text:
    TONER v. TONER.
    Garnishment — Claims by Third Persons — Judgment—Form.
    In garnishment proceedings in justice’s court the garnishee disclosed that he had in his possession 375 bushels of potatoes belonging to the principal defendant which were claimed by a third person. The potatoes were delivered to the justice, the claimant was notified under the statute, and issues were framed by the filing of a declaration in trover and plea of the general issue with notice that the claimant would show that he bought the potatoes from the principal defendant prior to the commencement of the suit. On trial before the justice without a jury judgment was rendered “in favor of the plaintiff * * * and against the defendant [claimant] for the value of 375 bushels of potatoes, less warehouse charges, now in my hands,” etc., and afterwards the potatoes were sold and their proceeds applied upon plaintiff’s judgment against the principal defendant. Held, that though the language of the judgment was not apt, its intent was to find that claimant had no title to the potatoes and to provide for their disposal according to the statute, and was not invalid as being a judgment for money or property against the . claimant.
    Error to Oceana; Sessions, J.
    Submitted January 21, 1908.
    (Docket No. 145.)
    Decided March 31, 1908.
    Garnishment proceedings in justice’s court by Thomas Toner against Jerry Conger and C. W. Tallent, copartners as Conger & Tallent, garnishee defendants of Elijah Toner, and Jack Toner, claimant of the property. There was judgment for plaintiff, and claimant appealed to the circuit court by writ of certiorari. There was judgment dismissing the writ, and claimant brings error.
    Affirmed.

      F. E. Wetmore and A. E. Souter, for appellant.

      A. 8. Hinds, for appellee.

      It is conceded that the circuit judge clearly states the facts in this ease, and we adopt his finding.
    “Thomas Toner brought suit in justice’s court against Elijah Toner and garnished Conger and Tallent. The .-garnishee defendants appeared and disclosed that they had in their possession 875 bushels of potatoes belonging to the principal defendant and set forth in their disclosure that Jack Toner claimed the property.
    “The potatoes were delivered to the justice and the statutory notice was given to the claimant. He appeared and issues were framed under the statute by the filing of a declaration in trover and a plea of the general issue with notice that claimant would show on the trial of the •cause that the said potatoes belonged to him by virtue of a purchase thereof from the principal defendant prior to the commencement of suit. A trial was had before the justice without a jury and a judgment rendered in favor of the plaintiff and against the claimant. The entry of .such judgment upon the justice’s docket is as follows:
    “ ‘June 7th, A. D. 1907, at nine o’clock in the forenoon at my •office in Shelby township. After having duly considered the evidence in said cause and the law in reference thereto, I did thereupon render judgment in favor of the plaintiff, Thomas Toner, and against the .said defendant, Jack Toner, for the value of three hundred and.seventy-five bushels of potatoes less the warehouse charges -of two cents -per bushel, now in my hands, received from the original garnishee defendants, Conger and Tallent, with costs of this •suit to be paid out of said three hundred and seventy-five bushels of .potatoes; which costs are hereby taxed at the sum of eight and :forty one-hundredths dollars.’
    “ Claimant has brought the case into this court upon a writ of certiorari and in his affidavit for such writ, assigns error as follows:
    “ ‘ 1. That under the law and evidence in this cause no judgment for money or property could be rendered against this deponent.
    “ ‘ 2. That under the pleadings, record and proofs in said cause no .judgment in trover could be rendered against this deponent, and no valid judgment could be rendered against this deponent, except to find that deponent was the owner of the potatoes named and men'tioned in the disclosure of the garnishee defendant.
    “ ‘3. That said judgment is vague, uncertain, indefinite and void.’

      “The first assignment of error is contrary to the facts,, because no personal judgment for money or property has. been rendered against claimant; the second, probably through a clerical mistake, is meaningless; and the third, not being supported by any more definite averments in the body of the affidavit, is not specific enough to entitle, it to be considered.
    “ Passing to a consideration of the case upon its merits-, and assuming that the assignments of error are sufficient, to raise the questions involved, the contention of counsel for the plaintiff in error is that the only valid judgment which the justice could have rendered against the claimant was to find that he was not the owner of the potatoes formerly in the hands of the garnishee defendants and then in the hands of the court, and that the judgment, actually rendered and entered was not such a finding.
    “This contention cannot be sustained. The issue, framed by the pleadings and tried, was whether or not. claimant had made a valid purchase of the potatoes from the principal defendant and had thus beeomethe owner of them. If he had not, he had no interest in them and. plaintiff below was entitled to have his judgment against the principal defendant satisfied out of them; if, on the-other hand, claimant had made a valid purchase of the-potatoes, plaintiff below had no interest in them. Upon the issues thus framed and tried, the justice found in favor of the plaintiff and against the claimant and expressed his finding in language usually employed in rendering-judgments.
    “While, in form, his judgment was for the .value of the potatoes and for costs of suit, yet, by its terms, both such value and such costs were to be paid out of the property in the hands of the court and not by the claimant. No execution could have been issued upon such a judgment or levied upon claimant’s property. While not ex- ■ pressed in apt and clear language, this judgment necessarily included a finding that claimant had not purchased, and was not the owner of the potatoes.
    ‘ ‘ It follows that the writ of certiorari must be dismissed, and the judgment affirmed with costs to the defendant in error to be taxed.”
   Grant, C. J.

(after stating the facts). We find it" unnecessary to discuss the second and third assignments, of error, or to determine the correctness of the conclusion. reached by the learned circuit judge thereon. His conclusion on the first assignment of error is sound.

Pecard v. Peter Home & Co., 91 Mich. 346, does not control this case. There upon an appeal to the circuit court a money judgment was rendered against the claimant, and it was held that the statute did not contemplate such a judgment. The only judgment provided for is one which shall conclude the claimant from setting up any further claim to the funds or the property. The judgment in this case is not inconsistent with that decision.. Here no money judgment was rendered, but only a judgment for the value of 375 bushels of potatoes. It appears that afterwards the potatoes were sold and the amount realized therefrom applied upon the plaintiff’s judgment against the defendant in the principal suit. While the language of the justice is unfortunate, it is apparent that he did not intend to render a money judgment against the claimant; neither did he, for no amount was specified, but he did intend to find that the claimant had no title to the property and to provide for its disposal according to the statute. The final disposition of the property was in accordance with this finding.

Judgment affirmed.

Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    WILLIAMS v. SUPREME COUNCIL OF THE CATHOLIC MUTUAL BENEFIT ASS’N.

    1. Life Insurance — Beneficial Associations — Contract—Application — Effect as Part of Contract.
    An application for membership in a beneficial association, by which the applicant agrees to be bound by all the laws, rules, regulations, and requirements then in force or to be thereafter enacted, and that the certificate of membership shall be of no force unless the applicant shall contribute his full share to the beneficiary fund when due and ordered in compliance with the rules and regulations of the association, is a part of the contract of insurance, though not made so by the certificate of membership or by the constitution or by-laws in force at the time it was signed, otherwise than by a requirement in the constitution that each applicant sign the application prescribed by the supreme council.
    2. Same — Assessments—Increase of Rate — Validity.
    Where an application for membership in a beneficial association binds the applicant to obedience to all laws, rules, regulations, and requirements then in force or to be thereafter enacted, and such application is a part of his contract of insurance, he is bound by a change in the laws of the association by which his assessments are increased beyond the maximum amount permitted by the laws at the time of his becoming a member.
    Appeal from Washtenaw; Kinne, J.
    Submitted January 9, 1908.
    (Docket No. 14.)
    Decided March 31 ,1908.
    Bill by Michael Williams against the Supreme Council of the Catholic Mutual Benefit Association to enjoin a change in the terms of a benefit certificate. From a decree for complainant, defendant appeals.
    Reversed and bill dismissed.

      Cavanaugh & Wedemeyer and John W. Dwyer {Robert E. Bunker, of counsel), for complainant.

      Keena, Lightner & Oxtoby, for defendant.

       Rehearing denied June 27, 1908.

   Blair, J.

The defendant is a mutual benefit association incorporated under an act of the legislature of the State of New York enacted June 9,1879. The complainant became a member of defendant association November 29, 1890, at which time the laws of the association contained the following provisions:

“Section 1. Each member upon initiation shall pay to the financial secretary of his branch one beneficiary assessment, according to his age at that date, as per following graded scale:

“For a $2,000 beneficiary certificate—

“ From the age of 18 to 25 years________$1 00

“From the age of 25 to 30 years........1 10

“ From the age of 30 to 35 years........1 20

“From the age of 35 to 40 years........1 30

“ From the age of 40 to 45 years........ 1 45

“ From the age of 45 to 50 years........1 65.”

“ Constitution eor the Government op Branches.

“Article 2.,

“Sec. 6. Members shall be assessed according to their age when admitted, in accordance with the graded scale of assessments as prescribed by the Beneficiary Fund Article. Their assessments remaining the same thereafter.”

“ Reserve Fund Article:

“ Section 1. The fund hereby created shall be known as the Reserve Fund of the Catholic Mutual Benefit Association, and shall be realized, collected and controlled, maintained, augmented and distributed or disbursed in the manner and for the uses and purposes hereinafter set forth.

