text:
    BOARD OF EDUCATION OF DETROIT v. STATE BOARD OF ASSESSORS.
    Taxation — Railroads—State Board of Assessors — Authority —Rate of Taxation.
    The State board of assessors, provided for by the amendment of 1900 to article 14 of the Constitution, and Act No. 173, Pub. Acts 1901, in determining the average rate of taxation on property throughout the State other than railroad property, with a view to the assessment of the latter, should take as a ' basis the actual assessed valuation of such other property, as reported to it in accordance with said act, and it has no authority to increase such valuation on the theory that the assessments were too low.

      Mandamus by the board of education of the city of Detroit to compel the State board of assessors to correct an assessment.
    Submitted April 22, 1903.
    (Calendar No. 19, 876.)
    Writ granted May 1, 1903.

      T. E. Tarsney, P. J. M. Hally, and A. B. Hall, for relator. - '

      Charles A. Blair, Attorney General (Roger Irving Wykes, of counsel), for the people.

      A. F. Freeman and J. C. McLaughlin, for respondent.
   Montgomery, J.

This is an application for a mandamus. It sets out, in substance, that the State board of assessors, in levying the tax upon the railroad property of this State, has assumed to fix the rate of taxation by dividing the total tax levy on all property other than railroad property by the value of such other property as determined by the defendant board by adding to the actual assessed value of such property as fixed by the local assessors and by the board of State tax commissioners, acting under the authority of the law relating to the assessment of taxes, the sum of $296,748,142, thus making the aggregate divisor in determining the rate of taxation that much in excess of the assessed valuation, thereby reducing the rate to be levied upon the railroad property of the State, and thus reducing the amount which relator would receive as its portion of the tax assessed against railroad property by a very substantial sum.

The answer discloses that the respondent board, entertaining the view that local assessors had failed to assess property at its full value, has assumed to exercise the right to determine the actual value of the property of the State for the purpose of fixing the rate to be levied upon railroad property under the terms of Act No. 173 of the Public Acts of 1901. The sole question presented in the case is whether the respondent board has this power. The question is an important one, and we have the aid not only of able briefs and arguments presented by relator and by Mr. Freeman, the president of the respondent board, appearing in his own behalf, but also a carefully prepared brief, supported by a clear and able argument, by the .attorney general, who intervened on behalf of the State.

For many years the statutes of this State have provided for the assessment of property at its full cash value. In 1899 the legislature, with the purpose of correcting supposed abuses on the part of the assessing officers, by Act No. 154, provided for the creation of á board of State tax commissioners, by adding various sections to the tax law. Extensive powers were conferred upon this board. Its members were to have and exercise general supervision over the supervisors and other assessing officers of the State, and were authorized to take such measures as should secure the' enforcement of the provisions of the law, to the end that all properties in the State liable to assessment should be placed upon the assessment rolls, and assessed at their actual cash value. The act provided that each county in the State should be visited at least once in each year by a member of the board. It authorized the board to require property omitted from the assessment rolls to be placed thereon, and an increase of the valuations as fixed by the local assessing officers. It went so far as to permit the setting aside a roll wholly which was found to be so grossly irregular and unlawfully assessed .as to make such action expedient or necessary. It is in the light of these provisions of the statute that the constitutional amendment to article 14, adopted in 1900, is to be read. This amendment contains three sections, and reads as follows:

“Sec. 10. The State may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from corporations. The legislature may provide for the assessment of the property of corporations at its true cash value by a State board of assessors, and for the levying and collection of taxes thereon. All taxes hereafter levied on the property of such classes of corporations as are paying. specific taxes under laws in force on November sixth, A. D. nineteen hundred, shall be applied as provided for specific State taxes in section one of this article.
“Sec. 11. The legislature shall provide a uniform rule of taxation except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, that the legislature shall provide an uniform rule of taxation for such property as shall be assessed by a State board of assessors, and the rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem, taxes are assessed for State, county, township, school, and municipal purposes.
“Sec. 13. In the year one thousand nine hundred and one, and every fifth year thereafter, and at such other times as the legislature may direct, the legislature shall provide for an equalization of assessments by a State board on all taxable property except that taxed under laws passed pursuant to section ten of this article.”

Pub. Acts 1901, p. 404.

Acting under the authority of this constitutional amendment, Act No. 173 of the Public Acts of 1901 was enacted, and it is provided in section 11 that:

“ It shall be the duty of the county clerk in each county in this State, as soon as possible, after the equalization of the board of supervisors of his county of the assessment rolls of the several municipalities therein, * * * to make a report, duly certified, to the State board of assessors of the record of such equalization, * * * which report shall, among other things, contain a statement of the amount of ad valorem taxes to be raised in the several municipalities of such county for State, county, municipal, township, school, and other purposes, and a statement of the aggregate valuation of the property in each of said several municipalities, as taken from the assessment rolls of said municipalities for the year in which such equalization is made.”

Section 12 provides that, as soon as the reports required by the preceding section to be filed have been filed, or the information therein required to be procured shall have been procured, and not later than the 15th day of December in each year, the said State board of assessors shall-ascertain and determine the average rate of taxation for the then current year levied upon other property upon which ad valorem taxes are assessed for State, county, township, school, and municipal purposes.

A fair reading of this language of the statute, we think, leads to the conclusion that the board of assessors has imposed upon it the duty, ministerial in character, of determining by a computation from data, which the law provides for placing in its hands, the rate of taxation which other property in the State is subjected to, as it appears by assessment rolls which are supposed to contain an accurate and true assessment of all property at its full cash value. It is true the language is employed here', as it is in section 11 of the amendment, that the board of assessors shall ascertain and determine the average rate levied upon other property; but the general tenor of Act No. 173 clearly indicates the manner in which that determination is to be made, and the term does not necessarily import of itself a determination j udicial in its nature.

But it is urged in behalf of the power exercised by the board in this case that, if the act is subject to this construction, it is in conflict with the constitutional amendment itself. In determining this question, under well-settled rules, we are not to ignore the contemporaneous construction placed upon the amendment by the legislature itself. But we think there is no difficulty in construing the constitutional amendment. The language of the amendment is that the property described shall be assessed; that the rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for State, county, township, school, and municipal purposes. We think the clear intent and purpose of this provision is that the rate which is actually levied upon property actually assessed is the rate contemplated by the language employed. This constitutional provision cannot be segregated from other provisions relating to the subject of taxation. Construed in the manner above indicated, it is in entire accord with our whole system of taxation, which is not only that railroad property, but that all other property, shall be assessed at its cash value, and that all classes of property shall bear the burden of taxation equally. When this is said, it is meant, of course, as nearly equally as human frailty or erring human judgment renders possible. As was said by Judge Cooley, in his work on Taxation (pages 221, 222, 2d Ed.):

“It cannot be too distinctly borne in mind that any possible system of tax legislation must inevitably produce unequal and unjust results in individual instances; and, if inequality in result must defeat the general law, then taxation becomes impossible, ánd governments must fall back upon arbitrary exactions. But no such impracticable principle is recognized in revenue laws. While equality and justice are constantly to be aimed at, impossibilities are not demanded. Tax legislation must be practical. ”

See, also, Com. v. Bank, 5 Allen, (Mass.) 428; Grim v. School District, 57 Pa. St. 433, 437 (98 Am. Dec. 237).

It was suggested in argument that, were we to adopt the view that the power was vested in the State board of assessors to ascertain and determine according to its own judgment the value of the' property other than railroad property throughout the State upon which taxes have been assessed, inasmuch as the statute (Act No. 173, above cited) makes no provision for notice to the railroad companies whose assessment is to be determined by taking such valuation as a divisor, it would present a grave constitutional question as to whether the legislature had not exceeded its powers in reposing this authority in the board of assessors. In the view we have taken of the main question, it becomes unnecessary for us to determine whether such a delegation of power would be beyond the constitutional authority of the legislature. W e, however, entertain no doubt that, under the construction we have placed upon this provision, the legislature was well within the limits of its authority. It has fixed a method through which, by mathematical computation, the exact rate shall be determined, and, as we have seen, this is based upon definitely ascertained data which is committed to the hands of the State board of assessors.

The writ of mandamus will issue as prayed, but without costs.

The other Justices concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GRAND RAPIDS & INDIANA RAILWAY Co. v. CHARLEVOIX CIRCUIT JUDGE.
    Mandamus — When Lies.

      Mandamus will not lie to vacate an order sustaining a demurrer to a plea in abatement. Carpenter v. St. Clair Circuit Judge, 122 Mich. 323, overruled.

      Mandamus by the Grand Rapids & Indiana Railway Company to compel Frederick W. Mayne, circuit judge of Charlevoix county, to set aside an order 'sustaining a demurrer to a plea in abatement.
    Submitted May 1, 1903.
    (Calendar No. 19,929½.)
    Order to show cause denied May 1, 1903.

      James B. Howard, for relator.
   Per Curiam.

This is a petition for mandamus to compel the respondent to set aside an order sustaining a demurrer to a plea in abatement. The case is ruled by the case of Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), in which it was attempted to fix a rule for these cases, and which was followed in St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249), Reed v. St. Clair Circuit Judge, 122 Mich. 157 (80 N. W. 985), and Improved-Match Co. v. Michigan Mut. Fire-Ins. Co., 122 Mich. 259 (80 N. W. 1088). It seems that these cases were overlooked at the time of the decision of Carpenter v. St. Clair Circuit Judge, 122 Mich. 323 (81 N. W. 95).

