f 500 less if he should have to move to the other side of the river. He was fully advised of the true ownership of the land, and made no claim of ownership. It is not clear, however, that he knew that the house did not stand wholly within the highway. Plaintiff bought the ferry in October, 1900, •and previous to that time the timber company had built a dock extending from the highway south a distance of 150 feet. It was between the buildings and the river. There was also a logging railroad and a team road; one branch •of the railroad being close to the west side of the buildings, thus bringing the buildings between the railroad and the ■ dock. The defendant desired to use the ground upon which the buildings stood for a banking place for logs, and asked plaintiff to move his buildings. This he refused to do, claiming a right to remain there. . The defendant told him that he should put his men on the next morning to ■grade the hill for the purpose. A Mr. Childs, who was in his employ, and generally had charge of such operations, was with him at the time of this talk. The plaintiff replied that he should stop them if they came, and, being asked how, replied, “With cold lead.” The men did not appear to do the grading, but upon the next day, acting under advice of counsel, defendant began summary proceedings to recover possession of the land, and also made a complaint, upon which a warrant was issued for the plaintiff’s arrest, under the statute providing for recognizances to keep the peace. After his arrest this proceeding was dismissed, at the suggestion of the prosecuting attorney, upon the ground of irregularity in the proceedings. The summary proceedings case was tried, and a verdict and judgment rendered against the plaintiff in this case, and the buildings have been removed, and defendant is in possession of the premises.

At some stage of the proceedings after the dismissal of the surety proceedings, the plaintiff began this action against the defendant, charging him with false imprisonment and malicious prosecution. He recovered a judgment for $275 on the malicious prosecution count, and the defendant has brought error.

It was the plaintiff’s claim that the institution of the proceedings to bind plaintiff over to keep the peace was a. malicious and unwarranted prosecution and persecution, intended to harass the plaintiff and make his occupancy uncomfortable, and thus drive him into yielding his rights. In contravention of this claim, the defendant sought to show that the plaintiff knew that his house was upon the premises of the defendant, and that he never claimed to own the land where the buildings stood; that he was not only without any paper title to the land, but that his purchase of the house was with knowledge that it had always been treated as personal property. To support this defense, the defendant offered in evidence the bill of sale given from Rosegrant to Meyer, and the chattel mortgage given by Meyer to him, and these were excluded by the court upon the ground that these papers would throw no light upon the case, and the admission that the buildings were personal property. Counsel coupled with his admission the statement that plaintiff purchased the right to occupy "the dwelling house and its appurtenances purely as a dwelling as long as he was a ferryman; not claiming any title to the real estate, but purely the right to occupy and use it as long as he stayed there as ferryman. It is said by defendant’s counsel that there is nothing in the bill of sale that implies any such right or understanding. An inspection of the bill of sale satisfies us of this. There is nothing in it that indicates an attempt to convey any tenancy in land, or an understanding by the purchaser that he was acquiring such. It is obvious from this record that the plaintiff had no title nor right to possession of any part of the premises, unless it be such part of the house as stood in the highway; and, whether a landowner can be bound by a license by the highway commissioner to another to build and occupy a dwelling in the highway in front of his premises, we do not decide.

It is plainly deducible from the record that the only excuse for plaintiff’s refusal to vacate this land was his alleged claim that he supposed he had a right to stay, under his purchase, which both he and his counsel asserted. Anything tending to show that he did not suppose so in good faith was admissible, as it would bear upon the question of damages, if nothing more, and defendant was not bound to be satisfied with the admission as made. It is clear from the record that plaintiff was a trespasser, and that a claim of adverse possession has no foundation in the testimony. He and his vendors were not shown to have occupied adversely, and such occupation as they had was not exclusive. It does not follow that the question of the plaintiff’s good faith should have been taken from the jury, as defendant’s counsel insist, but the testimony offered should have gone to the jury.

Was the refusal of the court to instruct the jury to render a verdict for the defendant, on the ground that probable cause was shown, error ? According to the defendant’s testimony, he stated to his counsel and to the justice exactly what occurred at the time the threat was made. Plaintiff testified that he said that he would stop defendant’s men with cold lead if they should attempt to grade the hill. Neither testified that he made a personal threat against Childs in any other way. The justice wrote the complaint, and alleged a threat to shoot Childs. It was signed by defendant, who then left, and the justice after-wards issued the warrant and caused it to be served. The defect in the proceedings upon which the proceeding was dismissed was the failure of the justice to examine the complainant under oath, as the statute requires, and manifestly the defendant was not to be blamed for this. Plaintiff’s counsel say that the threat was a conditional one, and also was not a threat to shoot any one, but to use cold lead, and that it was not a threat to shoot Childs, in any event. We have little hesitancy in saying that a threat to stop one with cold lead is a threat to shoot him. The authorities are not agreed that a threat to shoot one if he shall attempt a lawful act does not justify the charge of a threat to shoot him, and, while the plaintiff did not make his threat a specific threat against Childs, if the defendant stated the exact facts to counsel and the justice; he is not responsible for the action of the justice in framing his complaint, and making it allege a threat to shoot Childs; it appearing that Childs would have been the one to undertake the work, and the threat being to shoot such as should do so. It is claimed that the witnesses do not agree as to what took place at the time of making the threat, and, if they did, we think that, under the proof, it was for the jury to determine whether the defendant did truly state what occurred. Again, it was for the jury to determine from all the circumstances whether the defendant was actually in fear that the plaintiff would execute his threat, for, if he was not, and the proceeding was instituted for purposes other than a bona fide attempt to prevent a breach of the peace, the complaint was malicious. See Tiff. Crim. Law, 295. It was therefore not error to refuse to direct a verdict for the defendant, or to refuse to instruct the jury that the advice of Albert Crane constituted probable cause. We think that counsel are wrong in saying that there is no testimony controverting the claim of good faith on defendant’s part.

In this connection we may add that it was proper for the court to charge the jury that—

“ In determining this question of probable cause you can consider all the facts and circumstances as shown by the evidence, so far as they throw any light upon that question— the dispute between the parties as to the right to the use of this land, the circumstances under which the threat was made, whether it had before been made to Mr. Childs, the language used by Mr. Thurkettle in making the threat, whether the defendant fully and fairly stated all the facts, and what Mr. Frost said to his attorneys, and acted in good faith on Mr. Crane’s advice, and whether he willfully withheld any material fact from the justice in making the complaint.”

We are of the opinion that the court did not err in admitting evidence of plaintiff’s previous good reputation. It had a bearing upon the question of probable cause. The great weight of authority sustains the ruling, as will be seen by the citations in plaintiff’s brief: Bacon v. Towne, 4 Cush. 217; McIntire v. Levering, 148 Mass. 546 (20 N. E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594); Woodworth v. Mills, 61 Wis. 44 (20 N. W. 728, 50 Am. Rep. 135); Shannon v. Spencer, 1 Blackf. (2d Ed.) 526; Oliver v. Pate, 43 Ind. 132; Blizzard v. Hays, 46 Ind. 166 (15 Am. Rep. 291); Coleman v. Heurich, 2 Mackey, 189; Israel v. Brooks, 23 Ill. 575; Ross v. Innis, 35 Ill. 487 (85 Am. Dec. 373); Rosenkrans v. Barker, 115 Ill. 331 (3 N. E. 93, 56 Am. Rep. 169); Olson v. Tvete, 46 Minn. 225 (48 N. W. 914); San Antonio, etc., R. Co. v. Griffin, 20 Tex. Civ. App. 91 (48 S. W. 542); Scott v. Fletcher, 1 Overt. 488; Barron v. Mason, 31 Vt. 189; Funk v. Amor, 4 Ohio Cir. Ct. R. 271; Brand v. Hinchman, 68 Mich. 602 (36 N. W. 664, 13 Am. St. Rep. 362).

Testimony was admitted tending to show that the defendant had other places to pile its logs, and it is urged that this unnecessary insistence that plaintiff move his house was evidence from which malice might be inferred. The plaintiff had no right to occupy this ground, and the defendant’s right to evict him was not dependent upon its necessity for the immediate use of the premises. The question was immaterial to the issue, and no legitimate foundation for an argument that it implied malice. •

We are constrained to reverse the judgment and direct a new trial.

