author: Long, J.

text:
    PEOPLE v. OCHOTSKI.
    1. Aggravated Assault — Statutes.
    2 How. Stat. § 9122a, adopted in 1883, providing for the punishment of persons who commit assaults with intent to do great bodily harm, less than the crime of murder, was designed to prescribe a more severe punishment than could be imposed under pre-existing laws for assaults committed with intent to do serious injury of an aggravated nature; and it is not essential to a conviction under such statute that the assault should have been such that, if death had resulted, the respondent would have been guilty of murder.
    2. Same — Criminal Intent — Instructions.
    An instruction in a prosecution under 2 How. Stat. § 9122a, that the prosecution is bound to prove “not only the assault, but the intent as well; not only that the respondent struck the complaining witness, but that he so .struck her and inflicted the injuries with intent to do great bodily harm, less than the crime of murder,” — is sufficiently specific on the question of intent, without indicating the distinction between the offense charged and assault with intent to murder.
    3. Same — Nature of Weapon — Sufficiency of Information.
    An information for an assault with intent to do great bodily harm, less than the crime of murder, which charges the offense in the words of the statute (2 How. Stat. § 9122a), is sufficient, without setting out the weapon with which the assault was made.
    4. Criminal Law — Former Jeopardy — Assault — Independent Volition.
    An acquittal of an assault committed upon one person is not a bar to a trial for an assault upon another in the same affray, where the injury was inflicted by a separate blow, and instigated by a different volition.
    Exceptions before judgment from Wayne; Hosmer, J.
    Submitted November 5, 1897.
    Decided January 25, 1898.
    Martin Ochotski was convicted of assault with intent to do great bodily harm less than murder. Conviction
    affirmed.

      John G. Hawley, for appellant.

      Fred A. Maynard, Attorney General, and Allan H. Frazer, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted in the Wayne circuit court under an information charging that the respondent, “on the 17th day of May, A. D. 1896, at * * *, did assault one Rosanna Heike, in the peace of the people * * * then and there being, with intent to do her, the said Rosanna Heike, great bodily harm and pain and injury, less than the crime of murder,” etc. The case comes into this court on exceptions before sentence. The information was filed under section 9122a, 2 How. Stat., which provides that:

“Any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be punished by imprisonment in the state prison not more than 10 years, or by fine not exceeding $800, or by both, in the discretion of the court.”

After conviction, a motion for a new trial was entered in the circuit court, and denied. This motion is incorporated in the record, and the grounds upon which a reversal of the case is now asked are embodied in the motion, and are, substantially:

1. That the court failed to instruct the jury that if they should find that the respondent committed the assault alleged in the information, with intent to commit grievous bodily harm, they must also find that said assault was committed with such an intent as would have made the respondent guilty of murder, and not merely of manslaughter, if death had ensued as a result of such assault.

2. That the court did not instruct the jury as to what intent on the part of the respondent would have rendered him guilty of murder, and what of manslaughter, if death had ensued as a result of the assault alleged.

3. That the court did not instruct the jury that, if the respondent was guilty of an unlawful assault, yet, if it was such an assault that if death had ensued the offense would have been no more than manslaughter, they could not in this case find him guilty of any greater offense than a simple assault.

4. That the court instructed the jury that the fact that respondent had been acquitted of the charge of criminal assault upon the husband of the complaining witness in the same transaction in which the respondent is charged in this case could be considered by the jury only as bearing upon his character as a man.

.5. That the court did not instruct the jury that said acquittal conclusively established, as between the people and respondent, that respondent had not committed any criminal assault upon the-husband of complaining witness, the undisputed testimony showing that the complaining witness intervened against the respondent on the side of her husband, while, as it was claimed on the trial, the respondent was engaged in an unlawful assault upon her husband, this being the same 'transaction as-to which the respondent had been acquitted of any wrongful conduct.

6. That the court did not instruct the jury that it was res adjudicatei, as between the people and respondent, that, when complainant attacked him on behalf of her husband, respondent was acting lawfully, in his own defense, and that the husband of complainant was then engaged in an unlawful assault on this respondent, and that this jury must accept the verdict of the former jury as conclusive upon that point.

7. That the court did not instruct the jury that if, according to some of the testimony, the complaining witness interfei’ed to help her husband while he was engaged in an unlawful assault upon the respondent, she was guilty of the first unlawful assault upon the respondent.

8. That the information does not charge any higher offense than a simple assault.

9. That the verdict was contrary to the evidence.

The testimony upon the part of the people tended to show that Rosanna Heike and her husband were neighbors of respondent and his family; that respondent is a milkman, and kept eight or nine cows, and that the Heikes kept one cow; that these cows were permitted to roam at large over the commons; that on May 17,1896, the Heike cow was in a herd with respondent’s, when, respondent’s daughter having separated them, the respondent commenced beating the Heike cow; that Heike went out to remonstrate with him, when respondent made an unprovoked assault upon him; that, having disabled Heike, the respondent turned upon Mrs. Heike, and struck her a number of severe blows on the head, inflicting two scalp wounds, and another bruised, ragged wound on the neck; that he then struck her a blow on the head, knocking her down; that, when she arose, the flesh from the end of one of her fingers was scraped from the bone, the finger being broken, and that it was subsequently amputated. Mrs. Heike testified that she could not state how this injury was caused, but at the time she was struck she was holding her hands over her head to protect it while respondent was striking her with a shovel handle or club of similar appearance.

On the part of respondent there was evidence tending to show that, while -the cpws were being separated by respondent’s wife and daughter, Mr. Heike rushed out of his house with a club to stop them from so doing; that they ran towards their house, when Heike ran in front of them; that they called to respondent for help, but, before he reached them, Heike struck respondent’s wife, and when respondent came up Heike struck him, and again struck respondent’s wife; that then Mrs. Heike came up and struck respondent with a piece of flooring on the back, while Heike struck him at the same time from the front; that respondent’s’ daughter, being called to do so, ran and got some sticks for respondent, with which he defended himself from the Heikes, and ended the conflict; that respondent had his head injured in the conflict, and was so badly injured that for seven weeks he could not raise his arm; that the hands of respondent’s wife were badly injured ; that the injury to Mrs. Heike’s finger was caused by her picking up an old tin pail, and striking respondent with it, and, as she struck, falling down and upon it. It was a matter of dispute between the parties as to which used the piece of flooring. There was also evidence given on the part of respondent that Mr. Heike had prosecuted respondent for an assault and battery, upon the same facts as are involved in this case, before a justice of the peace and a jury, which suit resulted in an acquittal.

The trial court, after reading to the jury the statute under which the information is filed, and stating to them the law upon the question of reasonable doubt, said to them :

“Of course, in each instance in this case, where a' special intent is charged, — that is, an assault with a special intent, — it is essential that the prosecution should prove not only the assault, but prove the intent as well; that is, not only prove that the respondent struck Mrs. Heike, but so struck her and inflicted the injuries with intent to do great bodily harm, less than the crime of murder.”

The court, after speaking of the manner in which such intent might be shown, said further:

“If there was a blow inflicted by respondent upon Mrs. Heike, you may consider the character of what you believe to be the'weapon used; you may consider the injury which was produced; you may consider the violence which you believe was used; and from' that determine what intent the respondent had, if you find that he was guilty of striking the blow. When I speak of blows, I mean unlawful blows; for a person has a right, in resisting an assault and battery, to use such force as is essential to repel the assault, but he has no right, of course, to use unnecessary severity in protecting himself.”

The court said in reference to the trial and acquittal of respondent for the assault and battery upon Mr. Heike:

“The fact that he was not convicted in that case undoubtedly may bear upon his character as a man, — may be considered in that regard. * * * But you are the judges of the facts in this case, and not that jury. You are the judges of whether Mrs. Heike was assaulted, and not the other jury.”

Upon the question of the grade, of the offense charged, the court said:

“The jury may find the respondent not guilty of the offense in the degree charged in the information, but may find him guilty of any other degree of the offense inferior to that charged, or an attempt to commit such an offense. * * * If you believe the respondent guilty of striking Mrs. Heike, but you do not believe that an intent to do great bodily harm is made out, the offense would not be an assault with intent to do great bodily harm, but assault and battery.”

We will first dispose of the questions raised by counsel in his first, second, and third claims why a new trial should have been granted. Prior to the passage of this statute, in 1883, we had a statute providing:

“If any person shall assault another with intent to commit the crime of murder, every such person shall be punished by imprisonment in the state prison for life, or any number of years.” 2 Comp. Laws 1857, § 5724; 2 How. Stat. § 9088.

It has been held by this court in several cases that, to constitute the offense under this statute of assault with intent to commit the crime of murder, there must be an actual intent to kill, and that under such circumstances as would make the killing murder. Maher v. People, 10 Mich. 212 (81 Am. Dec. 781); People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162); Roberts v. People, 19 Mich. 401; Wilson v. People, 24 Mich. 410; People v. Lilley, 43 Mich. 521; Wright v. People, 33 Mich. 300. It is also held that, under this statute, it is immaterial whether the murder intended, if consummated, would be murder in the first or second degree. People v. Scott, 6 Mich. 287. Section 7092, 2 How. Stat., empowers justices of the peace to hear, try, and determine cases of assault and battery not charged to have been committed riotously, or upon any public officer in the execution of his duties, or with intent to commit any other offense. Under this statute, the punishment could be only such as a justice of the peace is authorized to inflict. There is also a general statute providing for the punishment of persons convicted of assault, or assault and battery, in cases where no other punishment is prescribed. The maximum punishment for this is one year in the county jail, or a fine not exceeding $200, or both, in the discretion of the court. 2 How. Stat. § 9103. Also, section 9086, 2 How. Stat., provides a punishment by imprisonment in the state prison for the term of 10 years upon any person who shall assault another with intent to maim or disfigure in any of the ways mentioned in section 9085.

