text:
    SAXTON v. KREIN.
    Log-Lien Law — Contract for Sale or Lumber — Performance by Purchaser.
    Under the provisions of the log-lien law of 1887 (3 How. Stat. § 8427a et seq.), laborers’ liens are not affected by a sale or transfer of the product before the expiration of the time limited for the filing of the statement of lien; and where such liens are being asserted against lumber sold under an agreement that it should be paid for when delivered, the purchaser is justified in declining to pay for the lumber until it is released from such claims, or he is indemnified against them.
    Error to Manistee; Judkins, J.
    Submitted October 24, 1895.
    Decided November 5, 1895.

      Assumpsit by Lyman P. Saxton and another against Franz Ivrein for the breach of a contract to purchase lumber from plaintiffs. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      George L. IlilWcer, for appellants.

      McA'lvay c£- Grant, for appellee.
   McGrath, C. J.

Plaintiffs, the owners of a mill at Pomona, in October, 1892, contracted to deliver to defendant at Copemish, a station 2£ miles from Pomona, 630,000 feet of lumber, which defendant was to pay for as delivered and scaled. Plaintiffs commenced at once to get out the logs, and in January following delivered 5,000 feet of lumber, which was paid for upon orders given by plaintiffs to their employés. Two car loads were sent by rail on February 16th, and three car loads were shipped March 1st, but, owing to a strike upon the railroad, these cars did not arrive in defendant’s yard until March 9th and March 19th. This lumber has been paid for, but not until after the employes of plaintiffs had, on March 21st, attached the same under the log-lien act. Plaintiffs made no further tender of lumber, but bring this action, claiming a breach of the contract, in that defendant refused to pay for the lumber as delivered and scaled, and in consequence plaintiffs’ employés filed statements of lien and plaintiffs were compelled to- suspend operations.

Defendant was absent from Go-pemish from February 1.8th until March 13th. The first two of the five cars had been unloaded and scaled. After this delivery, and before defendant’s return, one of the plaintiffs bad appeared upon the premises in company with one Young, an employé of plaintiffs, and pointed out to- the latter the lumber which had been delivered. Young "then proceeded to stamp not only the lumber which had been delivered, but that which was upon the other three cars-, which were still upon the railway grounds awaiting delivery, with his (Young’s) name. On defendant’s return he found this condition of matters. Plaintiffs interviewed him, asking pay for the lumber. Employés presented orders. The five car loads of lumber amounted to between $300 and $4.00. Plaintiffs -were indebted to Young about $60. One Wagner presented an order for $200, and claimed several hundred dollars more to be due 'him. Three others had orders. Thirteen- claims were filed, aggregating $1,000. Defendant declined to pay until these claims were discharged, or he was secured against them. The sole question is whether defendant was justified in declining to pay for the lumber delivered, under the circumstances, until the lumber was released or he was indemnified.

The statute gave to plaintiffs’ employés a lien upon this lumber. It provides that no such claim shall remain a lien unless a statement thereof shall be filed; that such statement shall be filed within 30 days after the completion of such labor; and that any sale of the products during the time limited for the filing of said statement shall in no way affect such lien, but that such lien shall remain and be enforced against such product, in whosesoever possession the same shall be found. 3 How. Stat. §§ 8427a-8427d. In Haifley v. Haynes, 37 Mich. 535, it was held that the lien for cutting logs provided by Act No. 185, Laws of 1873, could not be enforced as against one who had purchased from the debtor without notice of the claimant’s lien, as shown by the petition on file or by his actual possession. The court held that the statute contained no express provision that, in the absence of a statement filed, the lien would exist and override the rights -of honest purchasers who had no-means of knowing anything about the claims. In that case the court say that the act is abstractly susceptible of an implication that a party may, without writing or possession, and without giving notice by record or otherwise, maintain and assert a right of lien paramount to- the title of a bona fide purchaser from the actual -owner and possessor, but they decline to so construe the act, in the-absence of express provisions to that effect. The present statute, however, expressly provides that any sale" or transfer of the product during the time limited for filing the statement shall in no wa.y affect the lien. In Federspiel v. Johnstone, 87 Mich. 303, the owner of the logs had paid the contractor in full for the work, but the court held that the lien was not affected thereby. The statute-creates the lien, and continues it in force for 30 days after the performance of the labor. These liens were in force when defendant refused to pay for the lumber-delivered. Any payment made • by him at that time would have been at his -own peril, and the circumstances fully justified his refusal to pay. The court left the question of defendant’s go-od faith to the jury, but, under the facts, his motives were immaterial.

The judgment is affirmed.

The other .Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    SHACKETT v. PEOPLE’S MUTUAL BENEFIT SOCIETY.
    Mutual Benefit Associations — Limitation of Time for Bringing Suit — Estoppel.
    A provision in a benefit certificate, requiring suit to be brought within nine months after the death of the member, is operative, where all negotiations relating to a settlement were terminated by a denial of liability on the part of the company within 45 days after the death of the insured. Voorheis v. People's Mut. Ben. Soe., 91 Mich. 469, distinguished.
    Error to Wayne; Donovan, J.
    Submitted October 25, 1895.
    Decided November 5, 1895.

      Assumpsit by Mary L. Shackett and another against the People’s Mutual Benefit Society upon a certificate of membership in the defendant association. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      A. G-. Pitts and O. M. Leonard, for appellant.

      William Look (Edward Minoek, of counsel), for appellees.
   Hooker, J.

The plaintiffs recovered a judgment against the defendant upon a certificate of membership in the defendant company, from which the defendant has appealed. Several questions are discussed, but we find it necessary to deal with but one.

The contract provided that—

In the event of the death of the person herein insured, notice of the same must be sent to the society within sixty days from the date of said death, upon the receipt of which a blank proof of death will be forwarded by the , society; and no suit or action against the society for the recovery of any claim upon, under, or by virtue of this certificate shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within the time of nine months next after t'he death of said person heroin insured shall have occurred.”

Mr. Butler, the insured, died on July 2, 1892. The declaration was filed April 11, 1898, the rule to plead being duly entered upon that day. This was nine months and nine days after the death of Butler, and therefore not within the period limited by the certificate within which action could be brought.

It is contended that some of the time intervening between the time of Butler’s death and the filing of the declaration was consumed by negotiations-, and that under the decision in the case of Voorheis v. People’s Mut. Ben. Roc., 91 Mich. 169, the time would not begin to run while the parties were negotiating on the subject of an adjustment of the loss. In that case the conduct of the defendant was held to estop it from setting up the limitation. In the present case the last letter written by the defendant was dated August 16, 1892, which contained a-refusal to pay, upon the ground of misrepresentation. No further negotiations were had. The long period intervening between that time and the commencement of the action is an answer to the claim of estoppel, and the case is governed by the rule laid down in the cases of Law v. New England Mut. Accident Ass’n, 91 Mich. 266, and Lentz v. Teutonia Fire Ins. Go., 96 Mich. 445.

’The judgment must be reversed, with costs of both courts. No new trial will be ordered.

The other Justices concurred.


author: McGrath, C. J.

text:
    OWEN v. DEWEY.
    1. Libel — Privilege.
    The publication in a newspaper of a false charge of a criminal offense (e. g., attempting to bribe a member of the legislature) is not privileged, so as to relieve the publisher from responsibility, although he had reason to believe the charge to be true, and acted in good faith.
    2. Same — Evidence—Malice—Justification.
    In an action for newspaper libel, an alleged interview with plaintiff, published in another paper, and claimed by defendant to be the basis of the article in suit, is admissible to rebut the presumption of malice, but not to prove the truth of the publication.
    3. Same.

      A publication libelous per se is presumed to be voluntary and malicious.
    4. Same.
    In an action for libel, subsequent publications similar in character to that complained of are admissible upon the question of malice.
    B. Same.
    In an action for libel in charging the commission of a crime, justification is established by a preponderance of evidence that the charge made is true; proof beyond a reasonable doubt is not necessary.
    Error to Shiawassee; Newton, J.
    Submitted October 25, 1895.
    Decided November 5, 1895.
    Case by George W. Owen against Edmund O. Dewey and James N. McBride for libel. From a judgment for defendants, plaintiff brings error.
    Reversed.

      James M. Ooodell, for appellant.

      William M. Kilpatrick and 8. F. Smith, for appellees.
   McGrath, C. J.

Action for libel. Defendants gave notice that they would insist in their defense that the material allegations in the article are true. Defendants are publishers of the "Owosso Times, and plaintiff is the publisher of the Shiawassee American. On March 27, 1891, defendants published an article, in which they charged the plaintiff with an attempt to. bribe a State Senator, by an offer of money. Defendants had judgment, and plaintiff appeals.