The order to show cause is denied.


author: Hooker, C. J.

text:
    METCALFE v. CARR.
    Sale of Devised Lands — Petition—Verification — Official Character of Notary.
    A petition under 3 Comp. Laws, § 9234 et seq., authorizing the sale of lands on petition under oath of a devisee of a life estate therein, which is verified in a foreign State, and contains no clerk’s certificate to the official character of the notary before whom the verification was made, is fatally defective.
    Appeal from Wayne; Donovan, J.
    Submitted November 19, 1902.
    (Docket No. 101.)
    Decided May 12, 1903.
    Petition by Mary A. Metcalfe against Nerve D. Carr and others for the sale of certain devised lands. From an order dismissing the petition, petitioner appeals.
    Affirmed.

      James 8w.an, for petitioner.

      John H. Goff, Frank P.. Guise, and Wilkinson & ■ Younglove, for defendants.
   Hooker, C. J.

The petitioner is the widow of Samuel Miller, who died testate in Detroit about December 1, 1881. The will was duly probated. Its provisions for petitioner were: (1) A devise of $10,000, to be held, controlled, and used by her during her life; whatever should remain at her death to become a part of his estate. (2) After providing legacies for several persons, he directed that the rest, residue, and remainder of all the property, real, personal, and mixed, should go to his heirs at law as the same would be distributed by the law of descent of the State of Michigan as it then was. In March, 1883, the probate court made an order that the residue of real property be adjudged and decreed to belong to the petitioner during her natural life. This property consisted of several tracts and lots which are described in the petition.

The petition was filed under 3 Comp. Laws, § 9234 et seq., and alleges that the estate has been closed since April, 1884; that she is owner by purchase of one seventy-second of the fee, in addition to her life estate. It names the other persons interested in the fee, alleges a necessity for sale, and prays that it be sold, and the proceeds divided, as “provided by the statute.” This petition was filed in the circuit court in chancery. An order to show cause was served on some of the defendants, and, others being nonresident, publication was made. Some of the defendants appeared and answered. At least one questioned the jurisdiction. Several persons mentioned in the petition as parties in interest did not appear. Upon their motion the proceedings were dismissed, with costs, upon the following grounds:

1. Because it did not appear that the petition was under oath, inasmuch as there was no clerk’s certificate to the official character of the notary, and verification having been made in California.
2. It was not made to appear that the order was published in the county where petitioner resided; i. e., Los Angeles qounty, Cal.
3. Because it appears by the will of Samuel Miller, a copy of which is attached to the petition herein, that the heirs at law of said Samuel Miller were devised the same estate in the land mentioned in said petition as they would take by descent had the said Samuel Miller died without a will, and because the statute, as amended, entitled “An act to authorize the sale in certain cases of land devised or bequeathed by will without power.of sale,” is not applicable to the lands set forth in the petition.

The first point made is sufficient to require the affirmance of the order dismissing the petition. The case is ruled by the following cases: Platt v. Stewart, 10 Mich. 260; Coleman v. Stearns Manfg. Co., 38 Mich. 34; Colton v. Rupert, 60 Mich. 325 (27 N. W. 520); Adams v. Wayne Circuit Judge, 98 Mich. 51 (56 N. W. 1051).

As some of the parties are not before the court, we do not dispose of the other questions.

The order is'-affirmed.

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


author: Carpenter, J. Grant, J.

text:
    PEOPLE v. PRATT.
    1. Criminal Law — Witnesses—Grand Jury —Communications to Judge — Disclosure—Privilege. -
    Respondent, having been subpoenaed by the grand jury, informed the prosecuting attorney that he would like to talk with some one in whom he had confidence before testifying, and asked if he could not see the judge .who had impaneled such jury. The prosecutor took him to the judge’s room, to whom respondent stated that he wanted advice. The judge said that he could not give him any advice, and suggested that he see an attorney; but respondent objected that he was not acquainted with apy attorneys who were accessible. The judge thereupon told him that he could not advise him for his personal benefit, but would say that, while he was not obliged to testify to anything before the grand jury to incriminate himself, if he did testify, he should tell the truth, whatever it was; whereupon respondent, after a little delay, made a confession to the judge. Held, that such confession was a confidential communication, within the principle-applicable to the relation of attorney and client, and was inadmissible against respondent.
    2. Same.
    Such communication, having been made to the judge in-control of the grand jury, before whom respondent had been called as a witness, and might by such judge be compelled, to testify, was likewise privileged, within the rule governing testimony before such jury.
    Grant, J., and Hooker, O. J., dissenting.

      Exceptions before judgment from Ingham; Wiest, J.
    Submitted November 20, 1902.
    (Docket No. 219.)
    Decided May 12, 1903.
    Charles H. Pratt was convicted of bribery.
    Reversed.

      Alex. J. Groesbeck, Q. A. Smith, and O. J. Hood, for appellant.

      Horace M. Oren, Attorney General, and Arthur J. Tuttle, Prosecuting Attorney,, (Watts S. Humphrey, of counsel), for the people.
   Carpenter, J.

Defendant was convicted under an indictment in which he was charged with unlawfully and corruptly promising the sum of $20,000 to a member of the house of representatives of the State of Michigan, with intent to influence the act, vote, decision, and judgment of said member, in his legislative capacity, on a certain joint resolution then and there pending in the house of representatives, and with unlawfully and corruptly giving said sum to said member with said intent to influence his action on said resolution. Defendant assigns 116 errors. We deem it necessary, however, to discuss but one of these assignments. That relates to the admission of the testimony of. Hon. Rollin H. Person, the judge of the Ingham county circuit court at the time the defendant was indicted. Defendant was subpoenaed as a witness before the grand jury. Arthur J. Tuttle, the prosecuting attorney of said county, testified:

“Mr. Pratt said to me: ‘ I would like to talk to some attorney before I go before the grand jury. I have been up to see Judge Cahill, and for some reason he could not talk to me about it. * * * I would like to see some one that I have confidence in, before I go before the grand jury and give my testimony. Where is Judge Person ? Couldn’t I see him and talk to him ?’ I took him to Judge Person’s room, and introduced him to Judge Person, and they were together for some time, and Mr. Pratt then went back before the grand jury.”

Before Judge Person testified, he said:

“While it is immaterial to me personally, I think'I ought to raise the question whether I should state matters that came to me in that way, when I was on the bench; that is, whether it is against public policy for me to be required to state them, * * * Mr. Pratt said that he was before the grand jury, and wanted to get some advice. I said, ‘Mr. Pratt, I cannot give you any advice.’ He stood a moment, irresolute, and I said, ‘ I will say this to you, — that you are not obliged to say anything before the grand jury to criminate yourself.’ He said he knew that, but he wanted advice as to what course he ought to pursue for his benefit. I said, ‘ Mr. Pratt, you had better see an attorney.’ He said: ‘ I have seen"an attorney here, but got no advice from him. I am not acquainted with the attorneys here, and I don’t know how much they may be employed in these matters by various parties against my interest, — where they would conflict our interests.’ ‘ Well,’ I said, ‘ I cannot give you any advice as to what you ought to do for your personal benefit, but you are not obliged to testify to anything that will incriminate yourself ; but, if you do testify, I will say this much to you: Tell the truth, whatever it is.’ He stood for a moment, and burst into tears, like a baby, and said, ‘ That is the last thing my wife said to me before I left home, — was to tell the truth, whatever I told;’ and he dropped into a chair and cried; and in a moment he straightened up and he said: ‘ I must tell. I won’t stand this any longer.’ And he went right on rapidly and told his story.”

At this point, defendant’s counsel objected to Judge Person’s testimony on the ground that the communication in question was confidential, and its disclosure forbidden on grounds of public policy. The trial court ruled that there was nothing exempting Judge Person from testifying (to which ruling defendant excepted), and he proceeded and detailed the statement made to him by defendant. The testimony detailing this statement occupies about 3t>- pages of the printed record. It may be described briefly as follows: Defendant, with the co-operation of a certain prominent State official, planned to corruptly secure the adoption of a certain joint resolution. To carry out this plan, defendant delivered drafts to the amount of $20,000 to a prominent member of. the house of representatives.

It is to be noted that the purpose of the defendant (though this does not appear to have been known to Judge Person) was “to talk with some one he had confidence in.” It is obvious, too, that this confidence was given by reason of Judge Person’s professional and official position, and of the advice given by him to defendant. Is the communication made under these circumstances to be regarded as confidential, and its disclosure forbidden by principles of public policy ? Counsel for the people has neither in his argument nor brief endeavored to sustain the ruling of the court below. He has taken a course which merits the highest commendation. Apparently doubtful of the propriety of the ruling permitting this disclosure, he has not endeavored to support it by inapplicable argument or authority. He has contented himself with saying:

“This matter received the careful attention of counsel in the court below. The court admitted the testimony. It is for this court to say whether or not that decision was correct. If it was correct, there is no error in this case. If iucorrect, the conviction should be set aside and defendant discharged, for without this testimony another conviction cannot be obtained.”