* ‘ Section 11. The said fund, as hereinbefore constituted, shall remain intact and undiminished, and shall be increased and added to during the existence of such Association, except whenever in any one year the members shall have paid twenty-four assessments. In that case the trustees of the Reserve Fund shall appropriated much of said fund as may be necessary to pay the amount due to beneficiaries, in excess of the amount received from such assessments. This payment to be in lieu of an assessment or assessments upon the surviving members, except also whenever said fund shall have reached the sum of $250,000 and the assessments in any one year to pay death claims have not exceeded said number, then, in that case, the trustees of the Reserve Fund shall appropriate the surplus of said amount and the interest on the whole of said Reserve Fund, or so much as may be necessary to pay the amount due to beneficiaries in excess of the amount received from such assessments. This payment also to be in lieu of an assessment or assessments upon the surviving members, always providing, however, that the total minimum amount of this fund shall be" ten thousand dollars, which amount shall remain intact and undiminished. Moneys over and above this amount only being available for the purposes above recited.

“Section 15. This Article shall.be amended in the same manner as any other Article of the Supreme Council Constitution.”

“Beneficiary Fund Article:

“ Sec. 7. The Supreme Recorder shall on the first day of each month, or as soon thereafter as possible, issue one or two assessments, as may be required, to pay the beneficiaries of deceased members then on record in his office, and shall notify the Grand Secretary of each Grand Council, and the Recording Secretary of each Branch in his immediate jurisdiction of the same. Said notice shall contain the names of the.deceased members, the number and location of Branch, date of death, cause of death, date of initiation, amount of certificate, and shall also state the deaths, if any, upon said notice, that will be paid* by surplus.

“Sec. 11. * * * But if the moneys so collected as laid down in section 10 of this Article are for more than one assessment, then the amount collected over one assessment, together with the amount of beneficiary money in the hands of the Branch Treasurer, for each member liable on said assessments, shall be forwarded to the Grand Secretary or Supreme Recorder as above stated.”

“ Constitution op the Supreme Council.

“Article 11.

“ Sec. 8. This Supreme Council shall have one general form of constitution for the government of all Grand Councils and Branches, which shall be furnished such Grand Councils and Branches, which now are, or hereafter may# be acting under a charter regularly issued by it, or any *Grand Council hereof — which constitution shall be considered as the law by which such Grand Council or Branch is to be governed in the transaction of its business, except so far as relates to the financial department thereof — in relation to which such Grand Council or Branch shall have power to make such by-laws as, in its wisdom, it shall judge best, which by-laws they may change, alter, or amend at pleasure, subject to the approval of this Supreme Council, or its Committee on Laws and their supervision, which also may be supervised by this Supreme Council.'

“Article 17.

“Section 1. Alterations and amendments to this constitution may be made at any regular meeting of the Supreme Council, by a vote of two-thirds of the members present and entitled to vote at such meeting; ” etc.

Article 2, section 8, of the branch constitution, provides that, “ Each applicant for membership must sign the application prescribed by the Supreme Council,” etc.

Complainant was 48 years of age at the time he became a member, and signed an application containing, among other things, the following:

“I,-, having made application for membership in the Catholic Mutual Benefit Association, do hereby agree that compliance on my part with all the laws, rules, regulations and requirements now in force or that may hereafter be enacted by said Association is the express condition upon which I am to be entitled to participation in the beneficiary fund in the amount named in the constitution and laws of the Association, provided that the amount paid to the person or persons named as beneficiaries in my application and the medical examiner’s report shall not at any time exceed the sum of $2,000; and to have and enjoy all the other benefits and privileges of said Association. * * * And I hereby agree that the above statements shall form the basis of the contract between myself, my heirs and assigns, of the first part, and the Catholic Mutual Benefit Association, of the second part. I further agree that the benefit certificate now issued herein shall have no binding force .whatever, unless I contribute my full share and portion to the beneficiary fund when due and ordered in compliance with the rules and regulations of the Association.”

The beneficiary certificate issued to complainant was as follows:

“No. 35,44=0. $2,000.

“ Supreme Council C. M. B. A.

“ Catholic M,utual Benefit Association.

“This certificate issued by authority of the Catholic Mutual Benefit Association witnesseth: — That Brother Michael Williams is a member of St. Thomas Branch No. 14 of said Association, located in Ann Arbor, in the State of Michigan; is entitled to all the rights and privileges of membership in the Catholic Mutual Benefit Association, and to participate in the Beneficiary Fund of the Association to the amount of two thousand dollars, which sum shall at his death be paid to his wife, Catherine Williams.

• ‘ ‘ This certificate is issued upon the express condition that said Michael Williams shall in every particular, while a member of said Association, comply with all the laws, rules and requirements thereof.

“In witness whereof the Supreme Council of the Catholic Mutual Benefit Association has caused this to be signed by its Supreme President and Supreme Recorder, and the seal thereof to be attached this 29th day of November, 1890.

J. S. McGrARRY,

“Supreme President.”

On October 15, 1903, the Supreme Council amended the beneficiary fund article so as to increase the rate of assessment of complainant from $1.65 to $5.86, to take effect on January 1, 1904. Complainant paid the new rate under protest, and filed the bill of complaint in this suit to restrain defendant from collecting more than the alleged-contract rate of $1.65. From the decree granting the relief prayed for, defendant appeals to this court.

The points in issue are stated by counsel for complainant in their principal brief, as follows:

“ Counsel for complainant contend for the following-propositions:

“First. That defendant did not reserve the power to increase the rates of assessment of complainant, Michael Williams.

“Second. That the court below had jurisdiction to enjoin the breach of complainant’s contract.

“Whether or not the power to increase the rates of assessment was reserved will depend upon the contract between the parties. ”

In support of the first point, counsel contend that the application is not a part of the contract, because not made so by the certificate or by the constitution or by-laws in force at the time it was signed.

In Wineland v. Knights of Maccabees, 148 Mich. 608, the certificate did not refer to the application but did contain a provision, similar to that in the application, that he should comply with the laws, rules, and regulations of the order, etc., “which are now in force or may hereafter be adopted.” The application, however, was treated as a part of the contract.

“ In this view, the application and the certificate, supplemented by the laws of defendant, fixed complainant’s rate of assessment and his agreement that the laws thereafter adopted should be the basis of the contract, means those laws which the defendant had the right to adopt. * * * We have no doubt that it was lawful, and no violation of contract rights, for defendant to increase the number of assessments to meet the demands arising from the death of members. There seems to be no good reason why fewer assessments, at a greater rate, should not be levied, so long as the increase in rates is proportional; young and old members, alike, contributing. Whether such action be a mere detail in management aimed at procuring for distribution the same sum of money in a different way, or intended to actually increase the contributions over present necessities for distribution and to accumulate a fund, it may be, so long as it is proportional and reasonable, supported, as against a protesting member, by his agreement in his application to conform to and be governed by laws to be from time to time made by the representative governing body of the association. While courts are not agreed upon this proposition, we are inclined to the views expressed in Fullenwider v. Supreme Council Royal League, 180 Ill. 621; Messer v. Grand Lodge A. O. U. W., 180 Mass. 321; Reynolds v. Supreme Council Royal Arcanum, 192 Mass. 150; Conner v. Supreme Commandery Golden Cross (Tenn.), 97 S. W. 306.”

In Reynolds v. Supreme Council Royal Arcanum, supra, it is said:

“There are many cases in which it is held that the amount expressly promised to be paid in a certificate like those issued by the defendant cannot be cut down by an amendment of the by-laws. Newhall v. Supreme Council Am. L. of H., 181 Mass. 111; Langan v. American Legion of Honor, 174 N. Y. 266; Supreme Council Am. L. of H. v. Getz, 112 Fed. 119. But in many of these, as in the case from this court last cited, a distinction is made between the express' stipulation of the corporation to pay a certain sum and other provisions relating to the methods of the corporation, and the duties of the certificate holders, which properly may be a subject for regulation by by-laws, even though they affect the rights of the parties under their contract. * * * The promise of the member is to do what may be called for by the bylaws then existing or that may afterwards be adopted. The promise of the corporation is stated expressly, without mention of the by-laws. The member occupies a dual position, as an insurer and the insured. As one of the association agreeing to provide for the payments that may become due to members, he agrees to be subject to the by-laws. As the insured person to whom a particular sum of money is promised, he has a right to stand on the terms of the promise. That the duties of members prescribed by the by-laws remain subject to modification when a power of amendment is reserved has often been decided. Loeffler v. Modern Woodmen of America, 100 Wis. 79; Langnecker v. Ancient Order of United Workmen, 111 Wis. 279; Lawson v. Hewell, 118 Cal. 613; Gilmore v. Knights of Columbus, 77 Conn. 58; Ellerbe v. Faust, 119 Mo. 653.

“Most of the cases relied on by the plaintiffs, when rightly analyzed, turn on the distinction between an áttempted amendment of the by-laws directly affecting the promise to the certificate holder as an insured person and an amendment affecting his duties as a member of the corporation bound to perform his part in providing means or otherwise as one of the association of insurers.” •

See, also, Flynn v. Benefit Ass’n, 152 Mass. 288.

The decisions of the courts of New York,' which we consider entitled to great weight in view of defendant’s organization under the laws of that State, also support the doctrine that the application is a part of the contract.

In People v. Grand Lodge A. O. U. W., 67 N. Y. Supp. 330, the application contained an agreement “to strictly comply with the constitution, laws and regulations which are or may hereafter be enacted by the supreme, grand, or subordinate lodge.” The certificate recited that it was issued and received upon the condition “that he shall, in every particular, while a member of the order, comply with all the laws, rules and requirements thereof. ” Relator contended that the certificate contained the entire contract. The court said :

“ This contention cannot prevail. The defendant’s charter constituted. its sole authority for issuing the certificate at all, and the declarations and promises made by the relator in his application for membership constituted the basis or consideration for his admission into the order, and the issuance of the certificate to him. The terms of the member’s contract of membership are therefore to be found, not in the certificate alone, but in the charter, the application for membership, and the certificate, read together.”