Defendants gave in evidence an article published in the Evening News of Detroit on March 23,1891, and an article which appeared in the Owosso Times on March 27, 1891, in the column adjoining that in which the publication complained of appeared. The latter article contained the substance of the Evening News article. Counsel for plaintiff requested the court to instruct the jury as follows :

“ The jury are instructed that the interview or article published in the Times in the column adjoining the article charged to be libelous is not to- be regarded by them as any evidence whatever of the truth of the charge of attempted bribery. Such interview or article is no more nor less than hearsay, and, as such, should not be considered by the jury as in any way tending' to establish the truth of the alleged libelous article upon which, this action is based.”

The court refused the request, but instructed the jury as follows:

If you find that the language used in the alleged libelous article was intended toi convey, and naturally would convey, to the reader, the understanding that the crime of bribery had been attempted to. be committed, then, per se (that is, in itself), it would be actionable, and ■the plaintiff would be entitled to recover some damages, as already stated, unless the facts and circumstances of the case existing at the time show and satisfy you that the defendants, publishing* a newspaper, did have the facts and circumstances before them, from the declaration and conduct of the plaintiff himself, and of Senator Wilcox, regarding the very subject of this libel, from which a careful, fair, prudent, cautious man would naturally and necessarily be induced to believe that bribery was intended- or attempted, and that the publishers published it, believing it to be true, and without malice, from justifiable motives, based upon the facts, created by the plaintiff himself to the parly to whom it is said the corrupt proposition was made, if you find ¡one was: made and submitted to him, and pressed upon him- at different times. It was not the legal duty of the newspaper to inform the public of it, but it was a duty of imperfect obligation, growing out of society, its wants and its, needs, such as every good citizen has imposed on1 him, for the good of all society, to give information and knowledge of crimes committed or attempted; and if, without malice, such information and knowledge is given to the public, if the facts are so related that they induce the mind to readily believe them, a newspaper or a private citizen would be justified in publishing what is known. Defendant's may justify by proof of the facts, the Conduct of the plaintiff, and it is called ‘ privileged;’ but it would be perhaps more correct to say that it is a defense that can be made under the plea of the general issue, in which the acts, conduct, and declarations of the plaintiff may be shown concerning the subject-matter of the libel, and, if it be published in good faith, and without malice, defendants would be entitled to your verdict. If it fails, to establish a full justification, it may still be considered as evidence in mitigation of damages, and the circumstances under which it was published must be borne in mind in determining the extent of any liability. If the plaintiff’s own conduct and conversation induced the defendants to believe that he had attempted the bribery of Wilcox, the plaintiff could not complain. ® * *
“The plaintiff is a newspaper man, and had been engaged in the business of publishing a paper for several years, and knew and understood the object of the reporter of the News in interviewing him, and the Times paper was privileged in commenting as it did upon the conduct of Owen. * *
“ If the conduct of the plaintiff in approaching Senator Wilcox, in regard to his senatorial action, was such as to lead Wilcox to understand he proposed a money consideration for him to act with the Republicans, or to influence his official action in any way, and the defendants published the article in question, believing the same to be true, from Wilcox’s published statement and other publislied statements of Owen’s action, then the article is privileged, and plaintiff cannot recover in this- action.
“ In all cases where persons have a common interest in the subject-matter under discussion, or of the communication, and the person or persons to whom the communication is made have á corresponding interest, every such communication, honestly made, in order to protect such common interest, is privileged, by reason of the occasion, and if the communication is made or published in good faith, and without malice, it is a bar to an action for libel; and in this case the facts and charges of which Mr. Owen complains are of common and general public interest, and of great importance to the public, and it was the duty of the public newspaper to publish fully and fairly all facts known in relation thereto coming from Owen and Wilcox, and if you find that the defendants did only this while acting in good faith, and without express malice, then your verdict will be No cause of action.’ * * *
“ If Mr. Owen’s conduct had been -such as to lead an ordinarily careful, prudent man to draw the same conclusion as was drawn in the article published, then plaintiff cannot recover, and your verdict should be for the defendants.”

' The doctrine that the publication by a newspaper of false -and defamatory matter respecting an individual may, by reason of public interest in the exposure of wrong-doing and' crime, be so far privileged as to- relieve the publisher from- responsibility, -or that it is a sufficient answer, to an action based upon such publication, to ‘prove that the publisher had reason to believe the allegations to be true, or that there was probable cause to- believe them to be true-, or that he, acting in good faith, supposed them to be true, has not been recognized in this State. On the contrary, it has repeatedly been held that publishers, in this class of cases, must be held responsible for the truth of what is published.

In Foster v. Scripps, 39 Mich. 376, where plaintiff was city physician, and the article referred to his conduct as such, it was held that the article was not privileged. The classes of privileged communications are there considered, and the court say:

“ Allowing the most liberal rule as to the liability of persons in public employment to criticism for their conduct in which the public are interested, there certainly has never been any rule which subjected persons, public or private, to be falsely traduced, * * * There is no right to make untrue and injurious statements concerning others, when they are not made to persons having right and power to investigate, and in an honest attempt to invoke such investigation or answer such inquiry.”

In Bailey v. Kalamazoo Publishing Co., 40 Mich. 251, it was held that no man can lawfully destroy the reputation of a candidate for office by falsehood.

In Peoples v. Detroit Post & Tribune Co., 54 Mich. 457, Mr. Justice Sherwood says:

“ There can be n,o question at this late day but that the public newspaper has the right, whether it shall be regarded as its duty or not, to discuss those matters which relate to the life, habits, comfort, happiness, and welfare of the people. In doing so it may state facts, draw its own inferences, and give its own views upon the facts. It may err in its deductions, and, if they are false, they are not actionable, unless special damages can be shown; but false assertions, when they impute the commission of crime, are actionable, and, when not based upon any facts legally tending to prove the crime imputed, the publication cannot be said to be privileged.”

In Bronson v. Bruce, 59 Mich. 467, plaintiff was a candidate for Congress, and the court held that a publication ■in a newspaper concerning a public officer, or a candidate for an elective office, which falsely imputes to him a ■crime, is not privileged by the occasion, either absolutely or qualifiedly.

In Bourreseau v. Detroit Evening Journal Co., 63 Mich. 425, plaintiff was a deputy sheriff, and was charged with making unwarranted arrests for the sake of the fees. Defendant pleaded that the article was privileged. The court say:

“Nor can the article be said to be privileged. If untrue, the newspaper must be responsible for the damage done by its publication. The reputation of a public officer cannot be destroyed or damaged by false imputations upon Ms morality or Ms honesty, -without redress. It serves no useful purpose to the community, who are interested, to falsely blacken th'e character of a public official, or to destroy the confidence of the people in his integrity.”

In Wheaton v. Beecher, 66 Mich. 310, it was held that publications of the truth in regard to a candidate for office are not libelous, and that it is equally true that the publication of falsehood against such candidate is wrong, and deserves to be punished. In Randall v. Evening News Association, 79 Mich. 266, the publication was of and concerning a representative in the State Legislature. See, also; Belknap v. Ball, 83 Mich. 583; Thibault v. Sessions, 101 Mich. 279.

The occasion, the circumstances of the publication, honesty of purpose, good faith, the sources of information, and the reliability of such sources, and belief in the truth of the allegations made, may be shown to rebut the presumption of malice, which otherwise obtains, and reduce the damages, but not as substantive proof of the truth. Bronson v. Bruce, supra; Bailey v. Kalamazoo Publishing Co., supra; Belknap v. Ball, supra. Every justification must stand on facts, and not on opinions or hearsay. Atkinson v. Detroit Free Press Co., 46 Mich. 341, 353; Wheaton v. Beecher, 79 Mich. 443. In Whittemore v. Weiss, 33 Mich. 353, Mr. Justice Coolev says:

“ The judge charged the jury that malice is to be presumed from the publication and its falsity; that, to- rebut this presumption, defendants must prove that they made the publication in good faith, believing it to be true in all its essential parts, and for a proper purpose. Defendants insist that the purpose is immaterial, if they believed what they published, and made the publication in good faith. This might be so if the publication had been true, but good faith cannot protect a false publication, nor can one excuse himself for. mailing a mistaken assault upon his neighbor’s reputation by showing the absence of malice, when, even had Ms charge been true-, there was no proper purpose in bringing tbe matter to public notice.”

The court erred in the instructions given upon tbe subjects referred to. Plaintiff was entitled to tbe request asked for. Tbe instruction that a publication that is libelous per se is presumed to be voluntary, and with malicious motive,” was correct; but tbe court was in error in tbe instruction that “ tbe communication in question is of such a nature, and so far privileged, that no malice can be implied from tbe nature of tbe communication.” The question of malice was, under tbe facts presented, a question for the jury, and tbe subsequent publications were admissible as bearing upon that question. Tbe fact that an alleged interview with Owen was published in the Evening News did not warrant tbe assumption by defendants that the statements there alleged to have been made by Owen were actually made by him. It was for tbe jury to say whether tbe statements alleged to have been made by Owen were correctly reported, and, as between Owen and Wilcox, which was to be believed; and whether tbe statements admitted to have been made by Owen, or alleged by Wilcox to have been made to him, and believed by tbe jury to have been so made, were a sufficient foundation for tbe charge. If tbe jury believed that the statements admitted by Owen on the trial to have been, made by him to Wilcox, or that Owen’s statements to Britton, as published in tbe Evening News, were correctly reported in that publication, or that Wilcox told tbe truth in his interviews and testimony, and that either warranted tbe charge made, then plaintiff could not recover. Tbe old rule that tbe proof must be such as would authorize tbe conviction of tbe plaintiff if on trial for tbe offense, and that be is, in such case, entitled to tbe benefit of every reasonable doubt, no longer obtains in this class of cases. It is sufficient if tbe jury find, from a preponderance of evidence, that tbe charge made was true.

