text:
    Flora A. Poole v. The Consolidated Street Railway Company.

      Street railways — Dangerous premises — Landing place — Contributory negligence — Proximate cause — Instructions to jury.

    1.. Where, in a personal injury ease against a street-railway company, the plaintiff-testifies that the injury complained of was received while she was alighting from one of defendants cars, by stepping upon a ridge of earth which the defendant had negligently suffered to remain in close proximity to the track, and the defendant contends, and introduces evidence tending to show, that the accident was caused by some one stepping upon the plaintiff’s dress as she was in the act of alighting from the car, thereby throwing her to the ground, it is error to refuse to instruct the jury, at the request of the defendant, that if they find that the contention of the defendant is correct the plaintiff cannot recover, and the error is not cured by a general instruction that if the jury find that the injury was caused by accident or misadventure, without fault of either party, there can be no recovery; citing Wildey v. Crane, 69 Mich. 17; Dikeman v. Arnold, 71 Id. 656; O’Callaghan v. Boeing, 72 Id. 669; Babbitt v. Bmnpus, 78 Id. 331; Cooper v. Mulder, 74 Id. 374; People v. Jacks, 76 Id. 218; Miller v. Miller, 97 Id. 151.
    2. Defendant maintained pleasure grounds at a summer resort near the city in which it operated its road. For the more convenient carriage of passengers to and from the resprt, its double track had been extended and formed into a loop at the resort terminus, and cinders had been spread on the side of the loop next to the resort, so as to form a safe landing place, from which a walk led to the pleasure grounds. Plaintiff, in attempt- „ ing, after the car had come to a stop opposite said path, to alight inside the loop, fell and was injured. She sued the company, claiming that the cause of the accident was its negligence in permitting a ridge of earth to remain at a point where one alighting inside the loop would be likely to step upon its edge, and slip backward, as she testified she did. The defendant insisted that, having provided a safe landing place on the side of the loop nearest'the pleasure grounds, its full duty to passengers was performed. And it is held that under the circumstances of the case, and in .view of the testimony of the plaintiff that she had previously been helped off the car by the defendant’s conductors inside the loop, and of the common practice of passengers, as established by the testimony, to alight on either side of the cars indiscriminately, said cars being so constructed as to enable them to do so, and of the absence of any warning or notice to passengers to step off only on the side nearest the landing place, it cannot be said, as matter of law, that it was negligent for the plaintiff to attempt to alight inside the loop.
    3. An instruction that if the jury should find that the space ' between the outer edge of the running board of the car and the edge of the sod or little embankment, at the time and place when and where the plaintiff claimed she stepped between the running board and embankment, was not more than 7 or 8 inches in width, the defendant was not guilty of negligence in having such a space at that time and place, and that plaintiff could not recover, was properly refused, it appearing that plaintiff was compelled to step downward in order to alight, the running board of the car being about 18 inches above the surface of the ground, and the Court not being able to say, as matter of law, that a passenger, in taking such a step, would in all cases step outward, more than 7 or 8 inches.
    Error to superior court of Grand Rapids. (Burlingame, J.) Argued January 30 and 31, 1894. Decided May 22, 1894.
    Negligence' case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Kingsley & Kleinhans, for appellant.
    - Wesselius, GorKtt & Ewing, for plaintiff.
   Montgomery, J.

The defendant operates an. electric street railroad in Grand Rapids, with a line extending to Reed’s Lake, which is a summer resort a short distance east of the city. The company maintains pleasure grounds at this place, including a pavilion and conveniences for visitors. During „the summer, the travel over this route is very large. Eor the convenient transaction of its business, the company’s double track is extended and formed into a' ■loop at the Reed’s Lake terminus, so that cars may run continuously, without reversing or switching, around this loop, and back to the city. Within this loop is vacant ground, and, on the side to the north, nearest the pavilion, cinders hav.e been spread, connecting with the walk and the pavilion, and forming an admittedly safe landing place. The sketch on next page sufficiently shows the surroundings to indicate the situation.

On the evening of the 12th of August, 1892, the plaintiff, who had taken passage on one of defendant’s cars, in attempting, after the car came to a,stop, to alight inside of the loop, received serious injuries.- She brought this suit against the company, alleging that the defendant did

not keep its grounds at Eeed’s Lake, at and adjacent to where said cars stopped for passengers to leave the “same, in such condition that passengers might alight with safety from said cars by night, but permitted said grounds to be and remain in such a rough, broken, and uneven condition, and permitted a steep bank of earth, of the height of, to wit, six inches, to he and remain at and alongside of said railway at said terminus where said cars stopped for passengers to leave the same, so that passengers alighting from said cars were liable to be thrown down and injured; and alleging that the plaintiff, by reason of the unsafe condition of the grounds, was, without fault on her part, thrown-down and caused to fall to the ground «with great force and violence, and received the- injury complained of. The plaintiff recovered a verdict for $5,000, and defendant brings error.

The defendant contends that upon the whole record it appears that the landing place provided on the northerly side of the track was suitable and proper, and known to the plaintiff to be so, and that she had no -right to alight on the side of the car next the loop, and that, if she chose to do so, it was at her own risk; and it is further contended that the plaintiff’s testimony, taken as a whole, failed to make it clear how the injury occurred, and also that the grounds inside the loop were a reasonably safe-landing place. A number of other questions are raised, relating to rulings on the trial as to the admissibility of testimony, the refusal of requests to charge preferred by counsel for the defendant, and the charge of the court on its own motion, which will be considered in order.

The plaintiff’s theory is that in attempting to leave the car she stood with both feet on the running board; that a gentleman who was aboard the car assisted her from the running board to the ground; that she clasped his hand in making her descent to the ground; that, upon stepping down from the running board, she stepped upon the steep bank of earth, which the testimony shows to be somewhere from four to five inches high; that her foot slipped and gave way, and that she fell, and received the injuries in question. The defendant’s theory as to the manner of her injury is that the true cause of her injury was not the uneven condition of the ground, but that it was occasioned by some person stepping upon the plaintiff’s dress as she was alighting, thereby throwing her to the .ground; and the defendant offered the testimony of numerous witnesses tending to sustain this theory.

It is strenuously insisted that, the company having provided a safe landing place on the northerly side of the loop, its full duty to the passengers was performed, and that it cannot be held liable for an injury occurring by reason of a passenger attempting to alight inside the loop. Upon this question the trial judge charged the jury as follows:

“A street-railway company has a right to select and adhere to the making of their own arrangements for platforms and landing places at such resorts as Reed’s Lake, provided, only, that they make a landing place on one side-safe and commodious, and so conspicuous that all passengers cam easily see it by day or by night, unless it has been so used, and is so use'd, and the circumstances are such, in connection with the landing, as amounts to an invitation to-alight on the other side.”

And, further:

“It is certain, under the testimony in this case of the construction of that walk and landing, running from 30 feet wide down to 10 feet each way, to an extent of from' 150 to 200 feet long, upon the north side next to the-resort, that it offers a plain and palpable invitation for the passengers upon its trains to get off upon that side; and I have no doubt that under the arrangements as testified to,, and uncontradicted, in order for the company to be held as inviting an alighting upon the inside of the loop, that, there must be, and should be, some positive act upon the part of the company, as if a conductor should invite a passenger to get off upon that side, or as if any arrangement had been made for the alighting of passengers upon that side; and I believe the law to be that it would be necessary, under the peculiar testimony in this case, that there should be something that you should fix in your minds, other than the fact that passengers upon a loaded train, riding upon the running board, upon the outside, saw fit to jump off within the loop, and run around across the track to the place of amusements.”

This charge- was sufficiently favorable to the defendant, and fairly stated the law of the case, if there was any testimony tending to show that passengers had been, by the course of conduct of the defendant, invited to alight upon the inside of the loop. See McDonald v. Railroad Co., 26 Iowa, 124; 2 Redf. Amer. Ry. Cas. 532. We also think that there was testimony which justified this instruction. According to the plaintiff’s testimony, she had previously been helped off the car by conductors inside the loop, and there is abundant testimony in the record that the common practice was to alight on either side indiscriminately. The car was so constructed that passengers could alight from either side, and there was no warning or notice to passengers to step off only on the northerly side. The -cars were crowded with passengers, and the evidence shows that, as 'some would alight, others would press forward and take their seats. Under these circumstances, we are not prepared to say that, as a,matter of law, it was negligent to attempt to alight on’ the inside the loop.

But it is said that the car had not reached its usual stopping place, nor the place where plaintiff had been previously assisted to alight. But the car had come to a full stop on the occasion in' question. There was no warning not to alight, and a glance at the surroundings is sufficient t(j indicate that a passenger might well have understood that the stop had been made lor that purpose. The evidence shows that not the plaintiff alone, but substantially all, if not all, the passengers, interpreted the stop as an invitation to alight. The cinder walk was opposite the stopping place on the north, and the car was directly opposite the walk which leads to the pavilion.

We also think the question of whether the uneven condition of the ground was such as to amount to negligence on the part of the conrpany was, under the circumstances of this case, fairly a question for the jury. The plaintiff’s theorjr was that the bank of earth from which her foot slipped was directly at the point where one, in alighting from the car, would be likely to step upon its edge, and slip backward. We are not prepared to say, as a matter of law, that this was a suitable landing place.