To the same effect, see Shipman v. Protected Home Circle, 174 N. Y. 398; Evans v. Relief Ass'n, 182 N. Y. 453; Sabin v. Phinney, 134 N. Y. 423; Dowdall v. Supreme Council, 108 N. Y. Supp. 1130, reversing a judgment of the supreme court of the 2d day of July, 1906, “upon the authority of Mock v. Supreme Council of the Royal Arcanum, 121 App. Div. (N. Y.) 474, and Wright v. Knights of the Maccabees, 106 N. Y. Supp. 1150.”

Of the Dowdall Case, prior to its reversal, complainant’s counsel said in their original brief:

Dowdall v. Supreme Council, C. M. B. A., supreme court of New York, decided by Judge White at Buffalo, July, 1906 (not reported), is a case similar to the case at bar in every particular except that the complainants are different persons. It was the same defendant, same attorneys, same questions involved, same kind of certificate and application, and same change of rates complained of. Judge White held that the rates of assessment could not be increased in the face of the express provision stating that the rates shall remain the same thereafter. Judge White held that the case could not be distinguished from the case of Wright v. K. O. T. M., 95 N. Y. Supp. 996, and he rendered a decree declaring the increased assessment invalid and enjoined defendant from enforcing the new laws.”

In their supplemental brief filed since the argument, counsel seek to distinguish the two cases, as follows:

“Michael Dowdall became a member of the C. M. B. A. while it was a voluntary association and before its incorporation under the act of 1879. * * * When Dowdall became a member the rate of assessment was fixed by the defendant’s rules, but the number of assessments which could be levied in any one year was not limited. The limitation placed upon the number of assessments was in the reserve fund law, section 11, adopted in 1886. By that law the number of assessments was fixed at twenty-four. per year, and thereafter it was the understanding and settled policy of defendant that twenty-four assessments was the limit ‘that could be had in any year.’ When Dowdall became a member of the C. M. B. A., there was no provision of the defendant’s laws limiting the amount which he could be assessed in any one year; that limitation as above stated came seven or eight years after Dowdall became a member of the order.

“When Williams became a member of the order, the laws of the order fixed his assessments at $1.65 each, and limited the number of assessments to twenty-four each year, and by this provision, as already pointed out in our briefs, we insist that the parties to this suit made a definite and distinct contract that the complainant should be required to pay a sum not exceeding $39.60 per year.”

We do not think the distinction is a valid one. If the application was part of the contract, it matters not that the maximum amount which could be assessed at the time the contract was made was fixed, since complainant might and did agree therein that the defendant might amend the by-laws establishing such maximum amount, provided such amendments were reasonable, as we think they were.

The Dowdall Case appears to us to be directly in point and in harmony with our own decision in the Wineland Case and with those of the New York courtof appeals. It results that the bill of complaint must be dismissed, with costs of this court to defendant.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Grant, C. J.

text:
    CAVANAUGH v. SANDERSON.
    1. Replevin — Statute—Theory—Multiplicity oe Suits.
    The theory of our replevin statute (sections 10679, 10680, 3 Comp. Laws), is to provide a remedy for settling the rights to the property in one suit, and to avoid a multiplicity of , suits.
    2. Subrogation — Mortgages — Foreclosure Sale — Rights oe Purchaser.
    A sale under a mortgage irregular or void for any reason does not discharge the mortgage debt, but places the purchaser at such sale in the position of the mortgagee, and by virtue of his purchase he succeeds to the rights of the mortgagee.
    3. Replevin — Quashal—Epeeot—Judgment—Cross-Replevin.
    After the mortgagee of a horse had obtained possession by a writ of replevin and sold it under the mortgage, the proceedings in replevin were quashed, and the mortgagor brought replevin against defendant, into whose hands the horse had come by successive transfers. Held, that the mortgagor’s remedy was by taking judgment in the original action under the statute, that the suit against the purchaser was a crossreplevin and not maintainable.
    4. Chattel Mortgages — Foreclosure—Propriety. *
    Where a mortgagee, entitled to possession of the mortgaged chattels for the purpose of foreclosure, obtained possession by a valid writ of replevin upon filing a proper bond, he was entitled to foreclose immediately, and was not obliged to retain possession of the chattels at expense pending the outcome of the action of replevin.
    Error to Jackson; Parkinson, J.
    Submitted January 22, 1908.
    (Docket No. 125.)
    Decided March 31, 1908.
    Replevin by William J. Cavanaugh against Albert B. Sanderson. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed and judgment entered for defendant.

      F. M. Hall and F. A. Lyon, for.appellant.

      Robert Campbell (Grove H. Wolcott, of counsel), for appellee.

      This case is the outgrowth of E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260. The statement there made need not be repeated here. The property (a horse) is the same property the right of possession to which was there involved. That case arose in justice’s court, was appealed to the circuit court, and came to this court on writ of certiorari. This litigation arose in justice’s court and has the same history. The litigation has already cost the parties several times more than the value of the property.
    After Knowles & Son had obtained possession of the property, April 14, 1905, under the writ of replevin in that case, they gave notice of sale April 22, 1905, and sold it April 29, 1905. Mr. Knowles bid the property in at the sale, afterwards sold it to his nephew and the nephew sold it to defendant on May 15, 1905. October 4,1905, the circuit court on special appeal entered judgment quashing the replevin proceedings. The judgment stated as follows:

      “ This judgment being without prejudice as to the disposition of the property or judgment for the return or its value and the rights of the mortgagor, which matters are hereby .reserved. ”
    On October 31,1905, the case was removed to this court by writ of certiorari. October 21, 1905, plaintiff instituted this suit in replevin to recover the possession of the horse from the defendant.
    The court directed a verdict for the plaintiff and assessed his damages at $68, being fifty cents per day for the time it was in possession of the defendant.
   Grant, C. J.

(after stating the facts). The theory of our replevin statute is to provide a remedy for settling the rights to the property in one suit, and to avoid a multiplicity of suits. 3 Comp. Laws, §§ 10679, 10680.

A sale under a mortgage irregular or void for any reason does not discharge the mortgage lien, but places the purchaser at such sale in the position of the mortgagee, and by virtue of his purchase he succeeds to the rights of the mortgagee. Rose v. Page, 82 Mich. 105; Morse v. Byam, 55 Mich. 594; Lyle v. Palmer, 42 Mich. 314; Gilbert v. Cooley, Walk. Ch. (Mich.) 494.

The quashing of the proceedings in E. S. Knowles & 8on v. Cavanaugh, supra, operated as a discontinuance (Forbs v. Washtenaw Circuit Judge, 23 Mich. 497); and left the defendant in position to avail himself of either remedy provided by the statute. If he was entitled to the return of the property, judgment would have been rendered for such return. Under a writ of execution for return, the officer could have seized the property in the possession of the defendant here and returned it to Mr. Cavanaugh. The defendant might have waived the return of the property and recovered judgment for damages. The defendant Sanderson acquired only the rights which Knowles & Son possessed. The issue between'the plaintiff and defendant in this suit is none other than it would have been had Knowles & Son bid in the property and retained possession thereof. In Clark v. West, 23 Mich. 242, Clark had replevied the property in justice’s court. The court rendered judgment in favor of West. West then took possession of the property and put it in the possession of Brown. Clark removed the case to the circuit court by certiorari and peaceably obtained possession of the property from Brown. West then brought a replevin suit for the same property against Clark and Brown. This court held that that was a cross-replevin. The fact that there are other parties in the cross-replevin is not decisive (Fisher v. Busch, 64 Mich. 180), but Is the issue the same? is the material question. The decision in the first replevin suit binds the parties and their privies. Sanderson was a privy of Knowles & Son. I think.Clark v. West controls this case. .

I am also of the opinion that the judgment should be reversed for another reason. Knowles & Son had a concededly valid mortgage. It was past due. They were entitled to possession for the purpose of foreclosure. Mr. Cavanaugh, on demand, refused them that right. No other course was open to them than to bring replevin, unless they chose to waive their lien and rely upon the personal responsibility of Mr. Cavanaugh. They brought that suit for the sole purpose of obtaining possession in order that they might sell under the terms of the mortgage. Upon the merits in that case the sole question would have been, Are plaintiffs entitled to possession for the purpose of making sale? It is conclusively established in this trial that Mr. Cavanaugh had not paid the mortgage debt, and that Knowles & Son were entitled to possession for the purpose of foreclosure. There was no jurisdictional infirmity either in the affidavit for the writ of replevin or in the writ itself. The suit was not quashed because of any defect in either. See 144 Mich. 264, where we held that the affidavit and process were sufficient to give the court jurisdiction. The declaration was held defective for noncompliance with a technical but required rule of pleading. Knowles & Son had acquired possession by a lawful writ. They gave to the defendant a bond to properly indemnify him for all costs and damages should plaintiffs fail in the suit. Having obtained a lawful possession, I think it follows that they were entitled at once to exercise their legal right to foreclose. They were not required to retain the property without a sale at an expense which was likely to be more than the entire value of the property. The defendant Cavanaugh was amply secured by the bond.

I am of the opinion that Knowles & Son acquired lawful possession, that the sale was made while such possession was lawful, and that by such sale title has passed to the defendant. Whatever damages Mr. Cavanaugh has suffered he could easily have obtained in the former suit. There is no evidence of any bad faith or fraud on the part of Knowles & Son. The result of the plaintiff’s contention is that his debt is not paid, he has recovered as damages for the usé of the horse from the defendant, who purchased in good faith, probably all that the horse is worth, and has recovered his horse. The law will avoid such an unjust result if it is possible to do so.

Judgment is reversed, with costs of all the courts, and judgment entered for the defendant.