Tbe judgment is reversed, and a new trial ordered.

Tbe other Justices concurred.


author: Grant, J.

text:
    A. F. BARTLETT & CO. v. STEAM DREDGE NO. 14.
    Maritime Liens — Steam Dredges — Water-Graft—What Constitutes.
    A steam dredge, used solely for digging under water, and not ■ transporting even the material taken from the bed of the stream, is not within 2 How. Stat. § 8236, giving a lien for labor and materials furnished, etc., upon “every water-craft * * yggfl or intended to be used in navigating the waters of this State.”
    Appeal from Wayne; Hosmer, J.
    Submitted October 25, 1895.
    Decided November 5, 1895.
    Proceedings by A. F. Bartlett & Company against Steam Dredge No. 14, Steam Dredge No. 15, and Carldn, Stickney & Cram, to enforce a lien under the water-craft law. From a decree for defendants, complainant appeals.
    Affirmed.

      T. E. Tarsney and W. T7. Wicker (E.D. Goulder, of counsel), for complainant.

      ETbridge F. Bacon and Harlow P. Davoclc, for defendants.
   Grant, J.

The complainant furnished labor and materials for the construction at Saginaw, Mich., of the two dredges involved in these suits. The contracts were made with Carldn, Stickney & Cram. These suits were instituted to enforce liens upon the dredges for ;such labor and material, under chapter 285, 2 How. Stat. As described by the defendants,—

“The dredge hull is virtually a large scow, with a boiler, engine, and different kinds of machinery, a crane, or boom, and a dipper. It has no means of propulsion, except by towing, nor any rudder. The dredge is used for digging material under water, and is not used for transportation. It is the same thing as a -steam shovel on land. It has no miaster, and is not used for transporting passengers, freight, or anything.”

The sole purpose 'of these dredges was to dig, not to navigate. They are not moved from- place to place for the purpose of navigation, as are vessels engaged in commerce, nor ‘are they intended to be used for transporting passengers or freight, or the material which they bring up from the -lake or -river beds.

The act providing for liens is entitled “An act to- -provide for the collection of demands against water-craft.” The second section reads as follows: “Every water-craft of above 5 tomls burthen, used or intended to be used in-navigating the waters of this State, -shall be subject to a lien thereon,” etc. It -certainly would be a forced construction to hold that such structures are “used or intended to be used in navigating 'the waters of this State.” If this were so, then every -structure built so that it could be towed over the water to- do work 'at different places must be held to be a water-craft, under this l'aw.

The term “vessel” is defined by Congress as including “every description of water-craft -or other artificial contrivance used, or capable of being used, as a means of transportation on water.” Rev. Stat. U. S. § 3. A. dredge is incapable-of being used as a means of transportation on the water, except by removing its machinery, and transforming it into something for which it was never intended to be used. Barges are vessels within the admiralty jurisdiction, and subject to maritime liens. The Dick Keys, 1 Biss. 408; Disbrow v. The Walsh Bros., 36 Fed. 607. So, also, is an old steamboat, with ali its machinery removed, and fitted up as an excursion boat. Mosser v. The City of Pittsburg, 45 Fed. 699. So, also, are lighters used in conveying lumber to vessels lying in deep water. The General Cass, 1 Brown, Adm. 334. So it has also been held that a dredge and scows are to be treated as one concern, subject to a maritime lien. The Starbuck, 61 Fed. 502; The Alabama, 22 Fed. 449. It was said in the latter case, “The dredge boat by itself might not be up to the test.” It has also been held that a floating elevator used in the harbor of New York was subject to a maritime lien. The Hezekiah Baldwin, 8 Ben. 556. The Baldwin was in fact a canal boat, with an, elevating apparatus attached, for the purpose of transporting grain from one vessel to another, and was moved about the harbor for that purpose. She was nothing more than a floating vessel directly engaged in commercial movements, just as much as were the barges and lighters in the above-cited cases.

The Aitcheson v. The Endless Chain Dredge, 40 Fed. 253, directly sustains the complainant, and- holds a steam dredge to be a subject of admiralty jurisdiction. The opinion disposes of this branch of the -case in a single sentence, at page 254, and treats the question as .settled by the above eases, of The Baldwin, The Alabama, and, also, The Pioneer, 30 Fed. 206; Woodruff v. One Covered Scow, Id. 269. The opinion also says that the court has incidentally held likewise in Maltby v. Steam Derrick Boat, 3 Hughes, 477, and Inland, etc., Coasting Co. v. The Commodore, 40 Fed. 258. The Pioneer directly supports the decision. In the Woodruff case it was held that a contract for a floating boathouse is a maritime contract, by reason of the subject-matter. The structure in that case was a float used to afford persons a means of egress, from small boats coming to the slip, to the adjoining wharf, and thence to the shore. The Maltby case was decided upon the rule governing salvage oases. The court says at page 478:

“It is contended in argument that a derrick boat is not the subject of this jurisdiction, because it is not used in commerce and navigation. This might be a valid objection if the libel were for contract of affreightment, or for tort by collision, or such cause of action; but it is mot a valid objection to a libel for salvage. It has long been held that property, whether it has been an actual instrument or subject of commerce, or not, may be the subject of salvage.”

In all the cases cited by the learned counsel for the complainant, excepting those of The Pioneer, The Aitcheson, and the Maltby case, the floating structures were all directly and immediately used, and intended tto be used, in maritime transportation. The following oases appear to be directly opposed to the contention of the complainant: Knisely v. Parker, 34 Ill. 481; The Nithsdale, 15 Can. Law J. 268; Olmsted v. McNall, 7 Blackf. 387; The Farmers’ Delight v. Lawrence, 5 Wend. 564; The Hendrick Hudson, 3 Ben. 419; The Big Jim, 61 Fed. 503; Ruddiman v. A Scow Platform, 38 Fed. 158; Parkinson v. Manny, 2 Grant, Cas. 521; Nease’s Appeal, 3 Grant, Gas. 110. This subject has very recently been carefully examined and reviewed by the United States court fo‘r the Eastern district of Michigan in Muellerweisse v. Pile Driver E. O. A., 69 Fed. 1005, in which Judge Swan reached the conclusion that :such craft are not vessels, within the maritime law. He also says that the ease of The Pioneer is irreconcilable with those of The Hudson, The Pulaski, 33 Fed. 383, The Ruddiman, and The Big Jim. Whatever may be the rule in the federal courts, we oannot construe the watercraft law of Michigan to include a dredge.

It follows that the decree must be affirmed, with costs.

The other Justices concurred.


text:
    KUPPENHEIMER v. WERTHEIMER.

    1. Sale — Delivery to Carrier — Conflict of Laws — Statute of Frauds.
    Where goods are verbally ordered by sample in another State, to be shipped to Michigan, the fact that the purchaser is, to have the privilege of examining the goods before paying for them, to see whether they are like the samples, does not make the transaction a Michigan contract, subject to the Michigan statute of frauds, but the sale is complete and title passes upon the delivery of the goods to the carriel. Rindskopf v. De-Ruyter, 39 Mich. 1, distinguished.
    2. Same.
    A parol contract for the sale of goods exceeding $50 in value is not taken out of the operation of the statute of frauds by a delivery of the goods to a carrier for transportation to the buyer.
    Error toi Wayne; Frazer, J.
    Submitted October 25, 1895.
    Decided November 5, 1895.

      Assumpsit by Bernhard Kuppenheimer and others against William Wertheimer and Max Wertheimer for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Ottoman, Groesbedc cG Robinson, for appellants.

      Bowen, Douglas cG Whiting, for appellees.

       Rehearing denied December 30, 1895.

   Hooker, J.

The plaintiffs, who are wholesale dealers in clothing at Chicago, 111., recovered judgment against defendants, retail dealers at Detroit, Mich., for the value of a bill of clothing shipped to them upon their order. The order was given by defendant Max Wertheimer at plaintiffs’ store, the goods being ordered from samples shown him. The defendant testified that the goods were to be shipped the same day by express, to Detroit, where-he was to have the privilege of examining them, and, if found to bo like the samples, they were to be paid for. The plaintiffs offered testimony tending to show that the defendant did not direct shipment by express, but that the goods were to be shipped to defendants at Detroit, and they were to check them off to see whether they were as ordered, and then remit for the same. The jury must have found with the plaintiffs upon the subject of shipment, for the court instructed them that the plaintiffs could not recover if shipment was to be made by express. The amount of this bill was upwards of $400, and, as no money was paid, it was within our statute of frauds, if it was a Michigan contract. If, on the other hand, it was an Illinois contract, it is apparently conceded to have been valid. Hence prominence is given to this question in the briefs of counsel.