The defendant asked the court to charge the jury as follows:

If the jury find that the space between the outer edge Of the running board of the car and the edge of the sod or little embankment, at the time and place when and where the plaintiff claims she stepped between the running board and embankment, was not more than seven or eight inches in width, it was not negligence on the part of the defendant to have such a space at that time and place, 'and the plaintiff cannot recover.”'

This request was refused, and the defendant’s counsel assign error upon its refusal, citing and relying upon the case of Ryan v. Railway Co., 121 N. Y. 126, as sustaining their contention that the request should have been given. That case is not at all analogous to the present. That was the case of an elevated railway company, which had left a space of from seven to eight inches between its platform and the running board of the car. This running board was presumably substantially upon the same level as the platform, and the court held that some space was necessary between tbe running board and tbe platform to enable the company to run its cars, and that, because of a necessary curve in the track, the distance of seven or eight inches was not unreasonable, and that, as it must have been known that there was a vacant space between the car and the platform, such a space as could be spanned by a single step of a passenger wgs not unreasonable, and the leaving of such a space was not negligence. But in the present case the passenger was compelled to step downward in order to alight, the running board of the car being about 18 inches above the surface of the earth, and we cannot say, as matter of law, that a passenger, in stepping down from the running board of the car, would in all cases step outward more than seven or eight inches. There was certainly no necessity for maintaining an obstruction there which could work injury, and the only legal question which could possibly be involved is whether the situation of this mound was such that one, in landing from the car, would reach it, and be likely to be injured by stepping upon the edge of the mound; and that question the request does not submit, and was therefore properly refused.

In the main, the cause was very carefully presented to the jury; but we think the court compaitted one error which is important, in view of the defendant’s testimony, and the theory upon which it contested the case before the jury. The defendant requested the court to charge the jury’'as follows:

“If the jury Bnd that the injury was occasioned by some one stepping on the plaintiff’s dress as she was alighting, and she was thereby caused to fall, she cannot recover.”

This request presented the defendant’s theory of the case, and should have been given. The plaintiff denied any such occurrence, and described in detail how she claimed the injury occurred, while the defendant produced a number of witnesses wbo testified that her first statement of the occurrence was that some, person stepped' upon her dress, and caused her to fall from the car, and also produced three witnesses who witnessed the occurrence, and who gave testimony in the same line. This presented the issue for the jury. There was no middle ground. There was no claim of two concurring causes. There could be no recovery unless the plaintiff’s theory of the manner in which the accident occurred was found to be sustained by the proof; and if the testimony offered by the defense, which tended strongly to show that the injury occurred by reason of some person stepping upon her dress, was believed, there -was no testimony in the case connecting the cause of the injury with the fault attributed to the defendant in the declaration.

The omission to give this request is not cured by the general instruction that, if the injury was caused by accident or misadventure, without fault of either the plaintiff or defendant, there could be no recovery. The defeiidant had a right to have its theory of the case covered by specific instructions. Dikeman v. Arnold, 71 Mich. 656; People v. Jacks, 76 Id. 218; O’Callaghan v. Boeing, 72 Id. 669; Cooper v. Mulder, 74 Id. 374; Wildey v. Crane, 69 Id. 17; Babbitt v. Bumpus, 73 Id. 331; Miller v. Miller, 97 Id. 151.

The other questions presented are not likely to arise .upon a mew trial, but, for the error pointed out, the judgment will be reversed, with costs, and a new trial ordered.

McGrath, C. J., Long and Grant, JJ., concurred. Hookur, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Jess K. Coulter v. Ernest V. Norton and Henry Hayden.

      Landlord and tenant — Covenants—Constructive eviction — Damages —Evidence.

    The lessees of an hotel sublet the cigar and news room, with the appurtenances thereto, including the right of entrance to and from the hotel rooms, for the purpose of carrying on the business of cigar selling and news dealing. The lease contained a grant of the entire cigar privilege of the hotel, and a covenant for the peaceable and quiet enjoyment of the demised premises. The cigar room opened into the hotel office, and also onto the main street in front of the hotel. After making the lease a third party succeeded to an interest in the general lease of the hotel, and he and one of the original' lessees thereafter ran the hotel as copartners, and the sublessee attorned to them. The new firm, finding the hotel business unprofitable, abandoned the ground floor, on which the hotel office was located, and used the upstairs portion of the building for sleeping rooms in connection with another hotel. The sublessee thereupon abandoned the premises sublet to him, and brought suit against the firm to recover damages, claiming a constructive eviction, and an implied covenant to maintain the hotel. And in affirming a judgment in favor of the plaintiff, it is held:
    a — That the claim that the case falls within How. Stat. § ■5655, which provides that “no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not,” is without force; that there is no obscurity or uncertainly in the terms of the lease, and there can be no doubt that, on the one hand, the plaintiff understood that he was securing the room with the door opening into the hotel office, and was to have the cigar privilege with the door opening into the hotel, nor, on the other hand, that his lessors understood that they were leasing the same thing; and that it is not a case of implied covenant, there being an express covenant for the peaceable and quiet enjoyment of the thing leased.
    b — That the closing of the hotel was such an interference in the plaintiffs use of the premises as to amount to an eviction.

    c — That the defendant who became an assignee of an interest in the original hotel lease, and to whom, plaintiff attorned, and who himself assisted in closing the hotel, thus working an eviction, is liable therefor.
    d — That the measure of plaintiff’s damages is the actual value of the unexpired term of his lease, less the rent reserved.
    e — That evidence relative to the falling off in the plaintiff’s' trade by reason of the closing of the hotel was not wholly irrelevant to the question of the value of the use of the premises leased to him.
    Error to Jaclcson. (Lane, J., presiding.) Argued January 31, 1894. Decided May 22, 1894.

      Assumpsit. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      Wilson & Cobb, for appellants.

      Barkworth & Blair, for plaintiff.
   Montgomery, J.

In December, 1891, Norton, Griffith & Co. were lessees of the Hurd House property at Jackson, and were making extensive alterations and improvements preparatory to-reopening the hotel. The improvements were completed about February 10, 1892, and the house opened for business. In December, 1891, said lessees sublet to plaintiff the ' cigar, and news room and stand in the hotel building now known as the cNew Hurd," being the first room immediately west of the main entrance to said hotel, and the appurtenances thereto, and the right of entrance, to and from the hotel rooms, for the purpose of carrying on said business of cigar selling and news dealing, for the term of five years; said term to commence as soon as said hotel building and said room are ready for occupancy, and said hotel is in actual occupancy and operation.” The lease contained the further provision that—

“ The said parties of the first part grant herewith the entiré cigar privilege of the New Hurd to said second party, and agree to and with the said second party that they will sell no cigars in said hotel, or the bar connected therewith, excepting those bought of the said second party, for which they shall pay said second party at the rate of $83 per thousand, said cigars to be of a quality selling at wholesale at regular market price of not less than $55 per thousand; * * * and the said second party does hereby covenant and promise * * * that he will at his own expense, during the continuance of this lease, keep the said premises, and every part thereof, in as good repair, and, at the expiration of the term, yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof and damage by the elements excepted.”

There are no other covenants in the lease which are material. A sketch of the premises is given on next page..

After the making of this lease, Norton and Hayden,, the defendants, became owners of the general lease of the Hurd House, and landlords of plaintiff. In November, 1892, the hotel proprietors, finding the business unprofitable, abandoned this floor, and used the upstairs portion for sleeping rooms in connection with another hotel across the street. Plaintiff thereupon abandoned the premises leased by him, and brings suit for damages, claiming a constructive eviction, and an implied covenant to maintain the hotel.

1. It is claimed that this case falls within section 5653, How. Stat., which provides that “no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.” We think this objection without force. _ The question here is, what was leased? and we think the answer to this question very clear. There is no obscurity, or uncertainty in the terms ■of the lease. It is the cigar and news room in the New I-Iurd House, the appurtenances thereto, and the right of ■entrance to and from the hotel rooms; also, the entire cigar privilege of the New Hurd. There can be no doubt that, on the one hand, the plaintiff understood that he was getting the room with the door opening into the Hurd Hotel office, and was to have the cigar privilege with

the door opening into the hotel, nor, on the other hand, that the lessors understood that they were leasing the same thing. Denison v. Ford, 7 Daly, 384. It is not a case of implied covenant. There was an express covenant for'the peaceable and quiet enjoyment of the thing leased.

2. Nor do we think there can be any doubt that the closing, of the hotel was such an interference in the use of the premises as to amount to an eviction. Wood, Landl. & Ten. (2d ed.) 1101; Rhodes v. Bullard, 7 East, 116; 3 Suth. Dam. 117; Conlon v. McGraw, 66 Mich. 194; Denison v. Ford, supra.

3. Was the defendant H'ayden liable for the eviction? We think, under the circumstances of this case, that he was. He became assignee of an interest in the lease of the Hurd" House. Plaintiff attorned to him, and he himself assisted in closing the hotel, thus working an eviction.

'4. The circuit judge gave the jury the correct rule of damages, recovery being confined to the actual value of the unexpired term, less the rent reserved.

