text:
    PENINSULAR SAVINGS BANK v. CURRIE.
    Partnership — Evidence—Question for Jury.
    Evidence tliat defendant was introduced to one of the directors of plaintiff bank as a member of the firm which executed the note in suit; that letter-heads used by such firm designated him as a partner; that he said in a letter that he would not consent to the purchase of certain bonds by the firm; that he signed the firm name to a letter written to a bank, announcing that he was a member of the firm, and authorized to sign checks and transact business; and that he drew up a statement, taken from the books of the firm, showing his share of the profits, — was sufficient to go to the jury on the question of his membership in the firm.
    Error to Wayne; Donovan, J.
    Submitted April 4, 1900.
    Decided April 24, 1900.

      Assumpsit by the Peninsular Savings Bank against Cameron Currie upon a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Elliott 6r. Stevenson and Leo M. Butzel, for appellant.

      Thomas 8. Jerome (Henry M. Duffield, of counsel), for appellee.
   Long, J.

This action was brought on a promissory note of $34,000, made by J. V. Campbell & Co. to the plaintiff. The plaintiff claims that Cameron Currie was a partner in that firm at the time the note was made and discounted by the bank. The defendant pleaded the general issue, and gave notice of certain special defenses, and attached to his plea an affidavit denying the execution of the note. The defendant introduced no testimony on the trial of the cause, and the court directed the verdict in favor of defendant after the close of plaintiffs testimony, on the ground, among others, that there was no evidence given by plaintiff that Mr. Cameron Currie was a member of the firm of J. V. Campbell & Co. at the time the note in question was given.

In this, we think, the court was in error. We think there was some evidence given which had a tendency to show a partnership. It appears that a copartnership had been in existence for some considerable time prior to the giving of this note between James Y. Campbell and Henry M. Campbell, in which Henry M. Campbell was a special partner. It is claimed by plaintiff that this partnership had been dissolved by mutual consent on December 1, 1891. The note in controversy was given on August 11, 1892, and, as plaintiff claims, while Cameron Currie was a member of the firm. On the other hand, it is claimed by counsel for defendant that Mr. Currie was not a partner, but a creditor, of J. Y. Campbell to the amount of $20,000, which amount he had loaned to Campbell on December 1, 1891; that at that time he intended to form a partnership with Campbell, but subsequently concluded not to do so, but, with Campbell’s consent, he kept •an oversight over and had charge of the business until July, 1892, when he received his $20,000 back which he had loaned to Campbell. The plaintiff’s testimony tended to show, however, as we think, that Currie was a partner at the time the note was given. It appears that in the fall of 1891 Mr. Currie was introduced to Mr. Howard, one of the directors of the plaintiff bank, as a partner in the firm of J. Y. Campbell & Co. Letter-heads were printed and in use by J. Y. Campbell & Co. during the year 1892, in which Mr. Currie was designated as a partner in the firm. At the time the note in question was given, certain bonds were placed with plaintiff as collateral to the note. Mr. Currie wrote one Mr. Langdon, March 27, 1894, in reference to these bonds, stating: “The bonds were not purchased by J. Y. Campbell & Co. I would not consent to anything of the kind.” But, aside from these matters, we find a letter written by Mr. Currie to the State Savings Bank, which clearly states the relations of the parties, as follows:

“Detroit, Mich., Dec. 24, 1891.
“ State Savings Bank,
“Detroit, Mich.
Gentlemen: Mr. Cameron Currie, now a member of this firm, is authorized to sign checks, and to transact any business pertaining to the firm.
“Yours, etc.,
“ J. Y. Campbell & Co.
“J. Y. Campbell & Co.”

The signature in the lower left-hand corner is in the handwriting of Mr. Currie. In addition to this, there was introduced in evidence a statement in the handwriting of Mr. Currie, taken from the books of J. Y. Campbell & Co., showing the profits of the business during the time it is claimed Mr. Currie was associated with that firm. One of the witnesses for plaintiff testified that he had been the bookkeeper for J. Y. Campbell & Co., and that the paper produced was a rough statement of the profits of the business of J. Y. Campbell & Co., prepared by Mr. Currie. It was marked in some places with the initials “ C. O. -}; ” and Mr. Osborne testified that this “C. C. %” indicated “Cameron Currie, one-half of the profits,” and that “balance due C. C.” meant “balance due Cameron Currie.”

We think the question whether Currie was a partner with J. Y. Campbell was one for the jury.

The judgment must be reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    COMMISSIONER OF RAILROADS v. WABASH RAILROAD CO.
    1. Railroad Companies — Passenger Rates —Mail and Express Receipts — Gross Earnings.
    Under Act No. 90, Pub. Acts 1891, requiring railroad companies “the gross [annual] earnings of whose passenger trains,” as reported to the commissioner of railroads, exceed §2,000 and are less than §3,000 per mile of road operated, to carry passengers for 2-J- cents per mile, receipts from the mail and express service, as well as passenger fares, are to be included in computing the gross earnings of such trains.
    2. Same — Interstate Commerce — Constitutional Law.
    Act No. 90, Pub. Acts 1891, which fixes a maximum charge for the transportation of passengers on the different railroads of the State, is held to relate to domestic commerce only, and it is therefore not unconstitutional as an attempted regulation of interstate commerce.
    3. Same — Mandamus—Burden op Proof — Appeal.
    Where, on the face of the report of a railroad company, its passenger earnings within the State were in excess of §2,000 per mile of road operated, and it was directed by the commissioner of railroads to reduce its fares accordingly to 2£ cents per mile, such company had the burden of showing, in mandamus proceedings to compel it to make such reduction, that items of interstate commerce sufficient to bring the amount below §2,000 were erroneously included in the report, and, having contented itself with alleging that there were such items, without showing the amount, it could not have the question reviewed upon appeal.

      Certiorari to Wayne; Frazer, Waite, and Carpenter, JJ.
    Submitted April 4, 1900.
    Decided April 24, 1900.

      Mandamus by Chase S. Osborn, commissioner of railroads, to compel the Wabash Railroad Company to reduce its passenger rates. From an order denying the writ, relator brings certiorari.

    Reversed.

      The respondent; in its annual report of its income for the year ending December 31, 1898, reported:
    1. Total passenger fares.______________________§141,922 00
    2. Express___________________________________ 7,195 26
    3. Mails______________________________________ 9,367 33
    4. Other sources.............................. 5,587 67
    Total.....................................§164,072 26
    Amount per mile of road______________________ §2,038 16
    The statute passed in 1891 provided that the compensation of railroads for transporting passengers should be :
    “For a distance not exceeding five miles, three cents per mile; for all other distances, for all companies the gross earnings of whose passenger trains, as reported to the commissioner of railroads for the year one-thousand eight hundred and eighty-eight, equaled or exceeded the sum of three thousand dollars for each mile of road operated by said company, two cents per mile, and for all companies the earnings of whose passenger trains, reported as aforesaid, were over two thousand and less than three thousand dollars per mile of road operated by said company, two and a half cents per mile,” etc. Act No. 90, Pub. Acts 1891.
    In this section is a proviso “that roads in the Upper Peninsula which report, as above provided, passenger earnings exceeding three thousand dollars per mile, shall not charge to exceed three cents per mile,” etc.
    Under this law and report, relator notified the respondent it would be required to carry passengers at the rate of 2£ cents per mile above five miles. The respondent refused, whereupon this petition was filed for the writ of mandamus to compel respondent to charge as directed by the relator.

      Horace M. Oren, Attorney General, for relator.

      Alfred Bussell, for respondent.
   Grant, J.

(after stating the facts). The learned counsel for the respondent contends;

1. That the law includes passenger fares alone, and excludes earnings for the transportation of express and mails.

2. That the statute is void, as a state regulation of interstate commerce.

The language, “the gross earnings of whose passenger trains,” standing by itself, is susceptible of but one construction. A passenger train consists of its passenger, baggage, express, and mail cars. It would do violence to the plainest rules of construction to hold that its gross earnings did not include the receipts from each source of income. The language is too plain to be changed by other expressions of the statute to which this act was an amendment, or by the subsequent term, “passenger earnings,” used in the act itself in the provision for roads in the Upper Peninsula. There would be some force in holding that the former controls the latter, but we are unable to see any force in the claim that the latter controls the former. A similar attempt was made to thus change the express language of a statute in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), but we held that it could not prevail.

Two other facts tend strongly to sustain this construction, and to show the intent of the legislature in using this language: (1) Contemporaneous construction. Immediately after the passage of the act, both the railroad companies and the railroad commissioner adopted this construction. These items were included in the amount upon which the Grand Trunk Railway was compelled to reduce its fare to 2 cents per mile. Wellman v. Railway Co., 83 Mich. 592 (47 N. W. 489), 143 U. S. 339 (12 Sup. Ct. 400). Evidently the officers of the road so interpreted the law, or they would have contested the case on that ground. Other like instances will be found in the reports of the railroad commissioner. (2) For a number of years prior to the passage of the act, railroad earnings were reported under two heads, “Passenger Earnings” and “Freight Earnings.” In the former were included earningsfrom “ passenger fares, express, baggage, and mails.” Courts will assume that the legislature was familiar with those reports, and used the term “earnings from passenger trains ” with the meaning that had thus been given to it. We think the court below erred in its holding.