The goods were ordered in Chicago. Plaintiffs contend that delivery to the carrier completed the sale, and that payment was to be made in Chicago, and therefore it was an Illinois contract. On the other hand, defendants contend that this delivery to the carrier was merely for transportation to Michigan, where the defendants should be allowed to inspect the goods, to determine whether or not they were the goods ordered; that this condition forbids the inference, from the fact of delivery to the carrier, of a receipt and acceptance as elements of. a present sale. Their counsel cite the case of Rindskopf v. Re Ruyter, 39 Mich. 6, in support of this proposition.

It is the usual rule that title passes under a valid contract of sale when nothing remains to be done by the vendor in relation to the appropriation or delivery of the goods, although the property sold is not specific. 1 Benj. Sales (Corbin’s Ed.), § 469; Carpenter v. Graham, 42 Mich. 191; Bytes v. Colier, 54 Mich 1; Wagar v. Railroad Co., 79 Mich. 650, and cases cited; Lingham v. Eggleston, 27 Mich. 324. Delivery to a public carrier for transportation to the purchaser is, in the absence of circumstances showing a contrary agreement, usually held to be a delivery to the purchaser, through his agent, the carrier. 21 Am. & Eng. Enc. Law, p. 528, and cases cited. Apparently counsel for the defendants do not question these rules, but contend that the stipulation in regard to inspection shows that the parties did not intend that title should pass by delivery to the carrier.

The case of Rindskopf v. De Ruyter would at first blush seem to support this contention. In that case liquors were ordered verbally at Grand Rapids by defendant from the plaintiffs’ agent, but under the condition that the liquors should be sent to be first examined, and then to be kept or. returned, as it should or should not appear that they answered the requirements of the understanding' under which the order was made. The order was subject to the plaintiffs’ approval. Wisconsin had a statute similar to our own, under which delivery and acceptance were necessary to make this contract valid, and the court held that delivery to the carrier for transportation was not such a delivery as would take the case out of the statute. A large number of cases were cited in support of this proposition, which is clearly correct, on the principle that the vendor cannot, by his own act alone, take the case out of the statute. And under these authorities the delivery to the carrier would not have had that effect, although there had been no agreement in relation to keeping or returning the goods. Thait case turns on the question,—

“Was there any receipt or acceptance in Wisconsin in the sense of the statute of frauds? Unless there was, no binding sale was there effected. * * * The only act of receipt and acceptance in Wisconsin was by the carrier.”

But the opinion goes further, and says that even this act of acceptance by the carrier- was under and expressly subject to an arrangement which forbids inferring from it a receipt and acceptance as elements of a present sale; that under the finding of the referee the carrier received the goods simply for carriage to Michigan, and in order that they might, upon arrival, be examined with a view to their change of ownersMp, upon terms agreed on, if found to correspond with the previous understanding. It-would seem that under the evidence in that case it was found that the intention of the parties was not to pass title until after inspection, when the vendee had an option to accept or reject, subject, necessarily, to a right of action for breach -of Contract if they were unjustly returned, had the executory contract been binding. Thus the court determined that case upon two grounds, either of which was sufficient to show that title did not pass by delivery to the carrier.

In the present case there is no evidence of an understanding that the property should not pass until linspeoted. Nothing was ;said about transporting to Detroit with a view to change of ownership only after acceptance. It is true that the goods were to be examined, and the price remitted at once, if found correct; but the agreement was silent as to this inspection being with a view to a change of ownership. The right to inspect before acceptance always exists, and a purchaser cannot be required to inspect at the shipping point, but is entitled to a reasonable opportunity after the arrival of the goods. Fogel v. Brubaker, 122 Pa. St. 7; 2 Benj. Sales (Corbin’s Ed.), §§ 910, 966; Erwin v. Harris, 87 Ga. 333. If the goods are not up to the sample, the right to refuse them exists, which is, in effect, a rescission. The title passes upon delivery to the carrier, subject to this right, of which the purchaser may avail himself or not. Upon the facts shown, the court properly held that title passed by delivery to the carrier.

We think that this disposes of the questions raised, and that the judgment of the circuit court should be affirmed.

The 'other Justices concurred.


author: Grant, J.,

text:
    HULBERT v. DETROIT CYCLE CO.
    Creditor’s Bill — Parties—Moltieariousness.
    A judgment creditor, on filing a bill for the sole purpose of impounding all of the assets of the debtor to pay his debts, may join as defendants every person to whom the debtor has fraudulently conveyed his property.

      Appeal from Wayne; Donovan, J.
    Submitted October 25, 1895.
    Decided November 5, 1895.
    Judgment creditor’s bill by William A. Hulbert and another against the Detroit Cycle Company, Limited, and others. Complainants appeal from a decree dismissing the bill on demurrer.
    Reversed.
    The complainants recovered a common-law judgment for $691.04 against the Detroit Cycle Company, Limited, a limited partnership association, formed under Act No. 191 of the Public Acts of 1877, and amendments thereto (1 How. Stat. chap. 79, p. 623 et seq.). A ft. fa. was issued in due form, placed in the sheriff’s hands, and returned Wholly unsatisfied. They thereupon filed a creditors’ bill in behalf of themselves and certain other judgment creditors, who should share 'the expenses of the litigation.
    The defendants and their connection with this controversy are as follows:

      First. The Detroit Cycle Company, Limited, is the judgment debtor.

      Second. Edwin B. Robinson, Joto A. Matheson, and John T. Holmes are the partners composing the Detroit Cycle Company, Limited, a partnership association, limited. Each of them subscribed $3,333.33 to the capital of the concern, of which each paid in cash, at the time of the subscription, $1,000, and $500 afterwards'. No other cash payments were ever made. They afterwards gave their several notes for $1,833.33 each to the company, for the ostensible purpose of paying their stock subscriptions. These notes were made payable to the order of the Detroit Cycle Company, Limited' and afterwards ■transferred by it toi the defendant Gormully & Jeffery Manufacturing Company, with the understanding that their payment would never be called for. The object of the transaction was to escape liability to the creditors of the Detroit Cycle Company, Limited, as subscribers to its capital stock.

      Third. The Gormully & Jeffery Manufacturing Company secured a mortgage from the Detroit Cycle Company, Limited, of all its assets then present and prospective, and, in and by the same instrument, an assignment of all its bicycle contracts and other choses in action which the Detroit Cycle Company, Limited, then ■owned or might afterwards acquire. This mortgage was made at the same time that the three notes were made, referred to above. The consideration expressed in the mortgage is a debt from the Detroit Cycle Company, Limited, to the mortgagee for $14,128.79, which it is alleged was in excess of the actual indebtedness. The value of the property covered by the mortgage was $20,000, and the value of the bicycle contracts was $10,000 more. The equity of redemption was, in' accordance with a fraudulent and collusive arrangement, bought by the Gormully <& Jeffery Manufacturing Company at an execution sale upon a justice’s judgment. This was brought about in this way: One Carmichael recovered a judgment against the Detroit Cycle Company, Limited, before a justice, for $75 damages and $4.50 costs. Execution upon this judgment was stayed. The defendant Holmes became surety for that purpose. About four month's afterwards, and before the stay had expired by limitation of time, defendant Holmes, in collusion with the other defendants, made affidavit that he deemed himself insecure. An execution was accordingly issued, and the property covered by the mortgage sold, for the amount of the judgment and costs, to an employé of the Gormully & Jeffery Manufacturing Company, and in its behalf.

      Fourth. The defendant Atkinson, while the property of the Detroit Cycle Company, Limited, was in the possession of the Gormully & Jeffery Manufacturing Company under its chattel mortgage, had transferred to him bicycle contracts, the property of the Detroit Cycle Company, Limited, to the value of $3,000, without consideration; and he collected the proceeds thereon, and appropriated them to his own use. He has also obtained possession of the hooks of the Detroit Cycle Company, Limited, and has refused complainants access thereto for the purpose of ascertaining the amount of the subscriptions, to the stock of the Detroit Cycle Company, Limited, not yet paid up.
    The bill proceeds upon the theory that the property transferred to the Gormully & Jeffery Manufacturing Company and Atkinson, and the amount of the unpaid subscriptions to the capital stock of the Detroit Cycle Company, Limited, are chargeable for the payment of the Detroit Cycle Company’s debts. The defendants severally demurred, upon the ground of m,ultifariousness>. These demurrers the court sustained.

      Bowen, Douglas & Whiting'(Otto Kirchner, of counsel), for complainants.