We do not think the introduction of testimony relative to the falling off in trade was wholly irrelevant to the question of the value of the use of the premises, and are satisfied that no error was committed to the prejudice of the defendants.

The judgment will be, affirmed, with costs.

The other Justices concxxrred.


author: McGrath, C. J.

text:
    The People v. Frank A. Wiethoff.

      Criminal lato — Gaming—Sufficiency of information.

    1. How. Stat. § 2029, which makes it a misdemeanor for any person, for hire, gain, or reward, to keep or maintain a gaming room, or a gaming table, or any game of skill or chance, etc., or knowingly to suffer a gaming room, or gaming table, or any such game to be kept, maintained, or played on any premises occupied or controlled by him, or to aid, assist, or abet in the keeping or maintaining of any such room, table,,, or game, seeks to reach, not only the keeper, but the person occupying or controlling the' room where the table or game is kept or maintained, as well as any person who aids, assists, or abets in such keeping or maintaining.

      2. An information under the statute cited, which charges that the respondent did knowingly suffer a gaming room and gaming table to be kept and maintained and played on premises occupied and controlled by him (describing them), contrary to the form of the statute in such case made and provided, is fatally defective, in that it fails to charge that the gaming room and gaming table suffered to be kept were maintained for hire, gain, or reward.
    Error to recorder's court of Detroit. (Gartner, J., presiding.) Argued February 1, 1894. Decided May 22, 1894.
    Respondent was convicted of suffering a gaming room and gaming table to be kept'and maintained on premises occupied and controlled by him, and sentenced to imprisonment in the Detroit House of Correction for three months, and to pay a fine of 1500.
    Judgment reversed, and respondent discharged.
    The facts are stated in the opinion.

      Samuel W. Burroughs, for respondent,
    contended:
    1. The court erred in refusing to direct a verdict for the respondent at the conclusion of the proofs, as the information failed to charge that the respondent knowingly suffered a gaming table to be kept, maintained, and played for any kind of hire, gain, or reward: citing People v. Weithoff, 51 Mich. 203, 93 Id. 631.
    2. The gist of the offense is the Obtaining of property by the fraudulent use of cards (the details being unimportant), and the publicity of the act; citing Blemer v. People, 76 111. 265; Molnnix v. State, 51 Ala. 23; and “suffering persons for gain to resort there to play” is a separate offense; citing Com. v. Stowell, 9 Mete. 572; and it is no crime to play cards for amusement at a place rendered private by its use, but allowing cards to be played where money is bet is gambling; citing State v. Pur~ dom, 3 Mo. 83; Clarice v. State, 12 Ala. 492; Sherrod v. State, 25 Id. 78; Burdine v. State, Id. 60; Phillips v. State, 51 Id. 21; and a.contest pursuant to bet or wager, which is to be determined by the result, is gambling; citing State v. Smith, Meigs, 99; Bagley v. State, 1 Humph. 486; but playing a game of chance without betting thereon, and without the purpose that others shall do so, is not gambling; citing Johnson v. State, 8 Gra. 453; and, in New York, playing the rub to determine which party shall pay for the use of a billiard table is not gambling; citing People y. Sergeant, 8 Cow. 139; and, in Massachusetts, playing billiards, cards, or dice is unlawful only when played for hire, gain, or reward; citing Com. v. Coding, 3 Mete. 130; Com. v. Stowed, 9 Id. 572; Com. v. Drew, 3 Cush. 279,
    3. The trial judge had no legal right, in order to sustain the information, to construe a portion of the section only; citing Malonny v. Mediar, 1 Mich. 27, 28; People v. Burns, 5 Id. 117.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people,
    contended:
    1. No objection was taken to the information until after the jury had been sworn and respondent put on trial.
    2. As the offense is one created by statute, the information is good:
    a — If the offense is charged in the words of the statute; and—
    b — If the statute is descriptive of the offense; citing Tiff. Crim. Law (4th ed.), 365; Durand v. People, 47 Mich. 332; Clark v. State, 19 Ala. 555.
    3. The statute provides, in terms, for the punishment of three kinds of offenders:
    a — Those who, for hire, gain, or reward, keep gaming rooms or gaming tables. This provision seems to be directed against the proprietor of the gaming outfit, but, in order to make out the offense, it is necessary to charge in the information, and prove on the trial, that.the gaming room was kept “for hire, gain, or reward,” because the words of that part of the statute make it necessary.
    b — Those occupying or controlling premises, who knowingly suffer a gaming room or table to be kept, maintained, or played thereon or therein. This part of the section seems to be aimed at those who lease, or give without rent, their premises to others to be used for gaming purposes, and it seems that he who permits a gambler to use his premises for gaming, reserving no rent, is equally guilty with him who permits or knowingly suffers a lease to be made of his premises' at a high rental, or “hire, gain, or reward,” for gaming purposes.
    c — Those who assist a keeper of a gaming room or table in the gaming operations.
    4. Respondent claims that the offense is not charged in the words of the statute, because the words “for hire, gain, or reward” are not used. If these words limit the words “ or who shall knowingly suffer,” and the words following, that part of the section would read, “any person who shall, for hire, gain, or reward, knowingly suffer a gaming room, or gaming table, or any such game to be kept, maintained, or played on any premises occupied or controlled by him, shall be deemed guilty of a misdemeanor,” etc., which reading would entirely preclude guilt in cases where owners of, or those who occupy and actually control, buildings, give them, rent free, to those maintaining and operating gaming tables, etc., a construction clearly never intended by the Legislature. In People v. Weithoff, 93 Mich., at page 632, the construction here contended for is given, for, in construing the first part of the section, the Court state that it reads: “Any person who shall, for hire, gain, or reward, keep or maintain a gaming room, or a gaming table, or any game of skill or chance, or partly of skill and partly of chance, * * shall be deemed guilty of a misdemeanor.” If the Court correctly construed the reading of the first part of the section, the second part must read: “ Any person who shall knowingly suffer a gaming room, or gaming table, or any such game to be kept, maintained, or played on any premises occupied or controlled by him, shall be deemed guilty of a misdemeanor,” being the construction contended for.
    5. The expression “maintaining a gaming room or gaming table,” as used in the statute, is descriptive of an offense. The word “gaming” now has a legal meaning, and implies playing unlawful games for money; citing Bouv. Law Diet. tit. “Gaming;” Bishop, Stat. Or. § 857 et seq.; State v. Hubbard, 3 Ind-530; Brown v. State, 10 Ark. 607; Mclnnis v. State, 51 Ala. 23; Ramey v. State, 18 S. W. Rep. 417; and there are many cases in the books that recite indictments or informations that have used the words “gaming room” and “gaming table,” without reciting the words, “for hire, gain, or reward;” citing Ciarle v. State, 19 Ala. 552; Longworth v. State, 41 Tex. 508; Fisher v. State, 2 Ind. App. 365; Com. v. Balter, 155 Mass. 287.

      Samuel W. Burroughs, for respondent,
    contended in a supplemental brief:
    1. That, when the respondent was arraigned upon this defective information, he stood mute and refused to plead, and that this of itself was legal notice of objection to the information; citing People v. Gregory, 30 Mich. 372; People v. Behee, 90 Id. 358; People v. Fitzgerald, 92 Id. 328.
    2. The prosecutor contends that, as the offense charged is one created by statute, the information is good:
    a — If the offense is charged in the words of the statute; and—
    b — If the statute is descriptive of the offense.

      In this the prosecutor intrenches himself behind an if; but the trouble is that the offense, such as alleged in the information, is not one created by any statute of this State, and is not one charged in the words of the statute as necessarily descriptive under the entire section, which must be construed as an entirety under the cases cited in the original brief for respondent.
   McGrath, C. J.

The information in this case charged that respondent “ did knowingly suffer a gaming room and gaming table to be kept and maintained and -played on premises occupied and controlled by him, * * * contrary to the form of the statute.” The statute (How. Stat. § 2029) is as follows:

“Any person who shall, for hire, gain, or reward, keep or maintain a gaming room, or a gaming table, or anj’ game of skill or chance, or partly of skill and partly of chance, used for gaming, or who shall knowingly suffer a gaming room, or gaming table, or any such game to be kept, maintained, or played on any premises occupied or controlled by him, shall be deemed guilty of a misdemeanor, * * * and any person aiding, assisting,' or abetting in the keeping or maintaining of any such gaming room, gaming table, or game shall be deemed guilty of a misdemeanor.” i-

I think this information defective, in that it does not charge that the gaming room and gaming table suffered to be kept were maintained for liiije, gain, or reward. Certainly the offense first mentioned is the keeping or maintaining for hire, gain, or reward, and the person sought to be reached is the proprietor. The next 'person made liable is the person who occupies or controls the room, and suffers the offense first named to be committed therein. The information against the keeper of tenant would be defective if it did not allege that he maintained for hire, gain, or reward; otherwise it would not charge the commission of the statutory offense. The information against the landlord is, it seems to me, defective when it does not charge that he has suffered the statutory offense to be committed. The offense defined by the statute is the keeping for hire, gain, or reward, and- the statute seeks to reach, not only the keeper, but the person occupying or controlling the room where kept, as well as any person aiding, assisting, or abetting in such keeping or maintaining.