The report filed by respondent, and upon which the order of the commissioner is based, is marked, “Analysis of Income in the State of Michigan — Passenger Income.” Then follow the figures above given. It is the established rule that States may regulate fares of railroads within their territory, based upon their domestic commerce. State Freight Tax Case, 15 Wall. 232; Louisville, etc., R. Co. v. Railroad Commission of Tennessee, 19 Fed. 679; Wabash, etc., R. Co. v. Illinois, 118 U. S. 557, 564 (7 Sup. Ct. 4); Carton & Co. v. Railroad Co., 59 Iowa, 148 (13 N. W. 67, 44 Am. Rep. 672). This statute can be held to include only domestic commerce, and is therefore valid. On the face of the report, only domestic earnings are included. Respondent, in its answer, alleges that the “$141,922 reported by the respondent as aforesaid includes, not only its receipts from passenger fares between points in Michigan (that is to say, way or local fares), but also includes an aliquot or proportionate part for Michigan of receipts from passenger fares between points in Ohio, Indiana, Illinois, Missouri, Michigan, and Canada (that is to say, through or interstate fares).” But it has failed to show the amount of such interstate fares earned in Michigan. It is not, therefore, in position to raise this question, since the burden of proof was upon it to show that it had erroneously included sufficient items coming within the rule of interstate commerce to reduce its earnings below $2,000 per mile. We are not, therefore, called upon to decide whether such earnings can be included in the computation.

Judgment reversed, and entered in this court for the relator.

The other Justices concurred.


author: Montgomery, C. J.

text:
    GARDNER v. GARDNER.
    1. Homestead — Title—Oral Contract to Purchase.
    The homestead right may attach to property occupied and improved by husband and wife under an oral agreement to purchase.
    3. Same — Abandonment.
    Removal from the homestead, and absence of two years, without intent to abandon it, do not bar the right.
    3. Same — Surrender by Husband — Rights of Wife.
    The homestead right of the wife is not lost by the husband's deserting her, or by his surrendering, without her consent, the contract of purchase under which they hold.
    Appeal from Ingham; Person, J.
    Submitted April 6, 1900.
    Decided April 24, 1900.
    Bill by Orinda Gardner against James B. Gardner, William S. Holmes, and another, to establish a homestead in certain land. From a decree for complainant, defendants appeal.
    Affirmed.

      Lawton T. Hemans, for complainant.
    ' L. B. Gardner, for defendants.
   Montgomery, C. J.

This is a bill filed by complainant to establish a homestead in 10 acres of land. In 1887 or 1888 defendant James B. Gardner held 20 acres of land on contract. He entered into an oral agreem.ent with his son .Charles Gardner, the complainant’s husband, to sell him 10 acres of this 20 at the price of $337.50, to be paid at the convenience of Charles Gardner. Charles and the complainant occupied the 10 acres as their homestead under this parol contract of purchase until August 1, 1891, when a written contract was signed by James B. Gardner to take the place of the verbal one. In this contract, receipt of payment of $300 is acknowledged, and the payments since made leave but $75 unpaid. Charles Gardner during his occupancy made certain improvements. In August, 1891, complainant and her husband removed to Lansing, where the husband was employed as a salesman of musical instruments. The record shows that Charles Gardner' became involved, that the defendant James B. Gardner became surety for him, that Charles undertook to surrender the contract to his father, and that in 1893 the defendant James B. Gardner conveyed the 10 acres to defendant Holmes in payment of a liability incurred through the default of Charles. Both the surrender of the contract and the conveyance to Holmes were without complainant’s assent. Complainant in 1893 returned to occupy the homestead. The circuit judge found for complainant, and defendants appeal.

We have no doubt that the homestead right attached to this property. Lamb v. Hinman, 46 Mich. 113 (8 N. W. 709). The question of whether there was an intention to abandon the homestead was one of fact, and this the circuit judge determined in favor of complainant. We are satisfied that he reached the correct conclusion. Kaeding v. Joachimsthal, 98 Mich. 78 (56 N. W. 1101). The fact that complainant’s husband had deserted her does not bar complainant’s rights. Rogers v. Day, 115 Mich. 664 (74 N. W. 190, 69 Am. St. Rep. 593). Nor could the surrender or conveyance by the husband have that effect. Id.

It is claimed that the defendant Holmes is entitled to protection as an innocent purchaser. We think the evidence justifies the inference that he had notice of such facts as put him on inquiry as to the complainant’s rights.

The decree will be affirmed.

The other Justices concurred.


author: Long, J.

text:
    PEAKE v. YULE
    1. Mutual Insurance — Cancellation of Policy — Member’s Liability.
    A member of a mutual fire-insurance company is liable, on surrender of his policy, for his proportionate share of all losses and expenses sustained by the company while the policy was in force, including a deficiency which has arisen through failure to collect from irresponsible members their share of an assessment theretofore made to meet such expenses and losses.
    2. Same — Subsequent Assessments.
    Where an assessment made against one who has previously surrendered his policy is insufficient to cover his proportion of the liabilities of the company existing at the date of such surrender, a second assessment, made for that purpose by a receiver, may properly include a proportionate share of a deficiency arising through failure of irresponsible members to pay like assessments for such liabilities, made subsequent to the cancellation of the policy.
    3. Same — Effect of Receipt in Full.
    The liability of a member of a mutual fire-insurance company upon an assessment duly levied is not affected by the fact that, on paying a former assessment for the same purpose, he was given a receipt purporting to be “ in full of all demands. ”
    Error to Ionia; Davis, J.
    Submitted April 6, 1900.
    Decided April 24, 1900.

      Assumpsit by J. Warren Peake, receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire-Insurance Company, against E. N. Yule, to recover an assessment on a policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clement Smith, for appellant.

      George JE. Nichols, for appellee.
   Long, J.

This action was commenced February 25, 1898, to recover an assessment made by plaintiff as receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire Insurance Company. The bill of particulars is as follows:

“To amount due on assessment on policy No. 5,065 for all losses and expenses of the company sustained between the 1st day of January, 1890, and June 16, 1893_______________J....................§41 99
“ Contra.
“ By cash paid on assessment of 1891________ §11 40
“By cash paid on assessment of 1893.... 9 50
“ By cash paid on assessment of 1898________ 8 80
“Total, together with interest thereon since date of payment respectively________________ 85 77
“ Leaving balance due of____________________ §6 22
“Together with interest thereon since November 1, 1897, at 6 per cent.”

Defendant pleaded the general issue, and gave notice that he would show on the trial that he had not been a member of the company since June 16, 1892, and could not legally be sued; that he had not been indebted to the company since the cancellation of his policy; and that on November 5, 1894, he paid the plaintiff, who was secretary of said company, $7.60, in full settlement of all demands, and received a receipt which so stated.

The cause was tried before the court without a jury, and findings of fact and law were filed. The court found, among other matters, as follows:

“ Fourth. That said receiver made a careful examination of the books of said company, and ascertained that said company duly paid and liquidated all of its losses and expenses from the time of its organization up to the 1st day of January, 1890, from moneys arising from assessments ordered and levied by the board of directors of said
“Fifth. That the losses for the year 1890 were $8,556.95, and the expenses for that year $2,134.90; and for the year 1891 the losses amounted to the sum of $4,651.32, and the expenses to the sum of $2,286.89; for the year 1892, losses, $1,865.47, and expenses, $2,577.17; for the year 1893, losses, $2,549.92, and expenses, $2,113.51; for the year 1894, losses, $2,785.26, and expenses, $2,667.08; for the .year 1895, losses, $3,194.29, and expenses, $2,013.39; and for the year 1896, up to and including the 1st day of May, 1897, the losses were $2,194.47, and the expenses $1,936.71. That there was received froni assessments during the year 1891 the sum of $9,832.25, from the assessment of 1892 the sum of $7,056.40, from the assessment of 1893 the sum of $3,389.65, from the assessment of 1894 the sum of $3,439.37, from the assessment of 1895 the sum of $2,826.87, and from the assessment of 1896 the* sum of $3,067.56; which said sums have been applied in payment of money borrowed for the purpose of liquidating said losses and expenses at the time the same became due, or thereabouts, so far as the same was sufficient so to do.
“Sixth. That the defendant was insured in said company for the sum of $3,800.
“Seventh. That the assessment of 30 cents on each $100 for losses and expenses for the year 1890 was made in January, 1891, and defendant paid his assessment.
“Eighth. That an assessment of 25 cents on each $100 for losses and expenses for the year 1891 was made in January, 1892, and defendant paid his assessment.
“Ninth. That defendant’s policy was canceled on June 16, 1892, at the office of the company at Ionia, Michigan, at which time he paid to the secretary of .said company as follows: Assessment of 1892, $9.50.
“Tenth. That defendant has not been a member of said company since his cancellation, and was not a member at the time the receiver was appointed, nor at the time this suit was commenced. That an assessment of 20 cents on each $100 for losses and expenses for the year 1892 was made in January, 1893. Defendant was assessed 10 cents on each $100 insured as the amount of his liability to the date of cancellation, which he paid.
“Eleventh. That defendant was not assessed for losses and expenses for the years 1893, 1894, and 1895, although assessments were made upon members of said company for these years.
“Tioelfth. That July 31, 1894, defendant was assessed for deficiency in assessment of 1890 and for the Van Alstine and Towle losses, which occurred in 1889, and which had been in litigation. This assessment, all told, was $13.30, and he was given credit for $5.70 paid on deficiency of 1890 at the time of the cancellation of his policy, June 16,1892, leaving a balance of $7.60, which he paid to Mr. Peake, secretary of said company, at his office in the city of Ionia, on the 5th day of November, 1894, and took therefor a receipt reading as follows:
“‘§7.60. ' Nov. 5, 1894.
“ ‘Received of E. N. Yule for assessment payable in August, 1894, for unassessed losses and expenses in 1890, the Van Alstine and Towle losses, expenses, and interest, etc., by the Ionia, Eaton & Barry Farmers’ Mutual Fire Insurance Company, seven and 60-100 dollars, in full of all demands.
“ ‘No. 5,065. J. Warren Peake, Sec.’
“Thirteenth. That the losses and expenses from the 1st day of January, 1896, to the 1st day of May, 1897, have never been assessed or levied against the membership of said company; and that the same amount to the sum of $4,700, or thereabouts; and that the balance due and owing by said company, arising from insufficient assessments in previous years, . and failures to collect from irresponsible members, or parties who have refused and neglected to pay the amount so assessed against them, left a total .indebtedness, at the date of the assessment of said receiver, of about $11,680.09.
“Fourteenth. That on the 21st day of June, 1897, an order was made in said matter, based upon the petition of the receiver, setting forth the facts and circumstances, wherein and whereby the receiver was ordered and directed to levy an assessment, to be known as ‘Receiver’s Assessment Number One,’ which said assessment should fix the liability of each person or member insured in said company for the losses, expenses, and interest thereon during the period that said person or member was a member of said company, and deducting from the amount of such liability all such sums as such person or member may have before that time paid upon any former assessments, or otherwise, in liquidation of such liability or indebtedness of su.ch company, together with the interest thereon from the date of such payment until the 1st day of October, 1897, thus showing the amount due October, 1897, from each member or person insured in said company, according to the amount insured, and upon exactly, or as near as may be, an equitable and pro rata basis ; and that, in pursuance of said order, said receiver proceeded to and did levy his assessment in accordance therewith.
“Fifteenth. That in pursuance of said order the said receiver ascertained that the defendant was indebted to him, as such receiver, in the sum of $6.22 for losses and expenses which occurred while he was a member of said company, on account of the policy hereinbefore mentioned; and that, after making said assessment, the receiver gave the notice as required by section 17, Act No. 82, Laws 1873, by publishing in the Hastings Herald, the Ionia Express, and the Charlotte Leader, weekly newspapers printed, respectively, in Barry, Ionia, and Eaton counties, once in each week for three successive weeks, a general notice, wherein was stated the aggregate amount assessed in said company.
“Sixteenth. That the entire assessment from January 1, 1890, to June 16, 1892, the date of the cancellation of defendant’s policy, was insufficient to cover the losses and expenses by $899.90, and the defendant’s pro rata share, under his policy, during the period, for actual liability for nonassessment, is $2.02; that the failures to collect existing- at the date of the cancellation of defendant’s policy, added to the actual failures to assess, created a deficiency of $2,699.90; that the defendant’s liability, both from failure to collect and for nonassessment, prior to his cancellation, amounts to $6.06, and the amount of liability existing for failure to collect since the cancellation of his policy is 16 cents.
“I therefore find, under the foregoing facts, that the defendant is liable to the plaintiff, as a matter of law, in the sum of $6.44 for damages, with costs to be taxed, and that a judgment be so entered.”