Prior to 1883 we had no statute providing punishment for aggravated cases of assault and battery; that is, cases where the injuries inflicted were serious and of an aggravated nature. The greatest punishment that could be inflicted was imprisonment for three months in the county jail for assault, or assault and battery, unless committed riotously, or upon a public officer in the execution of his duties, or with intent to commit some other offense, except where no punishment had been prescribed by statute, in which case the general statute prescribed the punishment at one year in the county jail, etc. These were the only punishments that could be inflicted for assault and assault and battery, however aggravated. For assault with intent to maim, or assault with intent to commit murder, severer punishments were provided; but for the intermediate offenses of assault and battery, where serious bodily injuries were intended, less than the crime of murder, no adequate punishment was provided; so that persons who were guilty of such offenses escaped punishment, except such as could be inflicted for a simple assault or assault and battery. It was to provide these severer punishments that the act of 1883 was passed.

The contention of counsel cannot be sustained that a conviction could not be had under this statute unless the jury found that the assault was committed with such an intent as would have made the respondent guilty of murder, and not merely manslaughter, if death had ensued as a result of such assault. That is not the offense sought to be punished by this statute. That offense is punishable under section 9088. Neither can counsel be sustained in his contention that, if the assault was such that if death had ensued the offense would have been no more than manslaughter, then respondent could be convicted of no greater offense than simple assault. Such a case would have come directly within this statute under which the prosecution was had. In People v. Scott, 6 Mich. 292, it was held that an intention to take life under any circumstances which would not render the killing manslaughter, or justifiable or excusable homicide, constitutes the offense under the statute providing punishment for an assault with intent to commit the crime of murder.

We think the charge of the trial cpurt was sufficiently specific upon the question of intent. It would not have aided the jury in their determination of the case for the court to give them the distinction between assault with intent to murder and an assault with intent to do .great bodily harm, less than the crime of murder. The respondent was charged with the lesser offense, and the jury were told that no conviction could be had unless they found that in making the assault respondent intended to do great bodily harm, less than the crime of murder. The term “great bodily harm, less than the crime of murder,” was defined by this court in People v. Troy, 96 Mich. 530, as an intent to do serious injury of an aggravated nature.

But counsel contends, further, that informations under this statute should set out the nature of the assault, as being done with a knife, club, pistol, etc., as the case may be; that, when an intent to do great bodily harm is the gravamen of the crime, the nature of the assault should be set out, in order that the court may be able to see upon the record that the intent charged might have been entertained, and that the result contemplated might have been effected. In Rice v. People, 15 Mich. 9, the information charged the respondent with an assault upon one Charles Parsons, with intent to kill and murder. The objection was that the information did not charge the offense to have been committed “feloniously, willfully, and of malice aforethought,” after the common-law form. The information was held sufficient, under section 6059, 2 Comp. Laws 1857, being section 9539, 2 How. Stat., which provides:

“When the offense charged-has been created by any statute, or the punishment of such offense has been declared by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, 'if it describe the offense in the words of the statute.”

The information in the present case describes the offense in the words of the statute, and we think the information sufficient, without the descriptive words which counsel contends it should have contained.

But it is contended that the record shows that respondent in another trial had been acquitted of an assault and battery upon the person of Mr. Heike growing out of the same transaction as here set out, and therefore he could not be convicted in the present case, as “no person, after acquittal upon the merits, shall be tried for the same offense.” Const. § 29, art. 6. The record states that there was evidence given on the part of respondent that Heike had prosecuted the respondent for an assault and battery, upon the same facts as are involved in this case, before a jury, and that the latter was tried before a jury, and acquitted. The testimony given by respondent tends to show that Heike commenced the affray by striking respondent’s wife, and that he then struck respondent, and then struck his wife again; that at this moment Mrs. Heike came up, and struck respondent in the back while Heike was striking him in front; that, while this was going on, respondent’s daughter brought him a stick, with which he defended himself. The testimony of the prosecution contradicted this claim, and tended to show that the respondent was the aggressor; that, having disabled Heike, he turned upon Mrs. Heike, and struck her a number of severe blows on the head, face, and hands, breaking one of her fingers; that he struck her with a shovel handle. The court charged the jury, substantially, that the acquittal of the respondent of the assault upon Mr. Heike could not be considered by them, except as the acquittal might bear upon the character of the respondent,

We think the court below was not in error in holding that the acquittal of respondent of the assault upon Mr. Heike would not relieve him in the present proceeding. It was not a trial for the same offense, within the meaning of the Constitution. There is a difference between one volition and one transaction. While it is true that these two offenses grew out of the same affray, yet no claim is made that the same blows by which Mrs. Heike was injured were the ones which injured Mr. Heike. Bishop, in his work on Criminal Law, lays down the rule that in one transaction a man may commit distinct offenses of assault or homicide upon different persons, and be separately punished for each. 1 Bish. New Cr. Law, § 1061. This view is supported by the authorities cited by the author; and what is meant by one volition is illustrated by him as follows •

“If one, by a single volition, should discharge into a congregation of people a firearm loaded with peas for shot, and each of 50 different persons should be hit by a pea, it would be startling to. affirm that he could be punished for assault and battery 50 times.” Id.

Other illustrations are given by him, which we do not deem it important to repeat. In the present case it was not the same blow, even, which caused the injury to the two, but different blows. It was the same transaction, but not the same volition. The rule laid down in the case of Crippen v. People, 8 Mich. 117, cited by counsel for respondent, we think does not apply to the present case.

The conviction must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LAMB v. LIPPINCOTT.
    1. Appeal — Objections not Shown by Record — Statements in Brief. >
    The statement in a brief that the stenographer’s minutes show that certain objections were made and exceptions taken cannot be considered on appeal, where the objections do not appear in the record.
    2. Same — Remarks of Court.
    In determining whether remarks made by the court in the course of a trial were improper and prejudicial, the context, and the circumstances under which they were uttered, must be considered-
    3. Evidence — Subpoena Duces Tecum — Excuse.
    It is a sufficient excuse for the failure of a witness served with a subpoena duces tecum to produce-the paper required that he is unable to find it after diligent search, and does not know where it is.
    4. Same — Trial—Disregard op Judicial Mandate.
    A witness testified that he had certain papers mentioned in a subpoena duces tecum which had been served upon him, but claimed that they were not of such a nature that the party was entitled to examine them. Thereupon the court stated that the papers might be produced for his inspection, but consented, upon request of the witness, that the matter should be postponed until the next day. The record on appeal did not disclose that the subject was again brought up during the trial. Held, not to show that the court refused to compel obedience to its mandate.
    5. Wills — Proof of Execution.
    The fact that only two of the three subscribing witnesses to a will were called by proponent before the document was received in evidence 'was not prejudicial to contestant, where it was so received upon the statement of proponent’s counsel that the third witness would be called later, and he was so called, and was cross-examined at length by counsel for contestant.
    6. Evidence — Exclusion of Hypothetical Question.
    The exclusion of a hypothetical • question put to a medical witness is not prejudicial where the subject-matter is left open to inquiry, and such information as the witness, possesses is obtained through another form of question.
    7. Wills — Evidence of Alteration.
    An inference that a will has been altered or forged cannot be drawn from the fact that it is written on one side of two pieces of paper, instead of on the two sides of one piece, when the person who drew the instrument testifies that he had no legal-cap paper, and, supposing that a will should be written only on one side of the sheet, he tore a sheet of foolscap in two, and pasted the ends together, whereby it happened that the testator’s signature came just below where the sheet was joined.
    8. Same — Undue Influence.
    That the beneficiary in a will, for a long time, was intimate with and did business for the testator, who was at intervals afflicted with insanity, that he enjoyed the testator’s respect and confidence, that he had married the testator’s'only child, and that they had been members of the same household for a number of years, raises no presumption of undue influence.
    9. Same — Mental Competency — Opinion of Witness.
    The opinion of a witness that a testator was sane is competent, where it appears that he was well acquainted with the testator, and had never seen anything unusual in his speech or actions; but before a witness can express an opinion that the testator was insane, he must testify to something that the latter said or did fairly tending to show insanity.
    Error to Lapeer; Smith, J.
    Submitted November 4, 1897.
    Decided January 25, 1898.
    Edwin Lamb presented for probate the will of Jesse Emmons, deceased. The probate was opposed by Harry H. Lippincott and others. The will was sustained in the probate court, and an appeal was taken to the circuit. From a judgment for proponent, contestants bring error.
    Affirmed.

      Dwight N. Lowell ( W. W. Stickney, of counsel), for appellants.
    Geer, Williams & Halpin, for appellee.
   Moore, J.

Jesse Emmons died in August, 1893. His father and mother at times had both been insane; also several of his brothers and sisters. His wife died a good many years ago. Mr. Emmons was a'capable business man. He had been a farmer, and a member of various business enterprises. His only child (a daughter) married Edwin Lamb. There were periods in the life of Mr. Emmons when he was given to melancholia, and feared, that harm would come to himself, and that he might do harm to others. In April, 1883, he was committed to the Eastern Insane Asylum, where he remained until July, when he was discharged as “improved.” In April, 1884, he again entered the asylum, where he remained until in October, when he was again discharged as “improved.” In the spring of 1889, Mrs. Lamb, who was somewhat along in years, was about to give birth to her first child. Mr. Emmons was much worried about the outcome, and feared that it might have a bad effect upon himself. It is the testimony of his physicians that he desired to re-enter the asylum, and he did so in March, 1889, where he remained until June, 1890, when he was discharged again as “improved.” It is the claim of proponent that there was no period of Mr. Emmons’ life, prior to the making of his will, when Mr. femmons was not competent to attend to all ordinary business affairs; and the testimony of the physicians, including the superintendent of the asylum, tends to support that contention. This was denied by contestants, and they offered testimony which they claim supports their theory.