      Bussel & Campbell and Atkinson & Atkinson, for defendants.
   Grant, J.,

(after stating the facts). The single purpose of this bill is to impound all the assets of the defendant, the Detroit Cycle Company, to pay its debts. It is alleged that all its property has been dissipated and conveyed in different parcels to the various defendants, with the common object of preventing its application upon the debts due to the complainants and its other creditors. It would certainly be a reproach upon equity jurisprudence if a creditor were compelled to institute a separate suit against each person to whom a debtor has fraudulently conveyed his property. This would be true even if there were no common purpose among those to whom such conveyances are made. The cases upon this subject are very numerous, and many of them are cited in Torrent v. Hamilton, 95 Mich. 159. The ñrmly-established rule is that in such cases the creditor may make all such parties defendants, and thus avoid a multiplicity of suits. It has been held that, though the matters set forth in the pleading are distinct, yet, if justice can be administered between the parties without a multiplicity of suits, the objection of multifariousness will not prevail. Bowers v. Keesecher, 9 Iowa, 422. The correct rule is stated in Olíase v. Searles, 45 N. H. 511, that where a creditor seeks to set aside all conveyances made by the debtor, in order to accomplish a single object, viz., the satisfaction of his judgment out of the property so conveyed, the bill is not multifarious. See, also, Wait, Fraud. Conv. §§ 54, 150, 151; Hill v. Moone, 104 Ala. 853; Collins v. Stix, 96 Ala. 338; Pullman v. Stebbins, 51 Fed. 10.

The decree of the court below is reversed, and the demurrers overruled, with costs of both courts. The case will be remanded, and the defendants given the usual time to answer.

The other Justices concurred.


author: Long, J.

text:
    ATTORNEY GENERAL, ex rel. BLANCK, v. HOWCROFT.
    Elections — Validity oe Ballots — Distinguishing Marks.
    Election ballots are not invalidated by distinguishing marks fraudulently placed upon them after they have been deposited in the ballot box.

      Quo warranto by the Attorney General, on the relation of William Blanck, against George Hoiwoiroft, to determine the title to the office of supervisor of the township of Hamtramok. Issues of fact were tried in the Wayne circuit before Judge Carpenter, and the findings of the jury duly returned.
    Submitted October 23, 1895.
    Judgment of ouster entered November 7, 1895.

      Bred A. Maynard, Attorney General (Blbridge B. Bacon ■and John O. Hawley, of counsel), for relator.

      T. B. Tarsney and W. W. Wiclcer, for respondent.
   Long, J.

This action is brought to oust the respondent from the office of supervisor of tihe township of Hamtramck, in Wayne county. At the annual township meeting of that township held in April, 1895, the relator and respondent were candidates for the office of supervisor. The vote, as canvassed by the township board, gave the respondent 181 votes, and the relator 177. The respondent thereupon took the oaith of office, and claims the. right to hold the same.

The information was filed in this court, to which respondent answered, 'and an order was thereupon made on June 20th that the issues of fact raised by the pleadings would be set for trial in the Wayne circuit court. A. jury was thereupon impaneled, and its findings have been returned into this court, as follows:

“First question. How many legal votes, were cast in favor of ,said relator, William Blanck, for -supervisor, in the township of Hamtramck, at the April election, 1895?
“Answer. 218.
“Second qmstion. How many legal votes were oast in favor of said respondent, George Howenoft, for supervisor, in said township of Harntrunrck, at the April election, 1895?
“Answer. 181.
“Third question. Did any of the ballots containing votes-cast in favor of said relator, William Blanck, bear distinguishing marks, — that is to say, letters, initials, words, or marks so made thereon- as to distinguish each of the same, respectively, from the -other ballots cast at that election?
“Anstoer. Yes.
“Fourth question. If so, how many isuoh ballots were-cast, and of what did -su-eh distinguishing marks consist?
“Anstoer. 41; pencil marks.
“Fifth question. Were any letters, initials, words, or marks fraudulently placed on any of the ballots cast for-relator after such ballots were deposited in the ballot-box?
“Anstoer. Yes.
“Sixth question. If so, on how many of such ballots-were such letters, initials, words, or marks so placed?
“Answer. 41. 1
“Seventh question. DM any of the ballots containing votes east in favor of said respondent, Geotrge Howeroft, bear distinguishing marks, — that is to say, letters, initials, words, or marks so made thereon as to distinguish each of the same, respectively, from the ether ballots cast at that election?
“Answer. No.
“Eighth question. If so, how many suclh ballots were oast, and of what did such distinguisMng marks consist?
“Answer. None.”

It is the claim iof the relator that, when these 41 ballots were cast, none of these distinguishing marks were on them, but that they were placed on the ballots after they were cast, and after the ballot box was opened; and we think this, in effect, is the finding of the jury. The township board threw them out, and thus found the whole number of votes oast to be 358, giving the respondent 181, and the relator only 177, while the whole number of votes cast by the finding of the jury in this proceeding is 399, of which relator had 218 and the respondent only 181; and the jury also find that there were 41 ballots bearing distinguishing marks, and that all of such marks were fraudulently placed on the ballots after such ballots were deposited in the box. The return of the jury settles conclusively that the relator was elected by a majority vote of all the electors, voting on this question, and a judgment of ouster must be entered.

The other Justices concurred.


text:
    BURKE v. PARKER, WEBB & CO.

    1. Master and Servant — Negligence—Dangerous Premises.
    It is not negligence per se for an employer to keep a barrel of paint containing benzine upon bis premises, for use in connection with his business.
    2. Same — Time oe Peril — Attempt to Extinguish Eire.
    An employer is not liable for injuries to his employé from the explosion of a barrel of paint, which had taken fire without the fault of the employer, occurring while the employé and others, at the request of the employer, were endeavoring to extinguish the flames, since the peril was such as to justify the instruction given.
    Error to Wayne; Frazer, J.
    Submitted May 2, 1895.
    Decided November 19, 1895.
    Case by Thomas Burke against Parker, Webb & Company for personal injuries, alleged to have been caused by defendant’s negligence. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Keena & LigJitner (John AtJcinson, of counsel), for appellant.

      P. J. M. Hally and James H. Pound, for appellee.

       Rehearing denied, but new trial granted, January 14, 1896.

   McGrath, C. J.

Plaintiff was a laborer in defendant’s employ, and was injured by the explosion of a barrel of paint, which contained benzine, during a fire which he wias called upon by the foreman to assist in extinguishing. The barrel of paint had been placed in the press room by the order of the superintendent. A workman used a lighted candle while drawing paint from the barrel, igniting the fluid. The barrel, after it had taken fire, was drawn from the press room out upon the platform into the open air, and while plaintiff, with others, was endeavoring to extinguish the flames, the explosion took place.

The paint was an article of common and necessary use in the business in which defendant was engaged. The fire was not caused by reason of the presence of the barrel in an overheated room', but seemingly by the carelessness of a fellow-servant in drawing the fluid from, the barrel. The keeping of the barrel of paint upon the premises was not negligence, and this although a fire was not improbable. It was not in and of itself dangerous, nor was its presence or its use attended with danger, in the absence of the other agency. The existence of the conditions under which combustion would actually take place were not in any sense apparent. The fire was not chargeable to defendant’s negligence. Negligence is a failure of duty. It implies fault. In order to hold the owner of a steam boiler liable for its explosion, negligence must be shown. So as to all accidents from machinery, where their liability to happen is proven only by their actual occurrence. Cooley, Torts, 80, and note. In Allison Manfg. Co. v. McCormick, 118 Pa. St. 519, plaintiff’s intestate was engaged with others in painting the inside of a tank with a paint similar to that which the barrel in the present case contained, and was killed by an explosion. The theory of the plaintiff was that the quantity of benzine used in the preparation of the paint was .so great that upon opening the cans and spreading the paint the evaporation filled the tank with an explosive gas, and that this gas came in contact with the flame of one of the lamps used by the workmen, and exploded. It was urged that the employer was bound to know the composition of the paint, the effect of spreading it upon the interior of the tank, and the danger to the servant. It was there held that, to be relieved from liability, the master is not required to supply the best materials known, or to subject such as he does supply to an analysis to determine what hazard may be incurred in their use. The court say:

“The accident happening under such circumstances was outside the range of ordinary experience, and one, therefore, against which the measure of care due from the employer could not protect the servant.”

This is not a case of insecure place or defective appliances, nor is it one where a servant was ordered into another branch of the ordinary service, in which there was increased hazard. A fire occurred upon the defendant’s premises, and at its inception the employés were called upon to aid in extinguishing it, and thus preserve the master’s property and prevent a general conflagration. The dangers ordinarily incident to a fire are obvious to persons of mature years. Employer and employés are equally conscious of such danger, and ordinarily equally skilled in the means employed to extinguish a fire. The work of extinguishment is usually attended with danger, and explosions are not uncommon. The law recognizes a fire as one of the perils which excuses acts otherwise illegal. An entry upon another’s premises to save goods which are in peril is not a trespass-, and a man’s castle may be torn down to .prevent the spreading of the fire. As Mr. Cooley says, “The law of overruling necessity licenses this.” Cooley, Torts, 314. It is a duty which the employer owes to his neighbor to prevent a conflagration, and in the ordinary contract of insurance it is- made the duty of the insured to exercise diligence- with respect to the prevention and extinguishment of fires and the protection of property. If it be negligence to call upon his employés to assist in such an emergency, it would be impossible to do a work which the exigency demands should be done. Suppose that a human life had been in peril, and the employer had called upon his employésto assist in the rescue; could it be said that he did so at his peril? Can the act under such circumstances be said to have been a wrongful act?