Montgomery, Ostrander,- Hooker, and Carpenter, JJ., concurred.


author: Montgomery, J.

text:
    RICHARDS v. CITY OF ANN ARBOR.
    1. Municipal Corporations — Torts—Actions—Obstruction of Watercourse.
    In an action against a city for damages resultant from its fail- • ure to enlarge a culvert sufficiently to carry additional waters brought to a creek by its system of storm sewers and other improvements, evidence examined, and held, that defendant’s motion for a directed verdict, on the ground that it appeared by the undisputed testimony that the storm causing the injury was so extraordinary that it was not the duty of defendant to anticipate. it, was properly denied, there being evidence from which the jury might have found that the failure to provide adequate outlet was at least a concurring cause of the injury.

      Z. Same — Trial—Instructions—Extraordinary Character of Storm — Estoppel to Allege^Error.
    Defendant cannot allege error on the court’s failure to characterize the storm as unusual and extraordinary, though its character as such was admitted by plaintiff, where defendant presented and had given requests on the theory that the character of the storm was a question of fact for the jury.
    ■8. Same — Sufficiency of Culvert — Extraordinary Storm — Liability of City.
    Where a culvert was so inadequate that it could not take care of such water as would come to it in case of an ordinary storm which might reasonably be expected, and the injury to plaintiff’s property would have occurred in such a storm as is not uncommon in the locality, the fact that on the occasion of the injury there was some more rainfall and a larger volume of water than usual, would not excuse the city from responsibility.
    4. Same — Evidence—Admissibility.
    In an action against a city for damages resultant from failure to enlarge a culvert sufficiently to carry additional waters brought to the stream by the city’s system of storm sewers and other improvements, evidence of the filling in of a portion of an old mill race lying parallel to the stream, a part of which was done by the city, resulting in turning its current back into the stream, and of the system of storm sewers and of their effect in increasing the demands upon the oulvert, were admissible, not as substantive grounds for an action of negligence, but as bearing upon the question of what was a reasonable culvert.
    5. Same — Inadequate Culvert — Liability of City.
    Where, after a culvert was constructed, a city, by means of a system of storm sewers and other drainage improvements, none of which was unlawful, brought to the culvert more water than it was able to care for in ordinary stages of high water such as the city was bound to anticipate, it was as much the duty of the city to enlarge the culvert as though the increase of flowage had been in excess of authority, and the city, failing to enlarge the culvert, was liable for the resultant damages.
    6. Trial — Conduct—Remarks of Court — Prejudice.
    After stating that a witness had answered a question propounded on cross-examination, and being assured that he had not,' the court directed counsel to try it again, whereupon counsel withdrew the question and noted an exception to the remark of the court; the court then said: “If there is any doubt about it, about my being correct, you had better correct it now. That is my remembrance of it. I have no' doubt the witness said about half an hour; if you have, and the jury have, you had better decide that.” Held, that no discourtesy to counsel or anything indicating a purpose to unduly hamper counsel in the examination of the witness appeared.
    7. Municipal Corporations — Torts — Inadequate Culvert — Action — Evidence—Photographs—Admissibility.
    In an action against a city for damages arising from failure to provide a sufficient culvert to carry the waters of a creek under a highway, it being claimed in defense that the storm causing the injury was unusual and extraordinary,' photographs of the river of which the creek was a tributary, taken at a point above the mouth of the creek, were not of such materiality as to make their exclusion from evidence erroneous, the river taking its rise many miles away, and having various tributaries running into it upon which it depended wholly for increase in its volume of water.
    Error to Washtenaw; Kinne, J.
    Submitted January 22, 1908.
    (Docket No. 27.)
    Decided March 31, 1908.
    Case by Henry Richards against the city of. Ann Arbor for the flooding of plaintiff’s premises. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      J. W. Dwyer (E. B. Norris, of counsel), for appellant.

      J. E. Lawrence and Arthur Brown (M. J. Cavanaugh, of counsel), for appellee.
   Montgomery, J.

This is an action on the case, in which the plaintiff recovered for damages done to his property, real and personal, on the occasion of a rain storm which occurred in the afternoon of the 7th day of July, 1902. The claim of the plaintiff was that the defendant city, in the construction and completion of its system of storm sewers, had taken surface water to Allen’s creek which would not otherwise reach the creek, and that by such system of storm sewers had greatly accelerated the flow of surface'water within the drainage area into the creek, and that the defendant, having acquired the flowage right of the Ann Arbor Milling Co. in what is called “ the old mill race,” had diverted the surface water of the mill race to Allen’s creek, and that the defendant had neglected to enlarge the culvert over Miller avenue to an extent sufficient to safely carry the additional waters of the creek, and that the damage to plaintiff’s property was occasioned thereby.

The defendant contended that no enlargement of the drainage area of Allen’s creek had been made by the storm-sewer system; that the defendant city had the right to accelerate the flow of surface water; that none of the waters of the old race could have been present at a point where they could do any damage to plaintiff’s property; and that the storm in question was unusual and extraordinary, and such a storm as the defendant city had no reason to expect, and which the city was under no legal obligation to provide for.

Allen’s creek is a watercourse extending from the southerly portion of the city of Ann Arbor nearly across the limits of the city, with an outlet into Huron river. It has three branches of considerable importance and other smaller ones which unite at a point a short distance south of Miller avenue. At a point south of Miller avenue is the beginning of the old mill race, so-called, which had been in existence for' many years, and which had been continued in use up to the year 1900. Sometime in the month of May, 1900, the tunnel which formed a part of the mill race and extended under North Main street gave out, and it was not possible to make use of the water power without considerable repairs, and much fault having been found with the sanitary condition of this old mill race, the proprietors made an arrangement with one Hiscock and the city whereby they conveyed their right of flowage and ceased longer to use the water of the race for any purpose. Shortly after receiving this conveyance, Mr. Hiscock went on his land and filled in his old race up to the north line of Summit street, and in the month of October, 1900, Summit street being in need of repairs, the street commissioner filled in the old race in Summit street from Hiscock’s fill to the south line of Summit street, and at about the same time took down the small dam near plaintiff’s land, thus turning all the water of Allen’s creek into its original channel except such as stood in that portion of the mill race not filled-in.

The plaintiff’s property which was injured was bounded on the north by Miller avenue, on the east and south by Allen’s creek, and on the west by the Ann Arbor Railroad Company’s right of way and embankment. The railroad embankment between Huron street and Miller avenue was constructed at a height of approximately seven feet and was an ordinary railroad embankment constructed of earth.

The storm sewers had been constructed in 1898 and 1899 and the Hill street sewer, which it is claimed brought to the creek water which theretofore had not reached it, was built in 1899. At Miller avenue was constructed a culvert the exact size of which was a matter of dispute. The defendant claimed it had a capacity of 56 square feet, while the plaintiff claimed it was 40 square feet or less, and the testimony showed that the railroad culvert, a short distance south of this, was 45-J- square feet.

On the day of the injury to plaintiff’s property, the storm that raged was unquestionably very severe, and the rainfall unusual, although perhaps not unprecedented. The evidence of the plaintiff tends to show that Allen’s creek south of the. plaintiff’s premises filled up rapidly; that the culvert at Miller avenue was wholly inadequate to carry off the water whiph came down; that as the volume of water increased, it carried away not only the plaintiff’s buildings but the culvert as well. The theory of. the plaintiff was that the water flowing into the old mill race from certain ravines and natural drainage courses below Miller avenue and being shut off at Summit street, increased to such volume as to cause the waters to back up and flow south and unite with the waters coming down Allen’s creek and increasing the volume materially.

It appeared by the testimony of the plaintiff that for a period of a year or more he had been making complaint to the city authorities of the inadequacy of the culvert at Miller avenue. This was shown by testimony of various witnesses, including the city engineer. In fact the authorities went so far as to cause an estimate to be made by the city engineer of the expense of increasing the capacity of the Miller avenue and other culverts on the creek. This action took place as early as April 15, 1901, and a report was made thereon, but no change was made in the culvert.

At the close of the testimony defendant asked that the verdict b.e instructed in its favor on the ground that it appeared by the undisputed testimony that this storm was so extraordinary in its character that it was not the duty of the defendant to anticipate it, and that the injury to the plaintiff’s property was caused by the act of God.

We think there was no error in refusing to give this instruction. It could not appear conclusively from any evidence in the case that had the provision for taking care of the water that might reasonably be expected to come to this creek been made, the accident to the plaintiff’s property would have happened. There was evidence on the part of one of the witnesses who attempted to keep the culvert clear tending to show that the water came down more rapidly than the culvert could care for it, and that it was a considerable period of time before it reached the level of the highway. The jury'might well have drawn the inference that if provision had been made by an ample culvert to carry off this water, the accident would not have happened. At least it was open to the jury to find that the failure to provide adequate outlet was a concurring cause of the injury.

It was conceded by counsel for the plaintiff that the storm was unusual and extraordinary, and it is contended that the court was in error because it failed to characterize the storm as unusual and extraordinary in the instructions given to the jury. This contention is most remarkable, in view of the fact that in the defendant’s 5th request, which was given with a modification not at all affecting the sense of the request, in the 6th request, and again in request 6a, both of which were given, the latter with a necessary modification, it was assumed that the question was a question for a jury, as to whether this storm was of such an extraordinary character that the city was not bound in the exercise of ordinary care and foresight to provide means for taking care of the water, but in the 7th request, which was not given, it was asked that the question be distinctly left to the jury as to whether the storm was unusual and extraordinary. That request was as follows:

“If-you find that the storm of the 7th of July, 1902, at Miller avenue aforesaid, being the locality in question, was unusual and extraordinary; that is to say, if an unusual and extraordinary quantity of rainfall was then and there precipitated in the watershed of Allen’s creek, and coming to the cuivert thereat, then you are directed that the defendant city would not be responsible for the damages occasioned thereby, and your verdict should be for the defendant.”