For a number of years, Mr. Emmons had been associated in business with his son-in-law, Edwin Lamb, and with J. C. Lamb, who was the father of Edwin Lamb, and for a good many years prior to his death he had been an inmate of the same household as Edwin Lamb. Mrs. Edwin Lamb died during her confinement, in the spring of 1889. As already stated, Mr. Emmons was discharged from the asylum in June, 1890. Upon his return to Dryden, he resumed his living with Edwin Lamb. In December, 1890, he told Jacob C. Lamb, the father of Edwin Lamb, that-he desired to make his will, and gave Mr. Lamb a memorandum, and requested Mr. Lamb to draw the will for him. Mr. Lamb testifies that he took the memorandum, and made a pencil draft of the will, which was drawn so as to express the desire of Mr. Emmons, and asked Mr. Tucker to copy the draft with pen and ink, Mr. Tucker testifies that he had no legal-cap paper, and that, supposing a will should be written only upon one side of the paper, he tore a sheet of foolscap in two, and the top half of one sheet was pasted to the bottom half of the other. The will was not long, and it was all contained on one side of the paper as thus prepared; Mr. Emmons’ signature appearing just below where the sheet was joined. When the will was drawn, it was signed by Mr. Emmons, and, at his request, by Mr. Tucker, Mr. Parker, and J. C. Lamb, as witnesses. By the terms of the will, |Mr. Emmons gave all his property to Edwin Lamb. In case Mr. Emmons outlived Mr. Lamb, all the property was willed to the brothers and sisters of Mr. Emmons, share and share alike. After a'contest in the probate court, the will was allowed. The case was appealed to the circuit court, and was again allowed. The contestants bring the case here by writ of error. • *

Counsel complain of remarks made by counsel for the proponent in his opening to the jury. The record does not disclose that the objections now made were made at the trial. It is stated in the supplemental brief of counsel that the stenographer’s minutes show that objections were made and exceptions taken. This court, however, must be governed by the record as it appears here.

Counsel complain with a good deal of earnestness of remarks made by the court in the course of the trial which, it is claimed were improper and prejudicial. By separating sentences, here and there, from what preceded and followed, some plausibility is given to this contention; but when the sentences are put with the context,, and the circumstances under which they were uttered are taken into consideration, we do not think that it can be said that the remarks were so improper or prejudicial that the case ought to be reversed for that reason.

The contestants had caused a subpoena to be issued, directing Jacob C. Lamb to produce the memorandum given to him by Mr. Emmons when the will was drawn, and Edwin Lamb to produce other papers. Mr. J. C. Lamb testified that he had made diligent search for the memorandum,' and could not find it, and did not know where it was. We think this would justify Mr. Lamb in not producing the paper. Mr. Edwin Lamb testified that he had the papers mentioned in the subpoena directed to him in Lapeer. His counsel claimed that they were papers of such a nature that the contestants were not entitled to examine them. The judge said that the papers might be produced, when he would determine whether they were proper or not. At this point in the discussion, Mr. Williams, one of the counsel for proponent, suggested that he would like the matter to go over until morning, as his associate counsel was then absent, attending a funeral. Counsel for contestants made no objection to a postponement of the matter until morning, and there is nothing in the record to show that the subject was again-brought up. Under these circumstances, we do not think that it can be said that the court refused to compel obedience to its own mandate.

After proving the execution of the will by Mr. Parker and Mr. Tucker, it was offered in evidence. Objection was made to its reception, until Mr. J. C. Lamb, the other witness, was sworn. It was then stated by counsel that the will had been proven by the number of witnesses required by the statute to sign as witnesses; that they did not desire to call Mr. Lamb then, but would call him later. The will was then read'in evidence, and this is said to be error. Mr. Lamb was called later, and was cross-examined at great length by counsel for contestants. The contestants were not obliged to make Mr. Lamb their own witness. They had the same opportunity to cross-examine him they would have had if he had been called earlier. They and the court were told before the will was read that Mr. Lamb would be called later. We do not see how the contestants were prejudiced, and think that the case conies within the ruling of Abbott v. Abbott, 41 Mich. 543: Fraser v. Jennison, 42 Mich. 207.

Dr. Jones was produced as a witness for the proponent. He was asked by counsel for contestants a hypothetical question, which was objected to, and the objection sustained, — the court saying to the counsel that his ruling was simply as to the form of the question, but the subject-matter was open to their inquiry; and they did pursue the inquiry in another form, and obtained such information from the doctor as he possessed. We do not think that this was error. See Fraser v. Jennison, 42 Mich., at page 235.

One objection to probating the will was that the will had been forged or changed by substituting another paper for a portion of it. It is said that it is a suspicious circumstance that the will should be written on one side of two pieces of paper, instead of being written on the two sides of one piece of paper. We have the original will before us. There is nothing in its appearance to indicate that it has been changed or altered, while the testimony was of a positive character that it had not been. The court very properly told the jury that there was no proof from which they could infer that the will had been forged or changed.

Anotüer ground of contention was undue influence. The court told the jury that there was no proof of undue influence. This is said to be error. It is urged that Mr. Edwin Lamb was virtually the guardian of Mr. Emmons, and did all his business for a series of years, and that, as he is the beneficiary under the will, under the circumstances the presumption arises that he influenced Mr. Emmons to make the will as he did, and it is incumbent upon him to do away with the presumption. There is not a particle of proof that J. C. Lamb or Edwin Lamb in any way ever used any influence upon Mr. Emmons to induce him to make this will, or any will. It is true that Mr. Emmons was intimate with these men for a long period of time, and apparently had much respect for their judgment, and for them personally. It is also true that Edwin Lamb had married his only child, and they had been members of the same household for a long series of years, and Mr. Lamb had done more or less business for, Mr. Emmons. But it does not follow from this condition of things that Mr. Lamb substituted his will for the will of Mr. Emmons. It will serve, rather, to explain why Mr. Emmons made Mr. Lamb the object of his bounty. Maynard v. Vinton, 59 Mich. 153 (60 Am. Rep. 276); Severance v. Severance, 90 Mich. 417.

Counsel say the court erred in allowing the opinions of professional and nonprofessional witnesses without a proper foundation being laid, and think the rule laid down in Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494), and People v. Borgetto, 99 Mich. 341, is illogical, and indefensible upon principle, and argue that the same acquaintance with a decedent°which would be a sufficient foundation to enable a witness to express an opinion that the decedent was sane should be deemed sufficient to enable a witness having a like acquaintance to express an opinion that the decedent was insane, if that was the opinion of the witness. We think that counsel overlook the facts which make the distinction necessary. Sanity'is the rule; insanity, the exception; and when it appears that a witness has known a person for a long time, and has never known anything unusual, either in his speech or actions, he is competent to express an opinion that the man is sane, because sane or normal acts and speech are consistent with the normal condition, sanity. Insanity, however, not being a normal condition, before one is competent to say that another is insane, he must state some fact that is inconsistent with sanity; and this is not done until the witness is able to testify to something that the man has said or done which fairly tends to show insanity. We are content with the rule as' stated in Prentis v. Bates and People v. Borgetto, and we think that the trial judge did well to follow it. The question of the competency of Mr. Emmons was left to the jury, who found that he was competent to make the will.

It will not be necessary to discuss the other assignments of error. The case was fairly tried, and the judgment should be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    KELLOGG v. THOMPSON’S ESTATE.
    Judgment — Res Judicata.
    A claim against an estate upon a note cannot be defended by the executor on the ground that the claimant is chargeable with a breach of a guaranty that a specified sum should be realized from accounts transferred to decedent before he should become liable upon the note, when such defense was the subject-matter of a suit between the claimant and the decedent in his lifetime, and was determined adversely to the latter on the ground of lack of diligence, although the pleadings therein were not so framed as to admit of the showing, which the executor desires to make, that the claimant had waived the right to insist upon such diligence.
    Error to Jackson; Lane, J., presiding.
    Submitted November 6, 1897.
    Decided January 25, 1898.
    Henry Kellogg presented a claim against the estate of William D. Thompson, deceased. The claim wage disallowed by the commissioners, and claimant appealed to the circuit court. . Erom a judgment for claimant, the estate brings error.
    Affirmed.
    Claimant recovered against the estate upon a note reading as follows:

      “$5,000. Jackson, Feb. 15, 1887.
    ‘ ‘On or before three years after date we promise to pay to H. Kellogg (not negotiable) five thousand dollars, interest at seven per cent, annually, at Jackson City Bank, value received.
    “Due February, 1890.
    “M. W. Clark.
    “ Geo. W. Baker.
    “W. D. Thompson.”
    The defense interposed was that the note in question was given as a part purchase price of a stock of goods and of accounts aggregating in amount something over $30,000; that the transfer of this stock of goods and accounts was made by a bill of sale' signed by claimant, and containing the following guaranty: ‘ ‘ That the annexed invoice is a true statement of the amount and value of stock, merchandise, and property. And also guarantee, represent, and warrant that there is in said stock goods to the value of $17,709.68. Also that the amount of $29,702.54 net shall be realized, without charging for the personal services of parties, of the second part, nor other charges of second parties, except incurred in suits by the parties of the second part, upon the accounts and notes herein conveyed. The parties of the second part shall use due diligence in their collection,” — and accompanied also by the following memorandum relative to said note:
    “Jackson, Mich., Jan. 25, 1887.
    ‘ ‘ Whereas, on this day a bill of sale has been given by Henry Kellogg to Clark, Baker & Co., a copartnership to be formed, and said Kellogg makes certain guaranties, in his bill of sale therein'fully set out (this agreement shall be attached and made a part thereof). Said Kellogg takes .certain notes for the sum of $18,000, one of which is for $5,000, due in three years from and after its date. This note is so made for the purpose of securing his guaranty to that extent, the guaranty being set out as aforesaid in the bill of sale hereto attached. And while the note on its face indicates that the interest is payable annually, which is true, but upon final settlement of the actual liability on this note, taken in connection with the guaranty. The settlement under the guaranty may be called for at any time after the collection of said accounts so sold and guaranteed has been made to the full extent practical. The interest to be computed only upon such principal in such note as is actually realized as against the guaranty upon said accounts. After such settlement, if any moneys are received on the accounts further than are expected upon such settlement, then they shall be payable to H. Kellogg, until the loss upon the face of this note is compensated. Henry Kellogg.”
    The claimant replied to this defense that, in the lifetime of said Thompson, Clark, Baker & Co., of which'firm deceased was a member, instituted a suit upon the guaranty contained in the bill of sale, and prosecuted the same to judgment, and that the identical claim which is now made by the estate was determined against said firm in that action.- This plea was not sustained, and the case was tried on its merits, and judgment passed in favor of the claimant, and the executors bring error. To support the plea of former adjudication, the record and proceedings in the former case, which found its way into this court, and is reported in 96 Mich. 171, under the title of Clark v. Kellogg, were introduced.

      Wilson & Cobb, for appellant.

      Blair & Edwards, for appellee.
   Montgomery, J.

(after stating the facts). The question which meets us at the threshold of this case is whether the subject-matter is res jtodicata. In the former case it was determined that Clark, Baker & Co. had failed to use due diligence in the' collection of the accounts, within the meaning of the guaranty. The subject-matter of that suit was the alleged right to recover of Kellogg by reason of a breach of his contract of guaranty. The subject-matter of defendant’s claim in the present proceeding is the same alleged breach. But that issue was tried in the former suit, and determined in favor of the present claimant. As was said in Bond v. Markstrum, 102 Mich. 11:

“A former adjudication of the right of action, where the court had jurisdiction of the subject-matter and of the parties, is unquestionably a bar to an action for the same debt or claim, and is conclusive where the same subject-matter is sought to be again litigated, no matter how, between the same parties. In such case it is no answer to say there were questions which were not raised or litigated. It is enough if they might have been raised and litigated.”

It is contended by the defendant, however, that the former judgment does not constitute a bar to subsequent proceedings for the same cause of action, unless rendered on the merits of the case; and that as the pleadings in the former case did not admit of a showing that the diligence required by the contract on the part of Clark, Baker & Co. had been waived by Kellogg, and as the testimony in this case tends to show that fact, the former adjudication was not an adjudication of the merits. It is undoubtedly true that the determination of a case by a court without reaching the merits is not a bar to another action, but this is not that case. Plaintiffs saw fit to declare, alleging performance of the contract on their part, to wit, the exercise of due diligence. They could have made their case under the declaration by showing that they used the diligence required by the terms of the contract. They elected to proceed to trial and judgment on the issue. It is true, the pleadings were not so framed as to admit of proof that Kellogg had waived his right to insist that due diligence required that legal proceedings be instituted against the debtors, but nevertheless the subject-matter of the suit was the breach of the contract of guaranty, which depended upon the alleged inability to collect the accounts. Is it any the less a second vexing of the party for the same 'cause of action because the plaintiffs undertook in that case a greater burden of proof than they were able to maintain ? We think not. This case does not fall within that class of cases in which it has been held that a former suit, in which the cause of action was not admissible under the pleadings, is not a bar. A recovery on the issue as made in Clark v. Kellogg, on evidence supporting the cause of action, must have been sustained. The difficulty was that the plaintiffs failed in their proof. They alleged a breach of the identical agreement herein involved,— tried the case through to a finish; could they the next day institute and maintain a new suit by averring that they failed in the former because they had not alleged facts in their declaration which would have lessened the burden which they saw fit to assume, and assert a right to recover for the identical default on the identical contract which had formed the subject-matter of the previous litigation? We think not. They elected their own course, and are bound by the election. See Wells, Res. Adj. §§ 249-251, and cases cited; Girardin v. Dean, 49 Tex. 243; Detroit, etc., R. Co. v. McCammon, 108 Mich. 368.

It follows from these views that the judgment should be affirmed.

The other Justices concurred.


text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. BAY COUNTY BRIDGE COMMISSION.
    Bridges — Approaches—Duty to Repair — Upon Whom Imposed.
    It is the duty of a bridge commission, to which is given the control of all the bridges within a certain district, comprising two cities separated by a river, to keep in repair the approach to a bridge connecting the cities, theretofore in charge of the board of supervisors, who acquired it from the original construction company, where the apx>roach was constructed upon unplatted land, and has always been repaired by those owning and controlling the structure, and where the act establishing the commission provides that all moneys raised thereunder shall be expended for the purpose of building, repairing, and operating bridges “and the approaches thereto.”

      Mandamus by the people, on the relation of Fred A. Maynard, attorney general, to compel the Bay county bridge commission to keep in repair the approach to a certain bridge.
    Submitted January 4, 1898.
    Writ granted January 25, 1898.

      Lee E. Joslyn, for relator.

      C. L. Collins, for respondent.
   Moore, J.

This is a proceeding brought to determine who should keep in repair that portion of the approach to the Third-Street Bridge across Saginaw river which lies between the west end of the bridge and the east end of the cedar-block pavement on Midland street, in West Bay City, Mich. It is -claimed by the relator that it is the duty of the respondent to do so, while the respondent claims that it is not its duty to keep that portion of the street in repair lying between the east end of the cedar-block pavement on Midland street and the west end of the cobble-stone pavement lying west of the west end of the bridge. It is conceded by counsel on both sides that there is no great controversy about the facts. No question is made about the parties to this proceeding, or the form of the proceeding. All parties in interest are anxious to have the question decided upon its merits.

The record discloses the following facts: The city of West Bay City is connected with Bay City by the Third-Street Bridge, built across the Saginaw river, from Third-street, in Bay City, to Midland street, in the city of West Bay City. About the year 1865 the Bay City Bridge Company constructed a bridge at the same point where the Third-Street Bridge is now located. At the time the bridge was constructed, there was no road between the west span of the bridge and the west meander line of the river, which line is now the end of the cedar-block pavement aforesaid. Midland street was dedicated for a street by the plats of Lake City and Litchfield’s addition in West Bay City, which plats extend easterly only to within 150 feet of the end of the cedar-block pavement on Midland street, so called; and. the balance of Midland street, from the west meander line of the Saginaw river to the west span of the Third-Street Bridge, is now, and has always been, unplatted property. The Bay City Bridge Company, in constructing its bridge, built the west approach to the bridge by driving spiles, upon which stringers were placed, and covered with plank. The ground underneath was covered with water. This highway was, after its construction, controlled and operated by the Bay City Bridge Company as a toll bridge until in or about the year 1882. Soon after the erection of the Third-Street Bridge, the company, commencing at the west end of this piece of roadway, began filling in the same with plank, slabs, edgings, and refuse from the sawmills, and this work was continued for several years; and during the same time the owners of the land on either side of said bridge approach caused the same to be filled in, until the land now, on each side of said bridge approach, is in some ' places not more than 1-| or 2 feet below the approach to said bridge; the approach, however, being in some places from 4 to 6 or 7 feet above the land on either side thereof.

The Bay City Bridge Company continued to own and operate the said Third-Street Bridge and west approach thereto as a toll bridge until 1882, at which time the legislature passed an act authorizing the county of Bay to purchase the Third-Street .Bridge across the Saginaw river, or to build a bridge across said river at some other point. On January 9, 1883, the board of supervisors purchased from the Bay City Bridge Company the said Third-Street Bridge, paying therefor the sum of $23,000, and a conveyance of said property was then and there made by the said Bay City Bridge Company to the county of Bay, the property so conveyed being described as follows:

All that certain piece of property known as the ‘ Third-Street Bridge,’ constructed across the Saginaw river from the foot of Third street, in Bay City, to the west-side bank of said river, opposite the foot of Third street aforesaid, and all interest, claim, and demand of said Bay City Bridge Company in and to the approaches to said bridge, —as well the approach to the eastern end thereof as the approach to said bridge from the foot of Midland street, in West Bay City, to the west end of said bridge.”

After the conveyance of said property to the county of Bay, the board of supervisors of said county took possession of said bridge, and of each of the approaches thereto, kept the same in repair and open to-the public, and continued so to do until after the passage of Act No. 278 of the Local Acts of 1889, which act established the Bay county bridge commission, and also established a bridge district in the county of Bay, which bridge district is composed of the cities of Bay City and West Bay City. By said act all bridges in said district were placed in charge of, and under the control of, the said Bay county bridge commission, and the said Third-Street Bridge and the west approach thereto are situated within the bridge district established by said act. After the purchase of the Third-Street Bridge by the county of Bay, the county of Bay purchased a strip of land on the north side of the west approach to the said Third-Street Bridge, extending east and west along the entire length of said west approach ;' and under the direction of the said board of supervisors a sidewalk was constructed upon and along the north side of said west approach. In 1883 the board of supervisors also procured from Henry W. Sage, who was the owner of the territory immediately south of said bridge approach, a conveyance to the county of Bay of the piece of land upon which the west approach to said bridge is constructed. Previous to that time, and when said Third-Street Bridge was owned by the Bay City Bridge Company, said Bay City Bridge Company had a lease of the said land from the said Henry W. Sage.