Judgment was entered for this amount, together with the costs, amounting to $47.34. Exceptions were taken to these findings, and to the refusal of the court to find as requested by defendant. The defendant asked the court to find as stated in his sixth, seventh, ninth, and twelfth requests, as follows:

“Sixth. The assessment of 30 cents on each $100 for losses and expenses for the year 1890 was made in January, 1891, and defendant paid his assessment, the same being his proportionate share, based upon the amount of his insurance, for the losses and expenses for the year 1890.
“Seventh. Said assessment made in 1891 was sufficient, if paid by .the then members and policy holders, to pay all losses and expenses for the year 1890.”
“Ninth. Said assessment so made in 1892 [see eighth finding, supra] was sufficient, if paid by the then members and policy holders, to pay all losses and expenses for the j’ear 1891.”
“Twelfth. This assessment of 20 cents, on each $100 insured [see tenth finding, supra], if paid by the then members and policy holders, was sufficient to pay all losses and expenses for the year 1892, and the assessment of 10 cents made upon the policy of defendant was sufficient to pay his share of the losses and expenses of said company from the 1st day of January, 1892, to the 16th day of June, 1892, the date of his cancellation.”

It is contended by counsel for defendant that the statute under which the receiver gets his authority provides for his collecting the assessments from members; and that defendant, not being a member of the company at the time the assessment was made or at the time suit was commenced, could not be made liable in this action. Counsel cites Tolford v. Church, 66 Mich. 441 (33 N. W. 913). Counsel is in error in supposing that, because defendant’s policy had been canceled before this suit was commenced, he could not be proceeded against for the claim here sued upon. It was expressly held in Ionia, etc., Ins. Co. v. Otto, 96 Mich. 561 (56 N. W. 88), that a member could not, by a surrender, escape liability for such obligations as might lawfully be made the subject of assessment at the time of the surrender. It was also said in that case that this principle did not conflict with Tolford v. Church, supra, “ where the trial court expressly found, as a matter of fact, that the defendant had paid more than his proportionate share of the liabilities of the company at the time of the surrender of his policy for cancellation, although a deficiency arose later through failure to collect.” The Otto Case is referred to in Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 610 (59 N. W. 250, 32 L. R. A. 485). It was there said: certain losses and expenses, subsequent assessments, made necessary by a failure to collect, could not be levied upon those whose policies had been canceled previous to the former assessment. But it was plainly intimated in that case that a member could not avoid his liability upon accrued losses and expenses by cancellation and payment of assessments theretofore made. He who insures obligates himself to pay a proportionate share of the losses and expenses for the period during which he is insured; and, as said in the Otto Case, if the liability has not been covered by assessment, it continues, though he may have meanwhile ceased to be a policy holder. Much can be said against the doctrine that such member should not be liable for deficiencies arising from failure to collect assessments, but we think that question settled by authorities cited in the Otto Case. We consider it clear, however, that, until the assessment has been once made, the liability continues. The Otto Case expressly states that the Towle and Yan Alstine losses were existing liabilities at the time of their occurrence. We think it cannot be said that the managers of a company of this kind can relieve present policy holders and burden future ones by delay in adjusting or by litigating losses. These losses were a part of the legitimate cost of insurance for that year, whenever and however adjusted. The subject was again alluded to, and the validity of these claims recognized, on motion for rehearing of the Otto Case, 97 Mich. 522 (56 N. W. 755).”

“Questions arising over matters involved in this case were considered in the case of Ionia, etc., Ins. Co. v. Otto, 96 Mich. 558 (56 N. W. 88), and it was there held, in substance, that, where an assessment was made to cover

It is also contended by counsel that the defendant had a receipt in full, and that, in the absence of mistake, or fraud, or duress, or undue influence, it is conclusive; that there was a disagreement between defendant and Mr. Peake at that time, and Mr. Peake gave the defendant to understand that, if this claim was paid, no other claim would be made against him; and that with this understanding the defendant paid the amount demanded. As we understand the record, there is no question but that, at the time the defendant made the settlement with Mr. Peake, it was understood that the amount paid would settle the claims against the defendant in full. This was on November 5, 1894, the amount paid being $7.60, and the receipt specifying that it was “for assessment payable in August, 1894, for unassessed losses and expenses in 1890, the Van Alstine and Towle losses, expenses, and interest, etc.,” and that it was given “in full of all demands.” The court below found, however, that there were certain losses “arising from insufficient assessments in previous years, and failures to collect from irresponsible members, or parties who have refused and neglected to pay the amount so assessed against them;” that on the 21st day of June, 1897, an order was made in said matter, based upon the petition of the receiver, setting forth the facts and circumstances, wherein and whereby the receiver was ordered and directed to make an assessment, to be known as ‘ ‘ Receiver’s Assessment Number One; ” that this assessment was to fix the liability of each member of the company during the time such person was a member, after deducting all sums theretofore paid. Upon this computation the court found the amount due from the defendant was $6.44. It was said in Ionia, etc., Ins. Co. v. Otto, 96 Mich. 561 (56 N. W. 88), that:

“The principle deducible is that a member cannot, by surrender, escape liability for such obligations as might lawfully be made the subject of assessment at the time of his surrender. We think we can see how any other rule would be oppressive upon other members, and might subject the more careless or ignorant members to loss through the withdrawal of the shrewder ones, who, by a show of litigation, might postpone assessments.”

It was found by the court that, as to the defendant here, he was liable for nonassessments $2.02. It was also found by the court that there was a failure to collect assessments made prior to defendant’s withdrawal; that this amount, added to the amount arising from failure to assess, made a total of $6.06. In Wardle v. Townsend, 75 Mich. 385 (42 N. W. 950, 4 L. R. A. 511), some language was used which at first might seem to imply that no future assessment could be made after one assessment had been made. That, we think, was not intended. That question was not involved in that case, but Mr. Justice Champlin was arguing the necessity for the receiver to make a somewhat liberal allowance for which assessment should be made, so that no future one would be necessary to meet the amount required if certain of the members failed to pay. In the present case the defendant did not pay all the existing liabilities at the time his policy was canceled.' There was $2.02 which had- not been assessed against him, and there was also a liability of $4.04 on failures to collect on assessments for losses which occurred before the date of cancellation.

We think defendant must be held liable for the 16 cents which the court charged against him, which arose from failure to collect from irresponsible members after the date of the cancellation of his policy. The underlying principle of all insurance is complete indemnity for all losses insured against. The receiver attempts to pay all such losses in full, and, in order to do so, must collect from responsible members an amount sufficient to meet such demands. There can be no difference between an assessment laid by the receiver and one made by the company itself. Section 17 of the act under which the company was organized provides that the receiver—

“ Shall at once proceed to assess upon all of the members and persons insured in such company such sums of money as will in the aggregate be sufficient to pay all the losses and liabilities of said company, together with the services and expenses of such receiver.” Section 17, Act No. 82, Laws 1873 (2 Comp. Laws 1897, §.7282).

In Russell v. Berry, 51 Mich. 290 (16 N. W. 652), the court, in speaking of this section, said:

“ It declares that the receiver shall at once proceed to assess upon all the members and persons insured in such company * * *, and power is given to enforce collection by action in the circuit court, and also to reassess as often as necessary. No reference is made to undertakings, nor to the state of account in regard to prior assessments or former payments. No exception is made nor qualification expressed, nor is any discretion given. The terms are imperative. The law is now dealing with the company when it has become insolvent and is being wound up in chancery.”