The other Justices concurred.


text:
    DUNNING v. GAIGE.
    Mortgages — Redemption—Surety—Want of Equity.
    Complainant’s husband purchased, a lot subject to a mortgage which he assumed and agreed to pay. Defendant was an in- - dorser upon the note secured by the mortgage. Upon foreclosure sale, complainant gave a mortgage upon her land to secure the deficiency and $700 borrowed money. This mortgage was also foreclosed and the land purchased by defendant. Complainant sought to redeem upon the payment of the $700-' and interest, claiming that by the sale of her property the defendant’s debt was paid by her and she should be subrogated to the mortgagee’s claim against defendant. Held, that she was surety for her husband whose duty it was to pay the debt, and her bill was without equity.
    Appeal from Wayne; Hosmer, J.
    Submitted April 14, 1904.
    (Docket No. 58.)
    Decided July 7, 1904.
    Bill by Anna L. Dunning against Joseph M. Gaige to redeem from the foreclosure of a certain mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John J. Speed, for complainant.

      Elbridge F. Bacon, for defendant.
   Hooker, J.

On May 29, 1885, Mary E. Gaige gave to Mary E. Barnard a note and mortgage for $7,000 on what we will call the “ Canfield Lot.” The note was indorsed by her husband, Joseph M. Gaige. On March 19, 1892, Mary E. Gaige sold the Canfield lot to William H. Dunning, and he assumed and agreed to pay the $7,000 mortgage. October 4, 1892, William H. Dunning sold this property to Isabella F. Nall, who agreed to assume and pay this mortgage. On December 29, 1896, Mary E. Barnard brought a suit to foreclose this mortgage, and on May 25,1898, a decree for the sale of the land was entered, and it was further adjudicated that defendants Mary E. Gaige and Joseph M. Gaige were liable for the mortgage debt, and for any deficiency that should be reported, as sureties for William H. Dunning and Isabella F. Nall, and that they should pay to Joseph M. and Mary E. Gaige any sum or sums that they should be required to pay upon said mortgage debt or deficiency. On August 19, 1898, the property was sold to Joseph M. Gaige for $4,019.93. At the time said decree was entered, William H. Dunning was owner of the land involved in this suit, which may be called the “Joy Lot,” said to be worth several thousand dollars. There was a mortgage upon it for $700. Seven days after the report of a deficiency was made, he deeded this property to his wife, Anna L. Dunning, the complainant in this case.

On the 3d of September, 1898, Mr. and Mrs. Dunning-gave their promissory note to Mrs. Barnard for $4,747.85. Seven hundred dollars of this sum was money loaned by Mrs. Barnard to Mrs. Dunning, and was used to pay the existing mortgage upon the Joy lot. The remainder was to secure the payment of the deficiency reported upon the foreclosure of the Canfield mortgage, which William H. Dunning had agreed to pay. Mrs. Barnard foreclosed the Joy mortgage, and Joseph M. Gaige bid in the property at the sale on October 4, 1901, for $5,813.47, and the sale was duly confirmed. Three days before the expiration of the time for redemption, Mrs. Dunning filed the bill in this cause, and an injunction was issued restraining defendant from taking any proceedings to obtain possession of the premises under the commissioner’s deed. The bill asks that complainant be permitted to redeem on payment of the $700 borrowed money and interest, claiming that, by the sale of her property on foreclosure, Gaige’s debt was paid by her, and that she is entitled to be subrogated to Mrs. Barnard’s claim against Gaige.

We think that the bare statement of the facts in this case shows the want of equity in the complainant’s claim. As surety for her husband, whose duty it was (as between himself and Gaige) to pay this debt, she has paid the same. She now seeks to make Gaige reimburse her. That she has a valid claim against her husband, if not against Isabella Nall, is perhaps true.

The decree is affirmed, with costs.

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


author: Per Curiam.

text:
    HOPPER v. LIVINGSTON PROBATE JUDGE.
    Mandamus — Probate Order — Appeals.
    An order of the probate court, denying a petition to compel a guardian to account, is appealable under 1 Comp. Laws, § 669, and hence cannot be reviewed on mandamus.
    Certiorari to Livingston; Smith, J.
    Submitted April 19, 1904.
    (Calendar No. 30,345.)
    Decided July 7, 1904.
    Mandamus by George Hopper to compel Eugene A. Stowe, probate judge of Livingston county, to vacate an order denying a petition for an accounting. From an order granting tbe writ, respondent brings certiorari.
    Reversed.

      Shields & Shields, for relator.

      William P. Van Winkle, Louis E. Howlett, and Rollin H. Person, for respondent.
   Per Curiam.

In May, 1871, Hiram Hopper was appointed guardian for George Hopper by the probate court for the county of Livingston. George Hopper reached his majority in the month of January, 1883. On September 34, 1903, he petitioned the probate court for an accounting by his guardian. A citation was issued, and the guardian filed an answer, in which he stated that he had settled with his ward after he became of age, and also alleged the statute of limitations, and petitioner’s laches in asking for an account, as defenses. The matter was heard by the probate court, and the prayer of the petition was denied.

The order recites the following findings, i. e.:

“(a) That the said Hiram Hopper was appointed guardian in the year 1871, and various sums of money and other property came into his hands as such guardian.
“(b) That’the records and files show that no account, either annual or final, was ever filed.
“(c) That no receipt for settlement with ward was ever filed, and no discharge of record ever entered.
“(d) That ward became of age in the year 1883.
“(e) That the last paper filed in the cause before tbe present proceeding was in the year 1881.
“(f) That the said guardian claims by his answer full settlement and discharge, and neglects and refuses to render any further account.
“(g) That by reason of the great lapse of time since the said ward became of age, the petitioner is not entitled to any further order in said matter.
“(h) It is therefore ordered that the prayer of the petition be, and the same is hereby, denied, as to any further order.”

Thereupon the petitioner filed in the circuit court an application for a mandamus, asking that the probate judge be required to vacate said order, and enter another order, requiring said guardian to file a full, complete, and accurate account of his receipts and expenditures in the matter of his ward’s estate. The probate judge filed an answer to said petition, in which he alleged that said George Hopper is the son of Hiram Hopper, said guardian, and is 42 years old, and that he continued to reside in Livingston county for more than 3 years after reaching his majority. He admitted the proceedings already stated, and alleged that an opportunity to offer proof of any matters stated in the petition filed in said probate court was afforded petitioner at the hearing, but no proof was offered by petitioner or his counsel; that no claim was made at that time that there had been any concealment in reference to his cause of action, or that he had been under any disability. At the. hearing in the circuit court, the mandamus was granted, substantially as prayed, and the respondent has brought the cause to this court by writ of certiorari.

We are constrained to hold that the order of the probate judge was an appealable order, and was not, therefore, reviewable upon mandamus. The order was within the statute. 1 Comp. Laws, § 669. See Goss v. Stone, 63 Mich. 319 (29 N. W. 735); Barry v. Briggs, 22 Mich. 201; Reed v. St. Clair Circuit Judge, 122 Mich. 153 (80 N. W. 985); Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582); Corby v. Wayne Probate Judge, 96 Mich. 11 (55 N. W. 386); Grady v. Hughes, 64 Mich. 545 (31 N. W. 438); Hitchcock v. Genesee Probate Judge, 99 Mich. 128 (57 N. W. 1097); Mardian v. Wayne Circuit Judge, 118 Mich. 353 (76 N. W. 497); Devine v. Wayne Circuit Judge, 118 Mich. 354 (76 N. W. 1134); Freud v. Saginaw Circuit Judge, 125 Mich. 671 (85 N. W. 193), and cases cited; Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1).