After the passage of Act No. 278 of the Local Acts of 1889, the Bay county bridge commission was duly organized as provided for in said act; and soon afterwards it took charge of the said Third-Street Bridge, rebuilt the bridge proper, and constructed a cobble-stone pavement extending west from the west pier of said Third-Street Bridge 160 feet. In rebuilding Third-Street Bridge, it was constructed several feet higher than the approach thereto had previously been; and the Bay county bridge commission, after the completion of the Third-Street Bridge by it, caused the west approach to said Third-Street Bridge to be filled in and raised so that the grade of the west approach would be upon a level with the bridge proper. From the cobble-stone pavement constructed by the Bay county bridge commission, westerly to the east end of the cedar-block pavement on Midland street, a distance of about 503 feet, the land which has always been used as a bridge approach since the construction of said Third-Street Bridge, in 1865, is 66 feet in width. All of the work, labor, and repairs that have ever been done to said west bridge approach have been done by the said Bay City Bridge Company, by Bay county, and by the Bay county bridge commission, in filling in as above referred to. The city of West Bay City has always maintained that it was not its duty to repair the west approach to said bridge, or any part thereof, or the sidewalk on either side thereof, and nothing has ever been done by the city of West Bay City towards keeping said bridge approach, or any part thereof, in repair; and the bridge commission claims that it is no part of its duty to repair said street between the cedar-block pavement and the cobble-stone pavement.

Act No. 278 of the Local Acts of 1889, § 3, provides as follows (referring to the said Bay county bridge commission) :

“It shall .have power, and it shall be its duty, to receive from the board of supervisors of Bay county a conveyance of the Third-Street Bridge, and the Twenty-Third-Street Bridge, and all bridge material or property then owned by Bay county; also such moneys as may be on hand and unexpended, which have heretofore been raised for the construction, care, and maintenance of bridges across the Saginaw river in said county, and such other moneys as may hereafter accrue for such purposes.”

Section 4 of said Act No. 278 provides for the determination by the bridge commission of the amount of money it will be necessary to raise for bridge purposes in said district each year, for the apportionment thereof between Bay City and West Bay City on the basis of the assessed valuation, for the assessment of such taxes, limits the amount thereof for the year 1889 and each year thereafter, and then provides as follows:

“All moneys that shall come under control of this commission by virtue of «this act shall be expended exclusively for the purpose of building, repairing, and operating said bridges and the approaches thereto.”

The relator asks for an order of this court requiring the Bay county bridge commission to keep in repair that portion' of the west approach of the Third-Street Bridge, extending between the city of Bay City and the city of West Bay City, in the county of Bay, described as follows, to wit:

“A piece of land 66 feet wide, north and south, beginning 160 feet west of the west span of said Third-Street Bridge, and extending westerly therefrom 503 feet, to the east line of the cedar-block pavement on Midland street, in the city of West Bay City, Bay county, Michigan.”

This bridge was the first one built across the Saginaw river, connecting Bay City and West Bay City. It is a very important thoroughfare. An electric street-car line crosses the river over this bridge, and the bridge connects the main business portions of the two cities. The West Bay City approach is a long one, and, from the character of the land, it has been an expensive one to build. It is very clear from the record that the portion of the approach involved here was originally constructed by the company which constructed the original bridge. Without its construction, the bridge itself could not have been used. It. is evident, too, that whatever right the bridge company had to this approach was afterwards acquired by the county of Bay. Accompanying the right was also the duty to keep this approach in repair. We think it also clear that whatever right the county of Bay had to the bridge and its approaches was afterwards acquired by the bridge commission, and following this right was the duty t'o keep in repair. The bridge was originally constructed for the benefit of all the people of both cities who might have occasion to use it. The approaches to the bridge were just as essential to its usefulness as the bridge itself, and it is just as important that the approaches should be kept in repair as that the bridge should be. Shaw v. Township of Saline, 113 Mich. 342; 4 Am. & Eng. Enc. Law (2d Ed.), 941. I cannot see why the same duty does not rest upon the bridge commission to keep this approach in repair as rests upon it to keep the bridge in repair.

Our attention is called to the fact that, while this approach was under the control of the county, in the case of Douglas v. Bay Co., Justice Brown (now of the Supreme Court of the United States), the district judge for the Eastern district of Michigan, decided that the county was liable for a defect in the road in the disputed territory. The decision of so eminent a judge is entitled to a good deal of weight, but, were the question a new one, we should reach the same conclusion.

The writ will issue as prayed.

The other Justices concurred.


author: Grant, C. J.

text:
    WALKOWSKI v. PENOKEE & GOGEBIC CONSOLIDATED MINES.
    1. Master and Servant — Presumption op Competency — Inpant Employes.
    The law raises no presumption that a boy 17 years of age is too young to manage properly a brake by which is controlled the hoisting and lowering of passenger cages in a mine.
    2. Same — Selection op Employes —Negligence—Question por Court.
    Whether an employer exercised due care to ascertain the qualifications of a servant at the time of hiring him is for the court to determine, where the testimony as to what took place at such time is undisputed.
    3. Same — Due Care — What Constitutes.
    Due care in the selection of employés is “such care as, in view of the consequences that may result from negligence on the part of employés, is fairly commensurate with the perils or dangers likely to be encountered.”
    4. Same.
    Due care' on the part of a mining company in employing a boy 17 years old to manage a brake by which the hoisting and lowering of passenger cages in the mine was controlled is shown by the facts that the machinery was simple and easily managed, and that the master mechanic, before employing the boy, made inquiries of the boy’s father, who was a practical engineer, and was informed that the boy had had two years’ experience in managing the brake at another mine, where the duties of the brakeman were more difficult, and that he was capable of doing the work which the company required.
    5. Same — Notice op Inoompetenoy.
    When a master has exercised due care in the employment of a servant, he may rely upon the presumption of competency until he has notice or knowledge to the contrary.

      6. Same.
    An employé may frequently use. machinery in a negligent manner, but if such negligent use leaves no trace behind it, which it is the duty of the master upon inspection to see, no presumption of knowledge on the part of the master arises.
    7. Same.
    The fact that an employé, after operating machinery correctly for several months, forgot on one occasion, and turned a brake the wrong way, thereby causing injury to a fellow-servant, has no tendency to show incompetency.
    8. Same — General Reputation — Evidence.
    Evidence that the fellow-servants of an employé, in the retention of whonl the master is alleged to have been negligent, had talked among themselves that he did his work improperly, is not admissible to prove general reputation for incompetency.
    9. Same — Irrelevant Inquiry.
    Evidence that the person in charge of the brake by which was controlled the hoisting and lowering of the passenger cages in a mine was in the habit of lowering the cages at too great speed is not admissible upon the question of his in.competency in an action for injuries caused by his turning the brake the wrong way and letting the cage fall.
    Error to Gogebic; Haire, J.
    Submitted January 4, 1898.
    Decided January 25, 1898.
    Case by Martin Walkowski against the Penokee & Gogebic Consolidated Mines for personal injuries. From a judgment for defendant on verdict, directed by the court, plaintiff brings error.
    Affirmed.
    The miners in defendant’s employ were lowered into and raised out of the mine in iron cages' about 12 feet square. These cages were attached to wire cables running over drums in the engine house, situated about 500 feet from the shaft, which was between 500 and 700 feet deep. The operation was as follows: If a cage is to be lowered, and its weight be insufficient to overcome the weight of the other cage, a gear (called a “friction gear”) inside the drum is thrown into place, and the engine is started, and, by hoisting up the lower cage, the upper one is lowered. If, however, the weight of the upper cage is sufficient to overcome that of the lower, so as to descend of its own volition, it is handled by a hand brake. This is a wheel set on a perpendicular screw, which tightens or loosens a band running around the drum. By loosening this band, the drum will revolve if the weight of the descending cage is sufficient. This band is controlled by a screw, and can be loosened or tightened at the will of the man controlling it.
    In 1892, and about seven months before the accident, defendant employed one William Ryan as brakeman, whose duty it was, by use of the brake, to lower the cage in one shaft. On October 18th of that year, the cage was descending in the usual manner, with Ryan managing the brake. He turned the screw in the wrong direction, releasing the pressure. As a result, the cage fell to the bottom, and plaintiff, as well as others, was seriously injured. Plaintiff brought suit to recover for his injuries, planting his right of action upon three grounds of negligence :
    (1) That Ryan was incompetent at the time of hiring, and that defendant, in hiring him, did not use ordinary care to ascertain his qualifications.
    ' (2) That Ryan was incompetent at the time of the accident, and that defendant had actual notice of such incompetency.
    (3) That defendant had not used reasonable care in ascertaining how Ryan was doing his work.
    At the conclusion of the evidence, the court directed a verdict for the defendant. The further essential facts will be stated in connection with the points raised.

      Button & Norris, for appellant.

      Charles E. Miller, for appellee.

       With this case, as reported in 41 L. E. A. 33, is an exhaustive note upon the subject of knowledge as an element of an employer’s liability to an injured servant.

   Grant, C. J.