The judgment must be reversed, and the prisoner discharged. -

The other Justices concurred.


author: McGraxjuc, C. J. Grant, J.

text:
    S. W. Fowler v. Cornelia R. Campbell et al.

      Taxes — Sale—Subpoena—Notice—Manner of assessment.
    1. Section 54: of the tax law of 1889, which provides that the publication of a copy of the tax petition, with notice of hearing and decree, shall be equivalent to a personal service of notice on all persons not personally served who are interested in the lapds specified in the petition, of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon, and to decree a sale of such lands for the payment of all taxes, interest, and charges thereon, relates to persons not personally served in accordance with section 53 of the act, which provides for the service of subpcena upon each delinquent tax-payer who is a resident of the State, if found therein, and that, when personal service is had, further proceedings shall be taken, as far as consistent with the provisions of the act, in the same manner as in circuit courts ifi chancery, and, if such service cannot be made, the return of the officer shall so state, together with the reason therefor.

      2. Under this statute, it becomes important that supervisors shall observe the statutory provisions requiring real property to be assessed to the owner, if known, and, if not known, then to the occupant, if any, and, if there be no occupant, then as unknown, and making it the duty of each supervisor, as soon as practicable after entering upon the duties of his office, to ascertain the taxable property of his township, and the persons to whom it should be assessed, and their residences.

    3. A supervisor who assesses land to the estate of a deceased person, after administration and the discharge of the executors, instead of to the devisees, whose names are easily ascertainable by a reference to the records of the probate court, and who are the owners of the land, not only neglects a plain duty, but fails to assess the property in the way contemplated by the statute.

    ■4. The failure of a supervisor to enter resident and non-resident lands upon separate parts of his assessment roll, or,to extend the taxes levied in his township upon the corrected assessment roll received from the board of supervisors after equalization, as required by the tax law of 1869, is fatal to the validity of such taxes, and of tax deeds issued on sales for the non-payment thereof; citing Seymour v. Peters, 67 Mich. 415.
    5. How. Stat. § 1165, being section 168 of the tax law of 1869, which provides that no sale of real estate for taxes shall be held invalid unless it shall be made to appear that all legal taxes assessed upon such real estate, together with all legal costs and charges thereon, were tendered to the officer authorized to receive such redemption money within the time limited by law for the redemption thereof, requires the tender of such taxes only as were legally assessed.
    Appeal from Manistee. (Judkins, J.) Argued February 2, 1894. Decided May 22, 1894.

      Bill to quiet title claimed under tax deeds. Defendants appeal.
    Decree reversed, and bill dismissed.

    The facts are stated in the opinion.

      Smurthwaiie & Foivler, for' complainant.

      F. M. Wilhey, for defendants.

      See Act No. 195, Laws of 1889, §§ 6, 12.

       See Act No. 195, Laws of 1889, 6, 7, 12.

   McGraxjuc, C. J.

Complainant, claiming title under deeds from the State, issued upon sales for delinquent taxes for the years 1879 to 1887, both inclusive, files this bill to quiet title. The trial court held the deeds for the years 1879 to 1886, inclusive, to be void, and sustained the deed for 1887. Defendants appeal.

The lands had been owned by E. M. Eisdon, -who died in 1871. Defendants derive their title from EisdoiEs will. The sale for the taxes of 1887 was made under the law of 1889. At the time of the filing of the petition by the Auditor General, three of the defendants were residents of the State of Michigan, although they did not reside in the-county of Manistee, where the lands were located and the proceedings had. The lands were assessed to the estate-of Er M. Eisdon.” No personal service ivas had upon any of the resident devisees. A subpoena was issued, directed to the administrator of the estate of E. M. Eisdon, returnable February 6, 1890. The sheriff made return that he had, on January 29, 1890, served the subpoena on the within-named estate of E. M. Eisdon, by delivering to-William Vincent, agent, a true and compared copy,” etc. The decree was, however, entered January 22, 1890. The will of E. M. Eisdon was probated in Manistee county. Executors were appoiiited, the estate administered upon, and the executors discharged in 1876.

It is insisted by complainant that, inasmuch as the statute (section 54) provides that the publication of the notice shall be equivalent to personal service of notice on all persons not personally served, personal service was unnecessary. But this section of the statute must be read in connection with section 53, which provides specifically that the subpoena shall be personally served upon such delinquent tax-payer, if he can be found within the State, in the same manner as subpoenas in chancery are served; that, where the delinquent is a resident of the State, but not of the county, it shall be the duty of the sheriff to transmit the subpoena to the officer living nearest such delinquent; that such officer shall make service, and retransmit the subpoena; that, if service cannot be made, the return of the officer shall so state, giving the reason for such failure; and makes ample provision for the fees for such service. The language of section 54, referred to, relates to persons not personally served in accordance with the provisions of section 53, relating to personal service. It clearly was not the intention that the mandatory provisions of section 53 might be entirely ignored. Personal service upon the resident heirs was essential to confer jurisdiction.

Under this statute, it becomes important that supervisors shall observe the statutory provisions in making assessments. This statute provides that real property shall be assessed to the owner, if known; if not known, then to the1 occupant, if any; and, if there be no occupant, then as unknown. An executor, administrator, guardian, or trustee having control of real property may be treated as its owner’ for the purpose of assessment. Real property which belongs to a person deceased, not being in the control of an executor or administrator, may be assessed to his heirs or devisees jointly, without naming them, until they shall have given notice of their respective names to the supervisor, and of the division of the estate. The statute also makes it the duty of each supervisor, as soon as practicable after entering upon the duties of his office, to ascertain the taxable property of his township, and the persons to whom it should be assessed, and their residences. The supervisor, in the present case, not only neglected a plain duty, — for the names of the owners could have been easily ascertained by referring to the records of the probate court, — but he failed to assess the property in the way contemplated by the statute. In Re Wiley, 89 Mich. 58, the petitioner was not the owner of the property at the time of the assessment, and it was there held that the term delinquent tax-payer ” was intended to apply to persons against whom the tax was assessed, and whose names ajjpeared upon the assessment roll.

It is insisted that the tax deeds for the years 1879 and 1880 were prima facie evidence of title, and, before any evidence was admissible tending to show their invalidity, the defendants should have shown that the legal taxes were tendered to the proper officer within the' time limited for redemption, under section 163 of the tax law of 1869, under which such, sales were made. These deeds were held to be invalid for two reasons: (1) Because the tax was not extended upon the assessment roll; 'and (2) because no distinction was made upon the roll between resident and non-resident lands. It was held in Seymour v. Peters, 67 Mich. 415, that these defects were fatal to the validity of the tax and of the tax deed. The defects in the present case go to the entire tax, and the section referred to requires the tender of such taxes only as were legally assessed.

The decree must therefore be reversed, and complainants bill dismissed, with costs of both courts.

. Long, Montgomery, and Hooker, JJ., concurred with McGrati-i, C. J.

Grant, J.

A careful examination of the tax law of 18S9 compels me to concur in tlie opinion of my brother the Chief Justice. The provision of section 54 that “the publication of the notice aforesaid shall be equivalent to a personal service of notice on all persons not personally served who are interested in the lands specified in such petition, of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon, and to decree a sale of such lands for the payment of all taxes, interest, and charges thereon,” must be construed in connection with the preceding section, requiring the service of a subpoena upon residents of the State. The former decisions of this Court, wherein it has been held that the publication was the equivalent of personal service, involved the rights of nonresidents. I think the Legislature intended by this section to make it mandatory upon the officers to secure a personal service whenever it is practicable to do so. A return of the officer that he is unable to find the person or persons named in the subpoena would authorize the publication, and confer jurisdiction; but it cannot be held that the officers might ignore its provisions, and rely upon ■the publication to confer jurisdiction upon the court.

By section 55 it is made the duty of the prosecuting attorney of each county to prosecute the proceedings on behalf of the State, and, if he shall refuse, neglect, or be unable to do so, the court is required to appoint some competent person to perform that duty. In the present case no attempt whatever appears to have been made by any officer to enforce any of the provisions of the statute. The land was not assessed either to the owners or to the ■occupant, nor was there any attempt made to cause the names of the owners or of the occupant to be inserted in the subpoena, nor of the sheriff to ascertain who the owners or occupant were, and obtain service upon them. It was the duty of the prosecuting attorney to see that proper subpoenas were issued, and proper service upon the proper parties made. The statute neither authorizes nor recognizes service of the subpoena upon an agent.

While it is true that a land-owner^ is chargeable with knowledge that his land will be assessed and taxes imposed upon it, with the duty of payment, and with knowledge of the time and manner of payment and proceedings to enforce collection, still, in a case where nearly all of the provisions of the law are disregarded, as in this case, I am unable to hold- that the proceedings are valid.


author: Per Curiam.

text:
    James S. Stoll and Sanford K. Vannatta v. William A. Padley and Charles O. Padley.
    [See 98 Mich. 18.]