It seems to us that the principle which prohibits the disclosure of communications between attorney and client prohibits the disclosure under consideration. That principle is found in the common law, and is not confined in its application to cases where the technical relation of attorney and client exists. In the case of People v. Barker, 60 Mich., at page 297 (27 N. W. 546, 1 Am. St. Rep. 501), this court, speaking through Mr. Justice Champlin, said: ,

“Confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded upon the plainest principles of justice.”

The principle extends to communications made under the erroneous belief that the party consulted had consented to act as counsel. Smith v. Fell, 2 Curt. Ecc. 667. The privilege is not confined to communications made for the purpose of obtaining advice. It extends to “communications made to an attorney in the course of any professional employment, relating to the subject of the employment, and which may be supposed to have been drawn out in consequence of the relation in which the parties stand to each other.” Williams v. Fitch, 18 N. Y., at page 551. It is not material that no fee has yet been paid or is to be paid. Sargent v. Inhabitants of Hampden, 38 Me. 581; Wade v. Ridley, 87 Me. 368 (32 Atl. 975); Davis v. Morgan, 19 Mont. 141 (47 Pac. 793).

Have these principles any application to the question under consideration? Defendant informed Judge Person that he wished advice as to what course he should pursue for his benefit. When advised by Judge Person to see an attorney, he made known the circumstances which prevented his acting in accordance with this advice. Thereupon Judge Person said:

“ I cannot give you any advice as to what you ought to do for your personal benefit, but you are not obliged to testify to anything that will incriminate yourself; but, if you do testify, I will say this much to you: Tell the truth, whatever it is.”

This statement of Judge Person was obviously advice, and it was advice which properly should, and in this case did, come from a lawyer to a layman who desired to be advised. It is immaterial that the advice is so simple that an intelligent layman could have given it. This would perhaps characterize the best legal advice that ever was given, but it would be legal advice none the less. If it were true that the course of action prescribed by this advice was the only proper course to pursue, a relation of confidence nevertheless resulted from its being given. But it is not true that the course of action prescribed by this advice is the only course an honest lawyer might have advised defendant to follow. It is quite conceivable that a lawyer having regard to the personal interests of defendant-acting from the highest motives, might have said: "Testify to nothing that is not true, but, if you are asked to testify to .anything that may incriminate you, I advise you to decline to answer, upon that ground. ” It is clear that defendant then and there decided to adopt and act upon the advice which Judge Person had given him, and, as a result, gave his confidence, and made the communication under consideration.

If Judge Person had not been, as he was, the judge of the circuit court for the county of Ingham, who had convened the grand jury, the principles of law above referred to would have prevented his disclosing the communication respondent made to him. It is true that Judge Person’s position as judge of the circuit court prevented his becoming, in law, respondent’s attorney. But it did not, in fact, prevent his advising respondent what course to pursue. How is the principle which regards as confidential communications between attorney and client affected by the fact that the attorney in this case was also a judge ? If it be true that the fact that the attorney was the judge prevented his legally acting as attorney, it is also true that the fact that he occupied that position gave an increased weight to his advice. The reasons for regarding as confidential communications made in consequence of advice from an ordinary attorney apply with full force, and are re-enforced by others, when that advice emanates from an attorney who is also a judge. The law protects these communications as confidential, because of the nature of the confidence which exists between, the client and the attorney of his choice. That confidence is not diminished, but is increased, when the advice is given by the judge, authorized not merely to express'an opinion, but to declare the law. Not often will a judge undertake to give legal advice. Circumstances may, however, as in this case, make it his duty to give it. When they do, he will not-, in any technical sense, become the attorney of the person to whom it was given. But if, as a result of such advice, he receives the confidence of that person, the principles of public policy applicable to attorney and client require that -confidence to be respected.

I think our decision in this case might be based on another ground, viz., the communication under consideration is privileged because made to the judge in control of the deliberations of the grand jury, before whom defendant had been- called as a witness. Defendant, wishing advice as to what testimony he should give before the grand jury, and having no opportunity to consult a lawyer of his own choice, went directly to Judge Person, who had the power to compel him to testify. See People v. Forbes, 143 N. Y. 219 (38 N. E. 303); Minters v. People, 139 Ill., at page 365 (29 N. E. 45). If defendant had gone before the grand jury, and had refused to answer questions put to him, his right to persist in such refusal would have been determined by Judge Person. See above cases. It is obvious that whatever Judge Person- thus learned — and in that event he would have learned what testimony defendant had given — would have been privileged. If in that manner Judge Person had learned all that he did by the communication under consideration, the entire disclosure would have been privileged. Is it to be said that, because defendant anticipated his dilemma, and obtained this advice shortly before it was necessary to act upon it, he thereby loses the privilege which he would otherwise have had ? I do not think so. I think we should look upon Judge Person as the judge in charge of the grand jury, the advice given by him as advice respecting tesitimony to be given before said grand jury, and that we should therefore decide that the communication made in consequence thereof is privileged, in accordance with the principle that governs testimony before said grand jury.

It follows from this reasoning that there was error in receiving the testimony of Judge Person; and inasmuch as, according to the statement of counsel, and according to our own judgment of the record, there can be no conviction without this testimony, the conviction will not only be set aside, but the defendant will be discharged from custody. •

Moore and Montgomery, JJ., concurred with Carpenter, J.

Grant, J.

(dissenting). A grand jury had been summoned by the circuit court of Ingham county, Judge Person presiding. One of the subjécts under investigation by the grand jury was an attempt to bribe legistators to secure the passage of a certain bill then pending before the legislature. The respondent was the agent of and represented a corporation in the attempt to secure the passage of this bill. Undoubtedly the respondent believed that he was summoned as a witness before the grand jury to testify in regard to this transaction. Before going before the grand jury he went to the presiding judge, and made a voluntary confession of his crime. He knew that the presiding judge could not act as his attorney or counsel, any more than could the prosecúting attorney. To hold that he believed that the judge could so act would be a reflection upon the respondent’s common sense and intelligence. He was a man of age and experience, and the trusted agent of a large corporation. I do not think that it can be said, under this record, that he approached the presiding judge and made his confession with any idea that he stood to him in that confession in the relation of client and attorney. The confession was made not only without any threats or promises, or even inducements, but after the presiding judge had told him that he could not advise him; thus practically saying to him: “You know that the relation between us is not that of client and attorney, and cannot be, and that whatever you say to me is not privileged, under the law.” Every one knows that a presiding judge cannot advise litigants, for it would disqualify him from sitting in the case. It is immaterial what the motive of respondent was in making this confession, — whether he did it from sting of conscience, or from repentance for his error, or a desire to escape sentence, or in order to obtain a lighter one. The confession was not made as an informer, for the purpose of causing an investigation into the crime of others. It was no less a confession, pure and simple, because it involved other participants in the crime. As against such participants, the confession would not be competent evidence, at least- until a conspiracy had been established by other evidence. Confessions are potent evidence of guilt when made voluntarily, without threats, promises, or duress. See Daniels v. State, 6 Am. St. Rep. (78 Ga. 98) 238, and note.

It will be conceded that there is no statute of this State covering the case. The only statutory privileged communications are where a confession is made to a priest “in the course of discipline enjoined by the rules or practice of such denomination ” to which such priest belongs (3 Comp. Laws, § 10180), and information acquired by a physician in attending a patient in his professional character, which information must be necessary to enable him to prescribe (3 Comp. Laws, § 10181). Under these statutes, confessions of crime made to a physician, not necessary for the physician’s prescription, or to a priest, not in accordance with the discipline of his church, would be competent. At the common law, communications to clergymen and physicians were not privileged. 1 Greenl. Ev. (16th Ed.) § 247a. The question of communications by a layman to his priest arose in the English courts, and the court said:

“It is not to be supposed for a single moment that a clergyman had any right to withhold information from a court of law. It is a principle of our jurisprudence that justice should prevail, and no unrecognized privilege can be allowed to stand in the way of it.” Normanshaw v. Normanshaw, 69 L. T. Rep. (N. S.) 468.

The common law throws the mantle of secrecy over two classes of communications, viz., between lawyer and client, and between government officials and informers. "What is the basis of this rule of "the common law ? Such communications are not excluded for the protection of criminals, but solely on the ground of public policy. Many efforts have been made before the courts to ascertain who informed government officials of frauds and crimes against the government, but the testimony has been universally excluded, not for the purpose of protecting the informer against prosecutions, but solely because public policy requires that this information, so essential to protect the government from frauds and crimes, should' not be made public; otherwise the government would suffer, for it is evident that but few, if any, would give such information if they knew that it could be made the basis of a libel suit, or could be used against them in other ways. See Worthington v. Scribner, 109 Mass. 487 (12 Am. Rep. 736); Rex v. Akers, 6 Esp. 125; Attorney General v. Briant, 15 Mees. & W. 169; Robinson v. May, 2 Smith, J. P. Eng. 3; Beatson v. Skene, 5 Hurl. & N. 838. In Shinglemeyer v. Wright, 124 Mich. 230 (82 N. W. 887, 50 L. R. A. 129), we said:

“The defendant did not make these statements for repetition. He made them for the exclusive use and benefit-of the trusted and sworn officers of the law. They should have been forever locked in their breasts, and never disclosed ; otherwise, few persons would dare to disclose to an officer the name of a suspect, or anything they had learned about his character.”