The order of the circuit court is reversed.


author: Carpenter, J.

text:
    PEOPLE v. FARRELL.
    1. Homicide — Self-Defense —Evidence—Declarations of Deceased.
    Where, on a trial for murder, the respondent claimed the killing was in self-defense, it was permissible for the people to show that the deceased said, as he approached respondent and was within four or five feet of him, that he intended to bid respondent “Good ni^ht.”
    2. Criminal Law — Evidence—Other Offense.
    On a trial for murder, testimony by the sheriff that a conversation with respondent, immediately after the shooting, occurred in a saloon, was not inadmissible because it showed a violation of the liquor law requiring saloons to be closed after 10 o’clock.
    3. Same.
    Where respondent, on his trial for murder, testified to a difficulty with the deceased on the Sunday prior to the shooting, it was proper to show, on his cross-examination, that such difficulty occurred in a saloon, though it proved that he had violated the liquor law.
    4. Same — Self-Defense.
    Testimony on behalf of the people, on a murder trial, that the respondent had drawn a revolver on other persons before he shot the deceased, was admissible, as it would tend to lessen the credit given to his claim of self-defense, although it tended to prove the respondent guilty of a statutory offense.
    5. Homicide — Evidence—Character of Deceased.
    A respondent, on trial for murder, cannot show that deceased at one time committed a specific act of violence not observed by the respondent, though he may have been informed of it before the killing of deceased.
    6. Criminal Law — Objections to Testimony — Sufficiency.
    An objection to the testimony of a physician that a wound caused death, on the ground that there is nothing in the record that qualifies it and makes it competent, does not raise the question that the physician was not shown to have the qualifications required by 2 Comp. Laws, § 5280, to enable him to practice medicine.

      7. Same — Evidence—Hearsay—Cause oe Death.
    Testimony of a physician that he learned, not from observation but from information, that deceased did not have proper care, is hearsay, and has no tendency to prove the deceased died from improper care.
    8. Same — Instructions—Requests—Dependant’s Theory.
    Where respondent’s requests to charge are correct and proper, for the court, on giving them, to state that they present his theory of the case, is prejudicial error, as it indicates that the jury are not bound to follow them.
    Error to Missaukee; Chittenden, J.
    Submitted April 31, 1904.
    (Docket No. 187.)
    July 7, 1904.
    John H. Farrell was convicted of manslaughter and sentenced to imprisonment in the State prison at Jackson.
    Reversed.

      Charles A. Withey and William F. McKnight, for appellant.

      F. O. Gaffney, Prosecuting Attorney, for the people.
   Carpenter, J.

On the 3d of June, 1903, respondent was tending bar in a hotel in the village of Stittsville, Missaukee county, in this State. He refused to sell one George Temple liquor on credit. Temple undertook to get behind the bar and help himself, and respondent drove him away by threatening to shoot him with a revolver. Temple and the other inmates of the barroom then went into an adjoining office, and respondent commenced to close the doors between the two rooms. While in this act, Temple approached, and respondent shot him. On June 9th Temple died from the effect of this wound. Respondent was tried on a charge of murder, and convicted of manslaughter. Temple, when partly under the influence of liquor, as he was at this time, was in fact, and was known to respondent to be, a quarrelsome man, who had committed other assaults. The testimony was conflicting as to'whether Temple threatened to inflict bodily harm upon respondent. Respondent and others testified that he did, and it was the claim of respondent that he shot Temple because he feared his life was in danger.

The people were permitted to prove that Temple stated as he approached respondent, just before he was shot, that he intended to bid respondent “Goodnight.” We think this testimony was properly admitted. According to the testimony of witness Gorthy, respondent was then only four or five feet away, and could, therefore, have heard Temple’s statement.

The people were also permitted to prove a conversation between respondent and the deputy sheriff, in the saloon, shortly after the occurrence. In this conversation, respondent stated that he shot Temple, and that he was justified in doing it, and that he was “ not excited a bit.” It is not claimed that this testimony was not properly admitted, but the contention was made that it was improper for the witness to be permitted to say that it occurred in the saloon, since that justified the argument subsequently made that the law compelling the saloon to be closed at 10 o’clock was thereby violated. This poin-t was not well taken. The testimony of the witness would have been incomplete, had he hot stated where the conversation occurred.

On respondent’s direct examination, he testified to a difficulty with Temple on the Sunday prior to the shooting. Complaint is made because the people, on respondent’s cross-examination, were permitted to show that this difficulty on Sunday occurred in the saloon. There is no merit in this complaint. Having testified to this episode, the people certainly had a right to cross-examine respondent concerning it, though the cross-examination proved, as it did, that he had violated another law. See People v. Gray, 135 Mich. 542 (98 N. W. 261).

On cross-examination of respondent, the people were permitted to prove that he had drawn a revolver on other persons before he shot Temple. This testimony tended to prove respondent guilty of a statutory offense. Section 11509, 3 Comp. Laws. It would have a natural tendency to lessen the credit the jury would give to his testimony that he shot on this occasion because he feared that otherwise he would lose his life, and was therefore admissible. See People v. Gray, supra.

The trial court held that respondent could not show that deceased on one occasion held up the officials of a railroad train, even though respondent had been informed of this occurrence before he shot the deceased.

When a person is charged with murder for killing an assailant, he may show, for the purpose of proving that he believed his life in imminent peril, that deceased was a man of high temper and quarrelsome disposition, and known by him to be such. See Hurd v. People, 25 Mich., at page 418; Brownell v. People, 38 Mich. 732. He may also, for the same purpose, show specific acts of violence within his own knowledge or coming under his own observation. See People v. Harris, 95 Mich. 87 (54 N. W. 648).

But it is well settled that it is not admissible to show specific acts of violence committed by deceased upon third persons, in no wise connected with nor observed by the accused, on the ground that such matter is too remote, and, if proof were admitted, so, also, would repelling evidence, and the side issues thus raised would be as numerous as the offenses imputed to the deceased. See Alexander v. Commonwealth, 195 Pa. St. 1; Dupree v. State, 33 Ala. 380 (73 Am. Dec. 422); McKenna v. People, 18 Hun, 580; Fitzhugh v. State, 81 Tenn. 258; State v. Elkins, 63 Mo. 165; and Thomas v. People, 67 N. Y. 218.

In People v. Dowd, 127 Mich., at page 143 (86 N. W. 546), the above principle was approved by this court. An examination of the record shows that the excluded testimony in that case, as in the case at bar, was accompanied by a proposition to prove that respondent had heard of the specific act of violence under consideration. If the excluded testimony had related merely to what the respondent had heard of the occurrence in question, we should hesitate to say that it was not admissible. See People v. Harris, supra; Boyle v. State, 105 Ind. 469 (5 N. E. 203, 55 Am. Rep. 218). But the excluded testimony related not to the information respecting the occurrence which had reached respondent; it related to the • specific act of violence itself, and, under the authority of People v. Dowd, supra, it was properly excluded.

. The people swore as witnesses two physicians, whose testimony tended to prove that the wound inflicted by respondent caused Temple’s death. It is contended that this testimony was improperly admitted, because it was not made to appear that these physicians had the qualifications required by section 5280,-2 Comp. Laws. We are bound to say that this point was not made in the court below. It is true, this testimony was objected to on the ground that it was “incompetent as the record stands;” and when the court asked, ‘ ‘For what reason do you claim this is incompetent at this time?” counsel replied, “Because there is nothing on this record that qualifies it and makes it competent; and it is after the fact, also.” It is scarcely necessary to say that this form of objection did not apprise the trial court of the point now insisted upon, and therefore we decline to consider it.

It is claimed that the testimony proved, or at least warranted the inference, that Temple’s death was not caused by the wound inflicted upon him by respondent, but that it resulted from improper care of his attendants, and that therefore th¿ trial court should have directed his acquittal, or at least have charged the jury that they might find him guilty of an assault with an intent to commit murder. It is a sufficient answer to this claim to say that there was no competent evidence that Temple’s death was caused by improper care. It is true, the attending physician testified that he learned of such improper care. But it is apparent that he learned this, not by observation, but from information. It is scarcely necessary to say that this was hearsay testimony, and should not have been regarded.