      Bond on certiorari — Liability of surety — Judgment.
    1. Plaintiffs recovered a judgment in justice’s court, which was reversed on certiorari, and the judgment of the circuit court was in turn reversed in the Supreme Court, where the justice’s judgment was affirmed, with the costs of both courts. The bond given in the certiorari proceeding did not conform to the statute, but was conditioned to pay any judgment rendered against the defendants in the circuit court. And it is held that the liability of the surety on said bond cannot be extended by construction, and a motion by the plaintiffs for the entry of a judgment against the surety is denied.
    2. And it is further held that an application to change the form of the judgment entry in the Supreme Court, so as to empower the circuit court to enter judgment, comes too late; that the proper practice would have been to ask for a new bond in that court, but, instead of doing so, the plaintiffs have taken out an execution upon the judgment sought to be changed.

      Motion for the entry of a judgment against the surety on the bond given by the defendants on removing the judgment rendered against them in justice’s court by certiorari to the circuit court, or to change the form o'f the judgment entry in the Supreme Court so as to empower the circuit court to enter such a judgment. Submitted April 3, 1894. Denied May 22, 1894. The facts are stated in the opinion, and in 98 Mich. 13.

      Turner, Turner & Turner, for the motion.

      Smith, Hints, Hoyt & Erwin, contra.

   Per Curiam.

The plaintiffs in error were defendants in certiorari in the circuit. The plaintiffs in certiorari executed a bond which did not comply with the statute, but was conditioned to pay any judgment rendered against' them in the circuit court. No such judgment was rendered, but, on the other hand, the circuit court rendered a judgment in their favor. Motion is now made to enter judgment against the surety.

We cannot extend the liability of a surety by construction. The identical question was ruled by the supreme court of Massachusetts in Whitwell v. Burnside, 1 Metc. 39.

We are asked to change the form of the judgment entry so as to empower the .circuit court to enter judgment. But we think the application comes too late. The proper practice would have been to ask for a new; bond in that court. But, instead of doing so," plaintiffs have actually issued an execution upon the judgment in this Court.

Motion denied.


text:
    Jennie S. Hart, By Her Next Friend, v. George Walker.

      Assault — Evidence—Instructions to jury.

    1. In an action against a fanner by a domestic, who had been in his employ, for carnally knowing the plaintiff against her will, the defendant testified on his direct examination that, on numerous occasions when he came home Saturday nights from a neighboring village, he found the plaintiff and a young man with whom she was keeping company, sitting in a hammock. And it is held, that it was permissible for the plaintiff to cross-examine the defendant relative to his staying out late Saturday nights at said village, for the purpose of negativing his opportunity for witnessing alleged familiarities between the parties in the hammock.
    2. No objection was made to this line of cross-examination until the defendant had testified that he had frequently remained at said village until 12 o’clock at night, and had volunteered the statement that he did not stay later than any other farmer who had business there, whereupon he was asked if there were' many farmers that stayed there as late as 12 o’clock at night, which question was objected to. And it is held that, in view of the voluntary statement of the witness, it was not error to-permit the question to be answered.
    3. Defendant was asked on cross-examination whether he had any trouble with a certain girl who had worked for him just previous to the time the plaintiff entered his employ, and, after the court had indicated that he would exclude the proposed testimony, the objection to its introduction was withdrawn, and the inquiry allowed to proceed. At its close the defendant was asked if he knew another girl, naming her, and was allowed to answer, under objection, that he did; and, on the objection of his counsel, the court excluded any inquiry as to his relations with this girl. And it is held that the proposed testimony was incompetent, but, in view of the waiver of- the former objection to this line of inquiry, it cannot be said that the mere preliminary question as to whether the defendant was acquainted with the girl, and his affirmative answer, prejudiced his rights.
    4. The defendant’s counsel, on cross-examination of the plaintiff, emphasized the fact that one Lindsay, an employe of the defendant, slept in a room adjoining the one occupied by the-plaintiff, and plaintiff was permitted to show on the cross-examination of the defendant that, at a previous term of court, the defendant had procured a continuance on an affidavit showing that Lindsay was a material witness, and that defendant expected to prove by him that he slept in said adjoining room during the time of the alleged assault upon the plaintiff, and heard no outcry; that defendant knew the whereabouts of Lindsay, but did not produce him, and had concluded not to call him after having had a conference with him. And it is held that such cross-examination was competent to rebut the-inference which the defendant sought to draw from the failure-of plaintiff to produce Lindsay as a witness in her behalf.
    5. The defendant's wife, who, for the purpose of giving the jury the impression that the plaintiff was pregnant during the time-she was a member of the defendant’s family, had testified that, during that time, plaintiff had morning sickness, was asked on cross-examination at what stage of pregnancy morning sickness occurs. And it is held that this was competent as affecting the candor and credibility of the witness.
    6. The weather records, kept at the insane asylum at Kalamazoo-, 12 miles distant from the defendant’s residence, were received1 as rebutting evidence in favor of the plaintiff, the state of the-weather having been made material by the claim on the part of the defendant that it was so hot on the night of the alleged assault that the family was compelled to sleep with the doors and windows open. And it is held that the testimony was admissible, under the rulings in DeArmond v. Neasmith, 32 Mich. 231; People v. Dow, 64 Id. 717.
    7. The instructions set forth in the opinion, taken as a whole, are-held to have clearly conveyed to the jury the understanding of the court that there could be no recovery unless the intercourse was effected by force and against the will of the-plaintiff, and whether this would or would not technically amount to the crime of rape is unimportant.
    Error to Kalamazoo. (Buck, J.) Argued April 4, 1894. Decided May 22, 1894.
    Trespass. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      E. M. Irish, for appellant.

      Osborn & Mills, for plaintiff.
   Montgomery, J.

Plaintiff recovered a verdict and .judgment in an action of trespass, the charge in the declaration being that the defendant entered the bed in which plaintiff was sleeping, and then and there made an assault upon her, and with great force and violence, and against the opposition, resistance, and will of the iilaintiff, unlawfully had carnal knowledge of her, and did then and there beget her with child. The plaintiff was in the employ of the defendant as a domestic, and the plaintiff’s testimony tended to show that he entered the room that she occupied, in the night-time, and overpowered her, and had intercourse with her; that she immediately arose, and prepared to leave the house the next morning, which she did; and that nine months later she gave birth to a child. Numerous assignments of error are relied upon.

It is objected that plaintiff was allowed to cross-examine the defendant relative to his staying out late Saturday nights at Galesburg, during his married life. The -defendant had testified that, on numerous occasions when rhe came home at night, he found one Brown, who was paying attention to the plaintiff, seated with her in a hammock. It was permissible for the plaintiff to enter into an inquiry which would tend to negative defendant’s opportunity for witnessing alleged familiarities. We would have some doubt as to whether the inquiry in this line was not extended too far, were it not for the fact that the record shows that no objection was made to the line of examination until the witness had testified that he had frequently stayed out nights until 12 o’clock, and then volunteered the statement that he did not stay later than any other farmer who had business there. The plaintiff’s counsel then asked the question: “Were there many farmers around there that stayed down as late as 12 o’clock at night?” It was this question that'was objected to, and the witness was permitted to answer. In view of the statement volunteered by the witness, we do not think it was error to permit this question to be answered.

Defendant was interrogated with reference to his relations with another girl, by the name of Van Huysen. The line of inquiry was opened np by a question as to another young lady who had worked for him just previous to the time that plaintiff came there. He was asked whether he had any trouble with her. An objection was made. The court indicated. that he would exclude the testimony. Counsel then withdrew the objection, and allowed the inquiry to proceed. The next question after that subject was disposed of was: “Do you know a girl by the name of Van Huysen?” He was allowed to answer under objection that he did. Counsel for defendant then made objection as to any inquiry regarding his relations Avith the girl, and the court excluded the testimony. The testimony was clearly enough incompetent; but we do not think, in view of the fact that defendant waived his objection to the first inquiry in this line, that the mere preliminary question as to whether defendant was acquainted with Miss Van Huysen can be said to prejudice the defendant’s rights. The question and answer, taken together, did no harm to the defendant.

Plaintiff’s counsel was permitted to shoAv on cross-examination of the defendant that, at a previous term of ■court, he had procured a continuance of the case on an affidavit showing that one Lindsay Avas a material witness; that he expected to prove by this witness that he slept in nn adjoining room during the time that the alleged assault was made, and he heard no outcry. On the trial the defendant’s counsel, on cross-examination of plaintiff, emphasized the fact that Lindsay did sleep in an adjoining room!; and plaintiff’s counsel, by this cross-examination, sought to show that defendant, who had procured a postponement of the trial on the ground that the witness was an important one for him, knew the whereabouts of the witness,, and yet did not produce him, and conqluded not to call him after having had a conference with the witness. We think this was competent to rebut the inference which defendant sought to draw from the failure of plaintiff to produce the witness Lindsay.

The defendant’s wife, on direct examination, had testified that plaintiff, during the time she was a member of the family, had morning sickness. It cannot be doubted that the purpose of this was to give the jury the impression that the plaintiff was then pregnant. On cross-examination she was asked at what stage of pregnancy morning sickness occurs. This was competent as affecting the question of the witness’ candor and credibility. If it was her belief that such symptoms would not show themselves until a stage of pregnanc3r so late that the illness testified to could not be ascribed to the then pregnancy of the plaintiff, it would tend to show that she had intended to leave a false impression. Furthermore, her answer could not have damaged the defendant. It was as follows: “From m3r experience there is a difference in cases. Some from the very beginning have such sickness; others would not commence for perhaps a month.”