This rule also covers communications made to those in authority, relative to the character and conduct of a party applying for a public office. Earl v. Vass, 8 Scotch App. Cas. 229; Garn v. Lockard, 108 Mich. 196 (65 N. W. 764); Pollasky v. Minchener, 81 Mich. 280 (46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 516); Bacon v. Railroad Co., 66 Mich. 166 (33 N. W. 181); Wieman v. Mabee, 45 Mich. 484 (8 N. W. 71, 40 Am. Rep. 477).

This case is not within the principle of those above cited. Evidence of these communications is rejected “upon the-ground of public policy, because greater mischiefs would probably result from requiring or permitting its admission. than from any refusal to receive it.” 23 Am. & Eng. Enc. Law (2d Ed.), 50.

The rejection of this testimony is sought upon the basis of the existence -of the relation of attorney and client. The authorities hold that “it is absolutely essential, in order to make the communication privileged, that the relation of attorney and client should have existed,” and that ‘ ‘ the communication must be made solely on account of the relation of attorney and client, and for the purpose of obtaining professional assistance or advice,” etc. 23 Am. & Eng. Enc. Law (2d Ed.), 58, 62, and authorities there cited: Bramwell v. Lucas, 4 Dowl. & R. 367. If that relation existed, the evidence is inadmissible; otherwise it is admissible. There is no privilege for a confidential communication, merely as such. 1 Greenl. Ev. (16th Ed.) § 248. It is not a question of sentiment, but of law. The language of Lord Camden, quoted in Greenleaf on Evidence, is appropriate here:

“ It is not befitting the dignity of this high court of justice to be debating the etiquette of honor at the same time when we are trying lives and liberties. ” 1 Greenl. Ev; § 248.

There must be found some well-recognized rule of the common law, founded upon common sense and justice, which justifies the exclusion of a voluntary confession of crime. Public policy protects communications between lawyer and client from the eyes of the public, because they are regarded as essential to enable the lawyer to make a proper defense for him. It does not protect confessions or communications where that relation does not exist, no matter how close any other relation between the parties to it may be, or what the purpose may be in making the confession. No sacredness attaches to the confession of a criminal, and, when he seeks protection from its consequences, he must show his privilege to be within some well-recognized rule of law. I do not believe in extending the rule for his protection, but, rather, in restricting it for the protection of the public. Chief Justice Shaw said that the communication, to be privileged, must be “with a view to obtain his advice and opinion in matters of law, in relation to his legal rights, duties, and obligations, whether with a view to the prosecution or defense of a suit, or other lawful object. * * *

“This principle we take to be this: That so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in courts, without publishing those facts which they have a right to keep secret, but which must be disclosed to a legal adviser and advocate to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be forever sealed. To the rule as thus stated we are still inclined to adhere.
“But the privilege of exemption from testifying to facts actually known to the witness is in contravention to the general rules of law. It is therefore to be watched with some strictness, and is not to be extended beyond the limits of that principle of policy upon which it is allowed. It is extended to no other person than an advocate or legal adviser, and those persons whose intervention is strictly necessary to enable the client and attorney to communicate with each other, as an interpreter, argent, or attorney's cleric. .And this privilege is confined to counsel, solicitors, and attorneys, when applied to as such, and lohen acting in that capacity. Wilson v. Rastall, 4 T. R. 753. * * * And so strictly is the rule held that the privilege extends only to communications made by the client to his attorney for the purpose of obtaining legal advice, that in a late case it was held that a communication made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information as to a matter of fact, is not privileged, and may be disclosed by the attorney if called as a witness in a cause. Bramwell v. Lucas, 2 Barn. & Cress. 745.” Hatton v. Robinson, 14 Pick. 416 (25 Am. Dec. 415).

As applied to this case, the relation of client and attorney is the only basis upon which the confession can be held privileged. How can this relation be held to exist in the face of the fact that the respondent knew he was not talking to Judge Person as his lawyer? and most certainly did he know this, when the judge promptly told him that he could not advise him. Not only did the judge plainly tell him this once, but also told him he had better see an attorney; and after respondent said he had seen an attorney, but got no advice from him, etc., the judge again said, emphatically, “I cannot give you any advice as to what you ought to do for your personal benefitand after 'all this the respondent told his story of the crime. I cannot yield my assent to the existence of a relation between this respondent and Judge Person which neither, in my judgment, believed to exist.

I have carefully examined the authorities to find under what circumstances judges are privileged from testifying as to matters which take place before them, and the only privilege I find accorded to them is that, on grounds of public policy, they cannot be called on to state what occurred before them in court. 1 Greenl. Ev. (16th Ed.) § 254c. I find one case which is somewhat in point. State v. Chambers, 45 La. Ann. 36 (11 South. 944). That case, in its facts, is almost the counterpart of this, except that in that case the judge sought the respondent, while in this the respondent sought the judge. The respondent was charged with the crime of murder. The district judge, before whom he was first tried, visited the respondent in prison, and communicated with him. Upon the second trial, presided over by the judge’s successor, he (the judge) was placed upon the stand as a witness. The objection was made, not that the communication was privileged, but that the presence of the-judge in his official capacity in the prison intimidated the respondent, so that his answers were not free and voluntary. The court, in disposing of the case, said:

“We find no legal and valid'reason to set aside the verdiet on this account. His testimony shows that he warned and cautioned the defendant, and that he conversed freely and voluntarily.”

What difference, in principle, does it make whether the-judge sought the respondent to obtain, if he could, a confession, or whether the respondent sought the judge to voluntarily make a confession ? The only difference-between the two cases is that in this case the respondent made the communication after twice being told by the judge that he could give him no advice, while in the other case the respondent made the communication without asking any advice.

The fact that a grand jury was believed to be investigating this crime is of no significance. The same rule would apply if there had been no grand jury, and no suspicion of the crime or of the respondent’s guilt. Suppose á case of murder or burglary, and the criminal, for any reason whatever, seeks the presiding judge within whose jurisdiction the crime was committed, and confesses the crime, after being told that he can give him no advice; is the judge’s mouth sealed ? Should it be sealed ? Must a heinous crime go unpunished, under the protection of privileged communications, where no relation of lawyer and client existed or could exist? Would not the judge, under such circumstances, be required, by all considerations of public policy, to disclose the confession ?

I do not think there is any error upon the record, and the conviction should be affirmed.

Hooker, C. J., concurred with Grant, J.


author: Montgomery, J.

text:
    HUBBARD v. FREIBERGER.
    1. Contracts — Public Policy.
    An undertaking read substantially as follows: “Return this" coupon to A., dealer in buggies, with §15, for which he will deliver to yon a book of four of these coupons. Sell these for §3.75 each, thereby getting your §15 back. Each of those to whom you sell a coupon sends to me, purchasing a book for himself. When your four coupons have been sent in, I have received §60, and you will be entitled to §60 worth of merchandise at my store, and it costs you but §3.75 and a few hours’ work selling the coupons. The right to redeem all coupons at any time is hereby reserved; and, in case of the exercise of such right, parties holding the same shall be allowed the full value on the purchase price of any article in my establishment. Parties purchasing coupons and being unable to dispose of them will also be allowed face value, less amount paid for first coupon, on the purchase price of anything in my establishment. Coupons will not be redeemable in any other manner than as above specified.” Held, against public policy.
    2. Bills and Notes — Consideration—Void Contract.
    A contract void as against public policy furnishes no consideration for a promissory note.
    3: Justices’ Courts — Pleading—Failure oe Consideration.
    1 Comp. Laws, § 767,-relating to pleadings in justices’ courts, provides that the plea of the general issue shall be in the same form as in the circuit court, and notice of any defense not admissible under the general issue shall be given with such plea. Sections 769 and 828, relating to the same subject, provide, in substance, that a failure or want of consideration, in whole or in part, may be shown in defense to an action on any contract; the latter section further providing that evidence of a partial failure or want of consideration shall not be admitted unless notice of such defense be given. Held, that the defense of a total failure of consideration is admissible under a plea of the general issue, without notice.
    Error to Sanilac; Beach, J.
    Submitted December 2, 1902.
    (Docket No. 123.)
    Decided May 12, 1903.

      Assumpsit by Frank W. Hubbard, John Ryan, and Harry A. Simpson, copartners as Frank W. Hubbard & Co., against Paul Freiberger and Jacob Meredith, on a promissory note. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      H. O. Babcock and J. S. Crandell, for appellants.

      Bope & McNabb, for appellees.
   Montgomery, J.

This is an action based on a promissory note for $15 given by defendant Paul Freiberger to another. The plaintiffs recovered a verdict by direction of the court. Judgment was entered upon this verdict, and defendants bring error.