In view of this, it is most remarkable that counsel should allege error and complain that the circuit judge did not, in disregard of their preferred request, declare the question to be not one of fact but one of law for the court.

The circuit judge, at the request of the defendant, gave the jury the following instruction:

“If you should find that the culvert at Miller avenue was not of sufficient capacity to carry and discharge all of the water of Allen’s creek, even in ordinary high water, and if you further find that the storm of the day in question was unusual and extraordinary; that the damage which occurred would have come in consequence of the storm, even if the culvert had been of sufficient capacity to carry and discharge at all times all of the water- in times of unusual high water, then you are directed to return a verdict for defendant.

“If the defendant city’s negligence concurred as a fact in causing the damage complained of, its liability depends upon whether it contributed as a proximate or remote cause. If you shall find that defendant city’s negligence was merely the remote cause it will not be liable although it may have contributed in some degree in producing the damage.”

We think these two last requests were sufficiently favorable to the defendant. If as a matter of fact the culvert in question was so inadequate that it could not take care of such water as would come to it in case of an ordinary storm which might reasonably be expected and anticipated by the authorities, and the injury to this property would have occurred in such a storm as is not uncommon in this region, the fact that on this occasion there was some more rainfall and a larger volume of water should not and would not excuse the city from responsibility. See Brash v. City of St. Louis, 161 Mo. 433; 1 Thompson on Negligence, § 23; Wald v. Railroad Co., 162 Ill. 545 (35 L. R. A. 356). This was evidently the view upon which the case was submitted by the circuit judge.

Complaint is also made in the brief of the fact that the jury were permitted to consider the claim of the plaintiff that the water in the mill race backed up so as to flow south and thus increase the demands of the Miller avenue culvert. It is claimed that the testimony fails to show' this to be the fact. But we think there was testimony given in the case which if credited by the jury did tend to show that the water was forced back in this mill race and found its way into the creek above plaintiff’s property. This was a competent fact to be shown, not as a substantive ground for an action óf negligence possibly, but as a fact of which the city must have had knowledge, as it joined with Hiscock in filling in the mill race from the point where it crossed Summit street, and must have known the natural effect of this act, and that if the water backed up it would make increased demands upon the culvert at Miller, avenue.

The same thing may be said of the testimony upon the subject of drainage. If the drainage by the storm sewers increased the water in the creek so that the demand upon the culvert was correspondingly increased, this was a competent fact without regard to the question of whether the increase in flowage was per se negligent. Both of these facts bore upon the question of what was a reasonable culvert. A careful reading of the charge of the circuit judge, which consists in a very large part of instructions requested by the defendant, leads tó the conclusion that this was precisely the view which he sought to convey to the jury and which we think he did impart. At the request of the defendant he charged the jury that ‘ * the storm sewers constructed by the defendant city and referred to in the evidence are each and all of them lawful structures.” True he refused to give an instruction as follows:

“You are further instructed if you should find that the surface water, or rain falling in the streets and on buildings situate in defendant city, and within that portion thereof within the watershed of Allen’s creek and by the storm sewers was accelerated in its flow and thereby reached the watercourse called Allen’s creek sooner and in a shorter time than it would otherwise have done, still the defendant city is wholly without responsibility on account thereof.”

The giving of the one instruction and refusing the other is undoubtedly accounted for by the fact that he had previously instructed the jury in substance that if the concurrence of the various acts which were shown on behalf of the city with an extraordinary flow caused the damage to the plaintiff the plaintiff could recover. He had instructed the jury in his general charge as follows:

“If from the evidence you find that the storm of July 7, 1902, was one of extraordinary violence, in the nature of a cloudburst or something akin thereto, that it caused such a rush of waters into and along the course of Allen’s creek that no ordinary prudence or foresight on the part of the city could be expected to guard against it, that the destruction it worked upon the premises of the plaintiff was independent of any other concurring causes, if you so find the facts from the evidence in this cause, then the city is not liable in this action and your verdict should be for the defendant.

* ‘ If, however, you find from the evidence that there were concurring or contributing causes, that through the system of storm sewers waters were conveyed into Allen’s creek which were not within- the natural drainage of said creek; that the waters which had previously passed into the mill race were turned south and passed into Allen’s creek south of the land of the plaintiff, and that the culvert at Miller avenue was thereby rendered insufficient to carry off the waters of Allen’s creek in times of ordinary high water, and that the city had been cognizant of this fact for some months, and if you further find from the evidence that these causes and conditions concurred and contributed to the destruction of the plaintiff’s property, and that without such concurrence no damage could have been sustained by the plaintiff, then the plaintiff would be entitled to your verdict.

“ There is no doubt of the authority of the city to establish a system of drainage for the benefit of the streets and the public, and it cannot be said that it must be sufficient for every possible emergency, but the city is required to use due caution, and if through its negligence in not providing reasonably efficacious means to take care of the water that it should reasonably expect to accumulate by reason of its sewer and other sources a liability would be incurred.

“In this case the city thoroughly disputes the claim that its system of storm sewers conveys any water into Allen’s creek out and beyond the area of the natural ■drainage thereof. That is the claim on the part of the city.

“It must be hoped and expected that improvements will be made within the boundaries of a city. Streets may be graded and paved, their level may be changed and thereby the natural flowage of the surface water may also be changed, and the creation of storm sewers in the improved districts of localities may cause the surface water therein to flow more rapidly and in larger quantity towards and into their natural drain, and in this case the improvements in the sixth and seventh wards of this city may have caused the surface water flowing through the storm sewers into Allen’s creek to be increased in velocity and quantity, but such is the right of the.city, and no one can complain thereof so long as the natural area of drainage is not enlarged.

‘ ‘ If you find from the evidence that the culvert at Miller avenue was sufficient to receive and discharge all waters that passed into and along Allen’s creek in times of ordinary high water then the city has done its entire duty in the premises and the plaintiff cannot recover in this action. If, however, the system of storm sewers caused water to flow into Allen’s creek from lands of which Allen’s creek was not the natural drainage, and such increased flow-age proved to be beyond the capacity of the Miller avenue culvert in times of ordinary high water, then it would be the duty of the city to meet this demand and enlarge the culvert correspondingly, and its negligence in so doing, if it caused or contributed to the damage or injury to persons or property, would create a liability on the part of the city.

“It appears that north of Miller avenue there is a considerable tract of territory whose natural drainage would be Allen’s creek, it appears that for many years prior to 1902 this territory had drained into a certain private mill race, that some time prior to the 7th day of July, 1902, this mill race had ceased to be used as a mill race, and the flow of water therein had been obstructed. It is the claim of the plaintiff that through the action of the city in filling up Summit street the flowage was held back and thereby the water which previously had drained into the mill race was turned south and thus driven back across Miller avenue and into Allen’s creek south of the plaintiff’s land. This contention on the part of the plaintiff is wholly denied by the defendant, and the city insists that the action of the city in the filling up of Summit street had no effect whatever upon this flowage of water.

“If from the evidence in this case you find that this claim on the part of the plaintiff is sustained and established, and that thereby the water drainage into Allen’s creek was increased so that the .capacity of the culvert at Miller avenue in times of ordinary high water was rendered inadequate to the demands upon it, then the city would be guilty of negligence in not enlarging the culvert so as to meet this exigency, and if you find from the evidence in this case that this condition of affairs caused or contributed to the destruction of July 7, 1902, then the city would be liable therefor.

“ If you find from the evidence that the water which previously drained into the mill race in point of fact did not run south or was not driven south across- Miller avenue and into Allen’s creek, but found its. way into Allen’s creek north of Miller avenue, then this contention on the part of the plaintiff must fall to the ground.”

It is manifest that as an essential to a recovery in any case the jury must have found the inadequacy of the culvert at Miller avenue to take care of the waters which were conveyed to it in ordinary stages of high water such as the city was bound to anticipate. The fact that after the culvert had been constructed the changes in the storm-sewer system had resulted in bringing more water there, would make as imperative an enlargement of the culvert if the water was otherwise rightly brought there as if the flowage was in excess of authority. We are satisfied that the gist of the plaintiff’s action is the inadequacy of the culvert, but this depended upon other acts of the city, lawful or unlawful, — and as to the drainage system the jury were told they were lawful, — in fixing the quantity of water which they saw fit to attempt to force through the outlet. We do. not think recovery could have been had upon any other theory, and, so construed, we think the instructions correct and not out of harmony with A. L. Lakey Co. v. City of Kalamazoo, 138 Mich. 644 (67 L. R. A. 931). We think we have said all that need be said on the subject of the charge.

The objections to the argument' by counsel have been fully considered, but we think nothing occurred at the trial that calls for a reversal of the case upon this ground.

Considerable intemperate discussion is devoted to a statement of the trial court that a certain witness had answered a question which was propounded on cross-examination, but on being assured such answer had not been given, the court directed counsel to try it again, whereupon counsel withdrew the question and noted an exception to the remark of the court. The court very promptly said:

“ If there is any doubt about it, about my being correct, you had better correct it now. That is my remembrance of it. I have no doubt the witness said about half an hour; if you have, and the jury have, you had better decide that.”

We fail to discover in anything the court said on this occasion ,any discourtesy to counsel or anything indicating a purpose on the part of the court to unduly hamper counsel in the examination of the witness. The intemperate language of counsel in discussing this question in the brief is worthy of the severest condemnation. It is absolutely without justification so far as we are able to discover.