Complaint is made of the argument of the prosecuting attorney to the jury. We cannot say that some of the statements contained in this argument did not go beyond the bounds of legitimate discussion, though we are not at all certain that they constitute reversible error under the circumstances of this case. We refrain from further consideration of these points, in the belief that we have said enough to furnish all proper aid for a new trial.

In charging the jury, the court said:

“ The defendant has requested the court to charge you on the law of the case, and his attorneys have drawn and presented requests embodying their theory of the case, and I will read their requests now, so the jury may understand their theory.”

The court then read a long request of defendant, stating-his claim of the facts, and then continued:

“ I charge you that this is the theory of the defendant in his defense in this case, and that you have heard the testimony along that line. I simply read these as the requests of the defendant to charge, and as their theory of the case.”

The court then read many requests of defendant, most, if not all, of which contained a correct statement of the law applicable to the case. The question raised by the claim of respondent under discussion is whether the court did not commit error, to respondent’s prejudice, in saying that these requests were given as respondent’s theory of the case. If the court had merely said respondent’s statement of facts respecting which the testimony was in conflict was his theory of the case, it would have been entirely proper. But the jury would naturally infer from the language of the court, and presumably did infer, that they were to consider the requests of law preferred by respondent as his theory of the case. Respondent had a right to have these requests given as the law to govern the jury in their deliberations. To say that these requests of law, which were correct and proper, were respondent’s theory, naturally indicated to the jury that they were not legally bound to regard them. We must therefore hold that this statement was prejudicial to respondent.

"We do not think that respondent has any occasion to complain of any other error in the record, nor that any other complaint demands discussion.

The conviction must be set aside, and a new trial ordered.

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


text:
    PEOPLE v. CONGDON.
    1. Intoxicating Liquors — Druggists—Unlawful Sale.
    A druggist, who habitually sells intoxicating liquors as a beverage, may be prosecuted under the local option act or general liquor law for keeping a place where intoxicating liquors are sold unlawfully.
    2. Criminal Law — Intoxicating Liquors — Testimony—Bill of Particulars.
    In a prosecution for keeping a place where intoxicating liquors are sold unlawfully, the prosecutor is not bound to furnish a bill of particulars of the testimony upon which he relies.
    Exceptions before judgment from Van Buren; Carr, J.
    Submitted April 21, 1904.
    (Docket No. 1.)
    Decided July 7, 1904.
    J. L. Congdon was convicted of violating the local option law.
    Affirmed.

      Thomas J. Cavanaugh and Cook & Donovan, for appellant.

      Charles A. Blair, Attorney General, and David Anderson, Prosecuting Attorney, for the people.
   Hooker, J.

The impression seems to exist in the rminds of some of the profession that one who professes to keep a drug store, giving a bond as a druggist, may, to all intents and purposes, keep a saloon, or habitually sell liquor as a beverage, without being liable, under the local option act or general liquor law for keeping a place where intoxicating liquor is sold as a beverage unlawfully. This-is a misapprehension, as we have repeatedly shown by decided cases. Anderson v. Van Buren Circuit Judge, 130 Mich. 697 (90 N. W. 692); People v. Remus, 135 Mich. 629 (98 N. W. 397); People v. Robinson, 135 Mich. 511 (98 N. W. 12); People v. Shuler, 136 Mich. 161 (98 N. W. 986).

We know of no case that holds that, where one is charged with the statutory offense of keeping a place where intoxicating liquors are sold as a beverage, the prosecutor is obliged to furnish a bill of particulars of the testimony upon which he will rely to prove the charge. See People v. Remus, supra; People v. McKinney, 10 Mich. 54, 92.

We think it unnecessary to allude to other questions, all of which are covered by our decisions.

The judgment is affirmed.

The other Justices concurred.


author: Moore, C. J.

text:
    GRIMM v. SECRETARY OF STATE.
    1. Statutes — Title to Aot — Purpose of Law.
    The title of Act No. 232 of the Public Acts of 1903, i. e., “to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies,” etc., sufficiently indicates the purpose of the law to repeal existing laws covering the same subjects.
    2. Same.
    Act No. 232 of the Public Acts of 1903 was designed to provide a general law, under which the corporations named in it might be organized and brought under one general rule, instead of incorporating them under several laws as they were required to do before the act became a law, and as such embraces but one object.
    Mandamus by Arthur A. Grimm to compel Fred M. Warner, secretary of State, to receive and file certain articles of association under chapter 191 of the Compiled Laws of 1897.
    Submitted June 7, 1904.
    (Calendar No. 20,502.)
    Writ denied July 7, 1904.

      Mechem & Bailey and Alfred J. Mills, for relator.

      Charles A. Blair, Attorney General (Paul H. King, of counsel), for respondent.
   Moore, C. J.

The following statement is taken from the brief of counsel for petitioner:

“ The petitioner and his associates caused to be prepared and executed articles of association for the incorporation of an electric-light company under and in compliance with the provisions of chapter 191 of the Compiled Laws of this State, and presented same to the secretary of State for filing, accompanied by the necessary fees. The secretary of State declined to receive and file the articles of association, insisting that chapter 191 of the Compiled Laws of 1897 had been repealed by Act No. 232 of the Public Acts of 1903.”

This proceeding is taken to compel the secretary of State to receive and file the articles of association. -

The title of Act No. 232 of the Public Acts of 1903 reads:

“An act to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies, or any union of the two, and for the incorporation of companies for carrying on any other lawful business, except such as are precluded from organization under this act by its express provisions, and to prescribe the powers and fix the duties and liabilities of such corporations.”

Section 1 of the act is as follows:

“Any three or more persons desiring to become incorporated for the purpose of carrying on any manufacturing or mercantile business, or any union of the two, or for buying, selling, and breeding cattle, sheep, and horses, or other live stock, or for engaging in maritime commerce, or navigation, or for the purchasing, holding, and dealing in real estate, or for conducting a warehouse and storage business, or for erecting and owning buildings to be occupied, or leased, for dwelling houses, halls, or business purposes, or for the production and supplying of gas and electricity for lighting, fuel, or other purposes, or for printing, publishing, and book making, or for carrying on any other lawful business, except such as are excluded by section 36 of this act, may, by complying with the provisions of this act, with their successors and assigns, become a body politic and corporate.”

Section 37 of the act provides:

“This act shall include and apply to all corporations provided for in the following statutes: Chapter 158, 181, 182, 183, 185,188,.190, 191, and 192 of the Compiled Laws of 1897, as amended, and in addition, shall repeal all other acts and parts of acts inconsistent with the provisions of this act. * * * ”

Chapter 158, originally passed in 1885 (Pub. Acts 1885, Act No. 154), is entitled “Stock Breeding Associations.” Chapter 181, originally passed in 1867 (Laws 1867, Act No. 24), is entitled “ Corporations for Commerce or Navigation.” Chapter 182, originally passed in 1877 (Pub. Acts 1877, Act No. 207), is entitled “Land Companies.” Chapter 183, originally passed in 1867 (Laws 1867, Act No. 26), is entitled “Warehouse Companies.” Chapter 185, originally passed in 1887 (Pub. Acts 1887, Act No. 70), is entitled “Associations for Constructing and Leasing Buildings.” Chapter 188, originally passed in 1885 (Pub. Acts 1885, Act No. 232), is entitled “Manufacturing Companies.” Chapter 190, originally passed in 1855 (Laws 1855, Act No. 109), is entitled “Gas-Light Companies.” Chapter 191, originally passed in 1881 (Pub. Acts 1881, Act No. 70), is entitled “Electric-Light Companies.” Chapter 192, originally passed in 1861 (Laws 1861, Act No. 97), is entitled “ Associations for Printing IBooks, Newspapers, and Other Publications.”

Counsel insist Act No. 232 of the Public Acts of 1903 is unconstitutional: (a) The title does not reasonably announce the object of the law; (b) the object of the law is not a single one, consistent with its general purpose.