The pleading on the part of the defendants was the general issue. On the trial the defendants offered to show that the sole consideration for this note was an engagement or contract given out by the payee, Oscar Auton, which, after reciting that, unless cash was remitted for coupon books, the goods would be held until the notes were paid, proceeded as follows:

“How to Obtain Á $60 buggy for $3.75.
“Return this coupon to Oscar Auton, Gagetown, Tuscola county, Michigan, dealer in buggies, wagons, and agricultural implements of all kinds, with $15, for which he will deliver to you a book of four of these coupons. Sell these coupons for $3.75 each, thereby getting your $15 back. Each of those to whom you sell a coupon sends to me, purchasing a book for themselves. When your four coupons have been sent in to me this way, you readily see I have received $60, and you will be entitled to $60 worth of merchandise at my store, and it costs you but $3.75 and a few hours’ work selling the coupons.
“The right to redeem all coupons at any time is hereby reserved; and, in case Oscar Auton shall elect to redeem outstanding coupons, parties holding same shall be allowed the full value on the purchase price of any article in my establishment.
“Parties purchasing coupons and being unable to dispose of them will also be allowed face value, less amount paid for first coupon, on the purchase price of anything in my establishment. Coupons will not be redeemable in any other manner than as above specified. ”

Defendants also offered to show that the plaintiffs, at the time of purchasing the note, knew of the scheme, and knew that the note in question was procured without consideration. This testimony was objected to on the ground that the pleadings were insufficient to admit the defense without special notice.

This presents the question, first, as to whether this undertaking of Auton is against public policy. We are constrained to hold that it is. It is somewhat similar to the Bohemian Oats scheme, the workings of which are described in McNamara v. Gargett, 68 Mich. 454 (36 N. W. 218, 13 Am. St. Rep. 355). It is a scheme which, upon its face, shows that it cannot be worked out without ultimately leaving parties with these so-called coupons on their hands, possessing no value, and is well calculated to deceive ignorant, people. This engagement of Auton, furnishing as it does the only consideration for this note, and being in itself against public policy, is as though no contract existed, and furnishes no consideration whatever. Clark, Cont. pp. 414, 440.

The statute relating to pleadings in justice’s court (1 Comp. Laws,,.§ 767) provides that:

“The pleadings in a suit before a justice of the peace may be either written or verbal, at the discretion of the party making the same, except in case of notice of title to land; when written, they “shall be filed with the justice; when verbal, the justice shall enter in his docket the substance thereof; the declaration shall be sufficient on general demurrer if conformable at the time to the rules of pleading applicable to the circuit court; the plea of the general issue shall be in the same form as in those courts, and notice of any defense not admissible under the general issue shall be given with such plea; no special demurrer shall be allowed; pleas in abatement must be pleaded under oath, and the execution of a written instrument, filed with the justice, shall not be denied except under oath, as hereinafter provided.”

Under this section, the general rules of pleading obtaining in the circuit court govern the practice in justices’ courts, except in so far as the statute relating to justices’ courts pleadings otherwise provides. But under the same title, “Of Pleadings and Set-Offs,” it is enacted by section 769 as follows:

“A failure or want of consideration; in whole or in part, may be shown in defense to any action or set-off upon or arising out of any bond or promissory note or other instrument in writing, except negotiable notes, negotiated before falling due to any person not having at the time it was negotiated knowledge of such defense.”

Under the title “Trial of Causes” it is provided by section 828 that:

“A failure or want of consideration, in whole or in part, may be given in evidence in any action or set-off upon or arising out of any contract, except negotiable instruments, negotiated before they became due to persons not having notice of such defense; in actions upon such contracts, evidence of a partial failure or want of consideration shall not be admitted, unless notice of such defense shall be given.”

These two sections make very clear the legislative intent that the defense of a total failure of consideration should be admitted under a plea of the general issue and without notice.

The court was, therefore, in error in excluding this defense, and the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J. Carpenter, J.

text:
    GORDON v. LANSING STATE SAVINGS BANK.
    1. Checks — Validity—Want of Payee.
    The holding of the circuit judge, to the effect that a check payable to “the order of--,” a line being drawn through the space provided for the name of the payee, is not payable to bearer, or to an impersonal payee, but is void for want of a payee, precluding the bank from charging the drawer with the amount paid thereon, was sustained by a divided court; Carpenter and Grant, JJ„ being of the contrary opinion, and Montgomery, J., not sitting.
    A Same — Absence of Date.
    A date is not essential to the validity of a check. Per Carpenter and Grant, JJ.
    Error to Ingham; Wiest, J.
    Submitted December 2, 1902.
    (Docket No. 125.)
    Decided May 12, 1903.

      Assumpsit by John R. Gordon against the Lansing State Savings Bank to recover the balance of a deposit. Eróm a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles F. Hammond, for appellant.

      Russell C. Ostrander, for appellee.
   Moore, J.

This case was tried by the circuit judge without a jury. At the request of the defendant, he made a finding of facts, which is as follows:

“Monday morning, December 9,1901, at about 9 o’clock, there was presented at the bank of defendant at the city •of Lansing for payment the following check, made-upon the printed form of check supplied by defendant to its patrons, and signed by plaintiff, viz.:
“‘Lansing, Mich.,____190.. No.....
“‘Lansing State Savings Bank oe Lansing.
“ ‘Pay to the order of..................................................1.......................... Nine Hundred and Seventy Dollars. $970.00.
“ ‘Jno. R. Gordon.’
“The check was indorsed by Charles P. Downey, and was presented by an employé of Mr. Downey, and cash was paid at the time of its presentation.
“The plaintiff had been a depositor at defendant’s bank at periods for three or four years, and at the opening of the bank on the morning of December 9,1901, his balance or credit upon the books of the bank was $3.40, but during the day $2,997.50 was added to plaintiff’s credit. The day defendant cashed the check plaintiff was at the bank, and was informed that the check for $970 had been cashed by payment to Mr. Downey, and he then notified defendant he would not accept that check as a voucher for the money paid.
“December 14, 1901, plaintiff prepared and presented to defendant his check, payable to himself, for $970, being the amount he claimed to then have on deposit in the bank. Payment on this check was refused by defendant upon the ground that plaintiff had no funds in the bank.”

The circuit judge rendered á judgment in favor of the plaintiff for $970 and interest. The case is brought here by writ of error.

Two questions are discussed by counsel: First, the effect of not dating the check; second, has the check a payee? We do not deem it necessary to discuss the first question. As to the second question, it will be noticed the drawer of the check did not name a payee therein, nor did he leave a blank space where the name of a payee might be inserted, nor did he name an, impersonal payee. In the case of McIntosh v. Lytle, 26 Minn. 336 (3 N. W. 983), the court used the following language:

“A check must name or indicate a payee. Checks drawn payable to an impersonal payee, as to ‘Bills Payable ’ or order, or to a number or order, are held to be payable to bearer, on the ground that the use of the words ‘ or order ’ indicates an intention that the paper shall be negotiable, and the mention of an impersonal payee, rendering an indorsement by the payee impossible, indicates an intention that it shall be negotiable without indorsement, — that is, that it shall be payable to bearer. So, when a bill, note, or check is made payable to a blank or order, and actually delivered to take effect as commercial paper, the person to whom delivered may insert his name in the blank space as payee, and a bona fide holder may then recover on it.
“These cases differ essentially from the one at bar. In the latter case the person to whom delivered is presumed, in favor of a bona fide holder, to have had authority to insert a name as payee. In the former cases the instrument is, when it passes from the hands of the maker, complete, in j ust the form the parties intend. But in this case there is neither a blank space for the name of the payee, indicatiug authority to insert the payee’s name, nor is the instrument made payable to an impersonal payee, indicating a fully completed instrument. It is claimed that the words ‘ on sight’ are such impersonal payee. They were inserted, however, for another purpose,- — to fix the time of payment, — and not to indicate the payee. It is clearly the case of an inadvertent failure to complete the instrument intended by the parties. The drawer undoubtedly meant to draw a check, but, having left out the payee’s name, without inserting in lieu thereof words indicating the bearer as payee, it is as fatally defective as it would be if the drawee’s name were omitted.”

See, also, Rush v. Haggard, 68 Tex. 674 (5 S. W. 683); Prewitt v. Chapman, 6 Ala. 86; Brown v. Gilman, 13 Mass. 160; Rich v. Starbuck, 51 Ind. 87; Norton, Bills & N. (3d Ed.) p. 59, and notes; 1 Daniel, Neg. Inst. § 102.

The case differs from the one at bar in some respects, but the important part of the decision is that a payee is necessary to make a complete instrument, and, even though the maker of the check may have intended to name a payee, if he has not in fact done so the chock is incomplete. In the case at bar the failure to name a payee was not an oversight, if we may judge from what Mr. Gordon did, as will appear more in detail later.

Our attention has been called to Crutchly v. Mann, 5 Taunt. 529. In this case the bill of exchange was made payable to the order of................ The court found that, under the facts shown, the conclusion was irresistible that the name was filled in with the consent of the drawer. The same case was previously reported in 2 Maule & S. 90 (Cruchley v. Clarance), where, as the case then stood, it appeared the bill of exchange had been sent out, the defendant leaving a blank for the name of the payee. One of the judges was of the opinion that the defendant, by leaving the blank, undertook to be answerable for it, when filled up in the shape of a bill of exchange; another judge was of the opinion that it was as though the defendant had made the bill payable to bearer; while the third judge was of the opinion that the issuing of the bill in blank without the name of the payee was an authority to a bona fide holder to insert the name.

In the case of Harding v. State, 54 Ind. 359, a promissory note was drawn, leaving a blank space for the name of the payee; and it was held:

“ ‘ So the name of the payee may be left blank, and this will authorize any bona fide holder to insert his own name.’ 1 Pars. Notes & B. 33.”