(after stating the facts). 1. Ryan was 17 years and 5 months old at the date of his employment. It is urged that it is negligence to employ one so young in such a responsible position, or, at least, that it is a question for the jury to determine. Young Ryan had had an experience of nearly 2 years in a similar position at another mine, where he had performed his work satisfactorily. He had performed his work satisfactorily, and without accident, for between 7 and 8 months at the defendant’s mine. It is conceded that he had sufficient physical ability, and was possessed of ordinary intelligence. Plaintiff’s own testimony shows that he had the “appearance of being older than he was.” Plaintiff cites no authorities to sustain his contention. The wo'rk was not difficult. There is nothing to show that it would be safer to employ for this work a person who was older. The fact that he had done his work safely and satisfactorily for over 7 months is the best proof of his competency. There is no presumption of law that one 17 or 18 years of age cannot do such work as safely and as well as one older. There is no authority or reason in the proposition that one of that age is an improper person to employ for such work. The authorities appear to be uniform against the proposition. Sutherland v. Railroad Co., 125 N. Y. 737; Kansas, etc., Coal Co. v. Brownlie, 60 Ark. 582; Neal v. Gillett, 23 Conn. 437; Molaske v. Coal Co., 86 Wis. 220. In Sutherland v. Railroad Co., the telegraph operator, through whose negligence the accident happened, was a little over 17 years old, had had over a year’s experience, been in' the employ of the company 3 month's prior to the accident, and had discharged his duties intelligently and to the entire satisfaction of the company. It was held that the jury could not be permitted to infer that the operator was “incompetent from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did.” In Molaske v. Coal Co. it was held negligence to employ a boy 12 years old in a responsible position, requiring constant watchfulness and attention. The court appears to have placed its holding upon the presumption of the common law, which fixes the age when the presumption of capacity arises at 14.

2. Did the company exercise due care in employing Ryan ? One Richard Pascoe, the master mechanic of the defendant, was the authorized agent to employ him. Ryan’s father had been a practical engineer, known to Mr. Pascoe for 18 years. Mr. Pascoe was informed by the father of the experience the son had had, and was advised that he was capable of doing the work. Mr. Pascoe was familiar with the method of braking at the Michigamme mine, whére young Ryan had had his experience, which was the same as in the defendant’s mine. It further appears that the duties of the hand brakeman at the defendant’s mine were more simple than at the mine at Michigamme. One McCall, an engineer, and witness for the plaintiff, testified that, “if a man had had a year’s experience, he ought to be a very good man,” and “I should consider two years’ experience would make any one all right.” One John St. Cyr, another witness for the plaintiff, testified on cross-examination: “I should think that if Mr. John Ryan recommended a man, that he would be all right.” These facts were undisputed. It therefore became a question of law for the court to determine whether the defendant had exercised due care in the employment of Ryan. The degree of care required is well stated in Wabash R. Co. v. McDaniels, 107 U. S. 454: “It is such care as, in view of the consequences that may result from negligence on the part of employés, is fairly commensurate with the perils or dangers likely to be encountered.” In this case the machinery used was simple and easily managed. Defendant made due inquiries, of one competent to judge, as to Ryan’s experience and ability. The defendant therefore exercised due care in employing him.

3. There was no evidence that Ryan had become incompetent, or, if there were, that knowledge of his incompetency had been brought home to the defendant. When the master has exercised due care in the employment of a servant, he may rely upon the presumption of competency until he has notice or knowledge to the contrary. 1 Bailey, Mast. & Serv. § 1413; Chapman v. Railway Co., 55 N. Y. 579. The only evidence plaintiff offered from which he claimed the right to go to the jury upon the question of notice was the testimony of one O’Donnell, who was at the time the engineer of the hoisting machinery for the defendant. He testified that he thought Ryan sometimes lowered the cage too fast. He also testified that they disagreed in regard to the speed at which men ‘should be lowered; that he did hot know who knew the most about running the brake, Ryan or himself; that Ryan “had always attended to his business up to this ■ time” (the time of the accident). The officers of the mine were frequently in the engine room, frequently rode up and down in the cages, had seen Ryan perform the work, and had never seen or had their attention called to any act of incompetency or fault otherwise than, as above stated, that one person thought that he ran too fast. An employe may frequently use machinery in a negligent manner, but if such negligent use leaves no trace behind it, which it is the duty of the master upon inspection to see, no presumption of knowledge on the part of the master arises. A switchman may for a long time frequently leave a switch open, and habitually violate the rules of the master; but no inference of knowledge on the part of or notice to the master will arise from that fact. Cameron v. Railroad Co., 145 N. Y. 400; Lee v. Railroad Co., 87 Mich. 574.

4. It is admitted that Ryan and plaintiff were fellow-servants, and that the defendant is not liable for the negligent act of a competent fellow-servant. It was therefore incumbent upon plaintiff to show that the accident happened in consequence • of such incompetency. Ryan had used this screw successfully and properly for more than seven months, and had performed a like service in another mine for nearly two years. For some reason he forgot, and turned the screw the wrong way. It is not different from the case where a competent switchman forgets and leaves the switch open. In neither case is the accident due to incompetency, but to a single negligent act of a competent employe. Harvey v. Railroad Co., 88 N. Y. 481; 1 Bailey, Mast. & Serv. § 1474; McNally v. Colwell, 91 Mich. 527; Thompson v. Railway Co., 84 Mich. 281.

5. Plaintiff sought to show talk among the men that Ryan lowered the cage too fast. This was ruled out. It had no tendency to prove general reputation for incompetency. Davis v. Railroad Co., 20 Mich. 105; 1 Bailey, Mast. & Serv. § 1501. Not only is there no evidence that the accident was due to too great speed, but there is affirmative evidence from plaintiff’s own witness O’Donnell that the cage was descending at its “natural speed.” This testimony could therefore have had no bearing upon the issue. Ryan was lowering the cage as he had done hundreds of times before, at the same or less speed. The speed, therefore, had nothing to do with the accident. Core v. Railroad Co., 38 W. Va. 456; 1 Bailey, Mast., & Serv. § 1481; Thompson v. Railway Co. and McNally v. Colwell, supra.

6. It follows from what has already been written that defendant was not guilty of negligence in failing to watch Ryan, and ascertain how he was doing his work. It exercised due care in employing him, and its engineer watched and instructed him when he commenced to work. The law imposed no further duty upon defendant until it had received notice of conduct which denoted incompetency.

The judgment must be affirmed.

The other Justices concurred.


text:
    EALES v. FRANCIS.

    1. Attachment — Logging Lien — Filing of Statement — Condition Precedent.
    The filing of a statement of lien is a condition precedent to the right to maintain a suit by attachment under the log-lien law. 3 How. Stat. § 8427e.

      2. Replevin — Parties Defendant — Judgment.
    In replevin for property seized and sold under execution, judgment is improperly rendered against defendants who were simply judgment creditors, and not in possession of, or exercising any control over, the property.
    Error to Montmorency; Kelley, J.
    Submitted. January 4, 1898.
    Decided January 25, 1898.
    Replevin by Allen Eales and others against James Francis, William J. Rea, and others. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed as to defendants Francis and Rea, and reversed as to the other defendants.
    Replevin for 90 cords of shingle bolts, formerly the property of one McPherson. Plaintiffs claim title by virtue of a chattel mortgage executed October 24, 1895, by McPherson to them. Defendants claim title upon a sale made pursuant to executions issued on four judgments rendered by a justice of the peace. The suits in which these judgments were rendered were, according to the docket of the justice, commenced by attachment under the log-lien law (3 How. Stat. § 8427a et seq.). Plaintiffs attacked the validity of these judgments, in which they were sustained by the court, and verdict directed for the plaintiffs.

      James Francis, for appellants.

      Dafoe & Gustin, for appellees.

       Rehearing denied April 5, 1898.

   Grant, C. J.

1. Defendants appear to rest their case upon the theory that they were subsequent creditors of McPherson, and that there was no proof of the filing of plaintiffs’ mortgage. The original mortgage was introduced in evidence, and the record shows that it was filed in the township clerk’s office November 8, 1895, at 6 o’clock p. m. The credits for which judgments were rendered were given after this mortgage was filed. At least, the defendants failed to show that the mortgage was not filed before they extended credit. Unless, therefore, the lien law gave the lien of these parties precedence over the mortgage, they were subsequent creditors, with notice. As this question of precedence of liens under the statute is not argued, we express no opinion upon it, but dispose of this point upon the theory on which it was presented below and is argued here, and hold the mortgage good against subsequent creditors.

2. The sole evidence of the regularity of the proceedings before the justice was the docket entries made by him. These entries did not show the affidavit for the attachment, or any of the proceedings taken to establish a lien. When the defendants had rested and the proofs were closed, the circuit court stated that in all but one of these suits the writs were issued before any statements of lien were filed. The filing of a statement of lien is a condition precedent to the right to maintain a suit. 3 How. Stat. § 8427e. This being so, the justice had no jurisdiction in the cases under the lien law. Whether he had the right to proceed to judgment as if the suits were commenced by ordinary summons, we need not consider. If the liens failed, the defendants were only ordinary creditors, and the execution levy was subject to the mortgage.

3. Defendant Rea was the officer who sold the property upon the executions. Defendant Francis was the attorney for the plaintiffs in the four suits. The evidence for the plaintiffs showed that the demand was made while Rea was advertising the property for sale under the executions; that Rea and Francis claimed that they were in possession of the property. There was no evidence of any actual possession on the part of any other one of the defendants. These defendants were simply judgment creditors. They were not shown to be in possession of, or exercising any control over, the property. No judgment could therefore be rendered against them. House v. Turner, 106 Mich. 240.