We think .the court below was not in error in his findings or in the judgment entered. Judgment must be affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    PEAKE v. FULLER.
    Mutual Insurance — Insolvency op Company —Receiver’s Assessment-Members’ Liability — Limitations.
    . Under 2 Comp. Laws 1897, § 7282, providing that the receiver of an insolvent mutual fire-insurance company shall proceed at once to assess upon the members and persons insured a sum sufficient to pay all the losses of the company together with the expenses of the receivership, the statute of limitations does not begin to run against the members’ liability until the assessment is made.
    Error to Ionia; Davis, J.
    Submitted April 10, 1900.
    Decided April 24, 1900.

      Assumpsit by J. Warren Peake, receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire-Insurance Company, against George S. Fuller, to recover an assessment on a policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clement Smith, for appellant.

      George E. Nichols, for appellee.
   Per Curiam.

The facts in this case are like the facts in Peake v. Yule, ante, 675 (82 N. W. 514), and that case is controlling of the present, except one other question is here raised. It is claimed by the defendant that the action is barred by the statute of limitations. We think not.' That question is controlled by the case of Wardle v. Hudson, 96 Mich. 432 (55 N. W. 992). The statute did not begin to run until the time the assessment was made. See Smith v. Bell, 107 Pa. St. 352.

The judgment must be affirmed.


text:
    CAVANAGH v. CONNON.
    Mutual Insurance — Assessment—Settlement.
    The fact that a policy holder in a mutual fire-insurance company, after he had canceled his policy, was sued on an assessment for losses and expenses incurred during the life of his policy, and settled such claim, is not a defense to an action brought against him by the receiver of the company on an assessment to cover a deficiency in the sum necessary to pay such losses and expenses, resulting from the fact that the former assessment included persons who were not liable thereon.
    Error to Alpena; Kelley, J.
    Submitted April 3, 1900.
    Decided April 24, 1900.

      Assumpsit by Joseph Cavanagh, receiver of the Alpena, Alcona & Montmorency Farmers’ Mutual Fire-Insurance' Company, against Alexander Connon, to recover an assessment on a policy. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Joseph Cavanagh, in pro. per.

      J. H. Cobb, for appellee.
   Long, J.

Plaintiff commenced this action as receiver for the Farmers’ Mutual Fire-Insurance Company of Alpena, Alcona, and Montmorency Counties against the defendant, a member of the company. It was contended by counsel for plaintiff that, in order to pay the liabilities for the year 1894, it was necessary to make an assessment, and that the proportion of that assessment of defendant amounted to $14.33, and that this amount should be paid before defendant could withdraw from the company. The court charged the jury on the claim made by the defendant as follows:

“On the other hand, the defense is, or the defense sought to be brought forward here is, that in 1895 Mr. Oonnon attempted to withdraw from this association; and I instruct you here that under the law no one, after having joined the association, — this mutual association, — can withdraw until he has discharged all his liabilities, and, so long as there is any just indebtedness of the company, he could not surrender his policy, and withdraw, so as to escape the payment of liabilities. But the theory and claim of the defense here is that in February, I think, 1895, or some time about that, — -you will remember the date, — he surrendered his policy, wanted to withdraw from this company; and it is claimed here that at that time he was indebted somewhat, — that is, there was a liability against him of certain assessments. It is also in evidence in this case, and you must remember the testimony, that some time, possibly .in January, 1896, this association brought suit against Mr. Connon to recover what they claimed to be their due upon his withdrawal, or before he could withdraw and sever his connection with this company, so as to escape liability; that they commenced a suit against him; and you have heard the testimony here of the counsel who said he represented the association in bringing that suit, and that, before it went to trial, he, in behalf of the company, adjusted and settled with Mr. Connon, and received $11.02 in payment. Now, I charge you, gentlemen of the jury, if you find in this case, from all the evidence, that Mr. Connon, after having been sued 'by the association in January, 1896, and after he had surrendered his policy, if he compromised and paid the amount that they required of him at that time, knowing that he had attempted to withdraw and desired to withdraw, if the company settled with him, and received an amount as the balance of his liability, that would end his case. The company had no right to sue him for what was due at that time, and then at some subsequent time commence another suit for an additional amount. If you find from the evidence in this case that at the time the company made the settlement with him, after that suit was commenced, in January, 1896, that he settled with the company, and paid all the demands it made upon him, because it was nearly a year after this claim of shortage for which the company is now seeking to recover had accrued, — I say, gentlemen, it would be decisive of this case, and your verdict should be for the defendant.”'

The court was in error in this charge. It appeared that the assessment made for the liabilities of' 1894 amounted to $1,000, but that the receiver found, after it had been laid, that the policies of a number of the members had before that time been canceled, and the assessments paid, so that the amount of the assessment made by him fell short of raising the $1,000. It was to meet this deficiency that the new assessment was made for which this suit was brought. Under the undisputed facts, the court should have directed the verdict in favor of the plaintiff for the amount of the assessment sued for. The case is ruled by Peake v. Yule, ante, 675 (82 N. W. 514).

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    HENDERSON v. MICHIGAN TRUST CO.
    Banks — Receivers—Assignment of Rent — Set-off.
    An assignment of rent to become due from the receiver of an insolvent bank for the use of a banking office month by month after the assignment is not subject to a set-off of a debt which was due and payable to the bank from the assignor when the assignment was made.
    Appeal from Kent; Grove, J.
    Submitted April 6,1900.
    Decided April 24, 1900.
    Petition of Eva Z. Henderson for an order requiring the-Michigan Trust Company, as receiver of the Mecosta County Savings Bank, to pay a claim for rent. From an order granting the petition, respondent appeals.
    Affirmed.

      E. E. Uhl and Frank Dumon, for petitioner.

      M. Brown, for respondent.
   Long, J.

This is an appeal from an order requiring-the Michigan Trust Company, as receiver of the Mecosta County Savings Bank, to pay a claim for rent. The case is the same as the case of Koegel v. Michigan Trust Co., 117 Mich. 542 (76 N. W. 74), and the plaintiff in both cases is the same, she having married since the first suit. In the former case the action was for rent from November 16, 1896, to September 17, 1897. In the present case it is for-rent from September 17, 1897, to July 17, 1898. After a full hearing in the court helow, the court directed the receiver to pay the claim. From this order the receiver has appealed.

The same questions are raised as in the former case. In that case it was claimed that claimant took the assignment of claim for rent subject to all the equities between the bank and Comstock, the assignor, with the right of the bank to set off its claim against Comstock. It was held that, this indebtedness being past due, the receiver could not set it off against the claim of claimant, which became due and payable to her after the assignment was made. The principle was applied that a claim which is past due Gannot be set off against an assigned claim which was not due and payable at the time of the assignment. It is claimed that that case is res adjudicata of the present. The case need not be rested upon that claim, as the same principle must control the present case as was applied in the former.

The order must be affirmed, with costs in favor of the claimant.

The other Justices concurred.


author: Grant, 3.

text:
    MICHIGAN TRUST CO. v. COMSTOCK.
    1. Banks — Ownership op Stock — Evidence.
    Evidence that a certificate of stock in a bank, issued to its president, and indorsed by him with an assignment to his wife, and left in the vaults of the bank when it passed under the control of a receiver, was known by the wife to be either • issued or assigned to her, and that she received checks for dividends thereon, indorsed them, and obtained the money, was sufficient to go to the jury on the question of her ownership of the stock.
    2. Same — Assessment op Stockholders.
    In an action by the receiver of an insolvent bank to recover an assessment upon a certificate of stock issued to its president, and indorsed by him with an assignment to his wife, the defendant in the suit, who denied the ownership, evidence that the officers of the bank had not regarded her as the owner, and that the husband had made her a separate allowance, had no bearing on the issue, and was properly excluded.

      Error to Mecosta; McMahon, J., presiding
    Submitted April 6, 1900.
    Decided April 24, 1900.

      Assumpsit by the Michigan Trust Company, receiver of the Mecosta County Savings Bank, against Dolly Ann Comstock, to recover an assessment on a stock certificate. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Daniel P. Comstock, the husband of defendant, was one of the largest stockholders of the Mecosta County Savings Bank, and its president, during its entire existence. On December 24, 1889, there was issued to him certificate No. 23, for 100 shares. On the same day he placed on the back the following assignment:
    “For value received, I hereby sell, transfer, and assign to Dolly Ann Comstock, of Big Rapids, Mich., the shares of stock within mentioned, and authorize C. W. Comstock to make the necessary transfer on the books of the company.”
    The assignment was witnessed by Mr. Cunningham, the cashier. There was no actual delivery of the certificate to her, but it was kept by Mr. Comstock among his papers in the vault of the bank, where it was found by the receiver. The bank closed its doors October 29, 1896, and the plaintiff was appointed receiver November 6th following. It became necessary to enforce the statutory liability of the stockholders, and the proper decree was entered, directing the receiver .to enforce it. The object of this suit is to compel defendant, as the owner of certificate No. 23, to pay the assessment. Her defense was that she did not own the stock. This question was submitted to the jury, which rendered a verdict against her.

      Frank Dumon (F. F. Uhl, of counsel), for appellant.
    ' M. Brown, for appellee.
   Grant, 3.

(after stating the facts). The contention of her counsel is that the record is barren of evidence that she owned the stock, and that the court should have directed a verdict for her. Assuming that the evidence was conflicting, the circuit judge very carefully and correctly instructed the jury upon all the questions bearing upon her ownership. There was testimony that she received checks for dividends, indorsed them, and received the money; that she knew that the stock was either assigned or was issued to her, and recognized it as hers. It is not important to set out the testimony in full. We think there was testimony to support the plaintiff’s claim, and that the court would have erred in directing a verdict for defendant.