Defendant offered in evidence certain photographs showing the appearance of Huron river at points above the inlet of Allen’s creek, and these were excluded, and error is assigned upon that ruling. "V^e think that no error was committed. The volume of the water in Allen’s creek was the question in controversy. While general testimony as to flood conditions was competent, the appearance of a stream which was shown to have taken its rise many miles away, and to have various tributaries running into it and depending wholly upon them for increasing the volume of water, had no such direct tendency to show the condition of Allen’s creek as to make its exclusion error, especially as the condition of Allen’s creek was so clearly shown.

We think the defendant had a fair trial, and there was testimony which justified the jury in finding the verdict which was returned;

The judgment is affirmed.

Grant, C. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


author: Ostrander, J.

text:
    McDONALD v. TOWNSHIP OF SPRINGWELLS.
    (1. Statutes — Subjects and Titles —Scope of Title —Sufficiency.
    A title disclosing a purpose to authorize a township board to borrow money to improve a certain street is not broad enough to embrace a provision in the act that the contracts to be let and the fund to be disbursed shall be under the control, not of the regularly elected township officers, but of a new board, created by the act itself, three members of which are to be appointed by the township board.
    2. Same — Constitutional Law — Partial Invalidity of Statute.
    Where the provision in a statute not germane to the title of the act constitutes its only material change from the preexisting law, the court cannot say that the act would have received legislative sanction with the invalid provision eliminated and give effect to the act accordingly.
    3. Equity — Jurisdiction—Setting Aside Referendum.
    Whether equity has jurisdiction to set aside the result of a referendum to determine whether a township shall issue its bonds for a specified purpose by reason of corrupt practices indulged by the friends of the project, qusere.
    Appeal from Wayne; Hosmer, Donovan, Brooke, and Murphy, JJ.
    Submitted January 20, 1908.
    (Docket No. 100.)
    Decided March 31, 1908.
    Bill by John C. McDonald and others to enjoin the township of Springwells and its officers from selling, transferring, or otherwise disposing of certain bonds. From a decree for complainants, defendants appeal.
    Affirmed.

      Chamberlain, May, Denby & Webster i Charles D„ Joslyn, of counsel), for complainants.

      Richard I. Lawson, for defendants

      The electors of the township of Springwells, in the county of Wayne, at an election held April 1, 1907, by a vote of 152 to 122, voted to bond the township for $60,000 to be used to pave a road. The circuit court, in chancery, for Wayne county, on the complaint of a number of taxpaying electors of the township, by a decree made October 24, 1907, enjoined the township and its officers from selling, transferring, or otherwise disposing of the bonds and from taking any steps or proceedings under the enabling act (Act No. 411, Local Acts 1907), entitled:
    “An act to authorize the township board of the township of Springwells, in the county of Wayne, to issue the bonds of said township to ari amount not exceeding sixty thousand dollars, for the purpose of paving Michigan avenue in said township from the easterly limits thereof to the Pere Marquette railroad, and to levy taxes sufficient to provide for the payment thereof with interest thereon.”
    The four circuit judges who heard the case were of opinion that the act in question was unconstitutional and void because the provisions of section 4 of the act, if carried into effect, invaded the right of local self-government. That section is:
    “ In case said bond issue is authorized by the electors of said township, the said township board shall immediately thereafter appoint three freeholders of said township, each of whom shall have equal powers with each of the members of the said township board in expending the money derived from the sale of the said bonds for the said improvement, and a majority of the said township board and of the said three freeholders are authorized and empowered to let contracts for the said paving or improvement or do whatever may be necessary to carry into effect the object of this act; and the funds received from the sale of said bonds shall be under the control of and subject to the disposition of the said township board and the said freeholders thus appointed, for the purpose of improving Michigan avenue in the manner in this act contemplated.”
    They were also of opinion that the title of the act was not broad enough to embrace the objects of the act, with the provisions of section 4 included, and that, if that section was eliminated, it is improbable that the act would have received legislative assent.
    The judges were agreed, also, that corrupt practices, affecting the result of the referendum, were indulged in by friends of the bonding proposition on election day. While condemning these practices, three of the judges expressed no opinion concerning the legal effect of them; one of them was of opinion that a court of equity had power, the exercise of which is warranted in this case, to declare the election void.
   Ostrander, J.

(after stating the facts). The act, in my opinion, embraces an object not expressed in its’ title. There may be ground for differences of opinion upon the point that the provision for a new board, created by the act, to make contracts and to disburse the fund, is within the general purpose of the act. There can be no differences of opinion upon the point that the title to the act does not indicate, or intimate, that the contracts to be let and the fund to be disbursed shall be under the control, not of the regularly elected township officers, but of a new board, created by the act itself, three members of which are appointed by the township board. Some reference to existing legislation will aid us. In 1903 (Act No. 231, Pub. Acts 1903), the legislature empowered .townships, upon conditions set out in the act, to borrow money to improve highways and to issue township bonds. The commissioner of highways was, by the act, given charge and supervision, under the direction of the township board, of the improvements proposed to be made; This legislation was amended in 1905 (Act No. 124, Pub. Acts 1905), but in a manner not here important. Under either act, the commissioner of highways issued the orders upon which the moneys provided to pay for the improvement were expended. Under the act of 1903, the orders were required to be countersigned by the township clerk and the supervisor, and, under the act of 1905, by the township clerk. Some of the conditions imposed were that two-thirds of the qualified electors voting should favor the issuing of bonds; that they should run for a period not exceeding 25 years, at interest not exceeding five per cent, per annum; that the amount of bonds should not exceed five per cent, of the assessed valuation of the township; that the improvements should be graveling, macadamizing, building stone roads, “or in any other way in the discretion of the township board.” The act in question requires the project to be approved by a majority of the qualified electors, defines the limits of the improvement, limits the rate of interest to be paid to four percent., payable semi-annually, and fixes the maturity of the bonds at not more than 30 years. Assuming, as we must, there were reasons for these variations from the general law, and assuming (Campan v. Highway Com'r of Grosse Pointe, 132 Mich. 365) that the power of the legislature to modify, change, or abolish the powers and duties of township. commissioners and overseers of Idghways is unlimited, it remains that under the general law referred to there were local officers, duly elected by the people of the municipality, who would, in the absence of express provisions to the contrary,'let the contracts for the designated improvement and responsibly superintend the disbursement of the fund. It was said by this court in People v. Mahaney, 13 Mich. 481, that the design of the constitutional provision (article 4, § 20) was twofold, one purpose being to prevent the insertion of clauses in a bill of which the title gave no intimation.

“As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as- to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the constitution has made the title the conclusive.index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so.” Cooley on Constitutional Limitations (7th Ed.), p. 212.

It is sometimes a difficult, always a delicate, task to determine that the constitutional restriction has been disregarded. Without considering whether the legislation is invalid because it is an invasion of the right of the community to control its internal affairs, I am impressed that no one reading the act by its title, or informed of the purpose thereof expressed in the title, would suppose that the act created a new, and to the' law, and to history, a nondescript board to superintend a purely local improvement and to disburse moneys raised upon the faith and credit of the local community. Whether or not it was strictly within the legislative power to do so, the significant fact is that the legislature has, in the body of the act, denied the community the usual control of local affairs. Counsel for appellants, in his argument, assumes that the title of the act is not broad enough to include the object expressed in section 4, but contends that with that section eliminated the act is effectual and should be held to be valid. The question is, whether we can say that the legislature would not have passed the act with this section omitted. It seems to me that in this connection we are obliged to consider, in view of existing general law, why the legislature should have passed this act at all if not for the purpose expressed in section 4. In all other respects, the variations from the general law, so far as the record makes them apparent, are slight. Imagination would be little exercised in arriving at the conclusion that the main purpose of the statute was the one expressed in section 4; a purpose which the title, I assume by inadvertence, does not disclose.

The conclusion is that the act must be held to be invalid, and the decree of the court below affirmed. An opinion concerning the legal effect of the practices indulged in by certain friends of the project before and on election day, and concerning the jurisdiction of a court of equity to set aside the result of a- referendum obtained by corrupt practices is not required. The record before us contains ample proof that petty bribery was resorted to for the purpose of influencing electors. It must be plain to every one that the value of the referendum-in proceedings to impose community indebtedness is destroyed if the apparent result is a fraudulent one.

Grant, C. J., and Montgomery, Hooker, and Carpenter, JJ., concurred.


author: Hooker, J.

text:
    BROWN v. HANNAH.
    1. Executors and Administrators — Administrator — Premature Appointment — Filing Bond.
    That letters of administration bear date earlier than the filing of the administrator’s bond does not render his appointment void under section 9325, 3 Comp. Laws, since the presumption would be that the statute was not disobeyed and that the letters were not delivered until after the bond was filed; but even if delivery preceded the filing of the bond it would be a mere irregularity, cured by the subsequent filing of the bond, the order of appointment not having been vacated, and acts done by the administrator after filing the bond would be valid.
    2. Same — Sale of Land — Order—Publication — Clerical Defect.
    The publication of an order of hearing of an application to sell land was not defective as variant from the order as made by reason of the year of the session of the court being stated 1896 in the publication and 1897 in the order, where both fixed “Friday, the nineteenth of February next,” as the day of the hearing, the error being a clerical one which could mislead nobody.