The case of Houston, etc., R. Co. v. Fowler, 56 Tex. 452, is the only'one that I have found which deals with the question of an order given to a servant under eircumstances of peril. There a violent storm of wind and rain prevailed along the entire line of defendant’s railway, producing a washout, by reason of which a wreck had occurred. The decedent had been ordered to “run to the wreck” and take the passengers from the disabled train, aaid in complying with the order he ran into another washout and was killed. Held, that the company was not guilty of negligence, if the performance of an unusually dangerous service was required for good reason, as for the safety of passengers. Pierce, R. R. 378, 379, is cited in support of this determination. The case is referred to in a note to 1 Shear. & E. Neg. § 186, as one of mere peril, without negligence on the part of the defendant. The facts are far less complicated in the present case, and it is not necessary to approve the application there made. Here the danger from the fire was apparent, and the employés who were present were the only persons through whose exertions a calamity might be avoided.

In Hart v. Railway Co., 21 Law T. (N.S.) 261, a points-man turned an engine, whose engineer was seized with a fit, upon a branch line, in order to avoid a collision with an express train on the main track, causing a collision on the branch line and injuring a passenger. Held, that the pointsman was justified under the circumstances, and that defendant was not guilty of negligence.

Under the circumstances, we think that the injuries received must be regarded as resulting from accident, rather than from negligence.

The judgment is therefore reversed.

The other Justices concurred.


text:
    ATTORNEY GENERAL v. CITY OF DETROIT.
    Municipal Corporations — Equity Jurisdiction — Suit by Attorney General.
    An information by the attorney general will not lie to compel municipal officers to repay into the city treasury moneys which they have unlawfully taken therefrom.
    Appeal from Wayne; Hosmer, J.
    Submitted October 10, 1895.
    Decided November 19, 1895.
    Information by Adolphus A. Ellis, Attorney General, against the city of Detroit, and Hazen S. Pingree, mayor, Clarence A. Black, controller, and George Beck and William B. Thompson, aldermen, of said city, to compel the repayment of certain moneys alleged to have been taken unlawfully from the city treasury. From a decree dismissing the information on demurrer, the informant appeals.
    Affirmed.

      James H. Pound, for the informant.

      John B. Gorliss, Thomas T. Leete, Jr., 'William 8. Sheer an, and John J. Speed (G. A. Kent, of counsel), for defendants.
   Long, J.

This is an information by the attorney general of the State to compel the payment into the city treasury of the city of Detroit of certain moneys, which it is claimed the defendants, as city officers, unlawfully took therefrom. The information sets out at great length the several acts complained of as occurring during the years 1890 to 1893, inclusive, in which it is claimed that Mr. Pingree, as mayor, Mr. Black, as controller, and the other defendants, as aldermen of the city, took the funds unlawfully, and used them for purposes contrary to law. The prayer of the information is that the defendants may be decreed to hold these several sums of money in trust for the city of Detroit, and that they be compelled to repay the same into the city treasury, and that the city answer by what right if permits its moneys to be expended contrary to law. The information was filed in the Wayne circuit court. The defendants demurred, and the demurrer was sustained. Two grounds are urged as sustaining the action of the court below: (1) That the information is multifarious; (2) that it sets up no ground for equitable relief.

We may pass over the first question, as we are satisfied that the information cannot be ¡sustained in any event. It is sought to bring the case within the ruling in Attorney General v. City of Detroit, 26 Mich. 263. That proceeding was not to compel repayment of moneys illegally paid oat, but was based upon what was called the preventive jurisdiction of the court, and was instituted to> keep public officers from proceeding illegally, as was claimed, in reference to a fund applicable to a particular public object. The information in the present case seeks to compel the payment of money by the defendants, which, i.t is averred, belonged to the city. It was held in Attorney General v. Moliter, 26 Mich. 444, that such a claim is strictly of the class cognizable in the common-law action of money had and received, and from its nature is susceptible of prosecution in that form by the county. It was said in that case:

“The bill before us in the name of the attorney general is attempted to be used to work out for the county precisely the end of such an action. The title to the claim, both legal and equitable, is exclusively in the county. If collected, the money must be instantaneously paid into the county treasury, and no State agency or official can touch or control it. If still treasurer, the defendant Hopper must immediately have charge of it. The law having ordained the custody, the court could not institute one; and it is not unworthy of notice in passing that, for all that appears, Hopper is still treasurer, and, upon the theory of the bill, a party to be compelled to make payment into Ms own official hands, through suit by the attorney general. In view of the nature 'of the claim, I am unable to find that the State has any right, through the attorney general, to sue in equRy for it. Under existing regulations, it is not in its civil aspect a matter -of State concern, but is rather a local corporate interest or right of action, subject to be sued for the county. It has not hitherto been deemed politic, or consistent with the genius of our system, to favor a large construction of the power of the State to directly superintend the fiscal affairs of local communities. But if, as now maintained, the State may independently intervene, and commence and carry on a suit by and through its own officer to- collect money for a county, on the charge that such money was illegally paid out, the principle must have a very extensive operation. As neither our laws nor Constitution in terms profess to confer any such power or impose any -such duty, and the power, if it exists -at all, must result from the. nature of the thing and the principles of the government, it cannot be admitted to- exist without admitting a basis for it broad enough to justify State interference in every case where it is charged that the funds of a township or any other municipal corporation have been illegally appropriated. The principle being settled, the attorney general, whenever a case appears to be within it, will feel bound to allow the use of his name; and, in the absence of legislation to restrain and regulate the proceedings, the cases will multiply, and the practice will cause serious embarrassment and expense, without corresponding advantage. Merely local financial matters, often trivial in amount and devoid of State interest, will become common subjects of chancery litigation in this way to test the validity or regularity of municipal action, and not seldom chiefly to gratify a litigious temper. There are, then, in the composition of the claim, in the irrelation of the State to- it, and in the consequences to be apprehended under existing conditions from such State interference with municipal autonomy, very serious objections to the relief asked through a modification of the decree.”

We are unable to- distinguish the present case from that. That case was decided in 1873, and for more than 20 years has been -acquiesced in as the settled law of this State. The legislature has taken no action in reference to tlie question, or attempted in any way to enlarge .the powers of the attorney general to that end, even if it could constitutionally do so, which we do not determine. The case falls so clearly within the Moliter case that further argument than there used is unnecessary.

The decree below must be affirmed.

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


text:
    HARBOUR v. ELDRED.
    1.Certiorari — Void Judgment.

      Certiorari is. the proper proceeding to get rid of a void judgment.
    2. Same — Objections Not Raised Below.
    On certiorari to review a justice’s judgment, errors alleged in the affidavit for the writ, going to the jurisdiction, may be considered, although the points made were not raised before the justice.

      3. Justices of the Peace — Jurisdiction—Adjournment.
    Under 2 How. Stat. § 6903, providing that a justice of the peace may adjourn a cause, under certain circumstances, “ at the time of the return ” of process therein, an adjournment on the return day, without a return having been made, is unauthorized, and the subsequent proceedings are void.
    Error to Iron; Stone, J.
    Submitted October 23, 1895.
    Decided November 19, 1895.
    Replevin by Ellen Harbour against William 0. Eldred. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Julius J. Patelc, for appellant.

      Maurice D. L. Fuller, for appellee.
   Hooker, J.

Plaintiff brought replevin in justice’s court, and the defendant removed the proceedings to the circuit by certiorari, where the judgment of the justice was reversed. The case comes to this court upon writ of error.

The errors alleged in the affidavit for certiorari are:

(1) An illegal adjournment on July 27th, the return day, the writ not having been returned.

(2) The erasure from the justice’s docket on July 31st of entries dismissing the cause, making new entries, used in issuing a summons.

(3) In refusing evidence offered upon a motion to dismiss on the 11th day of August.

(4) In refusing to dismiss the action upon the evidence produced upon said motion.

(5) In issuing the alias writ or summons and proceeding with the cause after acknowledging that he had dismissed the proceeding.

(6) In not dismissing the proceeding on motions made August 1.1th and 13th.

(7) In entering judgment against the defendant.