They say the purpose of the Constitution is:

“To prevent the legislature and the people from being misled by the title of a law and the use of deceptive titles as a cover for vicious legislation, and to prevent the practice of bringing together into one bill, for corrupt purposes, subjects diverse and dissimilar in their nature, and having no necessary connection with each other, and to prevent surprise, logrolling, or fraud in legislation by means of provisions in bills of which the titles give no intimation. People v. Mahaney, 13 Mich. 481; In re City of New York, 57 App. Div. 166 (68 N. Y. Supp. 196); 26 Am. & Eng. Enc. Law (2d Ed.), p. 572, and cases cited in note 3. Within this statement of the law, the title * * * is unconstitutional.
“This contention is supported and illustrated by Lewis v. Dunne, 55 L. R. A. 833 (134 Cal. 291, 66 Pac. 478, 86 Am. St. Rep. 257), and the exhaustive notes thereto.”

They also cite other cases.

It is said:

“The title to this act does not fairly express the general subject of the law, nor does it contain provisions for the proper means and instrumentalities which will or may facilitate the accomplishment and enforcement of the purposes it is intended to express. People v. Mahaney, 13 Mich. 481.
" The repealing section is neither expressed in nor suggested by the title, nor is it cognate or germane to the subject covered by the act, and could, not reasonably be looked for 'or anticipated under its title. Blades v. Board of Water Com'rs of Detroit, 122 Mich. 366 (81 N. W. 271); City of Lansing v. Board of State Auditors, 111 Mich. 327 (69 N. W. 723); Northwestern Manfg. Co. v. Wayne Circuit Judge, 58 Mich. 381 (25 N. W. 372, 55 Am. Rep. 693).”

It is claimed that no one, from reading the title, could .anticipate the repeal of the laws mentioned in section 37.

Does the title reasonably announce the object of the law? It, in express terms, states its purpose to be to “revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies,” etc. We think this language indicates an intention to include in the act control over the incorporation of the companies, and that the title does reasonably indicate the purpose of the law. See Attorney General v. Parsell, 100 Mich. 170 (58 N. W. 839); Graham v. Muskegon County Clerk, 116 Mich. 571 (74 N. W. 729); Cooley, Const. Lim. (6th Ed.) 174.

Is the object of the law a single one, which is consistent with its general purpose ?

In People v. Mahaney, 13 Mich. 481, Justice Cooley, speaking for the court, said:

“ But it is insisted that the whole law is unconstitutional, and void, because in violation of section 20 of article 4 of the Constitution, which provides that ‘no law shall embrace more than one object, which shall be expressed in its title.’ The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of' their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the Constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly notified of its design when. required to pass upon it. See Board of Sup’rs of Ramsey Co. v. Heenan, 2 Minn. 336.
“ But this purpose is fully accomplished when the law has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be provided for by a separate act relating to that alone would not only be senseless, but would actually render legislation impossible.”

See Connecticut Mutual Life-Ins. Co. v. State Treasurer, 31 Mich. 6, and cases there cited; People v. Bradley, 36 Mich. 447; Attorney General v. Weimer, 59 Mich. 580 (26 N. W. 773); People v. Phippin, 70 Mich. 6 (37 N. W. 888); Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911), and the cases there cited.

We think the purpose of the act was to provide a general law under which the corporations named in it might be organized and brought under one general rule, instead of incorporating under several laws, as they were required to do before the act became a law.

We conclude the law is a valid one, and decline to issue the writ as prayed.

The other Justices concurred.


author: Montgomery, J.

text:
    FLEMING v. OTTAWA PROBATE JUDGE.
    1. Appeal and Error —Probate Court —Bonds—Administrator.
    Act No. 92, Pub. Acts 1901, providing that a party, appealing from an order of the probate judge, shall give a bond to the adverse party to secure the payment of damages and costs if the case shall not be reversed, and in case an administrator appeals from the allowance of his account, to secure the payment of the amount found due, does not require an administrator, appealing from an order removing him, to give a bond securing anything more than the costs that might be awarded - to the adverse party by the appellate court.

      2. Same — Bonds—Mandamus.
    Where a probate judge, on entering an order removing an administrator, fixed the penalty of the bond for an appeal from such order in an unwarranted amount, and upon the theory that it should be sufficient to secure payment of any sum found due the estate upon an accounting, it was not necessary for the administrator to present a proper bond to the probate judge before applying to the circuit court for a writ of mandamus to compel him to fix a proper penalty for the bond.
    Certiorari to Ottawa; Padgham, J.
    Submitted June 7, 1904.
    (Calendar No. 20,533.)
    Decided July 7, 1904.
    Mandamus by R. Andrew Fleming, administrator de bonis non of the estate of Thomas W. Ferry, deceased, to compel Edward P. Kirby, probate judge of Ottawa county, -to approve a bond on an appeal from an order removing relator as administrator. From an order granting the writ, respondent brings certiorari.
    Affirmed.

      George A. Farr, for relator.

      Butterfield & Keeney and Walter I. Lillie, for respondent.
   Montgomery, J.

The relator has been acting as administrator de bonis non of the estate of Thomas W. Ferry under an order of the probate court dated December 31,1901. On September 18, 1903, certain of the heirs of Thomas W. Ferry petitioned the probate court for the removal of relator on the grounds: First, it was claimed that no petition was filed for his appointment, and that, therefore, there was no jurisdiction to make the appointment in the first instance; and, second, that relator was unsuitable to administer the trust.

On a hearing the probate judge removed relator on the first-named ground, and on entering' the order announced that he would approve a bond in the sum of $500,000 if relator desired to appeal' from this decision. Relator applied for mandamus to compel the respondent to approve a bond in the sum of $200. On a hearing in the circuit it was directed that a mandamus issue requiring respondent to approve a bond, with penalty and sureties to be approved by him, but excluding the idea that the bond should be in such sum as would protect the estate.

The meritorious question is whether the bond required under section 670, 1 Comp. Laws, as amended by Act No. 92, Pub. Acts 1901, should be construed as requiring, ini a case like the present, security for anything more than the costs awarded to the adverse party in the appellate court. The section originally read:

“The party appealing shall at the time of filing notice thereof file with the judge of probate a bond to the adverse party, in such penalty, with such surety or sureties as the judge of probate shall approve, conditioned for the diligent prosecution of such appeal, and the payment of all such damages and costs as shall be awarded against him in case he shall fail to obtain a reversal of the decision so appealed from.”

The amendment of 1901 added the following:

“And incase any person appeals from the allowance and findings of the court upon the examination of his account as executor, administrator, guardian, or trustee, the court may, in its discretion, fix the penalty of the bond in such sum as will cover the amount found due by the probate court upon examination of such account, in which case the bond and sureties thereon shall be liable to the amount of such bond for the amount found due by the probate court or the appellate court, upon the final determination of such appeal, including the costs and damages awarded by such appellate court.”

It will be seen that this amendment does not apply to the present case. It will also be noted that the bond required in a case like the present is to run to the adverse party, who may be one of many heirs. Was it intended that such bond should furnish security to the estate, or to all of those interested, that the estate will be duly administered and not wasted ? We think not. In a case like the present the administrator is presumed to have given an adequate bond to the probate judge to secure the due execution of his trust. The only purpose of the bond on appeal is to secure the payment of such sum as may be awarded to the adverse party on the appeal. It is, we think, clear that the court could not, on such an appeal, award to the appellee, who is or may be one of the numerous heirs, the amount of any claimed devastavit.

The case of Com. v. Judges of Orphans’ Court, 10 Pa. St. 37, relied upon by respondent, is distinguishable. Under the Pennsylvania statute the security required is a recognizance presumptively in form running to the judges of the court, and is not limited in terms to securing an award to the adverse party.

It is contended that the relator was not entitled to the order for the reason that no bond had been presented to the probate judge for approval, but we agree with the circuit judge that this was, under the circumstances of this case, unnecessary. The statute contemplates that the probate judge will fix the penalty. This he did, and at an unwarranted figure, and upon an erroneous conception of the law. It is not clear how the relator could have proceeded further. It would have been idle, if not contemptuous, to present a bond in any other penalty.

