text:
    BLAND v. BLAND.
    1. Witnesses — 'Matters Equally Within Knowledge oe Deceased — Evidence—Admis sibiht y.

      In a suit by a widow against the father and mother of her deceased husband for the specific performance of an ante-nuptial contract to make her the beneficiary in his life insurance policies in place of his parents, while testimony by her as to facts equally within the knowledge of her deceased husband was incompetent under the statute, she could testify as to conversations she had with the father and mother not in her husband’s presence.
    2. Insurance — Change of Beneficiary — Antenuptial Agreement —Evidence—Sufficiency.
    Evidence held, sufficient to establish that deceased husband agreed with plaintiff, if she would marry him, to make her the beneficiary in his life insurance policies in place of his parents, and that they knew of, and acquiesced in, such agreement.
    3. Specific Performance — Insurance—Antenuptial Contract— Procuring Cause — Evidence—Sufficiency.
    To entitle a wife to the specific performance of an ante-nuptial agreement to make her the beneficiary in his insurance policies in place of his parents, it is unnecessary for her to show that said agreement was the sole procuring cause and that there was no mutual affection.
    4. Same — Change of Beneficiary — Provisions of Policy.

      Held, that plaintiff was entitled to the specific performance of said antenuptial agreement, the individual defendants having known of same and acquiesced therein, and no objection being raised that the provisions of the policies prevented a change of beneficiary by the act of the deceased alone.
    5. Insurance — Change of Beneficiaries — Contracts—Consideration.
    Testimony by the father that the son told him that the beneficiaries (the parents) in his life insurance policies would not be changed, held, insufficient to establish a contract founded upon a valuable consideration moving to the assured that the beneficiaries should never be changed.
    6. Same — Voluntary Payment of Premiums — Vested Interest.
    Although the father occasionally let the son have money to pay the premiums on said insurancecpolicies, where he did it voluntarily and not in reliance upon said promise of the son, held, that the parents did not thereby acquire a vested interest in said policies.
    Appeal from Wayne; Hart (Burton L.), J., presiding.
    Submitted October 6, 1920.
    (Docket No. 26.)
    Decided December 21, 1920.
    Bill by Gladys Bland, individually and as special administratrix of the estate of Edward G. Bland, deceased, against Joseph Bland, Louise Bland and the Mutual Benefit Life Insurance Company to enforce an antenuptial agreement respecting certain policies of insurance. From a decree dismissing the bill, plaintiff appeals.
    Reversed and decree entered for plaintiff.

      Thomas A. C'onlon, for plaintiff.

      Lodge & Brown, for defendants Bland.

      Plaintiff is the widow of Edward G. Bland, deceased. The individual defendants are his parents. The corporation defendant is a life insurance company authorized to do business in this State. Plaintiff and Edward G. Bland were married June 17, 1915. He died October 25, 1918. Plaintiff had spent several winters in the south and on one of these occasions there met a young man to whom she later became engaged. She was a friend of a sister of Edward and some time before the marriage he began paying his attention to her. The record fairly discloses that Edward’s parents were much impressed with her and extremely anxious that she should look with favor upon him. Edward at this time held two policies of life insurance issued by the corporation defendant, each being for the sum of $1,000, the beneficiaries named being his father and mother. These policies permitted a change of beneficiary at the will of the insured. It does not appear that any conditions were imposed on the exercise of this privilege.
    It is the claim of the plaintiff that Edward urged his suit most earnestly upon her, and that he was aided in this by both his father and mother. It was pointed out to her that the.man she was engaged to had little of this world’s goods, and could not provide her a good home, while Edward had a good salary, owned a fine house, was prosperous and could make her a good home; that he had a large amount of life insurance which he agreed should be transferred to her if she would marry him, and that finally she was.persuaded to break her engagement with the young man in the south and marry Edward in reliance upon his agreements and representations to' her including his agreement to make her the beneficiary in his policies of insurance. It is her claim that his representations as to his property were not all true; that he failed to make the actual transfer of the insurance; and that at his death, she was left practically penniless with a small child to support.
    Plaintiff’s bill, while inartistically drawn, may be fairly said to present a case for the specific performance of the antenuptial agreement to make her the beneficiary in these insurance policies. The insurance company brought the money into court and asked an order of interpleader, which was granted. The case is, therefore, one between claimants, of the fund. The trial judge held that the testimony of plaintiff as to facts equally within the knowledge of deceased was incompetent under the statute and concluded that the other testimony was insufficient to establish plaintiff's case. She appeals from a decree dismissing her bill.
   Fellows, J.

(after stating the facts). We agree •with the learned trial judge that the testimony of the plaintiff as to facts, equally within the knowledge of the deceased is incompetent under the statute. Wallace v. Mystic Circle, 127 Mich. 387; Great Camp K. O. T. M. v. Savage, 135 Mich. 459; Franken v. Supreme Court I. O. F., 152 Mich. 502; Peirson v. McNeal, 137 Mich. 158. But disregarding her testimony which falls within the inhibition of the statute, we are satisfied from the other testimony in the case that such antenuptial agreement was. in fact made. Mr. Carpenter, the uncle of plaintiff and with whom she lived at the time of her engagement and marriage, testified:

“A. Why I remember of coming in one afternoon— * * *
“Coming into my home and Mr. Bland was there and I was, a trifle exercised over the amount I had just paid for a premium, and Mr. Bland spoke up and said, why, I think that every man should have insurance to protect his family. He said, I have promised Gladys if she marries me that I will turn all my insurance to her. _ I said you ought to, that is why I just paid this premium is to protect my wife.
“Q. How long was that, if you remember, Mr. Carpenter, when Mr. Bland made that statement before they were married?
“A. Why that was along in May that this — that I paid this premium.
“Q. Gladys says she was engaged just about three weeks before she married him, and that would be sometime before that?
“A. That would be somewhere along three or four weeks before the marriage. * * *
“Q. At that time Mr. Bland himself made a statement if Gladys married him he would make all his insurance payable to her?
“A. Yes, he kind of chided me for complaining of the expense of keeping the policy up; spoke up frankly, said every man should carry life insurance.
“Q. To protect his family?
“A. Yes, sir.”

Mrs. Carpenter was present at this conversation and testifies with reference to it as follows:

“My husband came in in the afternoon and Mr. Bland was there.
“Q. That was Mr. Edward G. Bland?
“A. Mr. Edward G. Bland had called, and Mr. Carpenter came in and he held an insurance policy in his hands.
“Q. Who came in?
“A. My husband, E. E. Carpenter,* came in with this insurance policy in his hands and the remark was made it costs terrible to keep up these' insurance policies.
“Q. Who made that remark?
“A. Mr. Carpenter. Well, I spoke up and I said, well, I am glad that you have it, my dear, because if anything should happen to you it would insure me of something, and Ed. Bland spoke up> and he said, yes, every man should carry an insurance for his family, and in case that I marry Gladys my insurance will be made to her, my insurance will be made to her.”

While plaintiff was prohibited by the statute from testifying to facts equally within the knowledge of the deceased, she was not prohibited by the statute from testifying to conversation she had with the father and mother not in his presence. Considering such testimony, together with the other testimony in the case, we are satisfied that the father and mother both knew of Edward’s agreement to transfer the insurance and both acquiesced in it. Indeed the record discloses that these parents, and particularly the mother, were extremely anxious that their son should marry the plaintiff and upon all appropriate occasions urged the marriage. Both impressed upon her and her relatives how much more advantageous it would be to her than an alliance with the young man in the south and overlooked no occasion to point out to her the material advantage a marriage to their son would bring to her. We are satisfied upon this record that deceased agreed with plaintiff to make her beneficiary in these insurance policies if she would marry him and that the individual defendants knew of and acquiesced in such agreement.

May the court of equity decree specific performance of this antenuptial contract? Through a long line of authorities it has been held by this court that in cases cognizable by a court of equity specific performance of antenuptial agreements may be decreed. Among them see Thompson v. Tucker-Osborn, 111 Mich. 470; Dakin v. Dakin, 97 Mich. 284; Carr v. Lyle, 126 Mich. 655; Phillips v. Phillips, 83 Mich. 259; Kundinger v. Kundinger, 150 Mich. 630; Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596). In the first of these cases we quoted with approval from the case of Stilley v. Folger, 14 Ohio, 610, 649, the following language:

“All supposed actual fraud may, therefore, be laid out of view. Why, then, should not this agreement be enforced? Antenuptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes, — contentions about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled at this day that almost any bona fide and reasonable agreement, made before marriage, to secure the wife in the enjoyment either of her own separate property or a portion of that of her husband, whether during the coverture or after his death, will be carried into execution in a court of chancery.”

An interesting case upon the question of the enforcement of the terms of an antenuptial agreement by a court of equity will be found reported in one of the early English reports (Frederick v. Frederick, 1 Peere Williams, 710). One Frederick had agreed in the antenuptial agreement that he would within a year after the marriage become a freeman of London. By custom one-third of the personal property, qf a freeman of London went to his widow. After'the marriage Mr. Frederick did not become a freeman of London, although he lived some 40 or 50 years thereafter. Upon his' death specific performance of the antenuptial agreement was sought. Among the objections urged to granting such decree was that Mr. Frederick was then deceased and could not be made a freeman after his death.- This objection was disregarded by the court and it was said:

“It is the substance and the chief end of the agreement, that equity will enforce, viz., that the widow and children should have their thirds of the personal estate, which is not impossible to' be performed. This, though Mr. Frederick be dead, a court of equity may, and, I think, ought to see executed. * * *
“Upon the whole matter, Mr. Frederick having upon good consideration made the agreement to become a freeman of London within a year, and having survived that year, he shall in equity be taken for a freeman, and his personal estate distributed accordingly, viz., one-third to the wife, another third to the children, and the will to operate only on the dead man’s third.”