In the case of Brummel v. Enders, 18 Grat. 873, promissory notes, blank as to the names of the payees, had been put in the hands of an agent to be sold for the benefit of the makers. The agent sold them, at a greater discount than the legal rate of interest, to purchasers who did not know they were sold for the benefit of the makers. At the time of the sale the names of the purchasers were inserted, either by the purchasers or by the agent, in the blank left for the payee. When the notes were sued, the makers pleaded usury. The court, following the cases already cited, held that any bona fide holder of a bill or note which is blank as to the name of the payee may insert his own name, and thus acquire all the rights of the payee.

It will be observed that the case at bar differs from all of these cases. As before stated, not only did Mr. Gordon fail to insert the name of a payee, or to leave a blank where the name of the payee might be inserted, but he did more; he drew a line through the blank space, making it impossible for any one else to insert therein a name, indicating very clearly that he not only declined to name a payee, but intended to make it impossible for any one else to do so. Had Mr. Gordon issued a check otherwise per-feet, but with the blank space for the amount of the check unfilled, and delivered it to a third person, it would be presumed the third person was given authority to fill the blank space. But had he, instead of leaving the space a blank, filled it by drawing a line through it, would any one say the third person might then insert a sum of money in that space ? If not, upon what principle may the name of a payee be inserted when the space was filled in the same way, or upon what theory may it be presumed there was an impersonal payee when the maker has not made the check payable to cash, or some other impersonal payee ? In order to construe the check as a complete instrument, we must read into it an intention not only not expressed by its language, but contrary to the act of the maker. The check, as it appears today, is without any payee. The record is silent in relation to whom it was delivered, or whether the person who presented it at the bank or the person whose indorsement it bears was a bona fide holder.

Judgment is affirmed.

Hooker, O. J., concurred with Moore, J.

Carpenter, J.

I regret that I cannot concur in the opinion of my Brother Moore. I agree with him that the check in question is not governed by the authorities which hold that, where a blank is left for the insertion of the name of a payee, the instrument is to be treated as payable to bearer. I cannot agree, however, that the case of McIntosh v. Lytle, 26 Minn. 336 (3 N. W. 983), is controlling. That case resembles this in many particulars. There is, however, a difference which, in my judgment, renders the reasoning of that case inapplicable. The fact that the plaintiff in the case at bar used the ordinary blank, and drew a line through the space intended for the name of the payee, prevents our assuming, as did the court there, — and its decision was based on this assumption,^ — -that it is “the case of an inadvertent failure to complete the instrument intended by the parties.” The instrument under consideration is obviously complete, in just the form the maker intended.

In my judgment, the authorities which hold a check payable to the order of an impersonal payee to be valid and negotiable control this case. I quote from the case of Willets v. Bank, 2 Duer, at page 129:

“One of the checks was payable to the order of 1658, the other three to the order of bills payable; and, as the required order could not'in either case possibly be given, the checks, unless transferable by delivery, were payable to no one, and were void upon their face. The law is well settled that a draft payable to the order of a fictitious person, inasmuch as a title cannot be given by an indorsement, is, in judgment of law, payable to bearer. Vere v. Lewis, 3 Term R. 183; Minet v. Gibson, Id. 481; Gibson v. Minet, 1 H. Black. 569, affirmed in the house of lords. And it seems to us quite manifest that in principle these decisions embrace the present case. At any rate, the bank, by certifying the checks as good, is estopped from denying that they were valid as drafts upon the funds of the maker, and, consequently, were payable to bearer. The giving of such a certificate, if otherwise construed, would be a positive fraud.”

In Mechanics' Bank v. Straiton, 3 Abb. Dec. 269, a check payable to bills payable or order was held payable to bearer, the court saying:

“By naming the persons to whose order the instrument is payable, the maker manifests his intention to limit its negotiability by imposing the condition of indorsement upon its first transfer. But no such intention is indicated by the designation of a fictitious or impersonal payee, for indorsement under such circumstances is manifestly impossible; and words of negotiability, when used in connection with such designations, are capable of no reasonable interpretation except as expressive of an intention that the bill shall be negotiable without indorsement,— i. e., in the same manner as if it had been made payable to bearer.”

We must decide that the check in the case at bar, like those in the cases cited, is either altogether void, or is transferable by delivery. I submit that we should follow those cases, and decide that it is transferable by delivery. To quote the language of Lord Ellenborough, in Cruchley v. Clarance, 2 Maule & S. 90:

“As the defendant has chosen to send the bill [check] into the world in this form, the world ought not to be deceived by his acts.”

This view of the case compels me to notice the fact that the check under consideration is not dated. According to the weight of authority, this omission does not invalidate it. See Zane, Banks, § 152; 2 Daniel, Neg. Inst. § 1577; Norton, Bills & N. (3d Ed.) p. 405, note.

I think the judgment of the court below should be reversed, and a judgment entered in this court for the defendant.

Grant, J., concurred with Carpenter, J.

Montgomery, J., did not sit.


text:
    FINCH v. VILLAGE OF BANGOR.
    1. Municipal Corporations — Negligence —Defective Highways — Question for Jury.
    Where plaintiff was injured by falling over a loose board that had been placed in the gutter a few hours previously by the agents of defendant village while constructing a sidewalk, it was for the jury to say whether there was negligence in thus disposing'of the material, or whether the street was in a reasonably safe condition for public travel under the circumstances.
    2. Same — Contributory Negligence.
    The fact that plaintiff left the sidewalk line, in the darkness, some 15 feet from a cross-walk, and attempted to go thereto diagonally, with knowledge of the progressing repairs, did not conclusively show contributory negligence.
    Error to Van Burén; Carr, J.
    Submitted December 2, 1902.
    (Docket No. 136.)
    Decided May 12, 1903.

      Case by Louisa Finch against the village of Bangor for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Lynn J. Lewis and Gore & Harvey, for appellant.

      Kelley & Chase and T. J. Cavanaugh, for appellee.
   Hooker, C. J.

The plaintiff recovered a small judgment against the defendant in an action for damages arising from a personal injury. The village authorities were engaged in constructing a sidewalk, and some of the old planks were piled in the street after being taken up. The accident occurred near a street corner. Instead of going to the cross-walk, the plaintiff stepped from the sidewalk bed over the curb into the gutter, about 10 or 15 feet from the cross-walk, with the apparent intention of going diagonally to the cross-walk. She claims to have stumbled over a board and fallen, and the jury were permitted to find that, although she did not see any board, because of the darkness, there was a board there, and that it was one of the boards formerly a part of the old walk, and that it was thrown in the street by those doing the work for the village, and that she fell by reason of stumbling over it.

It is contended:

1. That the declaration does not state a cause of action, because: (a) It does not allege a defect in the street itself; (b) it shows a want of liability, because it is not actionable for a village to leave a loose board in a gutter overnight; (c) it fails to show that the defendant had a reasonable time and opportunity to put the street in proper condition after knowledge of its being unfit for travel.
2. That a verdict for the defendant should have been directed for the reason that there is no proof of negligence, inasmuch as no one is shown to have seen the board either before or after the accident.
3. The want of repair was not the immediate cause of' the injury.
4. Want of knowledge on defendant’s part of the existence of the defect.
5. Plaintiff was guilty of contributory negligence.

We are of the opinion that there is testimony in the case from which it may be inferred that the plaintiff fell over a board, and that it was placed in the gutter by the agents of the village, which therefore had notice; and while it may not have been negligent for the village, in making its repairs, to place such material in the highway in a reasonable manner and place, and leave it there a reasonable time, having in view its obligation to the public and its protection, it was for the jury to determine whether the plaintiff was injured in the way she states, whether it was reasonable or negligent for the village to so dispose of the material, and whether the plaintiff was negligent in crossing the street at the place and time, in the manner adopted, and under the circumstances. It would be proper for a jury to consider all of these things, and had they found that the defendant had a right to expect more care from the plaintiff, and the plaintiff entitled to less care than in ordinary cases on the part of the village on such an occasion, by reason of the known character and exigencies of the improvement, it would have been within their province. Perhaps they did so find, but that nevertheless the village was unnecessarily lax, while the plaintiff was using all of the care ordinarily used under the increased hazard of such conditions. We cannot say that they did not, or that the street was kept in a reasonably safe condition for public travel under the circumstances, which was all that plaintiff had a right to demand. It was for them to judge whether the highway was in such a condition as to require the erection of barriers or the exclusion of the public. See Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118). The duty extends to keeping highways in a condition reasonably safe and fit for travel. See Hayes v. City of West Bay City, 91 Mich. 418 (51 N. W. 1067); Joslyn v. City of Detroit, 74 Mich. 460 (42 N. W. 50) ; Malloy v. Township of Walker, 77 Mich. 461 (43 N. W. 1012, 6 L. R. A. 695); Fuller v. City of Jackson, 82 Mich. 481, 484 (46 N. W. 721); Wakeham v. Township of St. Clair, 91 Mich. 23 (51 N. W. 696).