The order of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    TURNEE v. DETROIT SOUTHERN RAILROAD CO.
    1. Master and Servant — Personal Injuries — Safe Appliances —Railroad Companies.
    A railroad company was not negligent, in nsing a step which was in common use, without evidence that it was so dangerous that an ordinarily prudent employer would discard it, although it projected 15 inches beyond the side of the car.

      3. Same — Cars—Projecting Steps.
    Where steps, projecting 15 inches beyond the cars, but not so far as the widest, portions of the engines, had been used on defendant’s railroad for four years, and also on other roads, without injuring anyone, defendant was not negligent in failing to apprehend that the steps would strike some one standing near the track.

      3. Same — Negligence—Danger to Employes.
    The fact that a railroad tie, which had been left by a fellow-servant of the plaintiff too near the track, was struck by a projecting step on a car and thrown against the plaintiff, affords no evidence that defendant should have apprehended danger to its employés from such projecting steps.
    Error to Lenawee; Chester, J.
    Submitted June 9, 1904.
    (Docket No. 1.).
    Decided July 7, 1904.
    Case by Ernest W. Turner against the Detroit Southern Railroad Company for personal injuries. There was judgment.for plaintiff, and defendant brings error.
    Reversed.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellant.

      Fellows & Chandler, for appellee.
   Carpenter, J.

In October, 1901, plaintiff was a section man in defendant’s employ. The gang of which he was a member was engaged in taking out old ties and replacing them with new. * The projecting step of a caboose on a passing train hit one of the new ties strewn along the track, and threw it with great force against plaintiff, who was standing near the passing train, and seriously injured him. He brought this suit to recover compensation, claiming that defendant was negligent in . permitting said step to project so far from the caboose. The issue was submitted to a jury, who rendered a verdict in favor of plaintiff. We are asked to reverse the judgment in plaintiff’s favor upon'several grounds, but, in our judgment, we need to consider but one: Was there any evidence that defendant was negligent in permitting the step in question to project from the caboose F

Defendant had four cabooses with projecting steps precisely like that in question. These cabooses were built over box freight cars, with doors at either end and at the sides. To enable the train crew to conveniently get in and out, steps made of strap iron, mortised to the sill, with the-lower ends bent outward supporting a plank step, were suspended at the sides. This lower step was 20 inches below the floor of the car, and, according to plaintiff’s testimony, projected 15 inches beyond the side. These cabooses had been used by defendant during the construction of its road and ever afterwards — for four years or more — and plaintiff’s injury was the first known injury or accident resulting from their use. The cabooses passed, back and forth over the road in daily-use, and were generally known to the men in its employ. They were not, however, known to the plaintiff, who had been in defendant's employ but 10 days. The same or similar type of cabooses with the projecting steps were in use by the Cincinnati, Hamilton & Dayton Railroad, the Louisville <fc Nashville Railroad, the Lake Erie & Western Railroad, and the Detroit, Toledo & Milwaukee branch of the Lake Shore & Michigan Southern Railroad. Undisputed testimony proves that parts of the smallest engines used on the defendant’s road projected farther than did these steps. It was shown that the Wabash Railroad — the only road upon which defendant had had prior experience — and the main line of the Lake Shore & Michigan Southern Railroad had no cabooses with such steps. One witness, a Mr. Bray, who had been a master car builder, testified that he considered the construction improper; but his only objections to it are that the step might be knocked off by a bridge or other structure along the tracks, or might injure some one “standing close to the track, or something like that.” The fact that these cabooses had been run this way for four years without accident is proof — if proof be needed — that the projecting step did not come in contact with bridges or other structures on defendant’s road.. And surely a railroad company is under no obligation to assume that persons will stand within 15 inches of a passing train, especially when it is shown that parts of the locomotive, which we must presume to be properly constructed, projected more than 15 inches. It cannot, therefore, be contended that defendant was negligent because it made no provision for the protection of such persons.

The jury were not warranted in finding negligence from the use of a projecting step which it may be said, on this record, was in common use, without evidence that it was so dangerous that an ordinarily prudent employer would discard it. See Grand Rapids, etc., R. Co. v. Judson, 34 Mich. 506. The fact that parts of the locomotive projected farther than these steps compels us to say, as we have already indicated, that defendant was not negligent in failing to apprehend that the steps would strike some person standing near the track. No lesson from its own experience — and defendant had a right to place great reliance on this experience (see La Pierre v. Railway Co., 99 Mich., at pages 214, 215 [58 N. W. 60])—or, so far as this record shows, from the experience of others, had taught defendant that these projecting steps were dangerous, for, until plaintiff was injured, their use had occasioned no injury.

There is no evidence, then, in this record, from which it may be inferred that defendant should have apprehended danger to its employes from these projecting steps, unless the injury to plaintiff affords such evidence. It cannot be argued that the injury to plaintiff affords evidence that defendant should have apprehended that the projecting steps directly endangered the safety of its employes, for plaintiff was not directly injured by the step. He was injured because the step threw against him a tie, which, through the negligence of his fellow-servants, was left too near the track. We think it cannot be seriously contended that defendant was negligent in failing to foresee and guard against so improbable a contingency.

“ It is a mistake for one to take his stand after an accident and impute responsibility from a view thus obtained. It is nearly always easy, after an accident has happened, to see how it could have been avoided.” 1 Bailey’s Personal Injuries Relating to Master and Servant, § 112, citing Burke v. Witherbee, 98 N. Y. 562.

In our judgment, the only negligence shown on this record is that of the fellow-servant who placed the tie too near the track; and it follows, therefore, that the trial court erred in refusing to direct a verdict for the defendant.

Judgment reversed, and a new trial granted.

The other Justices concurred.


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    VAN DERLYN v. MACK.
    1. Adoption — Inheritance.
    The provisions of 3 Comp. Laws, § 8780, for the adoption of children, do not make such children heirs of the kindred of the persons adopting them.

    2. Equity — Wills—Construction—Heirship.
    Where, if a certain person had a right to inherit from a testator, the construction of the will was necessary, a court of equity, having obtained jurisdiction for that purpose, may determine the question of heirship.
    3. Costs — Suits by Executors.
    Where one having no interest in an estate makes a claim as heir, and the executor brings suit to determine the rights of the claimant, he is entitled to recover the costs.
    Appeal from Jackson; Peck, J.
    Submitted June 14, 1904.
    (Docket No. 17.)
    Decided July 7, 1904.
    Bill by Nelson Yan Derlyn, individually and as executor of the last will and testament of John Van Derlyn, deceased, and Alfred Van Derlyn against Lillie May Mack, an infant, by John F. Mack, guardian ad litem, to construe said will and codicil thereto, and to determine the legatees thereunder. From an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      Parkinson & Campbell and Charles E. Townsend, for complainants.

      Pringle & Hewett, for defendant.

       As to legal status of adopted child, see note to Warren v. Prescott, (Mo.) 17 L. R. A. 435.

   Hooker, J.

Lillie May Mack was adopted, under the provisions of the statute (3 Comp. Laws, § 8776 et seq.), in the year 1895, by John F. Mack and his wife, Mahala J. Mack. She was not of kin to either of these persons. Mahala J. Mack had four brothers, viz., James, Alfred, John, and Nelson Van Derlyn.

John Van Derlyn made a will September 25, 1901, in which he left his property to his three brothers, and mentioned his sister as having previously died without issue. On February 14, 1903, he made a codicil to the will, revoking all provisions in his will in favor of his brother James.

A question arises as to the effect of this codicil; i. e., should the other two brothers take the share bequeathed to James in the first will, or did the eodicil leave it subject to distribution under the statute ? Lillie May Mack bases her claim upon the latter view, and a claim,that she is entitled to inherit a portion of the same through representation of her mother by adoption, Mahala J. Mack, testator’s sister.

The bill was filed by Nelson Van Derlyn, individually and as executor of John Van Derlyn, and Alfred Van Derlyn. In its prayer they asked (1) that it be decreed that Lillie May Mack is not an heir at law of John Van Derlyn, or a distributee in any of the personal estate of the deceased; (2) that the will and codicil be construed; (3) that it be decreed that the complainants are the sole devisees and owners of all of said estate; (4) that the title be declared free and clear from any claim on her part.