It is suggested by defendant’s counsel that the parties to the marriage were young people, that presumptively the marriage was due to their mutual affection and the antenuptial agreement was not its procuring cause. We do not understand the rule to be that to entitle a wife to specific performance of an antenuptial agreement that her marriage must be prompted solely by mercenary motives. There was, no doubt, affection between plaintiff and deceased, but he entered into certain agreements with her in consideration of the marriage and upon these engagements she relied; while there probably was mutual affection this does not excuse deceased from the performance of his agreement with her. The marriage was a performance on her part. She was entitled to performance on his part.

Counsel for the defendant rely upon the following cases: Coston v. Coston, 145 Mich. 390; Ancient Order of Gleaners v. Bury, 165 Mich. 1 (34 L. R. A. [N. S.] 277); Supreme Lodge K. of H. v. Nairn, 60 Mich. 44; Grand Lodge A. O. U. W. v. Fisk, 126 Mich. 356; Ladies’ Auxiliary A. O. H. v. Flanigan, 190 Mich. 675. Only one of these cases, the first one, involves the enforcement of an antenuptial agreement and that case . was disposed of as one of fact. Without reviewing all these cases it will suffice to state that in the main they deal with provisions and regulations for the change of beneficiaries found either in the policies or the laws of the order and hold that such provisions and regulations must be complied with in order to permit a change of beneficiary. In the instant case no such question is involved. There is no claim made that any provisions of this policy prevented a change of beneficiary by the act of the deceased alone.

Plaintiff’s counsel insists that defendants are equitably estopped from asserting any claim to these policies of insurance. Defendant’s counsel, while denying that an equitable estoppel is made out, insist that it is not pleaded, and therefore may not be relied upon. We do not pass upon either claim as we are satisfied that the case should rest on the broader ground that defendants have no vested interest in the policies. In Schiller-Bund v. Knack, 184 Mich. 95, Mr. Justice Stone, speaking for the court, said:

“We have examined the cases, cited in' the briefs of counsel, and are unable to find a case in which it was held there was a vested right passing to the beneficiary where there was not an express contract founded upon valuable consideration (moving to the assured) between the assured and the beneficiary.”

Mr. Justice Ostrander, speaking for the court in Modern Brotherhood of America v. Hudson, 194 Mich. 124, said:

“The right of a holder of a certificate, of the nature of the one before us, to change his beneficiary at pleasure, is one which this court has uniformly upheld, and the right ought not to be and will not be denied unless it is plain that the beneficiary named in the certificate has by contract and by performance acquired a vested interest in the certificate and fund.”

We do not overlook the fact that Mr. Bland in his testimony stated that his son said to him that the beneficiaries would not be changed. This testimony was of a conversation with deceased and therefore equally within his knowledge. Assuming, but not deciding, that it was. properly in the case, it falls far short of establishing a contract founded upon a valuable consideration moving to the assured that the beneficiaries should never be changed. That Mr. Bland did not himself regard it of binding force upon his son is evidenced by his testimony that while he occasionally let his son have money to pay premiums when he was short of funds, he “never wanted it back.” If any payments were made by him they were purely voluntary ones, and not made in pursuance of any contract existing between him and his son.

We are persuaded that under the facts as found by us and the laws applicable thereto, plaintiff is entitled to the proceeds of these insurance policies now in the hands of the, court on the cross-bill of interpleader filed by defendant insurance company. See Grand Lodge A. O. U. W. v. Child, 70 Mich. 163. The decree of the court below will be vacated and one here entered in accordance with this opinion. Plaintiff will recover costs of both courts against the contesting defendants.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    LESER v. SMITH.
    1. Appeal and Error — Equity—Supreme Court Hears Cases De Novo — Findings of Trial Judge.
    The Supreme Court hears chancery cases de novo, aided but not controlled by the findings of fact of the trial judge, who may in turn be aided but not controlled by the findings of a jury on pure questions of fact.
    2. Equity — Submission op Facts to Jury — Single Issues.
    When the judge desires the aid of a jury in a chancery case he should submit to them single issues of pure fact, and the method of submitting the case under a general charge cannot be approved.
    3. Fraud — Presumption—Preponderance op Evidence.
    Fraud is never presumed, but must be established by a preponderance of the evidence.
    On right of purchaser of land to rely on representations by vendor as to quality or condition of soil, see note in L. R. A. 1917C. 273.

      4. Exchange of Property — Fraud—Burden of Proof.
    On appeal from a decree setting aside an exchange of real estate on the ground of defendants’ fraud, where, upon examination of the record it clearly appears that plaintiff has failed to sustain the burden d£ proof cast upon him by the law, the decree of the court below will he reversed and the hill dismissed.
    Appeal from Bay; Houghton (Samuel G.), J.
    Submitted November 16, 1920.
    (Docket No. 81.)
    Decided December 21, 1920.
    Bill by Edward W. Leser ágainst David T. Smith and others to set aside an exchange of real estate on the ground of fraud. From a decree for plaintiff, defendants appeal.
    Reversed, and bill dismissed.

      Collins & Thompson, for plaintiff.

      B. J. Henderson and W. B. Henry, for defendants.
    Plaintiff was owner of a store building in Bay City in which he conducted a grocery and meat business. •Defendant Smith is a doctor residing at Omer; he owned an 80-acre farm in Au Gres township, Arenac county, hereafter called the “Smith 80.” Defendant Burnside is a hardware merchant at Turner and owned an 80 adjoining the Smith 80. It will hereafter be called the “Burnside 80.” The Smith 80 had buildings upon it; the Burnside 80 had none. Smith and Burnside had agreed to dispose of the two 80’s together and title to the Burnside 80 was placed in Doctor Smith. Plaintiff’s building was incumbered for $3,000. He made a trade of the building and stock for the two 80’s. In the trade his building was put in at $8,000 and the stock at $2,500. The farms were put in at $12,000, and plaintiff gave a mortgage for $4,500 on them to pay the mortgage on the store building and the “boot” money. This bill is filed to set aside this trade on the grounds of fraud. Plaintiffs claim is thus stated by his counsel:
    “Plaintiff in the court below sought to set aside the transaction involved on the ground of fraud and misrepresentation on the part of the defendants, and claimed in his bill of complaint that he was ignorant of farms and knew nothing of the kinds of soil or what they would produce.
    “He claims that involved in the fraud, Paul R. Dins-more represented that he was the agent of the defendants Garfield A. Burnside and David T. Smith to sell the land, and the said Dinsmore represented to him:
    “1st. That the property was 160 acres all cleared, with good buildings.
    “2d. That the soil was the best, A No. 1, for the raising of all kinds of crops.
    “3d. That it was heavy clay soil and would produce good crops, wheat, corn, oats and sugar beets.
    “4th. That it was worth the sum of $12,000.
    “He further claims that the defendant Garfield A.' Burnside drove him and his brother-in-law from Turner to the farm.
    “1st. That he took them in a round about way over the best farm lands.
    “2d. That he misrepresented the kind and condition of the farm house.
    “3d. That he took them back to the barn where the crops looked good, and said the whole farm is as good as this, but we must hurry up and get back.
    “4th. That he took them to a point on the Burnside 80 where sugar beets were planted and said the entire 80 was all clay loam.
    “5th. That he represented that the whole 80 was the best kind of land, and plaintiff would be getting a bargain.
    “6th. That the house cost about $3,000 to build.
    “7th. That the 160 acres was worth about $12,000.”
    The case was tried by a jury as ordinary actions at law are tried. There was no submission to the jury of single questions of fact, but the case under a general charge was submitted to the jury upon the broad question of whether plaintiff should prevail. The jury rendered a general verdict for the plaintiff. Thereupon defendants’ counsel filed a motion for a decree notwithstanding the verdict and in support of such motion filed affidavits setting up some of the argument of plaintiff’s counsel which it was claimed was prejudicial to defendants. The facts set up in these affidavits were not denied; the arguments, there detailed were of that character which has many times, met the condemnation of this court. The trial judge filed a short opinion overruling this motion. After stating that the case involved sharp questions of fact and was submitted to the jury at the request of plaintiff’s counsel, he said:
    “The jury found that there was fraud in the transaction, and since the findings of the jury in a case of this nature are only advisory, but the question being one clearly of fact, and the jury having found against the defendant, and the court since having been requested to find for the defendant, notwithstanding the verdict of the jury, the court feels that the question of fact is one that the jury should determine, and having been so determined by it, the court should not reach a different conclusion on the facts. The findings of the jury will be considered as a determination of the facts in the case, and a decree may be made accordingly.”
    The trial judge nowhere in this opinion expressed his personal views of the facts either as aided by the 'finding of the jury or independent thereof. A decree conformable to the prayer of the bill was entered and defendants appeal.
   Fellows, J.