The return shows that the writ was issued on July 20, 1894, returnable July 27th at 10 a. m.; that at that time the justice called the case, and the plaintiff appeared by her agent, who proved his authority under oath, and that the constable to whom the writ had been delivered was also present, and informed the justice that he had replevied the goods and chattels described in the writ, and delivered them to the plaintiff; that he had not summoned the defendant; and that he had attached his return in writing to the original writ, setting forth therein these facts, but that the writ and his return were locked up in a safe to which he had not access. The justice returned further that, being otherwise officially engaged, and defendant not being present, he held the matter open one hour, at the expiration of which time, the defendant not appearing, he held the case open until July 31st at 10 o’clock in the forenoon, and so informed plaintiff’s agent; that at that time he called the case, and the plaintiff was present by her agent, and the officer informed the justice that he was ready to file the writ with his return, but the justice requested him to wait until he had disposed of some other matters then occupying ¡Ms attention. The defendant did not appear. As soon as the justice got through with the matter on hand he went to see Mr. Patek, plaintiff’s attorney, who was at home, sick, to consult with him as to issuing new papers in said cause, and he requested the justice to wait until afternoon, so he could be present, as he thought that the justice could not make ¡out the papers correctly. At 11 o’clock a. m. of the same day the justice saw Patek across the street from the office, in consultation with the plaintiff’s agent; and after 11 o’clock of said day he (the justice) made docket entries of the case and dismissed said matter, and made an entry of said dismissal upon the docket, taxed his costs, and rendered judgment against the plaintiff, and attached his signature to the docket as justice of the peace. About 2 p. m. the same day, the officer brought to the office of the justice the original writ and Ms return, and Mr. Patek appeared for the plaintiff, with one Kellerschon, and insisted upon the erasure of the entry upon the docket, and brought a copy of Socket entries for the justice to insert in place ' of those then upon the docket, and said Kellerschon then and there erased the entries upon the docket and made others; and at their request the justice issued a summons against the defendant, returnable August 11th at 10 a. m., which was returned on or before the return day with a return that the same had been served on July 31st upon the defendant by delivering to Mm personally a true copy, in said county. At the hour mentioned the plaintiff appeared and declared. The defendant appeared specially by attorney, and filed “a motion as a special plea, or a plea to the jurisdiction,” with affidavits in support thereof. Arguments were heard, and the case held open by consent until August 13th at 10 o’clock a. m., without prejudice to the jurisdiction. On August 13th the motion was overruled, and after holding the ease open one hour for defendant to appear, and defendant not appearing, he proceeded with the trial of said cause, and rendered judgment against the defendant. The justice returned farther that he directed Kellerschon, on July 31st, to enter -on the docket the fact that the officer’s return on the original writ was not brought to him until 2 p. m. of July 31st, and that he so entered it on the docket, and that afterwards Mr. Patek procured the erasure thereof “at 2 o’clock p. m.,” and had inserted “10 a. m.,” and that 2 p. m. was correct.

He returns further, in answer to the errors specifically alleged:

(1) That he held the case open from July 27th to July 31st on account of Mr. Patek’s absence, and the officer not having returnéd the writ.

(2) That he dismissed the action July 31st, and made the entries aforesaid in his docket, but permitted the erasure and new entries at Mr. Patek’s request.

(3) That he overruled the motion to- dismiss for the reason that he did not consider the evidence adduced by defendant to be proper, and supposed the erasure of the docket was correct and legal.

(4) That this return is true and correct, and is made in place of a pretended return made and drawn by Mr. Patek, previously delivered by the justice to the clerk of the circuit court, and that he signed such return without reading in full.

Counsel for the plaintiff insists that the only question that can be reviewed is whether the justice erred in denying- the motion to dismiss. He bases this upon the propositions : (1) That all other questions were abandoned at the hearing in the circuit court. (2) That the existing entries upon the docket cannot be contradicted by the justice’s return.

In support of the first of these we are referred to the record (page 22), where we find that the only foundation for the statement is contained in the order of the circuit judge granting a reargument after the judgment. had been reversed. The record hardly justifies that inference, and the fact that the points raised by the errors alleged in the affidavit for certiorari were not made before the justice should not have precluded their consideration at the circuit. “A party may remove a cause by certiorari, although he did not appear before the justice. By neglecting to appear he waives nothing.” Campau, v. Fairbanks, 1 Mich. 152. “Certiorari is the proper proceeding to get rid of a void judgment.” Lake Shore, etc., R. Co. v. Runt, 39 Mich. 469.

A justice’s powers are statutory, and his jurisdiction must affirmatively appear. Without a valid service of the writ or an appearance by defendant, he has no jurisdiction to proceed and render a judgment. Vliet v. Westenhaver, 42 Mich. 593. And the only sufficient evidence of such service is that pointed out by the statute. Manifestly a judgment based upon a return which does not show a valid service would be void, and all proceedings in a case where there has not been a valid service are null. In the present case there was service of the writ to the extent of taking the property and attempting to find the defendant. Before the rendition of the second judgment the return was made, but none was made on the return day. Might the justice, upon his own motion (defendant not appearing), adjourn the case for four days to enable the plaintiff to obtain a return of the writ? The power of the justice to make such adjournment is statutory, and is confined to the time of the return of process or of joining issue. 2 How. Stat. § 6903. The language is not that he may adjourn on the day that the writ 'is returnable, but “at the time of the return,” and he has no power to adjourn without the return of the writ. Had the plaintiff or the justice failed to appear within one hour after the time mentioned in the writ, the proceeding would have abated, under ordinary circumstances. Had the defendant appeared and asked a dismissal of the proceedings, it would have been granted. There was no valid evidence that there had been a service, upon which, jurisdiction depended. Manning v. Johnson, 7 Barb. 457; Brown v. Cady, 19 Wend. 477; Stadler v. Moors, 9 Mach. 268; Ball v. Shank, 57 Mich. 36. We think that there was no authority to proceed with the case without a return, or to adjourn the same, which the act of the justice amounted to, and that the subsequent proceedings were void.

The judgment should be affirmed.

The other Justices concurred.


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    BRAUDY v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroad Companies — Accident at Crossing — Contributory Negligence.
    One who is struck by a train while attempting to walk across, a railroad track is guilty of contributory negligence, precluding a recovery for the injury, where the train was in plain view after he had reached a point six feet from the track.
    Error to Kent; Adsit, J.
    Submitted October 23, 1895.
    Decided November 19, 1895.
    Case by Max Brandy, administrator of the estate of William Koehn, deceased, against the Detroit, Grand Haven & Milwaukee Bailway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant upon verdict directed by the court,, plaintiff brings error.
    Affirmed.

      Gustave A. Wolf, for appellant.

      Geer é Williams (E. W. Meddaugh, of counsel), for appellee.
   Long, J.

Plaintiff’s intestate was killed by a train •upon defendant’s road at its crossing at Grand avenue, in tbe city of Grand Rapids. This action is brought to recover damages upon tbe ground tbat defendant was negligent in not having a flagman or gateman at tbe ■crossing, and tbat it was running its train at a high rate ■of speed without sounding its bell or whistle.

It appears tbat tbe deceased, a man about 48 years •of age, about 5:30 p. m. of January 7, 1895, was walking north on tbe east side of Grand avenue. As be approached the' railroad crossing, bis view was obstructed by a high fence about a wood yard extending along tbe street, until be came to tbe defendant’s right of way, about 55 feet in width before reaching tbe tracks- of defendant’s road. A side track extended along tbe main line upon the side from which decedent was approaching. Upon tbis side track stood two cars, about 50 feet east of Grand avenue; tbe first one a box car about 12 feet high, and tbe other a coal car about 6 feet high.

Tbe plaintiff’s theory was tbat b-y reason of tbis obstruction to decedent’s view be could not see tbe approach of tbe train; tbat be was lured into this place •of danger by tbe failure to ring tbe bell or blow tbe whistle, and tbat as be reached tbe track be probably, ■on the impulse of tbe moment, and under tbe sudden danger in which be was placed, made an effort to cross tbe track, and, by reason of tbe great rate of speed at which the train was approaching, was -struck and killed; and tbat tbe running -of tbe train at a rate of speed from 35 to 40 miles per hour was willful and reckless.

Tbe only witness to the- accident was tbe fireman •on tbe engine, who testified:

“As we approached Grand avenue within a short distance, I saw a man walking across tbe highway leisurely, -seemingly unmindful of what be was doing. When I first saw him be was just stepping inside tbe rail; bad one foot on tbe outside, and making a step forward to -step inside tbe rail, between both rails.”

The track of the defendant’s roa.d at this point was. comparatively straight as it extended eastward, and an appi’oaching train from the east could be seen for a distance of 80 rods as decedent arrived at defendant’s right of way. There was a headlight upon the engine, and the only obstruction to his view was the two cars standing upon this side track. As he passed beyond these cars, it is admitted, there was a space of six feet where his-view was wholty unobstructed by the track, before he reached the rail of the main track; and it is apparent that, had he looked in that direction, he would have seen the approaching train. If he looked and saw the train, he was negligent in attempting to cross in front of it; if he did not look, then he was in fault in going into this place of danger without taking that precaution. The contention that he was lured into the place of danger by the negligence of the company, and would not therefore be in fault if he did not take the necessary precaution to save himself from injury, has no force. It is true that cases have arisen where persons, in driving their teams towards and upon crossings, have been put in a place of danger by the negligence of railroad companies, and that such persons have been permitted to recover upon the theory that they could not be said to be negligent in not taking the least hazard; but that rule is not applicable to this case. Here the decedent was on foot, and was in safety at the point where he passed the two. cars upon the side track, and, as has been stated, had he looked, must have seen the approaching train. The case falls so clearly within the rule of this court in Gardner v. .Railroad Go., 97 Mich. 240, that further discussion is unnecessary. ,

The court below directed verdict and judgment in favor of the defendant, and that judgment must be affirmed.