Two questions propounded by defendant were refused by the court:

“State whether or not, before you had this certificate of stock, you had given Mrs. Comstock a separate allowance.
“During the time that you were manager of the bank, was it considered by the bank and the officers of the bank that Dolly Ann Comstock was the owner of any stock?’’

The ruling was correct. Whát the bank officers thought, and what allowance Mr. Comstock had made his wife before assigning this stock to her, were not competent either to prove or disprove ownership.

Judgment affirmed.

The other Justices concurred.


text:
    BENNETT v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    Street Railways — Accident to Bicyclist — Contributory Negligence.
    ■ Where a bicyclist, before attempting to cross a street-railway track, heard a noise which he thought was caused by a car coming from the east, and, after looking in that direction and seeing no car, rode upon the track without further precautions, and was struck and injured by a’ car coming from the west, which car he might have seen, had he looked, at a distance of 28 feet from the track, he was guilty of contributory negligence, precluding him from recovering from the rail way company on the ground of negligence on the part of those in control of the car.
    Error to "Wayne; Hosmer, J.
    Submitted April 6, 1900.
    Decided April 24, 1900.
    Case by Grant S. Bennett against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff, while crossing the tracks of defendant’s railway on Congress street on his bicycle, was struck by a car and injured. Congress street runs easterly from Woodward avenue, and on it the defendant maintains a double-track electric railway. Larned street is the first street south of Congress, and runs parallel with it. Randolph street is the second street easterly of Woodward avenue, runs parallel with Woodward, and crosses Congress and Larned streets at right angles. Bates street is the first" street easterly of Woodward avenue, and runs parallel with Woodward and Randolph. The plaintiff, on the 13th of October, 1897, at about half past 6 in the evening, when it was just getting dark, left the Auditorium, which is on the northerly side of Larned street, in the block between Randolph and Bates, and went easterly to the corner of Randolph, and turned north on Randolph street. The distance from Larned to Congress on Randolph is about 200 feet. He was an expert rider. He proceeded northerly upon Randolph street, and, when about 60 feet from Congress, turned out to avoid a farmer’s wagon, and then swung up towards the easterly curb on Randolph. He was thoroughly familiar with the crossing at Congress and Randolph. He had been there a good many times. The block from Randolph to Bates, on Congress street, on the south side of the street, is entirely built up, and the distance from the building line to the track is 28 feet. When plaintiff got to the building line, he could have seen a car coming from the west on- Congress, if he had looked. If there were people on the sidewalk, they would not have obstructed his view of an approaching car. The plaintiff proceeded along on his wheel, going at a four or six mile gait, and went upon the track without looking to the west, on Congress street, after he got to a point where he could see up the street, and was struck by the car coming from the west. His testimony as to speed is not satisfactory. In his declaration he asserts that his speed was four miles an hour. In his direct testimony he said nothing about his speed. On his cross-examination he first testified that he thought his speed was four miles per hour, and afterwards thought it was about six. He was right on the track when he first saw the car, which was at the time not more than 5 or 6 feet from him. When plaintiff looked to the west for a car is left a little in doubt by his testimony. At one time he states he was 30 or 40 feet from the track the last time he looked. Even at this distance he would still be in the rear of the building line. But on his re-direct examination he states that the last time he looked towards Woodward avenue he was probably 10 or 12 feet beyond the farmer’s wagon. As this wagon was 60 feet from the corner of Congress street, and as the track is 28 feet farther from the corner, he was, under this statement, 70 or 80 feet from the track the last time he looked for an approaching car from the west, and 40 or 50 feet in the rear of the building line. It is clear, however, that from the time he got to the building line, about 28 feet from the track, up to the time he got on the track and was struck by the car, he did not look in a westerly direction for the car.
    As to the speed of the car, the plaintiff’s testimony leaves considerable doubt. When first asked by his counsel what the speed was, he answered that he could not say, and, being pressed to give some “little idea of it,” he replied, “Well, judging from what I see on Woodward avenue, I should judge they were running 15 or 20 miles an hour.” The negligence charged is excessive speed and failure to ring the gong.
    The court held that plaintiff was guilty of contributory negligence.

      Moore & Moore, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Grant, J.

(after stating the facts). Plaintiff attempts to excuse his failure to look to the west by saying that he “heard a noise seemingly coming from the right. I thought the noise indicated that a street car was coming from the east.” He knew that cars were liable to come from either direction at any moment. A glance, occupying scarcely a second, at a distance of 28 feet from the track, would have shown him the car, and given him ample time either to dismount or to turn his wheel in safety. He testified that he could turn in safety in 6 to 8 feet. He had 16 feet from the curb, and 28 feet from the building line. He was in fact on the track before he saw the car, when it was only 5 to 6 feet distant. It is a matter of common knowledge that waves of sound are diverted when striking buildings, and in approaching tracks situated as these were, therefore, one could not tell with certainty from which direction a car was approaching until he passed the line of the buildings. In fact, there was no car coming from the east, and it is not improbable that the noise he heard was that of this car. It was his duty to look both ways, and there is no sufficient reason shown why he did not. McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Mine v. Railway Co., 115 Mich. 204 (73 N. W. 116); Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377); McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631); Lau v. Railroad Co., 120 Mich. 115 (79 N. W. 13).

Judgment affirmed.

The other Justices concurred.


text:
    JAHN v. FAHEY.

    Appeal — Evidence—Foreclosure of Mortgage — Forged Signature.
    A decree of foreclosure, rendered on conflicting evidence as to whether the purported signature of defendant to the mortgage in suit was a forgery, was affirmed.
    Appeal from Wayne; Waite, J.
    Submitted April 11, 1900.
    Decided April 24, 1900.
    Bill by Julius Jahn, Jr., against Sarah J. Fahey, to foreclose a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.

      William E. Walsh, for complainant.

      Jonathan Palmer, Jr. (Fred M. Aldrich, of counsel), for defendant.

       Rehearing denied June 18, 1900.

   Per Curiam.

This is. a bill to foreclose a mortgage executed by the defendant. The sole defense is that the mortgage and note were forged. The court below entered a decree for the complainant. The testimony was in direct conflict. A discussion of it would be unprofitable. We think the court below reached the correct conclusion.

Decree affirmed, with costs.


author: Hooker, J.

text:
    MEADE v. BOWLES.
    1. Executors and Administrators — Attorney’s Services — Parol Agreement — Statute of Frauds.
    An administrator’s oral agreement to pay for legal services rendered in proceedings instituted by Mm in behalf of the estate is not within the statute of frauds, where the credit is extended to Mm personally, even though he can receive no benefit from the litigation.
    2. Evidence — Lost Letter — Cory—Proof of Contents.
    Where a copy of a letter written to defendant by plaintiff’s assignor was read to defendant in the course of negotiations on which suit is based, the copy is competent evidence, although no notice has been given defendant to produce the original; and, upon a showing that the copy is lost, proof of its contents is admissible.
    3. Same — Order of Proof — Discretionary Action.
    Defendant cannot complain because the court, in its discretion, allowed plaintiff to give testimony in rebuttal which should have been presented earlier, where defendant was not denied the privilege of contradicting such testimony.
    4. Same — Statement of Case — Variance.
    Evidence of an agreement to pay for legal services at the rate of §10 per day is not at variance with the opening statement of counsel that a “reasonable fee” was agreed to be paid.
    Error to Shiawassee; Smith, J.
    Submitted April 3, 1900.
    Decided May 2, 1900.

      Assumpsit by Otis Meade against Robert Bowles upon an assigned claim for legal services. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Thomas J. Horsman and John T. McCurdy, for appellant.

      A. L. Chandler, for appellee.
   Hooker, J.

Tbe plaintiff sued before a justice of tbe peace, as assignee of a firm of lawyers, the claim being upon certain fees charged by them, against the defendant, for services rendered in a proceeding instituted by him as administrator of an estate in which his wife was interested. The declaration consisted of the common counts, and the plea was the general issue. Upon the trial in the circuit, the plaintiff offered testimony tending to prove a conversation in which his assignors refused to render such services unless the defendant would agree to become personally responsible for their fees, which he did. Oral testimony was also introduced, on behalf of the plaintiff, of the contents of a postal card received from the defendant, containing a promise to pay for such services, after proof of the loss of such postal card was made. A verdict was rendered for the plaintiff, and the defendant has appealed.

There are many assignments of error, mostly pertaining to rulings upon the introduction of evidence. It is contended that the alleged contract was void under the statute of frauds, as it appears that the litigation in which plaintiff’s assignors rendered services was for an estate. It matters not whether the services benefited the defendant or not, as one may bind himself to pay for services rendered for another, if that is the arrangement, and the credit is given to him. This is claimed to be his debt, and not that of the estate; that he was the original debtor, and not one who promised to pay the debt of another. If plaintiff’s testimony is true, his assignors refused to enter into contract relations with any one but the defendant personally. The ‘testimony was, therefore, competent, and the court did not err in refusing to take the case from the jury.

The testimony as to the contents of defendant’s postal card was competent, the loss having been first proven. It was shown that this postal card was an answer to a letter written by Chandler & Richards, plaintiff’s assignors. This letter was not produced, nor was a notice to produce it given to the defendant. Chandler testified that he kept a copy of this letter, and on one occasion read it .and the postal card to the defendant, and said to the defendant that, if he wanted them to work under the terms of the letter and postal card, they would begin, and defendant said that would be satisfactory. Objection was made to proof of the contents of the copy of the letter thus read to the defendant. The court held that, as this copy was read to the defendant, it was admissible, and, being lost,' proof of its contents was competent. We think there was no error in this. This testimony was given in rebuttal, and, while it should have been presented earlier, it was within the discretion of the court. We do not discover that defendant was denied the privilege of • contradicting this testimony, and we cannot, therefore, say that its admission was error.