(after staling the facts). This court hears chancery cases de novo, aided but not controlled by the findings of fact of the trial judge, who may in turn be aided but not controlled by the findings of a jury on pure questions of fact. In the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438), this court in holding an act invalid which provided for a trial by jury in chancery cases as matter of right, and making the verdict a finality, pointed out quite fully the rights of party litigants in equity cases. It was there said:

“The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury. Whatever may be the machinery for gathering testimony or enforcing decrees, the facts and the law must be decided together; and when a chancellor desires to have the aid of a jury to find out how facts appear to such unprofessional men, it can only be done by submitting single issues of pure fact, and they cannot foreclose him in his conclusions unless they convince his judgment.”

As has already been noted, single questions of pure fact were not submitted to the jury, nor has the chancellor .expressed his personal views upon the facts aided or unaided by the verdict. The proceedings are irregular, but the testimony is all before us, and as the final triers of the facts in chancery cases we shall proceed to dispose of the case giving such weight to the verdict of the jury as under all the circumstances it is entitled to. By so doing we are not to be understood as approving the method of procedure in the instant case or making it a guide for future cases.

The parties and their witnesses are not in accord on many of the material questions of fact. Some' of the claims of plaintiff do not find support in the proofs; upon many of them there is direct conflict between the parties. The problem before us is to determine whether plaintiff has sustained the burden of proof, has established the fraud he alleges as the basis of his right to recover, because fraud is never presumed, and must be established by a preponderance of the evidence.

Before plaintiff engaged in his present business he had been a florist and had owned 10 acres of clay land.' We think the testimony shows that he was not a practical farmer, but that he knew the difference between sand and clay soil and could tell such difference when he saw the soils. A disinterested witness who showed him a farm near West Branch gives testimony tending, to show that plaintiff was quite versed in soils and readily picked out the best portion of the farm under observation. While plaintiff claims that he was doing well in his business and that the state of his health was the cause of his desire to trade for a farm, we are satisfied from the testimony of disinterested witnesses who sold him goods and dealt with him that he was not making money in the business and was anxious to get out of it. The stock was considerable lower than when he purchased it; he owed $3,000 on his building, and within a few cents of $900 to his commercial creditors.

Plaintiff claims he had not listed his property with Mr. Axe, a real estate dealer in Bay City, and claimed Axe, whom he made a defendant but took no relief against, was one of the parties who participated in the fraudulent transaction; but he admits that after the deal was ciosed he gave Axe his note for $300, which Axe testifies was the agreed commission, upon which note plaintiff had paid $25, and had suffered a judgment in justice’s court to pass against him for the balance and had then appealed the case to the circuit court. It does appear that plaintiff examined several farms which Axe claims to have called to his attention, but no deal was consummated as to any of them. The circumstances surrounding the transaction, together with the testimony of the witnesses, are quite per-, suasive that Axe brought the parties together in the regular way of a real estate broker, and as the agent of the plaintiff.

Plaintiff accompanied by his brother-in-law, a Mr. Foulke, went up to Turner to look over the farms. Plaintiff claims that his sister was insistent that he make the trip, that he did not want to go because “I thought they were a bunch of crooks and I didn’t want to go with them,” although in other parts of his testimony he says he relied on all they told him. Plaintiff and. Mr. Foulke arrived at Turner about 2 o’clock in the afternoon and were taken by Mr. Burnside to see the farms. There is no testimony that they were taken in a round about way. We think it should also be stated at this point that plaintiff says that the 160 was cleared land and was properly fenced; it also appears that plaintiff has no complaint about the house. It was a good farm house, comparatively new, and would at present prices cost around $4,000 to build. There were two barns or two parts of the same barn, one in good condition, the other dilapidated. Back of the barn there were some crops growing. One of the few facts upon which the witnesses are in substantial accord is that this land back of the barn is sandy and the poorest of any on the Smith 80. The parties looked this ground and the crops over. Plaintiff claims that Mr. Burnside told him that "around here the soil is a little light but the rest of it is all good, A No. 1, land.” Mr. Foulke gives the following testimony as to this conversation:

“Q. He said it was all just like that, that you saw there?
“A. Yes, sir.
“Q. He said the whole place was the same kind of soil that you saw back of the barn?
“A. He said it’s all clay loam.
“Q. Just like this back of the barn?
“A. Yes, sir.
“Q. It was all just like that j^ou were looking at, is that right?
“A. Yes, sir.”

Mr. Burnside denies making any fraudulent representations as to the character of the soil or its value. He says he told them that if the farm was properly worked it would produce good crops, that he was there “to show them this land, if there was any place they wanted to go, I would take them to it.” Plaintiff and Mr. Foulke claim Mr. Burnside was constantly hurrying them to get back to Turner; Mr. Burnside denies this. He claims they made a full and complete examination of the farms, seeing both the good and bad parts of them; this they deny. They did spend the balance of the afternoon there and returned to Turner time enough to get their supper and return home on the evening train. After this trip the deal was consummated.

The parties themselves are in conflict as to whether representations were made, and they are likewise in conflict as to the character of the soil, and the value of the properties. The witnesses called by the parties are likewise in conflict as to the character of the soil and the value of the properties. Plaintiff produced three witnesses who live in the neighborhood of the Smith and Burnside 80’s. They all fix the value of the Smith 80 at $8,000. Two of them fix the value of the Burnside 80 at $10 an acre, and the other one does not fix any value on it. They all depreciate the soil of both 80’s. On the other hand, defendants produce three witnesses from this neighborhood who testify favorably to the character of the soil. Their estimates of value of the Smith 80 are: (1) $90 per acre, (2) $80 to $90 per acre, (3) $6,500 to $7,000; of the Burnside 80: (1) $30 to $40 per acre, (2) $40 per acre, (3) $25 to $30 per acre. Defendants also produced as a witness a man living in the neighborhood and who for many years owned the Smith 80. He gives testimony of abundant crops raised on both 80’s and the fertility of the soil, and while he does not attempt to fix a value, he does testify that he sold the Smith 80 after the house had burned and before the present one was built for $8,000. All of these witnesses come from the vicinage and appear equally credible.

Defendants also produce as witnesses two farmers who are directors in a bank in a near-by town. They looked over this property for .their bank and appraised its value as the basis of a loan. They both fixed the value of the two 80’s at $9,000 and so reported to their bank which took a loan on it. They testify to that value on the hearing. They appear to be fair and disinterested witnesses and not to have taken sides in this controversy. If it became necessary for us to fix a value of these premises, their testimony in view of the conflicting testimony of the neighbors would be very impressive that they had fixed the value about right, and that these premises were worth the sum fixed by them.

Directly across the road from the Smith 80 is a farm of 120 acres owned by a Mr. Swanson. However much the neighbors disagree upon the questions of Value and soil they join in the opinion that Mr. Swanson is a most excellent farmer and that his farm is in a high state of cultivation. The State tax commission had recently reviewed the assessed valuation of Au Gres township. It had fixed the value of the Swanson 120 acres at $5,000 and of the Smith 80 at $4,500. It also appeared that a bank in one of the near-by towns had loaned $1,400 on the Burnside 80.

Turning now to plaintiff’s building in Bay City, we find a like conflict in the testimony as to its value. Plaintiff fixes its value at $8,000, the amount that it was put in in the trade. He called as witnesses two real estate dealers, one of whom fixed its value at $6,000, the other from $7,500 to $8,000. Defendants called three real estate dealers. One fixed the value at $5,000, another at $4,500, and the other at $4,300 to $4,500. The testimony is quite persuasive that each of the parties had “boosted” the value of his real estate about $3,000 in making the trade. But we are not persuaded that defendants or any one connected with them made such representations as to the value of the farms as would amount to actionable fraud.

We have reviewed. the testimony at considerable length, although we have by no means set it all out. It would not profit the. parties or the profession so to do. Upon a careful examination of this record, we are clearly of the opinion that the plaintiff has not discharged the burden of proof which the law casts upon him. Entertaining this view it is our duty to put such view into force irrespective of the result in the court below or the method by which such result was reached.

The decree of the court below must be vacated and one here entered dismissing the bill. Defendants will recover costs of both courts.

Mooee, C. J., and Steeee, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    SWANEY v. JOHN SCHLAFF CREAMERY CO.
    1. Malicious Prosecution — Elements—Probable Cause.
    In an action for malicious prosecution, plaintiff must establish. the fact of the prosecution, that It terminated in his favor, that defendant had no probable cause, and that he acted from malicious motives.
    2. Same — Probable Cause — Statement oe Facts to Counsel.
    If the prosecuting witness in good faith fully and .fairly stated all the material facts within his knowledge to his own attorney or the prosecuting attorney and acted upon his or their advice, proof of the same establishes a case of probable cause, but if he did not fully and fairly state the facts he cannot protect himself by the advice given.

      On probable cause as question for court or jury where advice of counsel has been sought, see note in L. R. A. 1915D, 85.
    On acquittal or discharge by an examining magistrate as evidence of want of probable cause see notes in 64 L. R. A. 481; 3 L. R. A. (N. S.) 929.