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J. Carpenter, J. Hooker, C. J.

text:
    NOE v. RAPID RAILWAY CO.
    1. Street Railways — Injury to Employ® — Negligence — Fellow-Servants.
    An employe of an electric railway company, who, while returning from work on one of its cars, was injured through the negligence of the company in not providing a safe system for operating its road, is .not precluded from recovery by the fact that the car was in charge of a fellow-servant.
    2. Same — Assumption of Risk.
    An employé of an electric railway company, who was furnished with transportation on the company’s cars in going to and returning from work, did not assume the risk of defective appliances in connection with the track over which he rode, as his work was performed at a distance therefrom, and he had no duty calling his attention thereto.
    3. Same — Safety Devices — Unlocked Switches.
    An electric railway company is not relieved from the obligation to equip its switches with locks by the fact that such companies generally make no such provision, if common prudence would suggest the adoption of the custom of steam roads in that particular. Hooker, C. J., and Grant, J., dissenting.
    4. Same — Targets and Lights.
    But whether such companies should be held to the duty of maintaining targets or signal lights in the public highways,— qucere.

    5. Same — Excessive Speed of Gar.
    Negligence may be predicated upon the failure of an electric railway company to require its cars to be slowed down on approaching a switch which was unprovided with a lock, target, or light, though the misplacing of the switch was the only danger to be apprehended. Hooker, O. J., and Grant, J., dissenting.
    6. Same — Proximate Cause.
    It cannot be said that the negligence of an electric railway company in not providing a lock for one of its switches was not the proximate cause of an injury occasioned by the throwing of the switch by a trespasser. Hooker, G. J., and Grant, J., dissenting.

      Error to Macomb; Law, J., presiding.
    Submitted January 7, 1903.
    (Docket No. 7.)
    Decided May 12, 1903.
    Case by Frank Noe against tbe Rapid Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Byron B. Er shine (Gray & Gray, of counsel), for appellant.

      Clark, Durfee & Allor, for appellee.
   Montgomery, J.

The plaintiff, who was an employé of the defendant company, recovered judgment against it in. the Macomb circuit court for injuries received by him on January 7, 1900, by reason of a car on which he was being transported running into a switch which had.been opened by the act of a third person. The defendant has brought error to this court, claiming that, from the undisputed testimony, a verdict should have been directed in its favor.

The defendant is organized under the general street-railway law of this State, and owns and operates a street railway along the Gratiot road between Detroit and Mt. Clemens, which railway is 15£ miles in length. At the time of the accident, defendant’s power house and barn was located in the township of Erin, Macomb county, about 7-g- miles south of Mt. Clemens, and about 50 feet from the main track. Cars were operated in and out of this structure on switches connecting with the main line. At this time the defendant company had been constructing an addition to its power house and barn, and the plaintiff and several other laborers were engaged in the work. Plaintiff received 40 cents an hour for his services, and, in addition thereto, was transported to and from his work; his home being in Mt. Clemens; he riding on one of the company’s regular employé passes.

On January 7, 1900, plaintiff and his colaborers had completed their work on the building. They had been accustomed to take the car leaving the power house at 4:50 p. m., but on the night in question, in order to finish up, they worked later, and took the next cár, which left Detroit at 4:30, and arrived at the power house at 5:20 p. m. This car was on time. These cars were run according to a printed schedule, and were under the control of-a train dispatcher, whose office was in Mt. Clemens. Regular meeting points were established along the line, and booths were constructed at these and other points, which were in telephonic communication with the dispatcher, who kept a daily record of the movements of the several cars. The cars going in opposite directions, when on time, would pass at regular meeting points, designated on the time-table. When late, they reported to the dispatcher, who designated the meeting point.

The car which plaintiff took at the power house proceeded towards Mt. Clemens. It met the south-bound car at switch No. 4, the regular meeting point, located some 2-J miles from the power house. It was delayed at this switch only about half a minute, and then proceeded on towards Mt. Clemens at the usual rate of speed. About half a mile from switch No. 4, and towards Mt. Clemens, was the gravel-pit switch, — so called because originally a spur had been constructed from this point to a gravel pit about a mile east of the main track. When the gravel pit had been exhausted, the spur track had been moved, except a stretch about 200 feet long, which could be used as a switch or siding for the passing of cars if for any reason a car was late and could not make the regular meeting point. To enter this spur switch, it had to be approached from the south. If a south-bound car desired to run into the switch, it would be necessary to run south of the switch points, throw the switch, change the trolley onto the switch overhead wire, which was independent, throw the current onto this wire, which was controlled by a switch on a post, and then back up.

On the evening in question, the south-bound car had passed over this switch about 1|- minutes before it met plaintiff’s car at switch No. 4. At the time, the gravel-pit switch was properly set for the main line. About 3 minutes thereafter, plaintiff’s car, going north at the usual rate of speed, was wrecked at this switch; the same having been thrown open during this short interval. While sufficient evidence was not obtainable to justify apprehending any one, the fact that the switch was thrown open by human agency is not contrádicted. It is an open question whether the act of throwing this switch was that of a malicious person or the act of children. The switch was not locked, nor was it provided with a light or target. The negligence charged is failure to have a light or target at the switch, failure to keep the switch locked, and failure to provide for slowing up the car at this point. Plaintiff recovered, and defendant brings error. Error is assigned simply upon the ground that the verdict should have been directed for defendant.

It is contended that the plaintiff was a fellow-servant of the motorman. If this be conceded, the result is not necessarily nonliability. True, the plaintiff would in such case be held to have assumed the risk of negligence of coemployés; but, according .to plaintiff’s theory, and upon the proofs, it cannot be said that the motorman’s negligence was the cause of the injury. The fault, if any, was in not providing a safe system in running the cars, as the motorman was quite within his orders in running the train at full speed in disregard of this switch. The fault, then, if there was a fault, was the fault of the master, the company.

It is said the plaintiff also assumed the risk of these appliances, and the case of Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336), is cited in support of this contention. In the present case, however, the plaintiff had no duty which would bring to his attention the defects complained of. His work was performed at a distance from this switch, and no notice of the defects would come to him through his work, as his duties had no relation to the track. He simply rode over the track, as did any other passenger.

Defendant’s counsel further contend that the testimony shows that targets, lights, and locks are not used on street or electric railway lines, and that, if the defendant has shown that the company observéd the same care that other electric railways have exercised, this must be held to be due care. If we assume that it is not negligent to conduct a business in the usual manner (as to which see Grand Rapids, etc., R. Co. v. Judson, 34 Mich. 507), it remains to consider what shall furnish the standard. Can the defendant company neglect precautions which are taken by steam railroads against the same character of disaster as the defendant is called upon to guard against? We think not. It can make no difference whether the force which propels a car freighted with human beings, and going at a rate of 35 or 40 miles an hour, is one power or another. A misplaced switch is as sure to result in serious damage in one case as in the other. The question, more properly, is, What has human foresight provided as a safeguard against such a disaster ? And common prudence would suggest an investigation into the methods of such a business as involved such contingencies as'confront the operating company.

It is further contended that the failure to provide lights or locks cannot be said to be the proximate cause of the injury to plaintiff. We are not able to distinguish this case, as respects this question, from the case of Town v. Railroad Co., 84 Mich. 214 (47 N. W. 665). See, also, Birmingham Railway & Electric Co. v. Allen, 99 Ala. 359 (13 South. 8, 20 L. R. A. 457).

Finding, as we do, that there was a case for the jury, the judgment is affirmed.

Mooee, J., concurred with Montgomeey, J.

Carpenter, J.

(concurring). I doubt the right of the jury to find that a street-railway company is under an obligation to place a target or light, which may possibly be an obstruction to travel, in the public highway. I agree, however, that the judgment should be affirmed, for the other reasons stated in the opinion of Justice Montgomery.

Hooker, C. J.

(dissenting). The defendant is a suburban railway company, and its road is a trolley road constructed along a highway. The plaintiff, a mason, was employed in constructing an addition to its power house, for which he received, as compensation, 40 cents an hour for the time that he worked, and free transportation by defendant’s cars to and from his home, some miles away from the place where he worked. He was injured by reason of the derailment of a car near a switch, and recovered a judgment, upon which the defendant has brought error.

The plaintiff’s claim is that his car was derailed, by reason of a misplaced switch, but a few minutes after a car had crossed the switch, when it was properly set. It appears to be conceded that it was changed by human agency, and was the work of a trespasser, — possibly children. Defendant claims that i.t was done by an adult, who did it from malicious motives, with an intent to wreck a car. This is not clearly proved. The switch was operated by a bar, heavily weighted, made to lie flat upon the ground, thereby offering no obstruction in the highway. It was an improved device, in common use upon such railways, and there is no proof indicating that a better or safer switch is in common use by roads of this character. It was not locked, nor was there any provision for switch lights; and it is manifest that there could not be lights without having something in the nature of an obstruction in the highway. There was no evidence that locks or lights upon switches or targets were in use by any street trolley road in the country.

The negligence complained of is:

1. Not keeping the gravel-pit switch closed.
2. Not having it locked or securely fastened.
3. Not keeping a light or signal at the switch, such as would have indicated to a motorman whether the switch was open or closed.
4. Not running its car more slowly and with greater caution when approaching the switch.