It is claimed that the testimony was at variance with the opening statement of counsel, because the former tended to show an agreement that the work should be paid for at the rate of |10 per day, while the opening statement was that a reasonable fee should be paid. This proof was within the declaration, and we think it admissible. It was, in substance, within the statement.

We find no error in the rulings upon the introduction of evidence.

Several assignments relate to the charge, but, as nothing is claimed for them in the brief, we need not consider them.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SWEET V. GIBSON.
    1. Attachment — Return of Writ — Substituted Service.
    Under Circuit Court Rule No. 1, subd. a, requiring the sheriff to make his return in attachment proceedings immediately after service, or, in case of no service, immediately “ after the return day,” a return of “not found,” filed on the return day of the writ, affords no basis for substituted service.
    3. Court Records — Date of Filing — Contradiction by Parol.
    Circuit Court Rule No. 38 requires the clerk to indorse on every paper the date on which the same is filed. Held, that the filing date placed by the clerk upon a return becomes part of the records of the court, and cannot be contradicted by parol.
    Error to Cass; Smith, J.
    Submitted April 3, 1900.
    Decided May 2, 1900.
    Attachment proceedings by Charles E. Sweet against Jordan E. Gibson. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Crane, Norris & Stevens, for appellant.

      James H. Kinnane, for appellee.
   Moore, J.

This is a direct proceeding attacking the validity of a judgment rendered in an attachment case commenced in the circuit court. There was no personal service of the original writ, but the ordinary notice in an attachment case was published for the purpose of obtaining substituted service. Defendant appeared specially, and a motion was made to set aside the service and quash the writ, which motion was overruled. The case then proceeded to judgment by default, and the case was at once brought here by writ of error. Several interesting questions are presented, but as one of them, in our judgment, disposes of the case, we will not discuss the others.

In attachment cases, Cir. Ct. Rule No. 1, subd. a, provides that the sheriff shall make his return on the writ immediately after service, or, in case of no service, then immediately after the return day mentioned in the summons. The return day mentioned in the writ in this case was the 1st day of September. The sheriff made a return dated September 1st. The return is indorsed with the file mark of the county clerk September 1st. Under the rule, as there was no personal service in this case, the sheriff should have retained the writ until after the return day. He had all of the return day in which to serve the writ, and his return of “not found” during the time in which he might lawfully make personal service would not form a basis for substituted service, and the court would not acquire jurisdiction. King v. Harrington, 14 Mich. 532; Withington v. Southworth, 26 Mich. 381; Brown v. Williams, 39 Mich. 755; Myers v. Prosser, 40 Mich. 644; Drew v. Glaypool, 61 Mich. 233 (28 N. W. 78); Hubbell v. Rhinesmith, 85 Mich. 30 (48 N. W. 178); Millard v. Hayward, 107 Mich. 219 (65 N. W. 104); Bargh v. L. R. Ermeling & Co., 110 Mich. 164 (67 N. W. 1083).

The court allowed the plaintiff to contradict by affidavits the ¡date of the return of the sheriff and the filing made by the county clerk. On one side of this issue is the affidavit of the deputy sheriff that he retained the writ until September 2d, but, supposing it should have been filed September 1st, he requested the clerk to file it as of that date, and it was so filed. The sheriff also testified that the writ was in the hands of his deputy on September 2d. On the other hand, the return is dated by the sheriff, “Sept. 1, 1899.” The return is indorsed with the file mark of the county clerk, “Sept. 1, 1899.” The county clerk made an affidavit that the return was filed in his office September 1, 1899. The county clerk’s assistant made affidavit that the file mark, “Sept. 1, 1899,” is in her handwriting, and that she verily believes that the return was actually filed and indorsed by her September 1, 1899. Cir. Ct. Rule No. 38 requires the clerk to indorse on every paper the day on which the same is filed. As is made apparent in this case, it is important that the evidence of when papers relating to litigation are filed in the clerk’s office shall be of a fixed and permanent character, and shall not rest in the recollection of interested parties. The filing placed upon the papers by the clerk becomes part of the records of the court, and cannot be contradicted by parol. Stevenson v. Bay City, 26 Mich. 44; Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297); Weaver v. Lammon, 62 Mich. 366 (28 N. W. 905); Attorney General v. Rice, 64 Mich. 385 (31 N. W. 203); Auditor General v. Board of Supervisors of Menominee Co., 89 Mich. 552 (51 N. W. 483); Toliver v. Brownell, 94 Mich. 577 (54 N. W. 302); Holmes v. Cole, 95 Mich. 272 (54 N. W. 761).

Judgment is reversed, and writ dismissed.

The other Justices concurred.


text:
    ENGLISH v. YORE.
    Appeal — Question oe Fact — Judgment.
    The only question in the case being one of fact, as to whether the note in suit was given as payment upon a land contract, or as accommodation paper, in the nature of a loan, and that question having been resolved by the jury in accordance with plaintiffs contention, the judgment in his favor was affirmed.
    Error to Berrien; Ooolidge, J.
    Submitted April 4, 1900.
    Decided May 2, 1900.

      Assumpsit by Peter English against Patrick Yore on a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hammond & Hammond, for appellant.

      Gore & Harvey, for appellee.
   Hooker, J.

An opinion upon a former review of this cause will be found in 119 Mich. 444 (78 N. W. 476). It has been again tried, and defendant has appealed. Plaintiff claims to have made a note for the accommodation of the defendant, who was made payee, with the expectation that it would be negotiated at the bank upon the understanding, that, if a former land deal should be abandoned, he should be reimbursed by the defendant, but, if it should not be abandoned, it should apply upon that. Plaintiff paid the note, and, the land contract being abandoned by mutual consent, he brought this action. The court in-' structed the jury that the only question for them was one of fact, whether the note was given as payment upon the land contract or for the accommodation of the defendant, in the nature of a conditional loan. Our former opinion indicates that this was the only substantial question in the case. We have examined the record, and find no error.

The judgment is affirmed.

The other Justices concurred.


text:
    ERNEST v. WOODWORTH.
    1. Partnership — Levy—Individual Debt.
    An execution for an individual debt cannot be levied on the debtor’s undivided interest in a portion of partnership property.
    2. Same — Replevin—Abatement—Pendency op Equity Suit.
    An action by the members of a firm to replevy firm property, on which a sheriff has levied under a judgment against one of the copartners, is not inconsistent with a former suit to enjoin a sale of the property until an accounting could be had between the partners, and hence the pendency of the suit in equity is no bar to a prosecution of the action of replevin.
    Error to Kent; Adsit, J.
    Submitted April 5, 1900.
    Decided May 2, 1900.
    Replevin by Anthony Ernest and John C. Krupp against Irving Woodworth. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Maher & Salsbury, for appellant.

      M. L. Dunham and H. M. Dunham, for appellees.
   Hooker, J.

The findings filed by the circuit judge show that the plaintiffs were copartners, and as such owned the apples in controversy and other property; each having an equal interest, subject to account. At this time the defendant, who was sheriff of Kent county, levied an execution upon the undivided half of the apples, and took them all under his control. The execution had been issued upon a judgment in favor of Adams & Hart against Krupp. This levy was not made upon Krupp’s interest in the whole stock of the copartnership property, but was made upon the undivided half of the apples, as the property of Krupp. Ernest had advanced all of the money paid for the apples, and had also advanced $110 to Krupp upon his interest, and the court found that Krupp had no interest in said apples liable to said levy. The learned judge thereupon held that the execution levy was void, and that the defendant had unlawfully detained the property replevied, to the possession of which the plaintiffs were entitled, and rendered a judgment in favor of the plaintiffs for nominal damages and costs.

Several exceptions were taken to findings, viz., to the conclusions that the plaintiffs were copartners, and the property copartnership property; that Krupp had no interest in the apples liable to execution; and that-the levy was void; and to the judgment. We are of the opinion that the court’s findings upon questions of fact were justified by the evidence. The court found that the levy was upon an undivided half of a portion of partnership property, and the conclusion that such levy was invalid is supported by several Michigan cases. Haynes v. Knowles, 36 Mich. 407; Hutchinson v. Dubois, 45 Mich. 143 (7 N. W. 714); Sirrine v. Briggs, 31 Mich. 443; Kunze v. Cox, 113 Mich. 549 (71 N. W. 864, 67 Am. St. Rep. 480).

After the levy, and before this action was brought, these plaintiffs, as complainants, filed a bill in chancery against Adams, Hart, Woodworth, and Wilkinson, the deputy sheriff, which prayed an accounting between the copartners, and for an injunction to restrain the defendants from proceeding with the sale until such accounting could be had, and until the further .order of the court, and offering to consent to an order that complainants be permitted to sell the apples, and required to deposit the money received, to be held subject to the levy, provided the same should be found to be valid. An order to show cause was made, and subsequently the action of replevin was commenced, and the property was delivered to the plaintiffs, who sold it. The court of chancery afterwards ordered that the proceeds be deposited with the register of the court. This order was made upon application of the defendants in that case. Whether the order was complied with or not does not appear in this record, and perhaps it is unimportant. The defendants answered, and the fact of the pendency of this chancery suit was pleaded by the defendant in the replevin case when the replevin case was brought on for trial. Apparently proofs were taken before Judge Adsit in the chancery cause, and subsequently a stipulation was filed in the replevin case that the same be submitted for decision by Judge Adsit up'on the record and proofs taken before him in the chancery cause, and both causes were argued and submitted at the same sitting of the court. Counsel now insist that the replevin case was irregularly brought, inasmuch as’the. plaintiffs had already sought another remedy, the proceedings being then pending. It is said that the chancery proceeding was an inconsistent remedy; but this can hardly be said. Its object was merely to restrain the sale, so far as the defendants were concerned, until the plaintiffs could have an accounting, and it sought to have the propertj applied to the payment of firm debts, and a just division, before being subjected to Krupp’s individual obligations. This record shows that the plaintiffs were entitled to the immediate and unqualified possession of the property, and the replevin was not inconsistent with the relief asked in the chancery case. Had the replevin case been commenced first, it would seem that the chancery proceeding would have been unnecessary. We are not advised by the record why replevin was not resorted to in the first instance, but we are of the opinion that this judgment should not be reversed on account of such proceeding.