The weather records, as kept at the asylum at Kalamazoo, 12 miles away from the scene of the alleged assault, were received in evidence, the state of the weather having been made material by the claim on the part of defendant that it was so hot on the night of the alleged assault that the family was compelled to sleep with the doors and windows open. This testimony was objected to; but we think it was admissible, under the rulings of this Court in De Armond v. Neasmith, 32 Mich. 231, and People v. Dow, 64 Id. 717.

Exception is taken to tlie following instruction:

“In order to entitle the plaintiff to recover in this case, it is not essential that you should be satisfied from the evidence that the defendant assaulted her with such force and violence as to constitute him guilty of the crime of rape. If he had carnal intercourse with the plaintiff against her will and consent, and in spite of her resistance, and under the circumstances claimed by her in this case, she will be entitled to a verdict.”

These instructions should be construed in connection with the other portions of the charge. The circuit judge also said to the jury upon this subject:

If you are satisfied from the evidence that the plaintiff, in consequence wholly of terror or fear of defendant, refrained from making any outcry against the conduct of which she complains that he was guilty towards her, that then, under such circumstances, the fact that she made no ontcry might be assumed by you to be unimportant, although it -would be your duty to consider that fact with all the other facts in the case.”

Again:

“ It is incumbent upon the plaintiff to prove, not only that the defendant had sexual intercourse with the plaintiff, but also that such intercourse ivas without her consent and against her will. As has been said to you, it would not be necessary that she should make the utmost resistance of which she ivas capable, in order to entitle her to maintain her action; but it would be necessary that the intercourse should be against her will and without her consent, else her action must fail. If she was willing that the intercourse should take place, or if she made no resistance or objection to it, then she should not maintain this action.”

These instructions, taken as a whole, Ave think, clearly conveyed to the jury the undérstanding of the court that there could be no recovery unless the intercourse Avas effected by force and against the will of the plaintiff. Whether this Avould or Avould not technically amount to the crime of rape is unimportant. We are fully satisfied that the jury could not by any possibility have been misled by these instructions, The issue was one of veracity between the two parties to the suit. If the plaintiff’s version of what took place was true, then, as matter of law, the defendant was liable in this action, and under the declaration as it was framed. If, on the other hand, the defendant’s denial was believed, there could be no recovery.

We think there was no error committed on the trial to the prejudice of the defendant, and the judgment will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    James S. MacDonald and William J. MacDonald v. William Hanna and Isabella MacDonald Barnard.

      Will — Trust—Liability of executor — Accounting.
    A husband willed all of his property to his wife, to he managed and controlled by her to the best of her judgment and ability, during her widowhood, for the benefit of their minor children. The will further provided that, if the widow should remarry, it was the will of the testator that she should thereafter take nothing by the will, but that the residue of the estate should be sold or otherwise disposed of, and the proceeds applied by her co-executor for the use and benefit of the children on their or the survivor of them arriving at full age. The widow received all of the estate, and after paying the debts and funeral expenses, and erecting a monument to her husband, invested $5,000 of the .residue of $7,000 in real estate, which investment proved unfortunate, and nearly the entire amount was lost. About three years after the death of her husband the widow remarried. The children, who were respectively about 5 and 7 years of age when their father died, were properly supported and educated by their mother, and largely at her expense. After attaining their majority they filed a bill for an accounting against their mother and the executor. The bill was dismissed as to the executor, and a decree entered against the mother for $2,500, from which decree complainants, alone, appealed. And, on affirming the decree, it is held:
    a — That, whatever may have been the moral obligation of the executor to accept the trust set forth in the will, and look after the interests of the children, there was no legal duty imposed upon him, and he could only be held in so far as he received and misappropriated the funds.
    b — That there was no obligation, either moral or legal, resting upon the executor, to assume the responsibility of the execution of the trust until after the widow’s remarriage, and he could not be held liable for any misappropriation of the funds by her prior to that event; nor was he compelled, upon her remarriage, to demand from her the administration of the trust.
    e — That it is manifest from the evidence that the children were well treated and cared for by their mother, and it would be inequitable to deprive her of a reasonable allowance for that purpose; that during her widowhood, the income from the estate being insufficient, she possessed the right, under the will, to encroach upon the principal; that it is evident that she had no comprehension of business affairs, and did not appreciate the necessity of keeping strict account of her receipts and expenditures; that, while it is unfortunate that the surrogate court failed to call her to an accounting, no evidence of bad faith, or any disposition on her part to defraud the children, is found, and the Court are not disposed to modify the decree of the court below.
    Appeal from Wayne. (Beilly, J.) Submitted on briefs April 6, 1894. Decided May 22, 1894.
    Bill for an accounting. Complainants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Sands F. Moore (Alfred Lucking, of counsel), for complainants.

      John H. Bissell (Otto Kirchner, of counsel), for defendant Barnard.

      James O. Smith, Jr. {Otto Kirchner, of counsel), for defendant Hanna.
   Grant, J.

Complainants are the children of John MacDonald, deceased, and defendant Barnard. MacDonald died testate at Windsor, Ontario, January 15, 1870. His will reads as follows:

“First. All my real and personal estate, of any nature and kind whatsoever, and wheresoever situate, I give, devise, and bequeath unto my beloved wife, Isabella MacDonald, in the hope that she will manage and control the same to the best of her judgment and ability, during her widowhood, for the benefit of my children, James Sherman and William John MacDonald. And, in the event of my said wife marrying again, my will is that she shall take nothing by this will after she so again marries, but that the residue of my real estate and personal estate, or any real or personal estate acquired by her through, or by the above bequest, be sold or otherwise disposed of, and the proceeds or profits arising thereout be applied by William Hanna, one of iny executors hereinafter named, for the use and benefit of my children before named when they each, or the survivor, attains the age of 21 years.
“And I enjoin upon my said wife the maintenance, education, and support of my said children.
“And I hereby appoint my said wife and William Hanna, of the city of Detroit, executors of this, my last will."

The defendants petitioned the surrogate court of the county of Essex, January 26, 1870, for the probate of the will. On the same day each filed a separate affidavit, stating that he was one ■ of the executors of the will, and that he would faithfully administer the personal estate and effects of the testator by paying his just debts and the legacies contained in the will, so far as the same would thereunto extend and the law bind him, and that he would exhibit a true and perfect inventory of all and singular the personal estate and effects, rights and credits, of the said-testator, and render a just and true account of his executorship, as required by law. January 20, 1870, defendant Hanna filed an affidavit, stating that he was one of the executors named in said will, and that the personal estate and effects of the deceased were of about the value of $17,068. February 8, 1870, letters of administration were issued. A statement was filed in the surrogate court showing the assets to be $17,068.26, and liabilities $10,-441.71. In this statement the book accounts were stated at $7,432.79. Defendant Hanna, as executor, received none of the funds belonging to the estate, except that at one time he borrowed from the widow $2,000, for which lie gave his note, and which he subsequently paid to her. Defendant Barnard received all the funds. Neither gave a bond, nor was any account ever filed by either in the surrogate court.

MacDonald was engaged in the business of manufacturing tobacco. March 3, 1870, Mrs. MacDonald sold the business, and after paying the debts, etc., she had on hand, belonging to the estate, about $5,500. This she brought to Detroit, and converted into American money, which yielded about $7,000. At the time of the death of Mr. MacDonald, complainants were, respectively, about seven and five years of age. Hpon her marriage to Mr. Barnard, she moved with him to L'Anse, Mich., where they resided until the complainants grew up and left home. In so far as any further statement of facts is necessary, it will be given in connection with the points raised.

Complainants allege that they first learned of their father's will, and the amount of property he left, in the year 1889; that they caused investigation to be made, which consumed some time; that their mother refused an accounting, and therefore they filed this bill. The case was heard upon pleadings and proofs taken in open court, n,nd a decree was entered dismissing the bill as to defendant Hanna, and against the defendant Barnard for the sum of 82,500. Complainants, alone, appeal.

The decree in favor of defendant Hanna must be sustained. Whatever may have been his moral obligation to accept the trust set forth in the will, and to look after the interests of the children, there was no legal duty imposed upon him, and he could only be held in so far as he received and misappropriated the funds. It is manifest from the terms of the will that Mr. MacDonald intended that, until his wife remarried, she should have the management and control of the estate. It cannot be said that there was any obligation, either moral or legal, resting upon Hanna, to assume the responsibility of the execution of the trust until after her remarriage. He certainly could not be held liable for any misappropriation of the funds by her during that time. Neither was he compelled, upon her remarriage, to demand from her the administration of the trust. The authorities are clear that he cannot be held, under such circumstances. Edmonds v. Crenshaw, 14 Pet. 166; Cocks v. Haviland, 124 N. Y. 426; McKim v. Aulbach, 130 Mass. 481; Sparhawk v. Buell, 9 Vt. 41; Manahan v. Gibbons, 19 Johns. 427; Wilson’s Appeal, 115 Penn. St. 95.