The other Justices concurred.


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    SPRING v. RANDALL.
    1. Trusts — Rights of Creditors of Beneficiary — Surplus Income.
    2 How. Stat. § 6614, exempting trust funds from the operation of creditors’ bills in cases where the trust has been created by or the trust fund has proceeded from some person other than the defendant, should be construed in connection with 2 How. Stat. § 5575, providing that, when a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum necessary for the support of the eestui que trust, shall be liable in equity to the claims of his creditors, in the same manner as other personal property which cannot be reached by execution; and under said statutes, so construed, the income of a trust fund, payable to a designated beneficiary, is exempt from the payment of his debts only so far as the same is necessary for his suitable support.
    2. Same — Remedy.
    In such case, the court having jurisdiction of the trust estate may direct the trustee to pay a judgment against the eestui que trust out of the surplus income of the fund.
    3. Same — Petition.
    The facts entitling the 'creditor to the relief stated may be as well presented to the court by petition as by original bill.
    Appeal from Kent; Padgliam, J., presiding.
    Submitted October 23, 1895.
    Decided November 19, 1895.
    Petition by Henry Spring against Lewis E. Randall and Marie Yan Zandt Randall to subject the income of a trust estate to the payment of a judgment against the beneficiary. From an order overruling a demurrer to the petition, respondent Marie Yan Zandt Randall appeals.
    Affirmed.

      Smiley, Smith & Stevens, for petitioner.

      Frank L. Carpenter, for appellant.
   Long, J.

This is an appeal from an order overruling a demurrer to a petition filed in the Kent circuit court in chancery. It is shown by the petition that in 1880 the will of Rosalie M. Smith, deceased, was admitted to probate. By its terms, the greater part of the large estate passed to^Ndson w. Northrup, as trustee, who was to invest, manage, and control the same, and out of the proceeds and income to pay the testatrix’s niece, Marie Van Zandt, an annuity of $500 during her life, and also all the income of the estate after complying with certain minor directions in the will. The income was to be. paid quarterly. On the death of Marie Van Zandt, the entire estate was to go to her lawful heirs, or to whomsoever she might appoint by will. Mr. Northrup acted as trustee from 1880 to December, 1892, when the court made an order accepting his resignation, which was made in consequence of dissatisfaction between him and Miss Van Zandt, and appointed Lewis E. Randall as his successor, and determined that the amount of money due from Mr. Northrup to his successor was $21,820, and specified also the real estate to be conveyed to his successor. Lewis E. Randall accepted the appointment, and filed a bond with the register. The moneys were paid over, and the estate conveyed to him, and he has continued to act as trustee since that time.

The petitioner, Henry Spring, is a dry-goods merchant in Grand Rapids. In July, 1888, he began furnishing Marie Van Zandt with wearing apparel and other necessaries, on credit, and continued so1 to do until November, 1892; and the petition states:

“ All said wearing apparel and other necessaries were furnished the said Marie J. Van Zandt at a time when she represented herself to be unable to pay cash therefor by reason of the litigation then pending between herself and the said Nelson W. Northrup concerning the financial affairs of said estate, and that the said Marie J. Van Zandt promised and agreed with your petitioner from time to time to pay for said wearing apparel and other necessaries out of the income of said estate as soon as she should receive the same and be able so to do.”

At divers times after the appointment of the new trustee, Mr. Spring applied to Miss Van Zandt for payment of the goods she had obtained from him, but she never paid. In February, 1894, he placed the claim in judgment, and had an execution issued, and the sheriff made diligent efforts to collect, soliciting payment personally from the debtor, but no payment wa§ made, and the sheriff subsequently made return that he was unable to find any property.

After the appointment of Lewis E. Randall as trustee, he ánd Marie Van Zandt were married; and it is alleged that they are combining and confederating to prevent the collection of Mr. Spring’s judgment; that the trustee holds $21,000 in money and $10,000 in real estate, the income of which all belongs to his wife, the debtor, Marie Van Zandt Randall, and the income of which is sufficient to enable her to pay the debt; but that she is making no effort to do so, and is purposely withholding the amount; and that her husband, the trustee, is assisting her in so doing. It is alleged that there is no remedy at law by which the payment can be enforced, and that petitioner is entitled to payment out of the income of the estate. The prayer of the petition is: (a) That the trustee and the beneficiary be cited to appear, eta; (1>) that the trustee be directed to pay the judgment “ at such time or times and in such manner as by this court shall be" directed;” (o) that the amount so paid by the trustee be charged against the beneficiary in the account of the trustee; and (d) for general relief.

It is contended by the appellant that there is no equity in this petition, in that, by the terms of the will, the testatrix intended to create a fund beyond the control of the beneficiary, the income only of which should be used for her personal maintenance and support during life, and not be taken in payment of debts contracted by her or through charges against her; that the property is bequeathed directly to the trustee, giving him title and possession; and that such trustee is directed to invest, manage, and control it, and pay the income to the beneficiary during life, but he is not authorized to pay it to her creditors or assigns. It is also contended that the remedy, if any, could be enforced only by original bill.

Section 5575, 2 How. Stat., provides:

“When a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person, in the same manner as other personal property which cannot be reached by an execution at law.”

By the terms of the will by which the trust in this case was created, there is a direction that the surplus shall be paid to the beneficiary. The statute above quoted was taken verbatim from the New York statute; and in Williams v. Thorn, 70 N. Y. 270, and in Tolles v. Wood, 99 N. Y. 616, the points raised by the appellant here were fully decided, and it was held that, where a judgment debtor is ihe beneficiary of a trust by which the trustee is required to receive and pay over to him the income of the trust estate, an action may be maintained by a judgment creditor, after the return of an execution unsatisfied, to reach the surplus income beyond what is necessary for the suitable support and maintenance of the beneficiary; that the right of the creditor to maintain such an action •exists as well where the trust estate is personal as where it is real property; that the remedy of the creditor i-s not confined to the surplus which has accrued and accumulated in the hands of the trustee, but that the court may determine what may be a reasonable allowance for the beneficiary, and direct the application of any future surplus to the payment of the judgment until it is fully paid; that the statute exempting from the operation of crediters’ bills trust funds when tbe trust has been created by or the trust fund has proceeded from some person other than the defendant is not in conflict with the statute providing that the surplus income of the trust estate shall be liable in equity to the claims of creditors; that the two statutes, which are similar to our own sections 6614 and 5575, are to be construed together, and are intended to exempt the principal fund and the beneficial interest of the beneficiary in the income only to the extent of a fair support out of the trust estate. . In Tolies v. Wood, the court held, further, that the creditor of such a beneficiary acquires a lien upon the accrued and unexpended surplus income arising from such fund, superior to the claims of general creditors or assignees of the beneficiary, by the commencement of an action in equity to reach and appropriate it to the satisfaction of his judgment.

In Nichols v. Levy, 5 Wall. 441, Mr. Justice Swayne, delivering the opinion of the court, said:

“ It is a settled rule of law that the beneficial interest of the cestui que trust, whatever it may be, is liable for the payment of his debts. It cannot be so fenced about by inhibitions and restrictions as to secure to it the inconsistent characteristics of right and enjoyment to the beneficiary and immunity from his creditors. A condition precedent that the provision shall not vest until his debts are paid, and a condition subsequent that it shall be divested and forfeited by his insolvency, with a limitation over to another person, are valid, and the law will give them full effect. Beyond this, protection from the claims of creditors is not allowed to go.”

The rule laid down in Perry, Trusts, § 815», and in Pom. Eq. Jur. § 989, states that the cestm que trust cannot hold and enjoy his interest entirety free from the claims of creditors, and that, in the absence of special circumstances, the creditor can attach the beneficiary’s interest in the hands of the trustee.

This application is made simply to reach the surplus income of this trust fund, and we think it sets up equitable grounds for the relief sought. No personal decree is asked against either party, nor is a lien sought to be established upon any property. The relief asked is a direction to the trustee to pay the claim out of the surplus fund, and that is entirely within the province of the court having jurisdiction of the trust estate.

We think it is proper to present the case by petition rather than by original bill. In Southern Mich. Nat’l Banto v. Bytes, 67 Mich. 306, in disposing of a similar question, it was said:

“ There is really no reason why the alleged grievance may not as well be heard upon the petition as upon a bill. The facts upon which the relief is based and asked and information desired can as well be stated and presented in the petition as in a bill, and the rights of all the parties can as well be protected in the one as in the other.”

We think the court below properly overruled the demurrer, and the proceeding will be remanded to the court below, for further action there.

The other Justices concurred.