      3. Same — Probable Cause.
    Where the facts are undisputed, want of probable cause is a question of law to be settled by the court.
    4. Trial — Directed Verdict.
    Upon a motion to direct a verdict the testimony most favorable to the other party must be accepted, together with the legitimate inferences to be drawn from it.
    ■5. Malicious Prosecution — Probable Cause — Question for Jury.
    Where defendant’s testimony that he submitted all of the material facts to counsel upon whose advice he acted was disputed, the trial judge properly submitted the question of probable cause to the jury for determination.
    6. Same — Evidence—Admissibility—Appeal and Error.
    Where plaintiff had been prosecuted for embezzlement, the admission of evidence that he had left on deposit with defendant company two dollars weekly as “cash bond,” for which “bond slips” were issued, until the sum aggregated $150, its materiality not having been satisfactorily pointed out, nor its harmfulness made apparent, held, not prejudicial.
    7. Same — Principal and Agent.
    Evidence that these “bond slips” were turned in to defendant’s bookkeeper to apply on plaintiff’s account was properly received over defendant's objection that the bookkeeper was plaintiff’s agent, since the bookkeeper was in defendant’s employ and in charge of its books and office.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted October 8, 1920.
    (Docket No. 67.)
    Decided December 21, 1920.
    Case by Frederick E. Swaney against John Schlaff Creamery Company and another for malicious prosecution. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Harry H. Wait, for appellants.

      Bishop & Kilpatrick (B. B. Weaver, of counsel), for appellee.
   Fellows, J.

This action is for malicious prosecution. Plaintiff had for some time been in the employ of John Schlaff Creamery Company, and in February, 1918, was placed in charge of the Troy branch. It is the claim of defendant Schlaff that soon after plaintiff assumed charge of the Troy branch he learned through two of the employees who called at his house one evening that plaintiff was interested in a . competitor, the Melrose Creamery Company, and that he was carting merchandise from the Troy branch to the Melrose Company and had let them have a horse and harness belonging to the defendant company. It is the claim of the defendants that Mr. Schlaff made a full investigation, and laid before his attorney and the prosecuting attorney’s office all the material facts, that the arrest of plaintiff for the crime of embezzlement was directed by the prosecutor’s office, and in making the complaint he acted upon the advice of his attorney and the prosecuting attorney’s office. Defendants contend that the undisputed testimony supports their claim and that they were entitled to a directed verdict.

We do not understand that counsel disagree as to the law applicable to an action for malicious prosecution. Plaintiff must establish three propositions: (1) The fact of the alleged prosecution and that it terminated in plaintiff’s favor; (2) that defendant had no probable cause; and (3) that he acted from malicious motives. Hamilton v. Smith, 39 Mich. 222; Thomas v. Bush, 200 Mich. 224. If the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to his own attorney or the prosecuting attorney and acted upon his or their advice, proof of the fact establishes a case of probable cause. Smith v. Tolan, 158 Mich. 89; Thomas v. Bush, supra. Where the facts are undisputed, want of probable cause is a question of law to be settled by the court. Rogers v. Olds, 117 Mich. 368; Gilecki v. Dolemba, 189 Mich. 107. Where the prosecuting witness did not in good faith fully and fairly state the facts to his counsel or the prosecuting attorney he can not protect himself by the advice given. Davis v. McMillan, 142 Mich. 391 (3 L. R. A. [N. S. 928).

The case in the trial court revolved around the question of whether Mr. Schlaff fully and fairly stated to his counsel and to the prosecuting attorney’s office all the material facts and submitted to them the evidence he had collected. Mr. Schlaff was the only witness who gave testimony on this subject. If his testimony was undisputed upon the material facts, it made a question of law; if his testimony was disputed upon material facts the question became one for the jury. As the case was disposed of by the trial judge upon the theory that this question was one of fact for the jury, we need interest ourselves only with the question of whether this record supports such conclusion. This requires a more detailed statement of the testimony which has only been generalized. We shall now point out some of the conflicts in the testimony. Mr. Schlaff testifies that plaintiff was not authorized to extend credit; plaintiff testifies that he was. There is also a conflict as to whether he was authorized to sell merchandise to himself. Mr. Schlaff testifies to receiving information from two of the employees about the carting of merchandise to the Melrose Company and to the horses and harness being over there. One of these employees was a witness for plaintiff and denied saying anything about plaintiff to Mr. Schlaff or that he was doing anything wrong, but did admit on cross-examination advising Mr. Schlaff to look into things.

Of the pieces of evidence which Mr. Schlaff claims to have submitted to his attorney and to the prosecuting attorney’s office and pieces which defendants’ counsel regards as of importance is found some seven so-called “sales slips.” These were offered in evidence and are in the record. While the use of these sales slips in the business of the company is not made as clear as might be desired, the record, as we understand it, disclosed that they were, made in either duplicate or quadruplicate (there is testimony both ways) and at least one copy was given to the driver with the milk or cream to be delivered. The driver brought in the money if it was a cash sale or returned the copy with the name of the persons to whom it should be charged if it was not a cash sale. The name of the employee taking the merchandise was written on the slips. Plaintiff’s name appears on all these slips. In some of them it appears that the merchandise was sold to him, and in some of them it does not. While Mr. Schlaff claims to have submitted these slips to the attorneys, the bookkeeper at the Troy branch, who had the custody of them, gave testimony tending to show that they were not out of her possession until after the plaintiff had been arrested. We cannot determine which of these witnesses is mistaken. Upon a motion to direct a verdict the testimony most favorable to the other party must be accepted, together with the legitimate inferences to be drawn from it. The ground of defendant’s, motion was that he was protected by the advice of counsel after a good faith statement of all the material facts and the production of all the evidence in their possession; it was based upon no other grounds. Applying the rule above stated, we are constrained to hold that the trial judge was not in error in submitting the case to the jury.

Error is also assigned upon the admission of evidence that plaintiff had left on deposit with the company two dollars weekly as “cash bond,” as it is called, until the sum aggregated $150, and that so-called “bond slips” were issued therefor. The materiality of this testimony is not satisfactorily pointed out to us, nor is its harmfulness made apparent. It was possibly admissible as showing the entire terms of the contract of employment, but in any event we do not perceive its prejudicé to defendants. If it was error to receive it, the error was harmless and did not prejudice the substantial rights of the defendants. Objection was also made to evidence that these bond slips were turned in to defendants’ bookkeeper and were received to apply on plaintiff’s account; the objection to this testimony was that the bookkeeper was plaintiff’s agent. As against this objection they were admissible. The bookkeeper was in the employ of the defendant company, in charge of its books, and the office at the Troy branch.

Finding no prejudicial error upon the record, we affirm the judgment.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Per Curiam.

text:
    MICHIGAN TRUST CO. v. OTTAWA CIRCUIT JUDGE.
    1. Trusts — Order of Probate Court — Judgment.
    Where, upon final accounting of a trustee, an order of the probate court that said trustee turn oyer certain property and pay a certain sum of money to plaintiff was not appealed from nor rehearing applied for within 90 days, under 3 Comp. Laws 1915, § 13764, said order Anally fixed the rights of the parties.
    2. Courts — Trusts — Jurisdiction — Probate Court — Circuit Court.
    Where, over a year after the entry of an order by the probate court, which had become final, plaintiff applied for leave to sue on the trustee’s bond because said order had not been complied with, the probate court was powerless to vacate or change said order, and the circuit court, exercising appellate jurisdiction, was equally powerless so to do; Circuit Court Rule No. 31, § 8, not being applicable.
    3. Same — Unwarranted Order — Acquiescence — Jurisdiction of Circuit Court.
    Plaintiff’s acquiescence in the unauthorized order of the circuit court, on appeal, granting said trustee an extension of 30 days within which to comply with the order of the probate court before suit should be brought on his bond, did not authorize a second extension of time or further acts beyond the jurisdiction of the court.
    4. Mandamus — Interlocutory Order — Unauthorized Order.
    Mandamus is the proper remedy to review an unauthorized interlocutory order of the circuit court, the effect of which is to stay proceedings.
    Mandamus by the Michigan Trust Company, administrator of the estate of Roscoe C. Hoffman, deceased, to compel Orien S. Cross, circuit judge of Ottawa county, to vacate an order extending the time to comply with an order of the probate court.
    Submitted November 6, 1920.
    (Calendar No. 29,420.)
    Writ granted December 21, 1920.

      Norris, McPherson, Harrington & Wa,er, for plaintiff.

      Clapperton & Owen, for defendant.
   Per Curiam.

On February 25, 1918, Clayton H. Hoffman, as trustee, was by the probate court of Allegan county, upon a final accounting of his trusteeship, ordered to turn over certain property and pay a certain sum of money to plaintiff. From this order no appeal was perfected. The order was not complied . with and on May 10, 1919, plaintiff asked leave of the probate court to bring suit on Mr. Hoffman’s bond. Leave was granted and Hoffman appealed. The circuit court for the county of Allegan on March 8, 1920, affirmed the order of the probate court granting such leave, but granted Hoffman 30 days in which to comply with the probate order of February 25,1918. On May 15, 1920, plaintiff brought suit in the circuit court for the county of Allegan on the bond. On September 18th the defendant made a further order extending Hoffman’s time to comply with the probate order of February 25, 1918, until October 9th. Plaintiff here applies for mandamus to compel the setting aside of this last named order.