      3. Same — Sale—Several Parcels — Sale as One — Effect.
    The sale of several lots as one parcel under an order directing their sale separately is a mere irregularity not subjecting the sale to collateral attack.
    4. Same — Sale Subject to Widow’s Homestead Rights — Effect.
    The sale of several lots as one parcel, subject to the widow’s homestead rights, when in fact she had such rights in only one lot, is a mere irregularity not subjecting the sale to collateral attack.
    5. Guardian and Ward — Appointment of Guardian — Residence of Ward — Jurisdiction.
    Under section 8708, 3 Comp. Laws, the probate court of one county may appoint a guardian for a minor residing in another county, the minor being a necessary party to administration proceedings in the county of the appointment.
    Error to Grand Traverse; Mayne, J.
    Submitted January 22, 1908.
    (Docket No. 123.)
    Decided March 31, 1908.
    Ejectment by Homer G. Brown and others, by next friends, against Elsie R. Hannah and others. There was. judgment for defendants, and plaintiffs bring error.
    Affirmed.

      Hervey H. Anderson and John W. Patchin, for appellants.

      Pratt & Davis, for appellees.
   Hooker, J.

Thomas Cutler, Sr., died in December, 1894, seised of four lots in block 2, Traverse City, Michigan, numbered, respectively, 7, 8, 9, 10. He left surviving him a widow, Rachel, and his heirs were two sons, John D. and William H. Cutler, and two granddaughters, Alice Cutler Brown and Birdie Sybil Brakel, the daughters, respectively, of Thomas Cutler, Jr., and George Cutler, deceased sons.

On May 7, 1895, Alice Cutler Brown filed in probate court a petition for the appointment of an administrator of her grandfather’s estate, and on June 7, 1895, an order was made appointing Henry D. Campbell such administrator, and letters bearing the same date, signed by the probate judge and indorsed:

“ The probate court'for the county of Grand Traverse. Estate of Thomas Cutler, deceased. Letters of administration, June 7, A. D. 1895.

(Signed) “James H. Monroe, ■

“ Judge of Probate.”

are found in the record. The administrator’s bond bears date July 8, 1895. The real estate involved in this suit was appraised at $20,000. On June 7, 1895, the probate court appointed Henry D. Campbell guardian of Birdie S. Brakel, who was a minor living in Wexford county, and William A. Brown was at some later date appointed guardian for his children, Homer G. and Gladys Brown.

Alice Brown died testate in 1896, leaving two children, her only heirs and devisees, named Homer G. and Gladys Brown. The widow died before this action was brought. A claim for $14,272 was presented by John D. Cutler, and this was allowed at $3,924.71 on January 26, 1897. It was the only claim presented, and on January 30, 1897, it was assigned to Julius T. Hannah. On January 25, 1897, the administrator filed a petition to sell all of this real estate to pay debts, and on January 26, 1897, an order for hearing on February 19, 1897, was made, said order to be published in the Grand Traverse Herald. Proof of such publication appears to have been made. At the hearing, plaintiffs in error in this case did not appear. A license to sell was ordered, sale was made to Julius T. Hannah, for $6,000, of all of the real estate subject to the rights of widow by way of dower and homestead, the sale was confirmed, and deed was made. There were some outstanding tax titles on the property. Hannah afterwards conveyed lots 9 and 10 to John D. and William H. Cutler, and portion of lots 7 and 8 to other persons. Subsequently Hannah died, and this action is brought against his widow (presumably devisee) and executors, to recover the undivided one-half of certain described portions of lots 7 and 8, which plaintiffs claim in fee. The plaintiffs have brought it to this court by writ of error, judgment of no cause of action having been entered.

Counsel agree that the case must turn on the validity of the probate proceedings, the important objections to which seem to be:

(1) That the letters of administration were prematurely issued and conferred no authority upon the administrator to act.

(2) Variance between the order of hearing on the petition to sell as made and published.

(3) Sale of the lands in one parcel.

(4) Sale of the same subject to the widow’s homestead rights, when she had such rights in only one of the lots.

(5) The appointment of Campbell by the probate court of Grand Traverse county guardian of a minor residing in Wexford county.

Letters of administration. The statute relied upon for the claim that the administrator’s letters were void is 3 Comp. Laws, § 9325:

“ Every administrator, before he enters upon the execution of his trust, and before letters of administration shall be granted to him, shall give a bond to the judge of probate, with such surety or sureties as he shall direct and approve, with the same conditions as required in the case of an executor, with such variations only as may be necessary to make it applicable to the case of an administrator.”

It will be remembered that the bond was not filed until July 8, 1895. In one sense the letters were granted to him on June 7th, i. e., the order appointing him was made that day, and the letters were dated that day. There is nothing to show that they were delivered before the bond was filed, for his first act in the execution of his trust was on July 27th, when he made the inventory, while the presumption should be that the probate judge did not disobey section 9325. Therefore, if the question is one that can be raised, in this proceeding, and if it be true that the letters bear an earlier date, we will not assume that they were delivered before that date. Moreover, letters of administration are the evidence of appointment and qualification, and though they should be prematurely delivered would not render the appointment void. The action of the probate court in prematurely delivering them would be an irregularity, but this would be cured by the subsequent filing of the bond, and all subsequent acts of the administrator would be valid, for by filing the bond he qualifies under the order appointing him, if it had not been vacated. See 11 Am. & Eng. Enc. Law (2d Ed.), p. 810; 18 Cyc. pp. 128, 131, 138, 140; Johnson v. Johnson’s Estate, 66 Mich. 525. This appointment was not void and the. acts done by the administrator after he filed his bond were not invalid upon the ground claimed. We have examined Ryder v. Flanders, 30 Mich. 336, and Warn v. City of Flint, 140 Mich. 573, and find nothing at variance with the views expressed above. On the contrary, the latter seems' to sustain them, as does Morford v. Dieffenbacker, 54 Mich. 605; Ions v. Harbison, 112 Cal. 260; Bloom v. Burdick, 1 Hill (N. Y.), 130. Other cases are cited in defendant’s brief, Ackerman v. Pfent, 145 Mich. 710.

Variance. We are unable to ascertain from the plaintiffs’ brief what the defect in the publication of the order of hearing of the applications for license to sell land was, unless it was that in the caption of the order as made the session of court was held on January 26,1897, while as published it'was 1896. Both fixed “Friday the nineteenth day of February next ” as the day of hearing. This was a clerical error which could mislead nobody and was properly disregarded.

Sales as one parcel'. It is claimed that these lands were sold as one parcel contrary to the directions of the orders of sale which were that the lots be sold in their numerical order. Plaintiffs’ counsel rely upon the case of Osman v. Traphagen, 23 Mich. 80. That was an ejectment case, and it was held that such a sale, in violation of an order, was not void, and that “the only safe and practicable course is to treat the omission to sell in parcels as a mere irregularity which cannot be resorted to to invalidate a sale when attacked collaterally.” In the note to Osman v. Traphagen, supra, other cases bearing on this question are cited. See, also, Norman v. Olney, 64 Mich. 561; Blackman v. Mulhall, 19 S. Dak. 534.

Sale subject to homestead. The ground of this attack seems to be that all of the land was sold subject to the widow’s homestead rights, while her homestead rights covered one lot only. What has been said about the sale may cover this question as well. It is at most an irregularity that cannot be attacked collaterally.

Appointment of guardian. It is claimed that the appointment of a guardian for Birdie Sybil Brakel was void. See 3 Gomp. Laws, § 8697, but section 8708 appears to sustain such action.

Counsel have sought to raise some other questions; notably a claim that John Cutler and Hannah colluded to acquire the entire property for an inadequate price. These questions cannot be considered on this record. They relate to irregularities in some instances and are covered by what has been said. We omit discussion of them as they cannot affect the result of this action.

The judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and Carpenter, JJ., concurred.


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    PEOPLE v. WILCOX.
    Intoxicating Liquors — Offenses—Keeping for Sale — Engaging in Business — What Constitutes.
    Under section 5379, 2 Comp. Laws, requiring the payment of the prescribed tax upon the business of selling or keeping for sale at retail intoxicating liquors, read in connection with section 5380, defining who are dealers, one who sells a single drink is a retail dealer sufficiently to subject him to the payment of the tax, and to punishment if he sell without having paid the tax.
    Exceptions before judgment from Ingham; Wiest, J.
    Submitted January 23, 1908.
    (Docket No. 169.)
    Decided March 31, 1908.
    Eugene Wilcox was convicted of violating the liquor law.
    Affirmed.

      John J. Zimmer, for appellant.

      Walter 8. Foster, Prosecuting Attorney, for the people
   Hooker, J.

The appellant was convicted upon an information charging him with being engaged in the business of selling and keeping for sale distilled, brewed, fermented, malt, mixed, spirituous, and intoxicating liquors at retail, not having paid the tax upon such business required by law. No question is raised upon the sufficiency of the information. The testimony shows without contradiction that one Huntington procured from the defendant a drink of malt mead and a bottle of the same, and some whiskey, at a hotel in Haslett Park, the drink over the bar in said hotel. Huntington testified that he paid defendant for the drink; that after getting his horse fed, and the bottle of whiskey, he asked how much he owed, and was told 50 cents, which he paid to the defendant, and then he bought from him a quart bottle of malt mead for which he paid him 25 cents. Defendant testified that he made no charge for the whiskey; that he sold the malt mead for Mr. North, who was owner of the hotel, during his absence, and turned the money over to him. He was a carpenter working there for North and believed the labels on the malt mead bottles to be true in stating that there was less than two per cent, of alcohol in the contents, and that the malt mead was absolutely non-intoxicating. He said the whiskey was from his own bottle and was not charged for.

Counsel for defendant says that this testimony fails to show that the defendant was engaged in the business of selling, or keeping for sale, which is the charge contained in the information.

The question in the case is, whether the facts hereinbefore stated were sufficient to justify the conclusion that defendant was engaged in the business of selling, etc., at retail, as defined in the statute. The undisputed testimony, including that of the defendant, shows that he sold a drink of malt mead, a spirituous liquor, over the bar at the hotel.