The bill was demurred to, and, the demurrer being overruled, the defendant has appealed.

The statute (3 Comp. Laws, § 8780) provides:

“ Such judge of probate with whom such instrument is filed, shall thereupon make an investigation, and if he shall be satisfied as to the good moral character, and the ability to support and educate such child, and of the suitableness of the home of the person or persons adopting-said child, he shall make an order to be entered on the journal of the probate court that such person or persons do stand in the place of a parent or parents to such child, and in case a change of name is desired, that the name of such child be changed to such name as shall be designated in said instrument for that purpose. Whereupon such child shall, in case of a change of name thereafter be known and called by said new name, and the person or persons so adopting such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons,”

The power to inherit from Mahala J. Mack is given by this statute, and that is as far as the statute goes. It does not say that she shall be the heir of Mahala J. Mack’s kindred, nor that she may inherit from them by the right of representation of Mahala J. Mack. We cannot extend the statute by construction. We see nothing in it to lead to the belief that it was the legislative intention to permit one to adopt heirs for third persons.

It is claimed that there are many decisions which sustain the claim of Lillie May Mack, although counsel concede that there are others which deny it. It will be found, however, that there is not much inharmony in the cases, when the varying statutes of different States are considered; and we are satisfied that most, if not all, of the cases can be reconciled with the view above indicated, if proper allowances are made for the differences in statutes. Thus in Massachusetts the statute provides that:

“A child so adopted shall be deemed, for the purposes ■of inheritance by such child and all other legal consequences and incidents of the natural relation of parents and ■children, the child of the parents by adoption, the same as if he had been-born to them in lawful wedlock; except that he shall not be capable of taking property expressly limited' to the heirs of the body or bodies of the parents by •adoption, nor property from the lineal or collateral kindred of such parents by right of representation. ” Gen. Stat. 1860, chap. 110, § 7.

In the case of Sewall v. Roberts, 115 Mass. 276, the Massachusetts court properly held that the exceptions in the statute aided in the interpretation, and perhaps broadened it — a doctrine that is also enunciated in Glascott v. Bragg, 111 Wis. 605 (87 N. W. 853, 56 L. R. A. 258), and Warren v. Prescott, 84 Me. 483 (24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370). See, also, Hilpire v. Claude, 109 Iowa, 159 (80 N. W. 332, 46 L. R. A. 171, 77 Am. St. Rep. 524). Also the cases of Flannigan v. Howard, 200 Ill. 396 (65 N. E. 782, 59 L. R. A. 664, 93 Am. St. Rep. 201), and Hartwell v. Tefft, 19 L. R. A. 644 (35 Atl. 882, 34 L. R. A. 500), both of which States have statutes similar to that of Massachusetts. See, also, Vidal v. Commagere, 13 La. Ann. 516, for a broad construction of a statute of this .kind, following the rule of the civil law.

The foregoing cases are for the most part justified by the respective statutes, and therefore do not militate against another construction of a statute, which, while it makes an adopted child the heir of the persons adopting .him, contains nothing to indicate that he may inherit the ^property of others, which never has descended to those adopting him. In the construction of such statutes the ■following authorities are in point:

In Barnhizel v. Ferrell, 47 Ind. 335, it was held that, by adopting a child, he was .not made the heir of his foster brother, under the statute of Indiana. See In re Estate of Sunderland, 60 Iowa, 736 (13 N. W. 655).

In Power v. Hafley, 85 Ky. 676 (4 S. W. 685), the court, said:

“ In reaching the conclusion that one, by adopting another, may make that other his own heir, with full capacity to inherit his estate, and that the children of the adopted may also inherit from him, we do not wish to be understood as deciding that the adopting parent can make the adopted child the heir of other people, so as to entitle such child to inherit property that does not come directly from the adopting parent. The case at bar does not involve that question, and we prefer to reserve any expression of opinion thereon until the question actually arises.”

In Meader v. Archer, 65 N. H. 215 (23 Atl. 521), the Massachusetts act was interpreted, and the court said:

“ Holt’s mother outlived him, and owned the land at the time of her death, and the plaintiffs are her next of kin. The defendant is Holt’s adopted son. As Holt had no> title, the land did not go to the defendant as Holt’s heir. By the law of the defendant’s adoption, he could inherit property which Holt ‘could have devised by will.’ This land Holt could not have devised. By the same law, ‘ as. to the succession to property,’the defendant stands, ‘in regard to the legal descendants, but to no other of the kindred of’ Holt, in the same position as if he were Holt’s son. This does not make him an heir of Holt’s mother. No objection being made in argument to the form of action, the question of procedure has not been considered.”'

In Helms v. Elliott, 89 Tenn. 448 (14 S. W. 930, 10 L. R. A. 535), the Tennessee court said:

“As between the.adopting parent and the adopted child, the statute declares in the plainest terms that the adopted child shall, by the act of .adoption, acquire all the rights of a child born to such parent. The adopted child becomes entitled to the same protection and support as if born the child of the adopting parent, and is given the capacity of inheriting or succeeding to the estate of the adopting parent as heir or next of kin. The adopting parent assumes the same parental obligations to the adopted child as if such child were born to such parent, and the adopted child is clothed with the-same rights in the estate of the adopting: parent as an heir or next of kin. This is the full measure of the benefits conferred upon the adopted child. No claims are given upon any one except the adopting parent. No property rights are conferred except in the estate of such parent.
“It is contended that the legal status of the adopted child is the same as that of the child born in lawful wedlock, and that, as a consequence, the same rights of heir and next of kin exist in the one case as in the other, not only as to the parent, but as to all other persons. This position is sound in part only. So far as the parental obligations and the estate of the adopting parent are concerned, it is well taken, but beyond that it is not tenable. As to the estates of other persons than the adopting parent, the law of adoption fixes no right in the adopted child. It is only as to the adopting parent that the adopted child is made ‘heir or next of kin’ by the statute. By the adoption, Anderson Lewis, the adopted son, became vested with all the rights of heir and next of kin of Louie Lewis, the adopting father, but he was not thereby made the heir and next of kin of the children born to Louie Lewis. As to them he occupied the same relation in law after the adoption as before — that of a stranger in blood. * * *
“The strict legal meaning of the phrase ‘next of kin’ is ‘next or nearest in blood.’ In ascertaining who the next of kin is, the law follows the line of consanguinity. Such is the general rule of the common law. It is the same in this State under our general statute of distribution. It is so in every case unless there be an express statutory exception. In the law of adoption, such an exception is made, but, as we have already seen, it applies alone to the estate of the adopting parent. The law of adoption arbitrarily establishes for the adopted child the relation of heir and next of kin to the adopting parent, but it does not establish such a relation to the descendants of the adopting parent. As to them and their estates, the adopted child stands in no other relation than that existing before the act of adoption.”

In Moore v. Moore's Estate, 35 Vt. 98, where the statute constituted an adopted child an heir at law “in as full and perfect a manner as if born to the adopting parents in lawful wedlock,” it was held that the statute did not make the child, by representation, an heir of the brother of its mother by adoption, although she would be an heir if living. See, also, Delano v. Bruerton, 148 Mass. 619 (20 N. E. 308, 2 L. R. A. 698); Keegan v. Geraghty, 101 Ill. 26.

We think these cases are conclusive of the question, as already indicated, and that Lillie May Mack has no interest in this estate.

Whether or not it would have been proper to file a bill merely to adjudicate upon Lillie May Mack’s claim of heirship, it would be necessary to construe the will and codicil if her right to inherit from John Van Derlyn should be sustained, and in such case the complainants might file a bill for that purpose. This they did, and, having jurisdiction for that purpose, we may decide the other question.

This disposition of that question makes it unnecessary to pass upon other questions, except that of costs, which counsel for the appellant ask us to impose upon the estate. We see no occasion to do this. The friends of Lillie May Mack saw fit to claim for her a share of an estate in which she has no interest. To impose costs upon the estate is an indirect way of making the true owners of the property pay them, which ought not to be required. On the contrary, they are entitled to costs.