/ The order of the probate court of Allegan county made February 25, 1918, finally fixed the rights of the parties unless appealed -from or a rehearing was ap.plied for within 90 days under section 13764, 3 Comp. Laws 1915. Mr. Hoffman took neither course. Over a year after its entry plaintiff, applied for leave to sue on the bond. The probate court was then powerless to vacate or change its order of February 25,1918, and the circuit court exercising appellate jurisdiction was equally powerless so to do. Section 8, Circuit Court Rule No. 31, is not applicable. Plaintiff, however, acquiesced in the order in that it did not bring suit on the bond until the time fixed had expired.^

It appears that the order complained of was entered because Mr. Hoffman and his attorneys did not have notice of the order of March 8th until after- suit was brought on the bond. We are pointed to no statute or rule requiring notice to be given by the county clerk of the entry of orders. The question before us is one of power rather than one of discretion.. It is also urged that the order of March 8th was res adjudicates. Indeed both parties contend for this doctrine. We do not perceive the applicability of the doctrine of res adjudicata. The plaintiff acquiesced in the extension of time to the extent at least that it deferred bringing its action on the bond until the time fixed had expired. But the acquiescence in the exercise of unwarranted power, the submission to acts beyond the jurisdiction of the court, does not authorize its second exercise or other or further acts beyond the jurisdiction of the court. x

It is insisted on behalf of defendant that mandamus is not the proper remedy; that review should be had on writ of error. Undoubtedly the order of March 8th was a final judgment and reviewable on writ of error. But the order of September 18th, which is the order sought to be set aside, is an interlocutory one, the effect of which is to stay proceedings. In Peterson v. Wayne Circuit Judge, 108 Mich. 608, and Hatch v. Washtenaw Circuit Judge, 200 Mich. 1, it was sought to compel a stay of proceedings. In each case we declined such order, but did determine the question of the power of the court to grant a stay. Both were mandamus cases. In Adler v. Judge of Recorder’s Court, 197 Mich. 81, we directed defendant by mandamus to set aside an order requiring plaintiff to cease building operations because the order staying such operations' was beyond the power of the court. But the case most directly in point is Culver v. Judge of the Superior Court, 57 Mich. 25. A suit had been instituted upon the bond of a residuary legatee. Defendant had entered an order staying such proceedings. ■ Holding that the order was an improper one to enter, we directed its vacation and determined the question on mandamus. Plaintiff has pursued the proper remedy.

We do not pass upon the effect compliance with the probate order of February 25, 1918, should have on the suit instituted on the bond. That question may be determined in that case.

The writ will issue.


text:
    PEOPLE v. BERRIDGE.
    1. Information — Amendment—Correcting Street No. Address— Intoxicating Liquors.
    In a prosecution for violation of the local-option law, the trial judge properly allowed the information to he amended correcting the street number of defendant's place of business, under 3 Comp. Laws 1915, § 15749.
    2. Criminal Law — Amending Information — Denial W Continuance — Discretion of Court.
    Where, after amendment of the information correcting the street number of defendant’s place of business, defendant requested a continuance, which was not supported by a sworn showing, there was no abuse of discretion in refusing same.
    3. Same — Witnesses — Qualifications — Evidence — Admissibility — Intoxicating Liquors.
    Where a witness testified that he knew the taste of whisky and other liquors, his testimony1 that he had tasted the contents of containers seized in defendant’s store, and that some of it was whisky and each was intoxicating liquor, stating what it was, held, admissible as against defendant’s objection that it tended to bring the law into disrespect, although the more orderly way would have been to prove the character of said contents by chemical analysis.
    4. Same — Druggists —■ Partnership — Illegal Possession oe Liquors — Intoxicating Liquors.
    Where defendants had filed the certificate of copartnership as druggists, as required by 2 Comp. Laws 1915, § 6354 ef seq., and were conducting a drug store under a firm name, but had filed no bond or otherwise complied with the requirements of the local-option law as a condition to selling liquors for excepted purposes, on a separate prosecution of one of them for a violation of said law, the presence of liquors in said store as a part and parcel of the stock in trade was the possession of defendant, although he was not present when the search and seizure took place.
    5. Same — Undisputed Pacts — Directed Verdict.
    Where the undisputed facts established defendant’s guilt under the local-option law then in force, the trial judge properly instructed the jury that it was their duty to find defendant guilty.
    Error to Genesee; Brennan (Fred W.), J.
    Submitted October 14, 1920.
    (Docket No. 105.)
    Decided December 21, 1920.
    John C. Berridge was convicted of violating the local-option law, and sentenced to pay a fine of $500 and imprisonment for 65 days in the county jail.
    Affirmed.

      J ames S. Parker and Thomas F. Stockton, for appellant.

      Alex. J. Groesbeck, Attorney General, Roy E. Brownell, Prosecuting Attorney, and Harry G. Gault, Assistant Prosecuting Attorney, for the people.
   Fellows, J.

The local-option law was in force in Genesee county when this prosecution was instituted against defendant Berridge and one Renn. Defendant Berridge upon a separate trial was convicted of a violation of one of the provisions of the Pray act so-called (2 Comp. Laws 1915, § 7121) and brings the case here for review. There had been a preliminary hearing and testimony taken before the examining magistrate. This testimony as well as that taken upon the trial showed that the defendants’ place of business was located at No. 529 North Saginaw street in the city of Flint; the information as originally filed stated the number to be 520 North Saginaw street. The court permitted the information to be amended, and an amended information to be filed alleging the correct number. -This is assigned as error. The action of the trial judge was justified. 3 Comp. Laws 1915, § 15749; People v. Meyer, 204 Mich. 331. Upon the amendment being permitted defendant’s counsel asked a continuance of the case first for a week and later for two weeks. A colloquy occurred between the court and counsel, but there was no sworn showing made for a continuance. We'are not impressed that the trial judge abused his discretion in refusing a continuance. People v. Jackzo, 206 Mich. 183; People v. Eamaus, 207 Mich. 442, 451.

The place of business of defendants had been searched under a search warrant and numerous containers with their liquid contents had been taken. These containers were produced in court, identified by the police officer and were marked as exhibits. This witness testified that he knew the taste of whisky and other liquors and had tasted the contents of some of the containers and that it was whisky. From several of the other containers liquids were poured and given to witness to taste on the stand and he testified that each was intoxicating liquor and what it was. During this proceeding and after some of it had taken place defendant’s counsel objected to this manner of procedure. It is here urged that this course was itself a violation of the law, that an analysis of the contents should have been made by a chemist, and that the proceedings had in the instant case would tend to bring the law into disrespect, especially by the unthinking. Defendant’s counsel are undoubtedly correct in insisting that the more orderly way of establishing the character of the contents would be by showing a chemical analysis, but the witness had qualified himself to speak on the subject and his testimony was not inadmissible.

The defendants had filed with the county clerk the certificate of copartnership required by Act No. 164, Pub. Acts 1918 (2 Comp. Laws 1915, § 6354 et seq.). They were conducting a drug store under the name of Flint Drug Company but had filed no bond or otherwise complied with the requirements of the local-option law as a condition to permitting druggists to sell liquors for the excepted purposes. The undisputed, testimony discloses that there was part of a bottle of whisky on a shelf back of the prescription case, 8 full bottles in the store room, a 10-gallon keg partly full of gin, a 10-gallon keg partly full of port wine and some alcohol. Some of this liquor was found on the shelves, some in the store room. This defendant was not present when the search was made and the officers did not know where he was. This fact was made the basis of requests to charge, presenting the theory that defendant could not be convicted unless he had personal knowledge of the fact that the liquor was illegally stored. These requests were refused. Upon the undisputed and unexplained facts of the instant case we think this ruling was correct. These liquors, as the undisputed testimony discloses, were a part and parcel of the stock in trade of the defendants doing business as the Flint Drug Company; they were in the store of the partnership and in its possession. The fact that one of the partners was absent at the particular time did not change the situation. The possession of one of the partners in their place of business, and as a part of this stock, was the possession of and for both partners; each was the agent of the other in the partnership business. While possibly not directly in point the case of People v. Damm, 183 Mich. 554, and the authorities there cited, will be found to be illuminating.

The trial judge instructed the jury that under the undisputed facts it was their duty to find the defendant guilty. They retired and brought in such verdict. This was not error. People v. Damskey, 180 Mich. 664.

We conclude that there was no reversible error upon this record. The undisputed facts established defendant’s guilt under the law then in force. His conviction is affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Stone, J.

text:
    PEOPLE v. BARLTZ.
    1. Appeal and Eeeob — Certioeabi—Cbiminal Law — Review.
    Review of a conviction of the crime of larceny should be had by writ of error rather than by certiorari.
    2. Same.
    Where a single question of law of considerable importance is presented, defendant is under sentence, and a writ of error could still issue as of course, the Supreme Court will treat the case as though before it on writ of error, although brought up on certiorari.

      On constitutionality of statute entitling women to serve as jurors, see note in L. R. A. 1918E, 773.

      3. Constitutional Law — Construction—Intent.
    The Constitution should be construed, if its language is appropriate, so that it will accomplish the purpose the people intended it to accomplish.