The judgment is affirmed.

The other Justices concurred.


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    TOLEDO ICE CO. v. MUNGER.
    1. Corporations — Business Office — Agent in Charge — Service of Process — Jurisdiction. .
    2 Comp. Laws 1897, § 7056, relative to manufacturing corporations, requires such corporations to maintain one business office in the State, at a place designated by the stockholders and certified to the secretary of state, and authorizes the service of notice or process on the corporation by serving its agent in charge of such office. Section 7066 provides that notice or iirocess against such a corporation may be served on an agent in charge of any business office of the corporation in the State. Held, that a court acquires no jurisdiction of an action against such a corporation where the summons is served on an agent of the corporation in charge of an office other than the business office designated by the stockholders and certified to the secretary of state.
    2. Same — Summons—Return.
    Under 2 Comp. Laws 1897, §§ 7056, 7066, permitting service 'of notice or process to be made on manufacturing corporations by serving the agent of the corporation having charge of its designated business office, a return on a justice’s summons which shows that the service was made on an agent, but does not state that it was the agent in charge of such office, does not confer jurisdiction on the justice. .
    Error to Washtenaw; Kinne, J.
    Submitted April 5, 1900.
    Decided May 2, 1900.
    Replevin by the Toledo Ice Company against Frank Munger, deputy sheriff of Washtenaw county. From a judgment for defendant, plaintiff brings error.
    Reversed.

      A. J. Sawyer & Son, for appellant,

      Cavanaugh & Wedemeyer, for appellee.
   Montgomery, C. J.

This is an action of replevin for property seized by defendant upon an execution issuing from justice’s court, and directed against the property of plaintiff. The question involved is whether the justice obtained jurisdiction of the case. The return of service of the justice’s summons shows that it was made upon the defendant by serving a copy upon Albert Krasny, “its agent.” The corporation was organized under the statute relating to manufacturing corporations. The two sections which bear upon the question of service are sections 20 and. 30 of that act, being sections 7056 and 7066 of the Compiled Laws of 1897. These sections read as follows:

“Sec. 20. It shall be lawful for any corporation organized or existing under the provisions of this act to establish an office or offices for the transaction of business without this State and within the United States, and to hold any meeting of the stockholders or directors of such company at such office so provided for: Provided, that there shall always be one business office within this State, and that service of any notice or process may be made upon the agent’ in charge of such office, which shall be binding upon such corporation. The place of holding such offices shall be fixed by a vote of a majority of stockholders at any lawful meeting called for that purpose, and -after being fixed shall not be changed within one year, and shall be certified by the directors of such corporation to the secretary of state of this State within two months from the time such office or offices were so located.”

“Seo. 30. Service of any notice or legal process against any corporation formed or existing under this act may be made on the president, secretary, or treasurer, or upon the agent in charge of any business office of such corporation within this State, or, if neither of such officers or agent can be found, then such service may. be made by posting a true copy thereof in some conspicuous place at the business office of the corporation in this State.”

It is the contention of plaintiff that the office designated and provided by section 20 is the only office at which service may be made upon the agent in charge. The defendant contends that any business office, whether one designated and required by section 7056, or one elsewhere in use by the company, is an office where service may be made upon the agent in charge, under section 30, and the circuit judge so held. We think a fair reading of section 20 indicates the legislative purpose to provide for a designation by a majority of the stockholders of a business office within this State where service of process may be had, and that the place of business so designated is the true office referred to in section 30. It appears in this case that such a business office was designated, in compliance with section 20; that the service was not had upon an agent at the office so designated, but that the service was made at Whitmore Lake, — a place where defendant was conducting some business operations.

There is another objection to this judgment, which is made in the brief of counsel. The return does not show that the service was made upon an agent in charge of an office of the company. So far as the designation in the return goes, it does not exclude an agent for some other distinct purpose, and we think this return conferred no jurisdiction upon the justice. See Lake Shore, etc., R. Co. v. Hunt, 39 Mich. 469; Kirby Carpenter Co. v. Trombley, 101 Mich. 447 (59 N. W. 809).

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    HEWITT v. VILLAGE OF REED CITY.
    Arbitration and Award — Ex Parte Citation of Authorities— Avoidance.
    Where it appeared, in a suit to set aside the award of an arbitrator, that the agent of the party in whose favor the award was made, after final submission of the controversy under an agreement that neither party should be represented by counsel, presented to the arbitrator, ex parte, a list of authorities, the court properly set the award aside, without any inquiry as to whether or not the arbitrator was influenced thereby.

      Appeal from Osceola; Palmer, J., presiding.
    Submitted April 6, 1900.
    Decided May 2, 1900.
    Bill by Kate Hewitt against the village of Reed City to set aside an award. From a decree for complainant, defendant appeals.
    Affirmed.

      Walter W. Dr etc (M. Brown, of counsel), for complainant.

      Charles A. Withey (Bmurthwaite & Fowler, of counsel), for defendant.
   Montgomery, C. J.

This is a bill filed to set aside an award. Complainant was injured by reason of a defective sidewalk of the village. A claim was presented to the common council, and after a period,,of negotiation an agreement was reached to submit the matter in controversy to Hon. James B. McMahon, as arbitrator. A hearing was had before the arbitrator, testimony produced pro and con, and an award made in favor of the village. The bill in this case contains charges of overreaching, made against the village attorney and the president of the village, and also alleges that complainant was not permitted to produce her proofs before the arbitrator. We are not only convinced that these charges are not sustained by a preponderance of the evidence, but we deem it only just to the parties concerned to say that the charges ought not to have been made. There is nothing to indicate any misconduct or overreaching on the part of Mr. Withey, the village attorney, or Mr. Slosson, the village president. Complainant had employed counsel to present her claim to the village authorities, was aided by the advice of her husband, and, we have no doubt, understood the matter to be submitted; nor have we any doubt that she was permitted to adduce all testimony which she deemed necessary.

The only question which has given us any doubt arises out of the mistaken conduct of the village president in furnishing the arbitrator, after the testimony was closed, a memorandum of cases or authorities. Just what these cases related to does not clearly appear, as the memorandum is not produced, and the recollections of Judge McMahon and Mr. Slosson differ. The rule is very strict in excluding any communication to an arbitrator, made ex parte after the case is submitted; and when such communication, which may affect the result, is made, it is not usual to enter into an inquiry as to whether the arbitrator was in fact influenced by it or not. Walker v. Frobisher, 6 Ves. 70; Strong v. Strong, 9 Cush. 560; Catlett v. Dougherty, 114 Ill. 568 (2 N. E. 669); Jenkins v. Liston, 13 Grat. 535; 2 Am. & Eng. Enc. Law (2d Ed.), 646. It is contended that this rule should not be applied to the present case, as all that occurred was a mere citation of authorities; but it is to be kept in mind that the arbitrator is judge of the law as well as of the facts, and in this case the parties expressly agreed that neither was to be represented by counsel, thereby stipulating to exclude all legal arguments or briefs. It cannot be denied that the purpose of any citation must have been to influence the mind of the arbitrator on a question of law. We hold, with some reluctance, that this is a violation of the spirit of the terms of the submission.

Judge McMahon himself testified that the handing of this memorandum to him was, to use his language, the most unsatisfactory thing connected with the transaction. If we felt at liberty to determine the case upon the question of whether the result was probably influenced by this representation, we would have little difficulty, as the high character and unquestioned ability of the arbitrator would furnish ample assurance that he was not unduly influenced in the matter; but, as this is the first time that the question has been presented to the court in this exact way, we are concerned in laying down a rule easy to follow, and which will afford protection in all cases, and we think the safer rule is for the court to enter into no examination as to whether the arbitrator is in any way influenced by ex parte communications. In applying that rule to this case, and in view of the stipulation that neither party should be represented by counsel, we are constrained to hold that the arbitration should be set aside.

This was the conclusion reached by the learned circuit judge, and his decree will be affirmed, with costs.

The other Justices concurred.


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    BEECHER v. FERRIS.

    Ejectment — Adverse Possession — Conflicting Claims — Question for Jury.
    Where plaintiff in ejectment asserted title by adverse possession to a strip of land which defendant had used for a footpath, and defendant contended that he had made such use of the strip, and had maintained a sidewalk thereon, in order to show that he claimed adversely to the plaintiff, it was proper for the court to state the conflicting claims, and leave the decision to the jury.
    Error to Wayne; Lillibridge, J.
    Submitted April 6, 1900.
    Decided May 2, 1900.
    Ejectment by George L. Beecher against Alfred Eerris and Osman B. Oanney. From a judgment for defendants,. plaintiff brings error.
    Affirmed.

      Henry M. Cheever, for appellant.

      John Galloway and Henry M. Du Bois, for appellees.

       Rehearing denied June 26, 1900.

   Hooker, J.

This action is ejectment, and the. plaintiff has appealed from an adverse verdict. Each party seems to rely upon a claim of title by adverse possession, and as plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, if he is to recover it follows that the burden was upon him to show that he had title by adverse possession. The case has, been before us three times; being reported in 110 Mich. 537 (68 N. W. 269); 112 Mich. 584 (70 N. W. 1106); and 117 Mich. 108 (75 N. W. 294).

The plaintiff alleges error upon the refusal of the court to direct a verdict in his favor, but we think that he was not entitled to such instruction, as he failed to show conclusively that he had open, visible, notorious, and'exclusive possession for the statutory period. For many years the defendant maintained a sidewalk upon this strip, and it was in constant use by his tenants. Yelverton v. Steele, 40 Mich. 538; Paldi v. Paldi, 95 Mich. 410 (54 N. W. 903); Judson v. Duffy, 96 Mich. 255 (55 N. W. 837); Pendill v. Agricultural Society, 95 Mich. 491 (55 N. N. 384).