The decree overruling the demurrer is affirmed, with costs.

The other Justices concurred.


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    PRESTON NATIONAL BANK v. WAYNE CIRCUIT JUDGE.
    1. Court Rules — Construction.
    By the re-enactment of a rule of court the construction which has been placed upon the same language by the court is also adopted.
    2. Same — Discovery or Books and Papers.
    Circuit Court Rule No. 50, providing that a party may be com-polled to produce and discover all such books, papers, and documents as may be necessary to enable the party applying for such discovery to prepare for the trial of the cause, does not authorize the court to compel the production of a party’s books until the moving party shows his inability to compel production by a subpoena duces tecum.
    Mandamus by the Preston National Bank to compel Morse Rohnert, circuit judge of Wayne county, to vacate an order for discovery.
    Submitted October 6, 1903.
    (Calendar No. 30,173.)
    Writ granted July 16, 1904.

      Geer & Williams and H. R. Martin, for relator.

      Bowen, Douglas, Whiting & Murfin, for respondent.
   Montgomery, J.

The receiver of the City Savings Bank brought an action in the circuit court for the county of Wayne to recover a balance of a deposit with the Preston National Bank.- The Preston National Bank gave notice that it would set off as against this claim a check for $100,000 drawn on the City Savings Bank by F. C. Andrews, and certified by the teller of the savings bank. The plaintiff filed an affidavit that such check was not certified by one authorized to do so, and, on this state of the pleadings, asked for an order for inspection of the books of the defendant. The petition, as amended, set out that, to enable plaintiff to prepare for trial, it was necessary that access be had to, and an examination be made of, certain books of defendant. It averred, on information and belief, that the defendant did not receive the check on behalf of the City Savings Bank, but for the sole benefit of F. C. Andrews; that the City Savings Bank was not at the time indebted to P. C. Andrews; that defendant knew, •or had reason to believe, that the alleged certification was invalid, and that said check was received, not for a present and valuable consideration, but for the sole benefit of P. C. Andrews; that plaintiff was advised and believed that the books of defendant would show, or tend to show, the facts and circumstances of the entire transaction. Upon this petition an order was made that the defendant produce for inspection all bank registers, books of account, discount books, records of daily offerings of notes or security for discount, draft books, vouchers, canceled drafts and checks, agreements or written instruments, clearinghouse outgoing and incoming sheets and reports, collateral registers, and all other books and papers referring to, or covering the period of time from January 1, 1899, to February 15, 1903, and all other books and papers containing any entry or reference to any transaction between said defendant and said Frank C. Andrews — all as far as-they relate directly or indirectly to the matters at issue, or-to matters leading up to the matters at issue. Relator applies to this court for a mandamus requiring respondent to vacate this order.

The order below was made under the authority of Circuit Court Rule No. 50, adopted July 19, 1901. Subdivision “d” of this rule is the only provision applicable, and, reads as follows:

“After issue joined in any action either party may be-compelled to produce and discover all such books, papers, and documents as may be necessary to enable the party applying for such discovery to prepare for the trial of the cause.” 134 Mich, xxxviii.

The contentions of relator are that the rule does not justify the order of the circuit judge, and that, if, the rule should be construed as broad enough in its terms to authorize the order, it is in violation of section 36, art. 6, of the State Constitution, protecting citizens from unreasonable search of papers and possessions. By reference to the old court rules, it will be seen that the subdivision of' Rule 50 above quoted is a literal copy of paragraph 4 of' Rule 40, in force before the adoption of the revised rules. While Rule 40 was in force the case of Cummer v. Kent Circuit Judge, 38 Mich. 351, was decided. Under well-recognized rules, the present rule, being a re-enactment of the former, must be held to have been adopted with the. construction which had been placed upon the same language by the court. In Cummer's Case it was held that, before the production of an adversary’s books could be compelled, it was incumbent upon the moving party to show his inability to compel production by supoena duces tecum. That case is decisive of the present. The circuit judge relied upon the two cases of Eddy v. Bay Circuit Judge, 114 Mich. 668 (72 N. W. 890), and Anti-Kalsomine Co. v. Kent Circuit Judge, 120 Mich. 250 (79 N. W. 186). The first of these cases was ruled upon the distinct ground that the custodian of the books and papers sought was a trustee of the moving party. The case was not rested upon this rule. Indeed, there was then no rule in force relating to the subject. The decision rested upon the common law. The case of Anti-Kalsomine Co. v. Kent Circuit Judge was likewise a case in which a trust relation existed, as is shown by a reference to Church v. Anti-Kalsomine Co., 118 Mich. 219 (76 N. W. 383), where the contract between the parties is set out. It was not the purpose to overturn the dicision in Cummer's Case by readopting this rule.

The order in the present case was not authorized, and mandamus must issue.

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


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    THICK v. WASHER.
    Malicious Prosecution —Probable Cause — Conviction —Reversal.
    In an action for malicious prosecution, the fact that the plaintiff was convicted in the criminal proceedings, is conclusive proof of probable cause, unless the conviction was procured by false or fraudulent testimony or other unlawful means, although the judgment was subsequently reversed by a higher court and the plaintiff acquitted and discharged.
    Error to Lapeer; Smith, J. Submitted October 8, 1903.
    (Docket No. 24.)
    Decided July 16, 1904.
    Case by John Thick against Doctor M. Washer and David V. Yerex for malicious prosecution. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Elmer Shumar (Geer, Williams & Halpin, of counsel), for appellants.

      Henry H. Smith, for appellee.
   Hooker, J.

David Yerex and D. M. Washer were respectively president and marshal of the village of Imlay City. John Thick was an omnibus driver carrying passengers to a fair. An ordinance required all resident omnibus drivers to pay a license fee of $1 per day, and nonresidents $3 per day, for the privilege. Thick was arrested upon a warrant, issued upon complaint of Washer, for violating this ordinance, and this complaint was made upon the request of the president, Mr. Yerex, who gave him a bond of indemnity against damages. Thick had refused to pay the license, and apparently the village officers and he had been in a controversy over the validity of the ordinance for some time, because of Thick’s claim that it was void, and his refusal to pay. The marshal and president had been informed by the village attorney that he had not much faith in it, and there is testimony that another attorney had given a similar opinion. Defendants claim that a third lawyer had given his opinion that it was valid, and that the suit was brought to test the question and enforce the ordinance, if it could be enforced, in the belief that it was valid. The defendant was not locked up, but reported before the justice, gave bond and went to trial, and was convicted. Upon the trial no serious effort was made to secure Ms discharge, i. e., his counsel contented himself with moving his discharge upon the ground that the ordinance was void. Thick testified upon the trial in the present case that he, Thick, “wanted the marshal to lock him up ” when arrested, and that upon the trial his counsel wanted the justice to find him guilty, and told him (Thick) so, and this was apparently without protest. On the appeal the ordinance was held invalid,; and the conviction was reversed. Thick then began this action for malicious prosecution, and recovered a verdict and judgment for $85 and costs. The defendants, Yerex and Washer, have appealed. They complain of the following rulings: (1) That a request to direct a verdict for defendant was refused. (2) That the court erred in leaving the question of malice to the jury, for the reason that there was no evidence of malice. (3) In restricting counsel to an argument on the question of malice. (4) Error in the charge on the subject of damages. (5) Discussion of the evidence in the charge.

The cause is ruled by the case of Phillips v. Village of Kalamazoo, 53 Mich. 33 (18 N. W. 547), and Holmes v. Horger, 96 Mich. 410 (56 N. W. 3). These cases sustain the general rule that “a conviction in criminal proceedings is conclusive proof of probable cause, unless procured by false or fraudulent testimony or other unlawful means,” and “the rule applies, although the judgment of conviction was subsequently reversed by a higher court, and the plaintiff acquitted and discharged.” See cases cited in 19 Am. & Eng. Enc. Law (2d Ed.), pp. 666, 667. Facts constituting this cause an exception to the rule were neither alleged nor proven.

The judgment is reversed, and no new trial ordered.

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