      4. Same — Women Qualified as Jurors.
    Article 3, § 1, of the Constitution, as amended, giving to women the right to vote, and placing them in the class of citizens and electors, from which class jurors were, under the statute (3 Comp. Laws 1915, § 12190), to be selected, entitles a woman elector to perform jury duty, if she is possessed of the same qualifications required of men for that duty; and the provisions of the Constitution (Art 2, § 19, and Art. 5, § 27) referring to jurors as “men” are to be construed to mean “jurors.”
    5. Same — Obiter Dictum.
    The language of this court in McRae v. Railroad Oo., 93 Mich, at page 405, referring to the constitutional right of trial by 12 “men,” held, obiter dictum, the question involved in the instant case not being then before the court.
    6. Jury — Qualifications of Jurors for Legislative Control.
    The qualifications of jurors are matters of legislative control, even though the qualifications laid down by the legislature differ from those at common law.
    7. Words and Phrases — “Men”—Definition.
    In law the word “men” frequently has a broader and more comprehensive meaning than usually given in the dictionaries, much depending upon the context and object sought to be obtained (1 Comp. Laws 1915, § 64), sometimes being construed to mean “all human beings, or any human being, whether male or female.”
    Certiorari to recorder’s court of Detroit; Jeffries (Edward J.), J.
    Submitted November 18, 1920.
    (Docket No. 119.)
    Decided December 21, 1920.
    Harold Barltz was convicted of larceny.
    Affirmed.

      Birnkrcmt, Bimkrant & Bimkrant (Said J. Birnkrcmt, of counsel), for appellant.

      Alex. J. Groesbeek, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Collins B. Scott, Assistant Prosecuting Attorney, for the people.
   Stone, J.

This case is here upon certiorari to review the trial and conviction of the defendant in the recorder’s court of the city of Detroit upon a charge of larceny of property valued at $55. Notwithstanding our opinion that a writ of error would be the more appropriate proceeding, the trial having been according to the course of the common law, we .have concluded (as a single question of law is presented, and that one of considerable importance, and as the defendant is under sentence, and a writ of error could still issue as of course) to treat the case as though here upon writ of error. The single question presented by this record is whether únder our Constitution and statutes a woman can sit as a juror in a criminal case. In the instant case the jury was composed of 11 men and 1 woman, namely, Miss C. M. Gitzen. After exhausting his peremptory challenges, defendant challenged Miss Gitzen for cause, on the ground that she, being a woman, was prohibited by the Constitution of this State from sitting as a juror in the case. The challenge was overruled, exception duly taken, and error is assigned upon the ruling.

Counsel for defendant first call attention to section 19, article 2, of our present Constitution, which provides that:

“In every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 men in all courts not of record.” * * *

It is said by counsel for defendant that we are not called upon to decide whether the legislature cm give women the right to serve on a jury, as the legislature has made no such provision. And that the question is whether malting them electors, in and of itself, makes them eligible to jury duty. Attention is called to the language of this court in McRae v. Railroad Co., 93 Mich, at page 405 (17 L. R. A. 750), where Justice Long, speaking for the majority of this court, and referring to section 27 of article 6 of the Constitution of 1850, providing that “The right of trial by jury shall remain,” said:

“This right was a trial by a jury of 12 good men and true.”

And attention is also called to Hill v. People, 16 Mich. 351; and it is urged that the common law provided for a jury composed of men, and that our Constitution has preserved this qualification and specially states that the jury shall be composed of men. It is well here that we call attention to article 3, section 1, of the present Constitution, as amended at the November election of 1918:

“In all elections every inhabitant of this State, being a citizen of the United States * * * shall be an elector and entitled to vote. * * * And provided further, there shall be no denial of elective franchise at any election on account of sex.”

Counsel refer to our general statute. relating to jurors, being section 12190, 3 Comp. Laws 1915, and add that in this State only those persons being citizens having the qualifications of electors are eligible for jury service who are

“in possession of their , natural faculties, and not infirm or decrepit, of good character, of approved integrity, of sound judgment, and well informed and conversant with the English language, and free from all legal exceptions.”

It is said by counsel for appellant:

“Our question is not whether the legislature of the people should alter the personnel of our juries, but whether they have done so.”

The only case cited in support of their claim is that of In re Grilli, 179 N. Y. Supp. 795. It will be observed that this decision is not that of a court of last resort. The supreme court of New York seems to have held that the right of jury service in that State was not incidental to, and a part of, suffrage, and was not conferred upon women by the amendment to the State constitution granting women the right to vote.

We do not understand that any question is raised here as to the right of Miss Gitzen to vote under article 3, section 1, of the Constitution as amended, nor that she was not in every way a qualified juror, unless it be by reason of her sex; and the only question presented is whether or not under the existing Constitution and laws of this State a woman is entitled to sit as a juror in a criminal case in a court of record, she being an elector in possession of her natural faculties, etc.

Counsel for the people call attention to section 27 of article 5 of our present Constitution, reading as follows :

“The legislature may authorize a trial by a jury of a less number than 12 men.”

And the question is raised by counsel for appellees whether our Constitution, in view of all its provisions, has impliedly guaranteed trial by 12 men in courts of record — a question that we do not deem it necessary for us to decide. Conceding and not deciding that there was such implication before the amendment of section 1 of article 3 of the Constitution, we proceed to inquire what the effect of the adoption of this amendment was. In construing the Constitution it should be given the meaning that the people intended it should have. It should be construed, if its language is appropriate, so that it will accomplish the purpose the people intended it to accomplish. Upon the general question of how provisions of the Constitution should be construed, the following authorities are pertinent: Bay City v. State Treasurer, 23 Mich. 499; People v. Harding, 53 Mich. 481; Bay County Supervisors v. Edmunds, 139 Mich. 466; Attorney General v. State Board of Assessors, 143 Mich. 73; Attorney General v. Detroit Common Council, 148 Mich. 71; Kearney v. Board of State Auditors, 189 Mich. 666.

What was the purpose and object of the people in adopting the constitutional amendment, striking out the word “male” from the Constitution? Was it not to do away with all distinction between men and women as to the right to vote, or as to being electors? We think there can be but one answer to this question, and that is that the purpose was to put women upon the same footing as men with reference to the elective franchise. What then was the result? Women became thereby electors. The moment a woman became an elector under the constitutional amendment she was entitled to perform jury duty, if she was possessed of the same qualifications that men possessed for that duty. In other words, she was placed in a class of citizens and electors, from which class jurors were, under the statute, to be selected. We need but refer to the statute, section 5 of Act No. 5 of the Public Acts of 1895, to determine the qualifications of jurors in Wayne county. The language as to their qualifications is substantially the same as in the general statute, which we have quoted. This court has repeatedly said that an elector was qualified as a juror, if he possessed the requisite intelligence and other qualifications. See People v. Collins, 166 Mich. 4, 9, citing People v. Scott, 56 Mich. 154; People v. Rosevear, 56 Mich. 158; People v. Considine, 105 Mich. 149.

It seems clear to us that by making a woman an elector she is thereby placed in a class which makes her eligible for jury duty. A case almost directly in point on this proposition is that of Rosencrantz v. Washington, 2 Wash. Ter. 267 (5 Pac. 305). We are aware that this case has since been overruled by a divided court in Harland v. Washington, 3 Wash. Ter. 131 (13 Pac. 453); but the language of the Bosencrantz Case is so appropriate and the reasoning so clear that we are disposed to adopt it. The court there said:

“The Code of 1881 provides that all electors and householders shall be competent grand jurors, and it is claimed by plaintiff in error that this must be held to apply to only such persons asi were thus qualified at the time such provision was enacted and not to such as should thereafter become endowed with such requisite qualifications; but to us it seems clear that the legislature intended simply to prescribe what classes of persons in society, as it was then, or should be thereafter constituted, should be called upon to perform such jury duty, and that whenever a person'by any change in his condition was brought within such requirements, he at once became liable to perform such duty, and that likewise where, by a change in the law, a class of persons was brought within such requirements, the members of such class at once became liable to society for all the obligations incident to the class of electors and householders, of which they had thus become members.”

In our opinion the adoption of the amendment to section 1 of article 3 of the Constitution had the effect to modify the provisions of the Constitution which we have alluded to. That is to say, the provisions should all be construed together. If making women electors qualified them for jury duty, then men alone were not required to serve as jurors; and it might well be said that the language referring to the jury, “which may consist of less than 12 men in all courts not of record,” is now the equivalent of saying that juries may consist of less than 12 jurors in all courts not of record. In other words, the word “men” loses its significance and becomes that of “jurors.”

The language of this court in the McRae Case, where the term “men” is used, was purely obiter dictum as far as the word “men” was concerned, the question here discussed was not before the court, and the language might as well have been “this right was a trial by a jury of 12 good jurors and true,” substituting the word “jurors” for “men.”

It seems to be the settled law in all the States, so far as we have been able upon examination to discover, that the qualifications of jurors are matters of legislative control, even though the qualifications laid down by the legislature differ from those at the common law. People v. Harding, supra; City of Saginaw v. Campau, 102 Mich. 594; Ex parte Eban Mana, 178 Cal. 213 (172 Pac. 986, L. R. A. 1918E, 771).