Mrs. Barnard kept no books of account, nor has she ever rendered an account of her doings to the surrogate court. The bookkeeper who made out the inventory of the estate is dead. So, also, are others who had knowledge of Mr. MacDonald’s affairs. The books have been lost. Mr. MacDonald evidently did a prosperous business during his lifetime, and provided liberally for his family. Sonfe of the household goods which were her property were included in the inventory as belonging to the estate. It seems quite probable from her own testimony that Mrs. Barnard, during her widowhood, lived in a style commensurate with her former living, rather than in one suitable to her altered condition and limited means. She paid the funeral expenses and the expenses of his last sickness, 'and also erected a monument, at a cost of about $300. She testified that it cost her about $125 per month to support herself and the children during her widowhood. At the time of her remarriage she supported the children for a short time at her sister's, and then took them to her home at L'Anse, paying the expenses of the trip. She invested $5,000 out of the $7,000 in real estate in Detroit. This investment’ proved unfortunate, and nearly the entire amount was lost. The complainants lived for many years with their mother and stepfather, were sent to school, and were properly clothed and supported. Their stepfather secured them positions upon the railroad.’ James went to Marquette, but did not earn sufficient to pay his board. His mother paid the deficiency, and furnished him with clothing. It is unnecessary to review all the evidence in the case bearing upon the expenditures of the mother in behalf of the complainants. It is manifest that they were well treated, well taken care of, and largely at her expense. It would not be equitable to deprive her of a reasonable allowance for that purpose. During her widowhood the income from the estate was not sufficient, and she possessed the right, under the will, to encroach upon the principal. It is evident that she had no comprehension of business- affairs, and did not appreciate the necessity of keeping a strict account of her receipts and expenditures. It is also unfortunate that the surrogate court did not call her to an accounting. But we find no evidence of bad faith, nor any disposition to defraud her children. After a careful examination of the record, we are not disposed to modify the decree of the court below.

Decree affirmed, with costs.

The other Justices concurred.


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    Edward Short v. Asel Cure.

      Fraudulent representations — Exchange of lands — Bight of action —Evidence.

    1. Where on an exchange of farms, one of which is incumbered by a mortgage, the understanding between the parties is that the party to whom the farm is conveyed shall pay the mortgage, and, while he does not agree to do so in such a manner as to make him liable for such payment, the trade is made upon the basis of such understanding, the amount due upon the mortgage is a material fact in the negotiation, and if it is falsely represented by the mortgagor to be less than the sum really due, and the grantee relies upon the representation, a right of action to recover damages for the false representation accrues in his favor immediately upon discovering its falsity; citing Lenox v. Fuller, 39 Mich. 268; Briggs v. Brushdber, 43 Id. 330.
    2. Where in a suit to recover damages for the alleged false representations of a mortgagor, made on the exchange of the mortgaged premises for other land, as to the amount due upon the mortgage, it appears that the plaintiff took the mortgaged premises at their fair value, and at the value placed upon them by the defendant, the value of the land conveyed to the defendant is immaterial; citing Snow v. Nowlin, 43 Mich. 883, '386.
    3. Where, in such a case, the plaintiff claims that the defendant represented that there was but $3,500 due on the mortgage, when in fact the amount was §3,000, and sues to recover the difference, and the defendant claims that he represented the latter sum as the amount due, and offers to show, in support of his claim, that the value of the mortgaged premises was from $4,500 to $5,000, and the value of the land received in exchange therefor from $3,000 to $2,250 (the defendant having given $700 difference on the exchange), the offer is properly refused, such kind of testimony being admissible only in cases where the difference in value is so great as to be beyond the range of a fair difference in judgment; citing Banghart v. Hyde, 94 Mich. 49; Kidder v. Smith, 34 Vt. 294.
    Error to Lenawee. (Lane, J.) Submitted, on briefs April 8, 1894. Decided May 22, 1894.

      Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Salsbury & O’Mealey, for appellant.

      Waits, Bean & Smith, for plaintiff.
   Grant, J.

Plaintiff and defendant exchanged farms, They lived near each other, and each was familiar with the character and value of the other’s land. The defendant purchased his in February, 1890, for $4,500, giving back a mortgage for $3,400. He had paid $400. Plaintiff’s land consisted of 40 acres. The deeds were executed and delivered January 28, 1892. The deed to plaintiff was subject to the mortgage above mentioned. Defendant executed to plaintiff a mortgage for $700 on the 40 deeded to him by plaintiff. Plaintiff claims that the defendant represented to him that the amount due upon the mortgage was $2,500, whereas in fact $3,000 was due. This is denied by the defendant, who testified that he informed him that there was $3,000 due. This suit was instituted to recover damages for the false representation, and plaintiff recovered verdict and judgment for $500.

It is first insisted that plaintiff cannot maintain this action, because plaintiff did not assume or agree to pay the mortgage; that he has not paid it; that the mortgagee may resort to the personal obligation of defendant to pay it; and that plaintiff has therefore suffered no injury. The cases cited and relied upon to support this contention are all cases based upon breaches of covenants of warranty, and are not, therefore, applicable to this case.' It is altogether improbable that the mortgagee would abandon his security and look to the personal liability of the mortgagor. Rarely, if ever, does a mortgagee adopt this course. He forecloses his mortgage, sells the security, and takes a personal decree against the mortgagor for the deficiency. It was unquestionably the understanding between these parties that plaintiff would pay the mortgage. The trade was made upon that basis, and the amount due was a very material fact entering into the negotiation. If the-amount was falsely represented, and plaintiff relied upon such representation, his right of action accrued immediately upon ascertaining its falsity. We think this within the principle established by the following decisions: Briggs v. Brushaber, 43 Mich. 330; Lenox v. Fuller, 39 Id. 268.

Defendant made an offer of testimony tending to show that the value of the land deeded to plaintiff was from $4,500 to $5,000, and that the value of the land deeded to defendant by plaintiff was from $2,000 to $2,250. This offer was made for. the purpose of sustaining defendant’s claim that he represented the amount due upon' the mortgage to be $3,000. Such testimony is admissible only in cases where the difference in value is so great as to be beyond the range of a fair diffex-ence in judgment. Banghart v. Hyde, 94 Mich. 49; Kidder v. Smith, 34 Vt. 294. In this case there is no claim that either party was deceived as to the value of the lands, or that any misrepresentations were made in regard to their value. There was xxo disagreement as to any fapt except the amount due upon the mortgage. Forty-five hundred dollars was what defendant had paid for the 60 acres shortly before. He made no claim that it was worth more. The very language of the offer shows that to be its fair value, and that some of the witnesses a-s to its value would so testify. If some testified that it was worth $4,500, and others that it was worth $5,000, there would exist a fair difference of judgment, axxd the testimony could be allowed no weight in determining the disputed fact. Since, therefore, plaintiff took these 60 acres at their fair value, and the value placed upon them by the defendant, the value of the 40 acres conveyed to defexxdant was a matter of xxo importance, under the authority of Snow v. Nowlin, 43 Mich. 383, 386. But, if the value of the 40 acres were material, it would come within the rule above stated, for the difference between the price agreed upon and the offer made is not so great as to have any legitimate bearing upon the question of the representation.

Judgment affirmed.

The other Justices concurred.


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    George W. Holcomb v. Sophronia A. Holcomb.

      Divorce — Pleading—Collusion.
    1. "Where a bill for divorce charges both extreme cruelty and adultery, collusion cannot be inferred from the filing of a stipulation striking the latter charge therefrom.
    2. While, as held in Ayres v. Circuit Judge, 90 Mich. 380, the requirement of 3 How. Stat. § 6232, that the oath to a bill for divorce shall negative the existence of any collusion whatever between the complainant and the defendant in x-elation to the application for divorce, is mandatory, and its absence cannot be waived by any act of the defendant, still, where the jurat states that “there is no agreement or understanding” between the parties in relation to the application for a divorce, the defendant should not be permitted to object for the first time in the Supreme Court that the oath is not in strict conformity with the statute, she having appeared, answered, contested the case, and filed a petition to set aside the decree appealed fx'om.
    Appeal from Ionia. (Daboll, J., presiding.) Argued April 11, 1894. Decided May 22, 1894.
    Bill for divorce. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      John H. Mitchell, for complainant.

      William O. Webster, for defendant.
   Grant, J.

Complainant and defendant were married March 10, 1877, and lived together as husband and wife until February 22, 1890. They then separated, and on March 3, 1890, executed articles of sejDaration and settlement of their property affairs. May 27, 1890, complainant filed a bill for divorce, charging defendant with extreme 'cruelty and adultery. She answered fully, denying the charges, and replication was cluly filed. He also caused his wife to be arrested on a criminal warrant, charging her with adultery. January 2, 1892, a stipulation was made between the solicitors for the parties, by which it. was agreed that the charge of adultery should be stricken out in the bill. After this was done, another stipulation was entered into for the taking of testimony on the charge of cruelty. Testimony was taken, and a decree of divorce entered in favor of complainant, January 12, 1892. February 20, following, the parties entered into another agreement, in writing, by rvhich they released each other from all property or personal obligations. July 6, following, defendant filed a petition to set aside the decree. This was denied by the court, and the defendant appeals.