The first three grounds may be considered together, and the question is reduced to the proposition that the railway company may be found guilty of negligence in these particulars notwithstanding its adoption of appliances in general use. The defendant cannot be said to be guilty of negligence for any of these supposed omissions. The only theories upon which it can be said, broadly, that it was negligent in not keeping its switch closed, are (1) that it was an insurer; and (2) that it omitted some duty in the way of measures which would have prevented its being opened. It cannot be claimed that it was an insurer, and counsel do not point out what measure it should have taken, except locking the switch, — and this is speculative, — as against a trespass. But the duty of locking the switch, like that of maintaining a switch light or a target, is one which depends on good railroading, which is a question of custom, and not one of opinion. In the case of Michigan Cent. R. Co. v. Coleman, 28 Mich. 449, it was said:

“The language used would fairly permit the jury to find anything to be negligence which could by any possibility be avoided. But negligence is neither more nor less than a failure of duty. All railroad companies are held to the duty of being prudent railroad companies, and bound to conduct their business with such precautions as prudence has usually found necessary. As compared with the care needed in business involving no possible human risk, the care to be used may be _properly enough called extraordinary; but, as compared with each other, all such companies have the same duty.”

In Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 546 (31 Am. Rep. 321), it was said:

“If they exercise their functions in the same way with prudent railway companies generally, and furnish their road and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them.”

Again, in Werbowlsky v. Railway Co., 86 Mich. 239 (48 N. W. 1097, 24 Am. St. Rep. 120), it was said:

“The use of appliances which are in universal and common use for the same purpose cannot be said to' be negligence.”

There is no doubt of the efficacy of the switch used, under ordinary circumstances and conditions. The plaintiff’s theory is that provision should be made for extraordinary ones; e. g., he says that, had the switch been locked, it would not have been so easily misplaced, and, had the switch been a different one, provided with lights, the danger might have been discovered by the motorman in season for him to have stopped the car or reduced its speed. There is some truth in these claims, but it is easy for courts and juries to say, after an accident, that this or that might have prevented it. But courts and juries cannot prescribe methods; they can only apply the legal tests to those in operation, and that is the test of experience and custom. It is suggested (though this is not proved) that steam roads usually lock their switches,' and use switch lights and targets, and we are asked to say that the duties of electric road companies should be measured by the methods of the steam road companies. It is undoubtedly true that the danger to be apprehended from the derailment of an electric car may be substantially the same as that from the derailment of a steam car running at the same rate of speed; but does it follow that a court or jury can say that the methods of the steam road must be taken as the standard of the electric road ? There are other factors in the problem. A steam road is on a private right of way. Electric roads are frequently built in highways, where they must be driven over by persons using ordinary road conveyances and horses. Whether an upright switch, with a light upon it, would be practicable, may be doubtful; and this cannot be determined to be practicable by courts and juries, as against the settled practice of such roads. In this connection, see Bennett v. Railroad Co., 163 N. Y. 1 (57 N. E. 79).

Another question relates to the rate of speed. It is contended that it was the duty of this motorman to diminish the speed as he approached this switch. If this is so, it must be for the reason that he should have guarded against the danger of a misplaced switch, for the evidence is undisputed that the switch itself offered no impediment to ordinary speed, or additional hazard, if not misplaced. There is evidence in the case that the motorman was directed not to check his speed at switches. In other words, he was required not to have his car so under control that he could certainly avoid accident if the switch should be misplaced. This testimony places upon the defendant the responsibility, if the testimony is believed; and the case is brought to the narrow point whether, with such appliances as are ordinarily used, the defendant was in duty bound to anticipate misplaced switches, and slow down its cars sufficiently to prevent accident from such cause. "We cannot say, as a matter of law, that every railway train or car, steam or electric, must, on approaching a switch, be brought down to a l’ate of speed which will enable the driver to stop in time to avoid accident if it shall be found to be misplaced; nor can a jury be permitted to so find, when it is undisputed that such is not the prevailing practice. The testimony shows that this car was running at the ordinary speed, and that it was eptirely safe-to cross the switch at that rate of speed, and there is no testimony showing that it is not customary to depend upon unlocked switches, or that they have proven unsafe. In this case it is claimed, though not proved, that there was danger to the car if run at an ordinary rate of speed around that particular curve; but the same rule that would make it a duty to slow up, lest, through a misplaced switch, the car should run on a dangerous track, would impose the same duty on approaching any switch, lest there be a car upon it, with which there would be danger of a collision should the switch prove to be misplaced, and the same rule would apply to every steam road in the country, thus putting an end to rapid transit.

The steam roads have their appliances and methods. They may be, in a given case, negligent, but not where they are up to the standard of good railroading. It is contended, if not admitted, that this switch was misplaced by a trespasser, and, on the other hand, it is said that there are concurring causes, viz., the absence of the lock and light, and the failure to check the car. We have no inclination to minimize the rule that requires a carrier of passengers to do all that human care, vigilance, and foresight can do under the circumstances, considering the character and mode of conveyance, to prevent accident to passengers. This rule has its limitations, and, as said by the supreme court of Maine in Libby v. Railroad Co., 85 Me. 34 (26 Atl. 943, 20 L. R. A. 812),—

“ ‘It must be understood that the rule does not require such a degree of vigilance as will be wholly inconsistent with the mode of conveyance adopted, and render it impracticable. Nor does it require the utmost degree of care which the human mind is capable of imagining.’ Tuller v. Talbot, 23 Ill. 357 (76 Am. Dec. 695). * * * The test of liability is not whether the company used such particular foresight as is evident, after the accident happened, might have averted it had the danger been known, but whether it used that degree of care and prudence which a very cautious and prudent person would have used, under apparent circumstances of the case, to prevent the accident, without reasonable knowledge that it was likely to occur. ‘ In such a case it is always a question whether the mischief could have been reasonably foreseen. Nothing is so easy as to be wise after the event.’ Cornman v. Railway Co., 4 Hurl. & N. 781, 786.”

See, also, Fox v. Mayor, etc., of New York, 70 Hun, 182 (24 N. Y. Supp. 43); Bowen v. Railroad Co., 18 N. Y. 408 (72 Am. Dec. 529); Stierle v. Railway Co., 156 N. Y. 70, 684 (50 N. E. 419, 834); Ayers v. Railway Co., 156 N. Y. 104 (50 N. E. 960); Jones v. Railway Co., 45 U. C. Q. B. 193.

A railroad need not anticipate a crime nor a trespass, unless there is something in the circumstances surrounding the transaction which should have directed the attention of its officers to the probability of such a danger. Harris v. Railroad Co., 13 Fed. 591; Worth v. Railway Co., 51 Fed. 171; Keeley v. Railway Co., 47 How. Prac. 260; Latch v. Railway Co., 3 Hurl. & N. 930; Deyo v. Railroad Co., 34 N. Y. 9, 18 (88 Am. Dec. 418); Fredericks v. Railroad, 157 Pa. St. 103 (27 Atl. 689, 22 L. R. A. 310); Curtis v. Railroad Co., 18 N. Y. 534 (75 Am. Dec. 258); Bennett v. Railroad Co., 163 N. Y. 1 (57 N. E. 79); Whipple v. Railroad Co., 130 Mich. 460 (90 N. W. 287). The record shows an absence of negligence, and prima facie that the accident was due to a malicious trespass, which defendant had no reason to apprehend.

Counsel for the plaintiff rely upon Town v. Railroad Co., 84 Mich. 221 (47 N. W. 665), as a case practically like the case before us. It differs in several respects. There the defendant was a steam road. Its settled practice was to use switch lights. It discontinued the use of a switch, and so notified the plaintiff. Afterwards it resumed using it, but neither notified the plaintiff nor restored the light. Had.notice been given, and no light been seen upon the switch, we may assume that the plaintiff (the engineer) would have stopped his train. Had the light been in place, it would have shown danger. As it was, he supposed the switch spiked, and acted accordingly. In this case there not only had never been lights and locks upon the switches, but it was shown not to be usual upon such roads.

The question of proximate cause is involved in this case, as will be seen from several of the cases cited. Upon this point see, also, Davis v. Railway Co., 93 Wis. 470 (67 N. W. 16, 33 L. R. A. 654, 57 Am. St. Rep. 935); Smethurst v. Congregational Church, 2 L. R. A. 695, 696, and note (148 Mass. 261, 19 N. E. 387, 12 Am. St. Rep. 550); Read v. Nichols, 7 L. R. A. 131, note (118 N. Y. 224, 23 N. E. 468); Smith v. Kanawha County Court, 8 L. R. A. 83, 84, note (33 W. Va. 713, 11 S. E. 1); Smithtwick v. Hall & Upson Co., 12 L. R. A. 280, and note (59 Conn. 261, 21 Atl. 924); Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014); St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463 (56 N. W. 18); Bleil v. Railway Co., 98 Mich. 228 (57 N. W. 117); Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479); Murphy v. Railroad Co., 107 Mich. 627 (65 N. W. 753); Lamotte v. Boyce, 105 Mich. 547 (63 N. W. 517); Borck v. Nut Works, 111 Mich. 129 (69 N. W. 254); Kingsley v. Township of Bloomingdale, 109 Mich. 340 (67 N. W. 333); White v. Township of Riley, 113 Mich. 299 (71 N. W. 502); Smith v. Township of Walker, 117 Mich. 15 (75 N. W. 141); Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883); White v. Township of Riley, 121 Mich. 413 (80 N. W. 124); Bell v. Village of Wayne, 123 Mich. 386 (82 N. W. 215).

The court should-have directed a verdict for the defendant. The judgment should be reversed, and a new trial ordered.

Grant, J., concurred with Hooker, C. J.