It was held in the last cited case that the constitutional provision, that the right of trial by jury shall be secured to all, and remain inviolate, did not prevent the legislature from authorizing women jurors where the constitution also provides that no person shall, on account of sex, be disqualified from pursuing any lawful business, vocation, or profession, and confers upon women the right to vote and hold office. In that case an act authorizing women to sit as jurors was claimed to be unconstitutional. In holding the law constitutional the court said, among other things:

“Petitioner claims that the word 'men’ should be inserted, by proper construction, in the constitution, so that the constitution would in effect read: 'The right of trial by a jury of 12 men shall be secured to all/ etc. This contention is based upon the proposition that when the constitution provides for a trial by a jury it, by necessary inference, provides for the jury as known at the common law (People v. Powell, 87 Cal. 348 [25 Pac. 481, 11 L. R. A. 75]) and that, as juries of men. were provided by the common law, the constitution must be thus construed. Two questions seem to be thoroughly settled by the unbroken line of decisions in all the States: First, that constitutional provisions guaranteeing the right to a trial established the right to a trial by a jury as known at common law; second, that the qualifications of the jury is a matter subject to legislative control, and that, even though such qualifications may differ from those at common law, such legislation is nevertheless a valid exercise of legislative power. 24 Cyc. p. 187; People v. Powell, supra; People v. Chin Mook Sow, 51 Cal. 597.”

So long as the essential requisites of trial , by jury are preserved, it is competent for the legislature to prescribe the necessary qualifications of jurors, and additional qualifications may from time to time be imposed by the legislature.

Another aspect of the question is that in law the word “men” frequently has a broader and more comprehensive meaning than usually given in the dictionaries. Much depends upon the context and the object sought to be obtained. In some of its uses it is construed to mean “all human beings, or any human being, whether male or female.” Anderson Law Dict.; State v. Seiler, 106 Wis. 346 (82 N. W. 167).

Section 64, 1 Comp. Laws 1915, provides as follows:

“In the construction of the statutes of this State, the following rules shall be observed, unless such construction would be inconsistent with the manifest intention of the legislature, that is to say * * * every word imputing the masculine gender only, may extend and be applied to females as well as males.”

We refer to the following authorities and definitions :

Rackliffe v. Seal, 36 Mo. 317, 319:

“To accommodate the evident intentions of the parties, words will be construed with an unusual extent of meaning, and held to be generic rather than specific; as, for instance, ‘men’ will be interpreted to mean mankind, and include women.”

In Eichorn v. Railway Co., 130 Mo. 575 (32 S. W. 993), an action was brought against the railway company by a married woman to recover for personal injuries. At page 589 the court said:

“As to the criticism of the court’s instruction because it defined negligence to mean the lack of such care and caution as reasonable and prudent men would exercise under like circumstances, instead of ‘women,’ it is only necessary to say the defendant’s own instructions cured this defect, if any; but the jury would have been utterly unfit to try any case if they did not understand that ‘men’ in this instruction was generic and embraced women.”

See, also, Turner v. Whitten, 40 Ala. 530, 532; State v. Welsor, 117 Mo. 570 (21 S. W. 443).

Webster’s New International Dictionary:

“Man (Men pi.). A human being, an individual of the genus Homo.
“Man is the highest type of animal existing or known to have existed, but differs from other animals more in his extraordinary mental development than in anatomical structure.
“The human race; mankind; human beings collectively.
‘“And God said, Let ns make man in our image, after our likeness, and let thevi. Lave dominion.’ Gen. 1, 26.
“ ‘The proper study of mankind is man.’ Pope.”

Century Dictionary:

“Mem. A human being.
“2. A being, whether supra- or infra-natural; a person.
“3. An individual of the human race; a human being, as all men are mortal.
“‘All these his wondrous works, hut chiefly man, His ehiei delight and favour.’ Milton.
“4. Generically the human race; mankind; human beings; collectively: used without article or plural; as, man is bom to trouble; the rights of man.
“5. Specifically. A male adult of the human race as distinguished from, a woman, * * * or who is regarded as of manly estate.
“Men. A middle English variant of man in indefinite use.”

So in any view of the case which we are able to take, under the authorities cited by counsel, or examined by us, we are of the opinion that the trial court did not err in overruling the challenge of the juror, Miss Git-zen, and that so far as this record shows she was a qualified juror under the Constitution and laws of this State.

The judgment of the court below is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    KLATT v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Amended Return — Statutes—Review.
    Under 3 Comp. Laws 1915, § 13437, on. application to the Supreme Court for mandamus against a circuit judge to review an order or decision, amendments to the return may he proposed to such judge and are to he determined by him according to the facts, and the question of a proposed amended return will not he considered by this court.
    2. Same — Return—Failure to File Plea Admission or Facts.
    Where no plea is filed to the return, all the material facts stated therein must be taken as admitted to be true, under 3 Comp. Laws 1915, § 13440.
    3. Replevin — Custody of Property — Statutes—Merits of Case.
    In procéedings under 3 Comp. Laws 1915, § 13088, to determine the custody of property pending suit in replevin upon affidavit that it has an especial value that cannot be satisfied in money, the merits of the case were not before the circuit judge.
    4. Mandamus — Not Adjudication of Rights.
    Mandamus proceedings do not adjudicate rights, but are a mode of enforcing existing rights.
    5. Same — Not of Right But Discretion.
    The writ of mandamus is not one of right, but one of discretion.
    6. Same — Abuse, of Discretion.
    Where contradictory or conflicting affidavits have been filed and a question of fact raised which has been passed upon by the circuit judge, his decision ought not to be disturbed or reversed unless there has been an abuse of discretion.
    7. Same.
    On examination of affidavits before the circuit judge pro and con, held, no abuse of discretion shown.'
    8. Replevin — Foreign Corporations — License.
    In said proceedings, whether the foreign corporation which originally sold the property had ever been licensed to do business in Michigan, held,"unimportant.
    9. Same — Custody of Property — Statutes—Construction.
    The contention of counsel for plaintiff that the provisions of said statute can only apply to property consisting of heirlooms, keepsakes, paintings, originals of works of art or skill, or documents or records where money could not restore the article, cannot be sustained.
    Mandamus by .William F. Klatt to compel Adolph F. Marschner, circuit judge of Wayne county, to vacate an order assigning the possession of certain property in replevin proceedings.
    Submitted November 30, 1920.
    (Calendar No. 29,296.)
    Writ denied December 21, 1920.
    Rehearing denied February 10,19,21.

      Wurzer & Wurzer, for plaintiff.

      A. W. Sempliner, for defendant.
   Stone, J.

The petition of the plaintiff was filed in this court praying for a writ of mandamus against the defendant, one of the judges of the circuit court for the county of Wayne, to compel him to vacate an order made in a replevin suit hereinafter described. At the threshold of the case we are met in the record with the application of plaintiff for amendments to the return of the defendant, supported by affidavits. We know of no such practice in this court. Section 13437, 3 Comp. Laws 1915, being a part of the judicature act, provides that whenever application is made to this court for mandamus against any circuit judge, for the purpose of reviewing any order or decision made by such judge in' any matter or proceeding before him, he shall settle the return as therein provided. The closing sentence of this section reads as follows:

“Amendments to such showing or return may be proposed by the applicant or his attorney and all disputes respecting the same shall be determined by such judge according to the facts on such settlement.”

We do not think the question of a proposed amended return is before us, and we shall therefore pay no more attention to it.

It will be further noticed on examination of this record that no plea was filed to the return, and the matter is therefore before us for hearing upon the petition and return. All the material facts stated in the return must be taken as admitted to be true. See section 13440, 3 Comp. Laws 1915; Thiedemann v. Board of Dental Examiners, 204 Mich. 151.

It appears by the petition for the writ, and by this record, that Johnston B. Kennedy and Jacob Stahl commenced an action of replevin in the circuit court for the county of Wayne against William F. Klatt and the Duplex Theatre Company, a Michigan corporation, for the possession of certain theater chairs. They claimed in said suit that their damages were $8,000. The writ was issued and the property was appraised at $2,330. The plaintiffs therein executed a bond to the sheriff, as required by sections 13087 and 13088, 3 Comp. Laws 1915, in double the appraised value, which bond was duly approved. The writ was duly served on defendant William F. Klatt on May 6, 1920, but was never served upon the defendant Duplex Theatre Company because that company had ceased to do business and its officers could not be found. The defendant Klatt filed the bond required by the statute in double the amount of the appraised value, which was duly approved. Thereupon the plaintiffs in the replevin suit filed their application, supported by the affidavits of Jacob Stahl and Johnston B. Kennedy, stating that the question of the custody of the property taken would be submitted to the defendant, presiding circuit judge of said county, at his court room in the city of Detroit, on the 12th day of May, 1920, at the opening of court on said day, or as soon thereafter as counsel could be heard. Such proceeding was claimed to be had under the provisions of said section 13088. That part of the section involved reads as follows :

“Provided, That if either party, before the delivery of the property by the officer to the opposite party, shall make and present to such officer an affidavit, setting forth that the property replevied, or any part thereof, has an especial value to him that cannot be satisfied in money, together with a notice in writing that the question of the custody thereof will be submitted to the judge of the circuit court, or a circuit court commissioner of the county, at a time and place therein stated, not exceeding five days from the date thereof, and shall serve upon the opposite party, or his attorneys, a copy of such affidavit and notice, at least two days before the time of hearing mentioned, the officer shall retain custody of such property until the time mentioned in such notice, and until the order of such judge or commissioner thereon. Such judge or commissioner, on proof of service of such affidavit and notice, shall hear the claims of the respective parties, and by order under his hand, award the possession of such property, pending the suit, to either party, on the execution of a bond as herein required, as he shall deem just.”