Judgment will be’affirmed as to defendants Francis and Rea, and reversed as to the other defendants, with costs, and judgment entered in this court for them.

The other Justices concurred.


author: Per Curiam.

text:
    TAGGART v. WATERS.
    Justices oe the Peace — Interest in Case.
    A justice of the peace is not disqualified from trying ah action of assumpsit because he had written defendant to the effect that he had the claim for collection, and had been instructed to inform him that suit would be brought if it was not paid. Moon v. Stevens, 53 Mich. 144, followed.
    Error to Saginaw; Wilber, J.
    Submitted January 6, 1898.
    Decided January 25, 1898.

      Assumpsit by Hiram H. Taggart and others against Charles H. Waters for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.'
    Reversed.

      John F. O'Keefe, for appellants.

      Trask & Smith, for appellee.
   Per Curiam.

Plaintiffs brought suit in justice’s court. Defendant appeared specially, and moved to quash the case, because the justice had written him that he had the claim for collection, and had been instructed to write him, and inform him that suit would be brought if it was not paid. Plaintiffs had judgment. ■ Defendant took a special appeal to the circuit court, where it was sustained.

The court was in error. The case is ruled by Moon v. Stevens, 53 Mich. 144.

• Reversed, and court below directed to proceed to trial upon the merits.


author: Hooker, J.

text:
    NORTHWESTERN MUTUAL LIFE INSURANCE CO. v. GREINER.
    Life Insurance — Conditional Assignment — Beneficiaries.
    A policy of insurance was made payable to the beneficiary, his executors, administrators, or assigns, in 60 days after due notice and proof of death of the assured. The assured, who was named in the policy as the beneficiary, assigned to his wife all rights thereunder, with a provision that, in case of her death before the policy should become “due,” the proceeds should go to the heirs or assigns of the assured. Held, that the policy was not due, at the earliest, until 60 days after the death of the assured, and that, under the terms of the assignment, his heirs were entitled to the proceeds of the policy where the assignee died within such period.
    Appeal from Kent; Adsit, J.
    Submitted October 14, 1897.
    Decided February 16, 1898.
    Bill of interpleader by the Northwestern Mutual Life Insurance Company against Julius Greiner, Orlando B. Scobey, administrator of the estate of Robert C. Greiner, deceased, and Elmer E. Whitted, administrator of the estate of Louise C. Greiner, deceased, to determine the beneficiary of a policy of insurance. From a decree for defendant Greiner, defendant Whitted appeals.
    Affirmed.

      Taggart, Knappen & Denison, for appellant.

      Uhl, Hyde & Earle, for appellee Greiner.

      Frank W. Hine, for appellee Scobey.
   Hooker, J.

May 22, 1879, a policy of insurance was issued to Robert O. Greiner, who married in 1880, and in December, 1881, assigned the policy to his wife, by a writing which reads as follows, viz.:

“ December 28, 1881.
. “For a valuable consideration, the receipt whereof is hereby acknowledged, I hereby assign and transfer to my wife, Louise O. Greiner, of Grand Rapids, Michigan, and for her sole use and benefit, all the right, title, and interest in and to policy No. 99,508, issued by the Northwestern Mutual Life Insurance Company. In case of the death of said assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of Robert C. Greiner.
“ Robert O. Greiner. [L. S.]
“Louise C. Greiner.”’ [L. S.]

Premiums were paid seasonably and regularly, until .Greiner’s death, which occurred in August, 1895, both himself and wife being killed at Denver, in an hotel which was destroyed by explosion and fire. There is no evidence by which it can be determined whether either survived the other. Claims were made by the administrators of both husband and wife, and by the father of the husband, who was his heir. A bill of interpleader was filed by the company, and the money was paid into court. Upon the hearing of the cause, the claim of Julius Greiner, the father, was sustained, and Whitted, the administrator of the wife, has appealed.

Apparently, the case must turn upon the construction to be given the policy, with. reference to the question of its maturity, and the meaning to be given to the words “become due,” as used in the assignment, unless we can say that the law will presume that the wife died first, which would become an important question if it should be held that the policy matured upon the death of the assured. Counsel for the administrator of the wife claim that the policy became due at the death of the husband, but, if it did not, that the provision of the assignment, viz.: “In case of the death of the assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of Robert C. Greiner,” should be held to mean that the death of the wife before that of her husband was necessary to give the father a right to the insurance.

There is no ambigxxity in the language of the assignment, and we discover no circumstances surrounding the transaction which indicate that the assignor intended any but the ordinary meaning of the term “due,” in its legal sense, unless we are to say that the natural regard for a wife should exclude the belief that he designed to deprive her representative of the insurance, though she should survive the husband, but not live until the policy should become a matured obligation. Under the terms of this policy, by prompt action in furnishing notice and proofs, it could be made payable^within a period of a little more than 60 days, when it would certainly become due. There are forcible reasons for thinking that a man would naturally intend the wife to become the beneficiary upon his death, but it is not so clear that he would feel so if he could know that, by reason of her death before collection, the amount would be diverted from his father to persons of his wife’s family. It is not improbable that many men would avoid such a result if anticipated. Certainly, it is not a natural inference from common knowledge that he would not. We think, thex-efore, that, unless we can say that this policy became legally due upon the husband’s death, the wife’s administrator has no claim upon it. The policy reads as follows:

“ In consideration of tbe representations made in the application therefor, and of the premium in advance, as herein stipulated, consisting of the annual cash premium of forty and 34-100 dollars, to be paid at or before noon on or before the 22d day of May in every year during the continuance of this policy, doth assure the life of Robert C. Greiner, surveyor, of Grand Rapids, in the county of Kent, State of Michigan, for the benefit of himself, in the amount of two thousand dollars, for the term of his natural life. And the said company doth hereby promise and agree to pay the said sum assured, at its office, to the said beneficiary, or his executors, administrators, or assigns, in 00 days after due notice and proof of death of the said person whose life is hereby assured; the balance of the year’s premium, and the amount of all other indebtedness ■to the company on account of this policy, if any, being first deducted therefrom.”

The promise of the company is plain. It is to pay the sum assured, not upon death, but in 60 days after “ due notice and proof of death.” Unless we are to put a different construction upon these words in a policy of insurance than we would do were they found in another contract, we must conclude that this policy was not due at the time of the death of the wife, and, therefore, that the father became entitled to the proceeds. The learned circuit judge was of the opinion that the policy did not become due immediately after the death of the assured, and we are of the same opinion.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    BRANDAU v. MAYOR OF DETROIT.
    Public Officers — City Constables — Removal—Constitutional Law.
    Article 12, § 7, of the State Constitution, relating to the removal of officers elected by a county, township, or school district, has no application to the office of constable in cities and villages.

      Certiorari to Wayne; Hosmer, J.
    Submitted December 7, 1897.
    Decided February 16, 1898.

      Mandamus by Jacob Brandau to compel William C. Maybury, mayor of the city of Detroit, to reinstate relator as constable in said city. From an order denying the writ, relator brings c.ertiorari.

    Affirmed.

      William B. Jackson, for relator.

      C. D. Joslyn, for respondent.
   Long, J.

At the November election in 1896 in the city of Detroit, the relator was elected as constable of the Seventh ward of said city. He thereafter filed his official bond, and entered upon the discharge of his duties as constable, ai*d continued to perform such duties until July 7, 1897, when he was suspended from, said office by the respondent, as mayor of said city. A petition was thereafter made by the relator to the circuit court for Wayne county for a mandamus to compel the respondent to revoke the order of suspension. Answer was made to this petition, in which the respondent sets out, substantially, as follows: That on May 20, 1897, one Henry Legrou, of the city of Detroit, made petition to the respondent, setting forth that a judgment was rendered against him in justice’s court for $7.02; that the relatgr, as constable, came to the saloon of petitioner with an execution on said judgment, accompanied by one Pat Foley; that petitioner was absent, but his wife was present; that the said constable took from behind the bar $1.67 in cash, a gold ring, and a clock of the value of $8; that Pat Foley took a $10 gold piece from behind the bar; that thereupon the constable and Foley called for drinks, which they refused to pay for, using vile language; that they assaulted one of the customers there in the saloon, ordered the customers all out, and closed and locked the door. The charge is then made that the assistant of the constable, Mr. Pat Foley, stole the $10 gold piece, which he refused to account for. The return states that attached to this petition were affidavits to sustain the petition. The petition was sworn to. Notice was thereupon served upon the relator to appear before the respondent to answer the charges. Relator appeared, and witnesses were produced on both sides, and the respondent returned to the court that the testimony fully sustained the charges made'by the petitioner; that the charges were made in writing, and full opportunity given relator to be heard in his defense; that, after careful consideration, the respondent made the order of suspension, and reported the case to the common council of the city at its next meeting; that he found the charges made against relator sustained. On the hearing in the court below the mandamus was denied. The cause comes into this court by writ of certiorari.

The action of the respondent mayor is based*upon section 53 of the charter of Detroit, which, among other matters, provides: ‘ ‘ The mayor shall have power to suspend or remove constables from office; and, in case of such suspension or removal from office, the mayor shall report the same, with the reasons therefor, to the common council.” Counsel for relator contended below, and contends here, that this provision of the charter is void, as in conflict with section 7, art. 12,' of the Constitution of this State, which provides, “The legislature shall provide by law for the removal of any officer elected by a county, township, or school district, in such manner and for such cause as to them shall seem just and proper.” The contention is that this provision of the charter is void because the same does not assign the causes, or provide the manner, for such suspension or removal. It is contended by-counsel for respondent that the whole of this section must be read together, and that the section, as a whole, provides for the same proceeding before the mayor as before the common council (that is, that the officer against whom charges shall be preferred shall be furnished with the charges, which shall be made in writing, and after a hearing thereon, if the mayor finds the charges sustained, he may remove the officer); that these charges are for willful neglect of the duties of his office, and corrupt conduct in office. The other portions of the section provide for removals from office by the common council upon certain specific charges.