The decree is now attacked upon two grounds: (1) That the jurat to the bill of complaint is not in compliance with the statute, and conferred no jurisdiction upon the court; (2) that the decree was collusive.

The jurat is not in strict compliance with How. Stat. § 6232, as amended in 1887. The statute requires the jurat to state “that there is no collusion, understanding, or agreement whatever.” The words “collusion” and “whatever” are omitted from the jurat. Were it necessary, the case would be remanded to the court below for amendment in this particular, as was done in the case of Harrison v. Harrison, 94 Mich. 559; but the question of the jurisdiction is raised in this Court for the first time, and therefore comes too late. In the case of Ayres v. Circuit Judge, 90 Mich, 380, the defendant moved seasonably to dismiss the bill, because of the failure to comply with this statutory provision. While it is true that this defect cannot be waived by any act of the defendant, still, where the jurat states that there is no agreement or understanding between the parties in relation to the application for a divorce, we 'do not think the defendant, should be permitted to raise the question for the first time-in this Court, when she appeared in the court below,, answered, contested the case, was represented by able-counsel, filed a petition to set aside the decree, and in none of the proceedings raised the objection.

We have carefully examined the record, and find no evidence of any collusion between the parties. The articles of separation contain no reference to a divorce. That there was no collusion is apparent from the answer and the vigorous defense made upon the charge of- adultery. Collusion cannot be inferred from the stipulation made to abandon the charge of adultery, and strike it from the bill.

The decree is affirmed, with costs.

The other Justices concurred.

       See 3 How. Stat. § 6232.


author: Hooker, J.

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    Casper M. Rummell v. Nehemiah Lamb and Merritt E. Lamb.

      Waters and water-courses — Diversion—Injunction.
    Where a township ditch is dug along a natural depression in the soil, down which the surface water from the adjoining lands has been accustomed to flow, and a flowing well is drained into the ditch, after which a riparian land-owner has living water in the ditch, from which he waters his stock, at all seasons ,of the year, an upper riparian proprietor will be enjoined from diverting the water from the ditch, and thereby-depriving such land-owner of the use of the water; citing Hilliker v. Coleman, 73 Mich. 170.
    Appeal from Gratiot. (Daboll, J.) Argued, April 10 and 11, 1894. Decided May 22, 1894.
    Bill to enjoin the diversion of a water-course. Defendants appeal.
    Decreei affirmed.
    The facts are stated in the •opinion.

      Kelly S. Searl, for complainant.

      JB. II. é L. B. Saioyer, for defendants.
   Hooker, J.

A township ditch runs through the lands of both complainant and defendants. The evidence shows that, in a state of nature, the surface water from adjoining land flowed down the course of this ditch, spreading out several rods wide in the valley, and at places forming swamps. Three or more beaver dams are discernible along the route. Some of the land was springy, but the water did not run upon eonyilainant’s land during the dry season. During the greater part of the year, however, some water flowed there, and in wet times considerable. Defendants’ land was above that of the complainant, and was crossed by a ridge running parallel witli the ditch, leaving about 12 acres south of the ridge and 1 acre south of the ditch. Six or more years ago, one Emmett, who owned land above these parties, opened a flowing well, which he drained into the ditch, after which time the complainant had living water in 'the ditch, from which he watered stock, at all seasons. The defendants dug a drain from the north towards the township ditch, cutting through the ridge, and laying tie at a depth o.f from 8 to 12 feet, with the avowed purpose of tapping the township ditch. They assert that the object was to drain the parcel south of the ridge. Complainant, fearing that the water would be diverted from his land, filed the bill in this cause to restrain ■defendants from doing so.

The main controversy is one of fact, as to .whether there was such a water-course as to preclude defendants from removing the water from their premises, through another drain, to the exclusion of complainant’s right to have it flow upon his land below. We think the. circuit court was right in holding that there was, and that the defendants were properly enjoined from carrying out their project, which we are satisfied was to obtain the water for their own purposes, by depriving complainant of it. The case is ruled by Hilliker v. Coleman, 73 Mich. 170.

It is suggested that defendants are willing to “lay an iron pipe, properly cemented, so as not to interfere with the flow of water in the town drain, to the injury of the complainant,” but we see no necessity for doing so. We think the' town drain adequate to drain defendants’ one acre, and we are not disposed to subject complainant to the annoyance of such an apparatus, which might easily get out of order by the action of the weather, and silently and secretly be the means of accomplishing the thing sought to be avoided, which he would have difficulty in detecting or preventing.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.


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    Edward Brant v. Alonzo Vincent.

      Landlord and tenant — Parol lease — Statute of frauds — Yearly tenancy — Evidence.
    1. The rule that the reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year (Jackson v. Bradt, 2 Caines, 169; Rich v. Bolton, 46 Vt. 84), is not applicable to a parol tenancy for years, ,void under thé statute of frauds, where the entire rent has been paid in advance.
    2. After leasing an hotel and portions of the basement for a term of years,, the tenant agreed verbally with his landlord to prepare a room in the basement, not covered by the written lease, for occupancy, in consideration of its use by the tenant during the life of the written lease. The tenant "fitted up the room, and, after occupying it for nearly two years without objection, the landlord, after giving him three months’ notice to quit, commenced summary proceedings to recover possession of the room. And it is held that the defendant was a tenant from year to year, and his possession was lawful until the end of the second year.
    3. It was competent for the defendant to testify to conversations between the complainant and himself in regard to the room in controversy prior to the execution of the written lease, as bearing upon the subsequent parol agreement.
    4. It was competent for the defendant to introduce the written lease in evidence .for the purpose of showing the term of the parol lease.
    Error to Berrien. (O’Hara, J.) Argued April 10, 1894. Decided May 22, 1894.

      Summary proceedings to recover the possession of land. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      George W. Bridgman and M. L. Howell, for appellant.

      G. M. Valentine and George S. Clapp, for defendant.
   Grant, J.

Complainant brought summary proceedings under the statute to recover possession of the premises described in the complaint as “that portion of the basement in the Brant block, about 21 feet in width by about 75 feet in length, under what is now the post-office in the city of Benton Harbor, being the south 75 feet of said basement room."

Complainant is the owner of the premises known as the - “Hotel Benton Block.” July 21, 1890, he executed a lease to the defendant, for live years, of the hotel and portions of the basement, not, however, including.the portion here,/ in dispute. Defendant held possession of this portion under a parol agreement. What that agreement was is the main fact in dispute. Mr. Brant’s version is that it was agreed that defendant might prepare the room for occupancy, and use it until complainant needed it for some other purpose. Defendant’s version is that he was, to prepare it for occupancy, and have possession during the life of his hotel lease, or until July 16, 1895. The agreement was made about August 1, 1890. Complainant, under the theory that defendant was a tenant at will, gave defendant three months’ notice to quit, and then instituted this suit. The court instructed the jury that, if they found the agreement as claimed by complainant, he was entitled to recover; if, on the contrary, they found the agreement as claimed by defendant, it was a tenancy from year to year, and his - possession was lawful until the end of the second year. Verdict and judgment were for the defendant.

It is conceded that, under the defendant's version, the lease, resting in parol, was void under the statute of frauds. Did it constitute a tenancy from year to year? We think it did. Defendant's testimony tended to show that he immediately performed his part of the agreement, and fitted up the room at an expense of $140. He had been in possession one year, and a greater part of the second, without objection. It is argued, on behalf of the complainant, that there was no annual rent reserved, and therefore, even under the defendant's evidence, the agreement constituted a tenancy at will. It is true that “the reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year.'' Jackson v. Bradt, 2 Caines, 169; Rich v. Bolton, 46 Vt. 84. In the latter case many authorities will be found cited. But clearly this rule is not applicable to a parol tenancy for years, void under the statute, where the entire rent has been paid in advance. Under the defendant's evidence he had a lease which, if reduced to writing, would have been valid for five years. He entered into possession of the term. We think there is no well-considered authority holding that he was not a tenant from year to year. The fact that no annual rent is reserved is not conclusive of the character of the tenancy. Where the owner of a farm rented a portion of it by parol for four years, the lessee agreeing to inclose the premises with a fence by way of rent, it was held that a tenancy from year to year was established. People v. Rickert, 8 Cow. 226; Jackson v. Bryan, 1 Johns. 322; Tayl. Landl. & Ten. § 56.

The court, at complainant's request, instructed the jury that defendant could not claim under any agreement made before the written lease, but only upon a verbal one made afterwards. The court, under objection, permitted evidence of conversations between the parties in regard to this room prior to the execution of the written lease, and' this is alleged as error, on the ground that all prior negotiations were merged in it. This would be true if defendant relied upon the 'written lease. But the testimony was competent as bearing upon the subsequent parol agreement. Had the defendant relied upon a previous or contemporary agreement, the evidence would have been incompetent.

The introduction of the written lease on the part of the defendant is alleged as error. We do not see how this could have prejudiced the complainant. But, be that as it may, it was competent to introduce it for the purpose of showing the term of the parol lease, which defendant testified was to run to the end of the written lease.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.