Error is alleged upon the following instruction to the jury:

“Now, defendant claims that board walk was not put there by permission, but that he only put it there as a claim of title to that two feet. He claims, further, that later he built across the end of the lot a barn which extended over upon these two feet of land at the rear end of the lot, corresponding to the two feet in the front end of the lot, and that he did that claiming title to that two feet; and therefore defendant claims that plaintiff did not have uninterrupted possession of that property for all of these years, or for 15 years, because defendant asserted title to the two feet he is now claiming title to. ”

Counsel argues that the testimony did not bear out these statements. The court does not appear to have been stating the testimony, but the theories or claims of the respective parties, and he left it to the jury to say whether or not these claims were proven. We think there was evidence to go to the jury upon them, and that the court might properly state such claims.

We find no error, and the judgment is affirmed.

The other Justices concurred.


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    HOSKINS v. DICKINSON.
    Contracts — Construction—Partnership—Sale of Interest.
    Plaintiff made a proposition to defendant, liis copartner, to buy the latter’s interest in the business, plaintiff agreeing to relieve defendant of all responsibility for “obligations incurred or indebtedness now due on account of said business,” except a note which defendant had executed to plaintiff in payment for advances made by plaintiff to the firm on defendant’s account. Defendant accepted the proposition on the condition, assented to by plaintiff, that defendant should “be relieved from all further liability as to said business, and all expenses or losses * * * from this date.” Held, that the giving of the note was an individual transaction, and defendant remained liable thereon.
    Error to Wayne; Hosmer, J.
    Submitted April 10, 1900.
    Decided May 2, 1900.

      Assumpsit by Charles H. Hoskins against Charles D. Dickinson on a promissory note. From a judgment for defendant, plaintiff brings error.
    Reversed.
    Plaintiff’s suit is based upon a promissory note for $400, dated July 12, 1898, executed by the defendant to the plaintiff. Plaintiff was engaged in the ticket brokerage business in the city of Detroit, which was carried on under the name of Charles H. Hoskins & Co. On March 22, 1898, he sold to defendant a half interest in the business for $1,000, and executed to him a bill of sale of a one-half interest in the property and business. They executed the usual articles of copartnership, the terms of which are immaterial. In May, 1898, plaintiff had tickets of the value of $800, which he put into the business. Defendant did not have the money, and gave the plaintiff two promissory notes for $200 each in payment for the amount thus advanced by plaintiff to the firm for him. Subsequently these two notes were taken up, and the note in question executed instead. On August 5, 1898, plaintiff made a proposition to buy the defendant’s interest in the business. The proposition was to convey to defendant, by warranty deed, certain parcels of land, in full for his interest. The proposition then states:
    “ I further agree to relieve you of any and all responsibility for any obligations incurred or indebtedness now due on account of said business, except note for $400.00, dated July 12, part of original purchase due C. H. Hoskins; the sale, if you accept this proposition, to date from Wednesday, August 3, 1898, up to which time you are entitled to draw your pay as agreed upon in the partnership contract.”
    To this defendant replied:
    ‘ ‘ I accept the above and foregoing proposition on condition that I am to be relieved from all further liability as to said business, and all expenses or losses, if any incurred, from this date to be borne by you, with further understanding that I am to remain jointly in possession with you of said partnership property until the deed of conveyance of the lots above offered by you is delivered to me, which it is understood shall not be later than ten days from August 3d.”
    This arrangement was subsequently carried out. The note remained in plaintiff’s possession, and defendant made no demand for its surrender. Defendant refused payment, and hence this suit. The defense is that the note was included in the settlement under the language, “I am to be relieved from all further liability as to said business.” This question was left to the jury, who found for the defendant.

      Julian G. Dickinson, for appellant.

      T. E. Tarsney and W. G. Fitzpatrick, for appellee.
   Grant, J.

(after stating the facts). ■ The contract is evidenced by plaintiff’s proposition and defendant’s reply. If there were any ambiguity in the terms of the contract, the fact that plaintiff retained the note, and the defendant did not demand it, would' clearly show the understanding between the parties. We think, however, that there is no ambiguity in the instrument. The proposition was to relieve defendant of any and all responsibility for any “obligations incurred or indebtedness now due on account of said business,” except this note. Evidently defendant had some doubt as to whether the contract included future liability and future expenses or losses while. the business continued. He therefore inserted the condition in his acceptance to remove all doubt upon this point. The business was to continue until the deeds were executed, which was not done until some time after. The precise date I do not find stated in the record. It does appear that on August 13th the agreement was continued in force for 20 days longer. The note did not represent a partnership matter or a partnership liability. It was a personal transaction between the two, and represented a loan of money by one to the other. The contract was unambiguous. It was a settlement of their partnership matters] and not of their individual transactions with each other. The court should have directed a verdict for the plaintiff.

Reversed, and new trial ordered.

The other Justices concurred.


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    PETLEY v. WAYNE CIRCUIT JUDGE.
    Default — Motion to Set Aside-t-Laohes — Garnishee Defendant.
    Circuit Court Rule No. 12, subd. b, which, provides that a default, duly entered after personal service, shall not be set aside unless on application made within six months after such service, precludes the circuit judge from setting aside the default of a garnishee defendant after such period has elapsed, though it appear that the defaulted party is a foreigner, and did not understand the process served.

      Mandamus by Robert S. Petley to compel William L. Carpenter, circuit judge of Wayne county, to vacate an order setting aside a default.
    Submitted April 11, 1900.
    Writ granted May 2, 1900.

      Bowen, Douglas & Whiting, for relator.

      W. W. Chapin, for respondent.
   Moore, J.

This is an application for mandamus requiring the respondent to vacate an order setting aside a default. The petition of the relator and the return of the respondent show the following state of facts: In April, 1899, the relator commenced suit in the circuit court against one Cowan, then a resident of Detroit, upon whom process was served. Upon the same day a writ of garnishment was issued, and personally served upon one Chiera, also a resident of Detroit. The principal defendant appeared, and pleaded to the declaration filed against him. Chiera did not appear. The case was tried, and a judgment obtained against the principal defendant. Afterwards the default of the garnishee defendant was entered, and in January, 1900, a judgment by default was taken against him for the amount due from the principal defendant and costs. An execution was issued against Chiera. More than 21 days later it was returned by the sheriff nulla bona. After this, Mr. Petley filed a judgment creditor’s bill on the chancery side of the court, in which proceeding Chiera was made defendant, and process was served upon him. March 19, 1900, Mr. Chiera moved the court to vacate the judgment against him, and to set aside his default. This motion was based upon an affidavit in which Mr. Chiera claimed he was not familiar with the English language, and, though the process was served upon him, he supposed, from what was said by the deputy sheriff, that he did not have to give the matter any further attention, as he told the deputy sheriff he had nothing belonging to the principal defendant, and his claim now is that he did not have anything belonging to the principal defendant, and did not owe him. A counter-showing was made, but we do not think it necessary to discuss the showing made upon the motion. The circuit judge vacated the judgment against Chiera, and set aside his default.

In doing this we think the judge exceeded his authority. The case falls within subdivision b of Circuit Court Pule No. 12, which provides that where personal service has been had upon a defendant, and proceedings taken after default on the strength thereof, default shall not be set aside unless application is made within six months after service. The case is unlike Turner v. Ottawa Circuit Judge, 123 Mich. 617 (82 N. W. 247), in which case default was improperly entered. In- this case the default was duly entered. The purpose of the rule was to establish a time when the litigation should be finally ended. The case comes within the rule. The order made practically did away with the rule. If such a construction is to prevail, the rule had better be repealed.

The writ will issue as prayed.

The other Justices concurred.


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    DASCHKE v. SCHELLENBERG.
    1. Appeal — Order Overruling Demurrer.
    An order overruling a demurrer to a bill, which assigns as the ground of demurrer the fact that the bill is not sworn to, is appealable.
    2. Same — Bond—Stay op Proceedings.
    Under Act No. 243, Pub. Acts 1899 (amending 1 Comp. Laws 1897, § 550), which provides that, after an appeal in chancery is taken and perfected, no stay of proceedings shall be granted unless appellant file a bond conditioned to satisfy the decree of the Supreme Court and to pay all costs, an appeal bond is necessary only in case a stay of proceedings is sought.
    Appeal from Wayne; Frazer, J.
    Bill by Jobn Daschke and others against Harry L. Schellenberg and others to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal: On motion to dismiss.
    Submitted April 10, 1900.
    Motion denied May 2, 1900.

      James D. May, for the motion.

      Franklin L. Lord, contra.

   Per Curiam.

A motion is made to dismiss an appeal from an order overruling a demurrer in chancery. Two grounds are urged:

1. That the order was not an appealable one.

2. That no bond was given.

The statute authorizes an appeal from an order overruling a general demurrer. 1 Comp. Laws 1897, § 549. The rule requiring a specification of cause in all demurrers does not abrogate or enlarge this statute. Appeals may still be taken from an order overruling a demurrer which prior to the rule might have been general. Greenley v. Hovey, 115 Mich. 504 (73 N. W. 808); Robinson v. Kunkleman, 117 Mich. 193 (75 N. W. 451). The ground of demurrer assigned is that the bill was not sworn to. This might have been ground for a general demurrer prior to the adoption of the present rule. 1 Daniell, Ch. Prac. (6th Am. Ed.) 587; 6 Enc. Pl. & Prac. 410.

By an amendment to the statute (1 Comp. Laws 1897, § 550) in 1899, a hond on an appeal is not required, except where a stay of proceedings is sought. Act No. 243, Pub. Acts 1899.

The motion must be denied.