The section of the Constitution referred to (section 7, art. 12) has no reference to the office of constable in a city, but refers to officers elected by a county, township, or school district. Article 15, § 14, of the Constitution, provides, “Judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct;” while article 11, § 1, provides for the election of constables'in townships. In White v. Board of Supervisors, 105 Mich. 608, it was held by this court that constables in cities and villages are not such officers as are mentioned in section 1, art. 11, of the Constitution, and that such officers in cities and villages may be appointed, if the legislature should so direct. This being so, there is no constitutional restraint upon the legislature to provide for the removal of constables in cities and villages. By the latter part of section 53 of the charter, above quoted, this power is conferred upon the mayor of Detroit. He has exercised the power which the legislature has conferred upon him. It is not important to discuss the questions raised by counsel for respondent, as written charges were made, and the relator had full opportunity to be heard.

The court below very properly refused tó issue the mandamus. That order will be affirmed, with costs.

The other Justices concurred.


text:
    WIERENGO v. MASON.
    Equity — Restraining Action at Law.
    It is not within the province of equity to intervene and enjoin the prosecution in a court of law, having jurisdiction of the parties and the subject-matter, of a cause of action given to plaintiff under the well-settled rules of law, because in the particular case a hardship will be done if the cause of action is enforced.
    Appeal from Muskegon; Russell, J.
    Submitted February 1, 1898.
    Decided February 16, 1898.
    Bill by Jennie Wierengo, executrix of the last will and testament of Andrew Wierengo, deceased, against Lyman G. Mason and Arthur Jones, to enjoin the prosecution of a suit at law. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Bunker & Carpenter, for complainant.

      Jones & Kennedy, for defendants.
   Moore, J.

This is a proceeding to enjoin the prosecution of an action at law in which Lyman G. Mason is plaintiff, and the estate of Andrew Wierengo is defendant, in which case a new trial was granted in May, 1897. Mason v. Wierengo's Estate, 113 Mich. 151. A reference to that case will make it unnecessary to make a detailed statement here. When the litigation was here before, it was held that, under the conceded facts of the case, Mr. Mason was entitled • to recover. It is not claimed that conditions have changed, or -that the facts are different upon this record from what they were in the other, but it is said that the opinion in that case was rendered, though it worked a hardship, because the law was technical and inelástic, and that equity will grant relief against the strict, rigid, and oppressive rules of the common law, and that it ought to intervene here.

We never have understood that where a court at law has jurisdiction over the subject-matter and the parties, and one of them has a cause-of action against the other, given to him by the well-settled rules of law, equity will intervene because in the individual case a hardship will be done. We do not believe this is the province of a court of chancery. Without discussing the claim of counsel in detail, we content ourselves with citing 1 Pom. Eq. Jur. §§ 46, 47; 1 Story, Eq. Jur. §§ 18, 19.

We think the court very properly dismissed the bill of complaint. The decree is affirmed.

The other Justices concurred.


text:
    MECHANICS’ BANK OF DETROIT v. STONE.
    1. Equitable Set-off — Insolvency.
    Mere insolvency is insufficient to justify the equitable set-off of a claim not due.

      2. Same — Banks and Banking.
    A bank at L. sent to its correspondent in D. two promissory notes, payment of which it guaranteed, in renewal of notes of similar character, which had been discounted by the bank at D., and the proceeds placed to the guarantor’s credit. Before these notes matured, the L. bank became insolvent, and passed into the hands of a receiver, who made demand upon the D. bank for a balance of account; whereupon the latter filed a petition in the equity court, asking leave to treat the guaranteed notes as an equitable set-off. Held, that the petition was properly denied.
    Appeal from Ingham; Person, J.
    Submitted January 4, 1898.
    Decided February 16, 1898.
    Petition by the Mechanics’ Bank of Detroit against George W. Stone, receiver of the Central Michigan Savings Bank of Lansing, for permission to treat as an equitable set-off against a claim of the receiver certain notes guaranteed by the insolvent bank. From an order denying the prayer of the petition, petitioner appeals.
    Affirmed.

      Bowen, Douglas & Whiting, for petitioner.

      Cyrenius P. Black, for defendant.

       The authorities on the effect of the immaturity of a claim at the time insolvency occurs upon the right of set-off are marshaled in a note to Fera v. Wickham, (N. Y.) 17 L. R. A. 456.

   Hooker, J.

The Mechanics’ Bank of Detroit was, on the 18th day of April, 1893, indebted to the Central Michigan Savings Bank of Lansing in the sum of $4,000 and upwards upon account; the former being the Detroit correspondent of the latter. On that day the Central Bank went into the hands of a receiver, being hopelessly insolvent. At that time it was guarantor of the payment of two notes of $5,000 each, renewals of notes of similar character, which it had discounted at the Detroit bank some time before, and for which it had been given credit on account. These notes fell due on April 29th, at which time the Detroit bank indorsed upon them the amount of the balance standing to the credit of the Lansing bank upon its books, and shortly afterwards it indorsed another trifling item. Demand being made by the receiver upon the Detroit bank for the payment of the balance of the account as it stood on April 18th, a petition was filed on behalf of that bank, asking that it be allowed to treat the amount indorsed as an equitable set-off. The circuit court denied the prayer of the petition, and we are asked to review the case upon appeal.

Counsel for the petitioner cite many well-considered cases to sustain the proposition that equity will treat insolvency as a sufficient ground for allowing a set-off of claims, although not strictly “mutual credits,” and not within the rule applied by courts of law, and notwithstanding the fact that the claim sought to be set off is not due at the time of the assignment of the insolvent estate. But this has never been the rule in this State in cases where there are not “mutual credits.” There were no “mutual credits” here. Not only was it not expected that the fund would be kept towards the payment of the notes, but the notes were given, in the first place, for the purpose of securing a fund which should be subject to the check of the Lansing bank. This court has said several times that mere insolvency was insufficient to justify an equitable set-off of a claim not due. Lockwood v. Beckwith, 6 Mich. 174 (72 Am. Dec. 69); Hale v. Holmes, 8 Mich. 41; Kinney v. Tabor, 62 Mich. 527.

It is contended that these cases were overruled by Gibbons v. Hecox, 105 Mich. 513; but that case is distinguishable. Hecox was indebted to the bank upon a note which fell due a short time after the bank went into the hands of a receiver, and at the same time the bank held for collection a past-due note owned by Hecox, who was insolvent. Subsequently Hecox assigned this note, and the receiver filed a bill to enforce a banker’s lien upon it. A demurrer to the bill was overruled up'on the theory that, where a bank gives credit by discounting notes or allowing an ovei’draft to be made, such credit is given on the faith that moneys or securities sufficient to pay the debt will come into the possession of the bank in the course of future transactions, and that, when such securities are left with the bank for collection, a lien attaches. It may be remarked that in that case the receiver came into possession of the debt against Hecox, and the note left by him for collection, as the representative of the bank. Had the same remained with the bank itself, unassigned, until the former became due, the lien would have attached to the latter under the uniform rule; and it would seem that in equity, at least, the same should be true, although, through insolvency of the bank, a receiver had succeeded to its assets and rights, no rights of creditors having intervened. At the time that Hecox’s note became due, the assignee’s right in the note left for collection had not attached. It was, therefore, unnecessary to find that a lien attached before the Hecox note became due.

The present case does not involve a lien, but a question of set-off, and, while there is at first blush apparent justice in the proposition that the petitioner should not be compelled to pay ’its debt in full while holding an obligation against the insolvent bank, there are reasons for denying it. Our own decisions cited, which are clear and unmistakable upon this doctrine, are not unsupported, although it must be confessed that the decisions elsewhere are not harmonious. The rights of creditors intervened at the time that the Lansing bank went into the hands of the receiver, and their equities are, by many courts, looked upon as superior to those of persons seeking to set off claims not matured. Had the entire fund standing to the credit of the Lansing bank been checked out the day before its doors were closed (as it might have been), the petitioner would have been in no better position than any other creditor ; and we see no great equity in holding that the bare accident that it was not withdrawn gave the Detroit bank a superior equity to that of other creditors. This subject was considered by the court of appeals of New York in Fera v. Wickham, 135 N. Y. 223 (17 L. R. A. 456), and the- right of set-off in such a case as this denied. Another learned bench that is in accord with this rule is that of Wisconsin, which denied the right of lien and equitable set-off in a case similar to that of Gibbons v. Hecox. It is distinguishable from that case, however, in the vital particular that the rights of creditors were involved. Among many authorities, our own case of Lockwood v. Beckwith, supra, is cited, and the following quotation shows the view taken by that court of the Michigan rule. It says:

“ There are many cases in Michigan that hold this rule, unless some special equities other than that growing out of insplvency should make an exception. It is correctly claimed that this is the rule by a great preponderance of the authorities. The learned counsel of the appellant cites but few cases, and some of them hardly dispute this rule. The rule that places a bank, under the law, on equality with all other creditors in such a case, seems to be reasonable.” Oatman v. Batavian Bank, 77 Wis. 505 (20 Am. St. Rep. 136).

We are of the opinion that the question is fully covered by the Michigan cases cited by counsel.

The order of the learned circuit judge is affirmed, with costs.

The other Justices concurred.