The affidavit of Jacob Stahl, one Of the said plaintiffs, after reciting that said property was then in the custody of the sheriff of Wayne county by virtue of the writ, stated that said property had an especial value to the plaintiffs therein that could not be satisfied in money;that

“the chairs involved in this suit were purchased for about $6,000, but that at the present time, because there are none for sale, they are worth far more than their original cost, and far more than their intrinsic value, and are worth in excess of $16,000. That deponent Stahl has piade an agreement to deliver these chairs to a theater in Lansing, and because of market conditions, specific performance of such agreement could be enforced.”

There was also the accompanying affidavit of Johnston B. Kennedy, the other plaintiff therein, to the same effect, except as to the last sentence of the affidavit.

The parties appeared before the defendant, and the affidavit of William F. Klatt was filed, stating in substance that the chairs described in the writ of replevin were theater seats firmly and securely attached to the building sometime known as the Duplex Theatre; that said seats were originally purchased by the Grand Boulevard Theatre Company from Andrews & Company of Chicago, who installed the same over four years ago and that they had remained there ever since, and were still so attached to the building as aforesaid; that subsequent to the installation of said chairs a first mortgage was given on the entire real estate of the Grand Boulevard Theatre Company, consisting of said real estate and building, together with all real fixtures; that said building where said seats were so installed was then being operated as a theater, and that said chairs were essential to the use and occupancy of said premisés, and that great and irreparable loss would result to the owners of said property if such chairs were removed; and that said chairs could not be removed without damage to the freehold. This affidavit denied that said chairs had any special value to the plaintiffs in the replevin suit that could not be satisfied in money but that, on the contrary, said plaintiffs have frequently offered and proposed to dispose of their alleged interest in said chairs at a figure far less than $6,000, and the affidavit denied that plaintiffs have any property in said chairs whatever.

The matter before the defendant was held open, and on the 21st day of May an additional affidavit was filed by said William F. Klatt setting up more fully the circumstances under which said chairs were purchased from said A. H. Andrews & Company, and that said Andrews & Company never qualified to do business in the State of Michigan. It states that the plaintiffs in the replevin suit took some sort of an assignment of the claim of Andrews & Company, claiming that there was balance due upon the said chairs. It also alleged the giving of the mortgage upon the real estate to Ransom E. Olds, which had been foreclosed, and that the timé for redemption had expired, and that the said Klatt “was in possession thereof, by, under and through the assignee of said Olds.” An additional affidavit was also filed by Johnston B. Kennedy on the 24th day of May, 1920, and a further affidavit was filed by the said Klatt on the 1st day of June, 1920, with reference to the right to the possession of said chairs.

The hearing of said matter was postponed from time to time in an effort by defendant herein to have said case set down for trial before one of the other circuit judges. It further appears that on June 3, 1920, the Klatt Land Company, a Michigan corporation, of which the said William F. Klatt was president, claiming said chairs as part of the freehold, and claiming that it was entitled to the freehold, commenced a suit in the circuit court of said county, in chancery, against said Jacob Stahl and Johnston B. Kennedy to prevent them from doing any damage to the freehold, and it secured a temporary injunction restraining said Jacob Stahl and Johnston B. Kennedy, and their servants or agents, or any one in their behalf, “from either directly or indirectly removing or ordering the removal of any theater chairs from the theater building formerly owned by the Grand Boulevard Theatre Company, and sometimes called the Duplex Theatre, in the city of Detroit, Michigan.”

Finally, upon the 5th day of June, the attorneys for the respective parties in the replevin suit appeared before the defendant circuit judge, and after a statement by the attorney for said Stahl and Kennedy as to the commencement and pendency of said injunction suit, defendant circuit judge entered the following order (after entitling the court and case in the usual form) :

“Due proof of service of the affidavit and notice filed herein having been made before me, and on reading and filing the petition of Jacob Stahl and Johnston B. Kennedy, praying for custody of the property involved in the above replevin action and after hearing the claiihs of the respective parties concerning the custody of the property taken upon the writ of replevin issued in said cause; it is ordered, that pend-mg said suit the property described in the writ of replevin shall be delivered by the sheriff of Wayne county, to Jacob Stahl and Johnston B. Kennedy, the plaintiffs above named, the said plaintiffs having heretofore filed bond in double the appraised value of said property as required by statute.”

It is to set aside this order that this proceeding is brought.

The allegations in the petition, after setting forth the appearance before another circuit judge in an effort to have the case set down for trial, and that the attorney for said Stahl and Kennedy informed the plaintiff’s attorney that he would not agree to any setting down of said case, but that he would go before the defendant circuit judge and take his. order, the petition continues:

“That petitioner’s attorney thereupon also appeared before said Judge A. F. Marschner, and, after a statement by the attorney for said Stahl and Kennedy, as to the pendency of said injunction, said judge, without further hearing petitioner’s counsel, apparently angered by said injunction proceedings, stated that plaintiffs’ order would be granted. That petitioner’s attorney thereupon informed the court that there was no injunction restraining the prompt and due trial of said replevin action; that the Klatt Land Company had a right to pursue any remedy which it might have within the law, and that no litigant should be chastised for so doing.”

In his answer to this allegation the defendant returns as follows:

“In the answer to the allegations contained in the forepart of paragraph 16, this respondent is informed that both attorneys did appear before j;he judge, but that the attorneys for the plaintiff stated that they would not remain because they said that by the filing of the said bill of complaint, the attorneys for the relator herein had broken faith with them and the court, and that, therefore, they would go before respondent and ask that an order be entered, one way or the other, upon the motion that was then pending. In answer to the remaining allegations of said petition, this respondent avers that he believed, after a statement of the facts had been made to him by both attorneys, that the defendant in the replevin case and the relator herein, had broken faith with the court in instituting said injunction proceedings, and that he further believed that the relator herein was using every dilatory tactic that he knew of to prevent a fair and impartial trial of the replevin action as speedily as possible. That while the injunction did not prevent the trial of the replevin case, it rendered the replevin case of no avail inasmuch as, if the plaintiffs prevailed therein, they would be prevented from enforcing the judgment because of the injunction in the chancery matter. And respondent is informed and believes that the relator herein is the majority owner of the stock of the said Klatt Land Company, and that the Klatt Land Company has no better right to said chairs than has the relator herein, and respondent further avers that exercising the discretion he believes vested in him under said statute, he entered the order awarding the custody of the chairs to the plaintiffs.”

A perusal of the briefs filed in this proceeding shows that an effort was being made by the attorneys herein, before the defendant circuit judge, to there try the merits of the case. Questions are discussed involving the claim as to whether the chairs were personal property or real estate, and as to which party was entitled to the possession of the chairs, and that the said A. H. Andrews & Company, an Illinois corporation, had never secured a license to do business in Michigan; and, finally, as to whether the sale of said chairs by said company was a conditional sale or an absolute sale with security.

In our opinion it was never the intention of the legislature in enacting the provision of the statute quoted which placed the parties upon an equality as to the right of possession of the property pending suit in replevin, to try the case upon its merits in this proceeding. The language of this court is pertinent upon this subject, as expressed in the case of Detroit, etc., R. Co. v. Alpena Circuit Judge, 152 Mich. 201. It was there said:

“The remaining new provision, relative to an application by either party, before the property had been delivered to the opposite party, for an order awarding the custody to the property pending the suit, if it has ‘an especial value to him (that cannot be satisfied in money’ in terms was intended to be for the benefit of the plaintiff as well as the defendant.”

We must hold that questions going to the merits of the case were not before the circuit judge. It has been held by us that mandamus proceedings do not adjudicate rights, but are a mode of enforcing existing rights. Burland v. Mutual Benefit Ass’n, 47 Mich. 424.

The writ is not one of right, but one of discretion. Where contradictory or conflicting affidavits have been filed and a question of fact raised which has been passed upon by the circuit judge, his decision ought not to be disturbed or reversed unless there has been an abuse of discretion. Krekler v. Kent Circuit Judge, 135 Mich. 94.

The defendant circuit judge returns that “exercising the discretion he believes vested in him under said statute, he entered an order awarding the custody of the chairs to the plaintiffs.” This proceeding involves judgment and discretion on the part of the circuit judge, which could not in any way be corrected by mandamus unless there has been a clear abuse of discretion. Mandamus will not lie to1 obtain a decision upon the merits in such a case. Sherwood v. Ionia Circuit Judge, 105 Mich. 540.

The questions whether the property was personal property or real estate, who was entitled to the possession of the property, as matter of law, and kindred questions, were not properly before the defendant circuit judge. The single question for him to determine was, whether the property replevied had an especial value to the moving party that could not be satisfied in money. We have examined the affidavits before the circuit judge pro and con upon this question, and are unable to say that there was any abuse in the judicial discretion exercised by the defendant circuit judge. It is equally unimportant whether A. H. Andrews & Company, a foreign corporation, had ever been licensed to do business in Michigan. See Rex Beach Pictures Co. v. Garson Productions, 209 Mich. 692.

It is said in argument by counsel for petitioner that the provisions of the statute can only apply to property consisting of heirlooms, keepsakes, paintings, originals of works of art or skill, or documents or records where money could not restore the article. We cannot agree with counsel in this contention, and simply call attention to Detroit, etc., R. Co. v. Alpena Circuit Judge, supra, where this statute was construed and applied in reference to property consisting of “three carloads of dry hides.”

The writ of mandamus is denied, with costs against the plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.