Counsel for defendant urges that a single sale is insufficient to establish the charge that defendant was engaged in the business of selling or keeping for sale, upon the theory that a dealer is one who makes successive sales, and that a business cannot consist of a single sale, citing authorities in support of his contention.

Section 5379, 2 Comp. Laws, as amended by Act No. 62, Public Acts 1903, requires the payment of a prescribed tax upon the business of selling or keeping for sale at retail spirituous or intoxicating liquors. Were this all of the statute applicable to the case we should agree with counsel that it could have no application to the case of one who merely sold a drink on one occasion, especially if he was not the owner and merely acted for the accommodation of another. But it is not all there is of this statute. Section 5380 defines the meaning of dealers in the following language :

“Retail dealers of spirituous or intoxicating liquors, and brewed, malt and fermented liquors, shall be held and deemed to include all persons who sell any of said liquors by the drink, and in quantities of three gallons or less, or one -dozen quart bottles or less, at any one time, or to any person or persons.”

The two sections clearly imply that one who sells a single drink is a retail dealer engaged in the business, for the purposes of the act, i. e., to subject him to the obligation of paying the tax.

The judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and Carpenter, JJ., concurred.


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    PEOPLE v. ROBINSON.
    1. ' Criminal Law — Appeals — Questions Considered — Sufficiency of Record.
    Errors in the admission of testimony in a criminal case to which no objection was taken at the trial cannot be considered, particularly where resort to stenographer’s minutes not embodied in the bill of exceptions is necessary to make it appear that the rights of the defendant have been invaded.
    2. Same — Trial — Instructions — Matters Considered on Appeal.
    Error cannot be predicated upon failure to give instructions not asked in a criminal case, where the charge of the court was sufficiently full to cover the case fairly, and no error appears in the instructions given.

      3. Homicide — Self-Defense — Instructions — Duty to Retreat —Right to Act Upon Appearances.
    Instructions stating respondent’s duty to retreat from attack if possible with safety are not erroneous for failure to include the statement that respondent’s actions are to be judged in the light of the circumstances as they appeared to him at the time, where in another paragraph the jury were instructed that respondent had a right to take into consideration the facts as they appeared to him at the time, and the jury by finding respondent guilty of assault with intent to do great bodily harm must have found that he did not act in self-defense upon the circumstances as they appeared to him at the time.
    .4. Same — Prejudice.
    Error is not predicable upon failure of instructions upon the duty to retreat to include the element of the right of the respondent to act upon the circumstances as they appeared to him at the time, where, from respondent’s own testimony, it is apparent that he sought out the person assaulted at a time when he had but to retire or remain where he was and be safe.
    Error to Emmet; Shepherd, J.
    Submitted January 23, 1908.
    (Docket No. 167.)
    Decided March 31, 1908.
    Aquilla Robinson was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than three nor more than ten years in the State prison at Jackson.
    Affirmed.

      John F. Henigan, for appellant.

      Wade B. Smith, Prosecuting Attorney, for the people.
   Montgomery, J.

The information in this case contained two counts, one of them charging assault with intent to murder, and the other assault' with intent to do great bodily harm less than the crime of murder. The respondent was convicted of the offense charged in .the second count. The case was brought before us for review on error. Numerous assignments of error are made, based upon the failure of the trial judge to give specific instructions, and based upon alleged error in admitting testimony to which no objection appears to have been made, so far as the record discloses. • It is enough to say of these assignments, first, that we cannot consider errors in the admission of testimony to which no objection was taken at the trial, and particularly where resort to stenographer’s minutes not embodied in the bill of exceptions is necessary to make it appear that the rights of the defendant had been invaded, and that as to alleged errors based upon the omission to give instructions which were not asked by the defendant, the charge of the court was sufficiently full to cover the case fairly, and unless some error was committed in the instructions given, the respondent has failed to show that his rights were not fully protected.

In what has been said upon the subject of the admission of testimony, it is not intended to intimate that, even if the facts appeared which are assumed in the brief of counsel, any error was in fact committed.

The chief error relied upon is based Upon an isolated portion of the charge in which the circuit judge said to the jury:

'“A person is bound, although he is attacked — unless he be attacked with a deadly weapon — he is bound to retire if he can do so with safety. That is, merely because one person attacks another, the other person has no right to go on and wilfully kill him. He should first go away, unless he is in the defense of property, servant or something or some one who has a right to look to him for defense.”

In .connection with this, there was also given an instruction as follows:

‘ ‘ The first question is: Was Robinson guilty of assault and battery ? If Robinson did no more than what was necessary in order to defend himsef frpm personal injury, then he is not guilty of assault and battery; but if he did what was unnecessary, or if he did more than was necessary in order to defend himself, he became and was guilty of assault and battery.”

It is claimed that these instructions were erroneous for the reason that they omitted to include the statement that the respondent’s actions were to be judged in the light of the circumstances as they appeared to him at the time. Respondent’s counsel contends that the law of the State is stated in Pond v. People, 8 Mich. 150, as follows:

“Homicide, se defendendo, in resisting an assault not made with a felonious intent, is excusable where the danger to be resisted is to life, or of serious bodily harm of a- permanent character, and unavoidable by other means in the power of the slayer so far as he is able to judge at the time. But he is bound, if possible, to get out of his adversary’s way, and has no right to stand up and resist if he can safely retreat or escape.”

No fault can be found with this statement of the law, but there are two sufficient answers to the contention of respondent’s counsel that error was committed in the instructions given. The first is that in another portion of the charge the circuit judge did instruct the jury as follows :

“I will add one thing, that so far as relates to the charge of assault with intent to murder, Mr. Robinson' had a right to take into consideration the facts as they appeared to him. For this purpose — for this reason — the court admitted the testimony on the part of Mr. Robinson as to what Mr. Baker told him. If you find that Baker told him — whether he did or not is solely a question for you to decide, and not for me — but, if you find that Baker warned Mr. Robinson against Mr. Dean, and Robinson believed it and was acting upon that information when he struck Dean or kicked him — if he did kick him— merely and for the purpose of defending himself, then you will take that into consideration as to whether there was malice; and if you find that he did that solely for the purpose of defending himself, then you will acquit him of the charge of assault with intent to murder, or of assault with the intent to do great bodily harm less than the crime of murder.”

And as the jury found the respondent guilty of the offense of assault with intent to do great bodily harm, it is fairly to be inferred that they must have found that he did not act in his own defense upon the circumstances as they appeared to him at the time.

But if there were doubt about this, the testimony of the respondent himself is such that if all reference to such claim had been omitted, no injury could have been done to the respondent. We are not concerned in dealing with the abstract questions as to rights depending upon a set of circumstances which are conclusively shown; not to have existed in the case. The complaint made of the instructions as above quoted is that the jury were told that it was Robinson’s duty first to have gone away. Counsel says:

“Gone away, whether the imminency of the attack would permit him to go away or not! Start to go, though the minute he turned to go he might be stabbed in the back! Go away, though it was not possible to go consistent with his own safety! Go away without qualification or condition, though it might be even physically impossible for him to go! ”

If the charge had stood without modification, the question would still arise as to whether there was any testimony to show imminency of attack or a fear in the mind of respondent himself of being stabbed in the back if he should start to go away, or any doubt as to whether he could go consistent with his own safety, or as to whether it was physically possible for him to go.

The assault was made upon one Dean, in a saloon at Levering where a large number of people were present. Respondent testified:

‘ ‘ There were a couple or three Polocks at that time mixed up into a little fight. Well, it finally quieted down, a.nd Mr. Baker and one of the Polocks got mixed up and they stopped them and after they stopped them Dean came to Baker. Baker was standing at my side at that time talking, in the saloon, and he says ‘You lick that Polock, or (he says) I will, even if I have to take one of these spittoons and hit him over the head with it.’ I says to Dean: ‘ I,wouldn’t hit anybody with a spittoon.’ Then this Po-lock called me up to the bar to take a drink, and while I was standing there, Dean says: ‘You have got a drink coming there,’in a kind of sneering way, two or three times. I says, ‘You needn’t insinuate anything on these drinks — I have got money enough to buy what drinks I want., Mr. Baker says: ‘Come here, I want to talk with you.’ He took me out in the card room — the next room back of the bar room, and he says: ‘You are a friend of mine, aren’t you?’ I says, ‘I think I am.’ ‘Well (he says), I want to tell you something (he says) I have known him a long time and he is a dangerous fellow, and if you mix up with him tonight, you are going to get the worst of it.’ I says: ‘ I guess' I’ll take chances on that.’ And we let it go at that. We went out into the barroom and had a drink, and while we were standing up there, a short while after that, there was a couple of fellows came to me and says: ‘You want to look out for that Kentuckian, because he has been making threats of what he is going to do, and he has got a knife in his hand now.’ I didn’t pay much attention to it. There was a gang in there, and there was another row kicked up, and they rushed out doors, and while they were fighting, I seen him going out there, and he had this knife in his hand then, and I went to Mr. Prout and I says: ‘ There is the fellow that made the threats of what he was going to do to me with a knife. ’ He says: ‘ Show him to me.’ I says: ‘ There he is now.’ He came right in ahead of us and stopped at the bar, and Mr. Prout came in and I came in right behind him. He was leaning up against the bar at that time, standing up against it, and Mr. Prout says to him, ‘ What you got in your hand ? ’ He says, ‘ Not anything in that hand,’ and as he opened his hand like that, he kind of stepped back, and looked over his shoulder. Why, I didn’t know whether he was going to hit me with the knife, and I didn’t calculate to let him strike me, and I knocked him down. I was kind of a little bit out of humor on account of the threats-that people had been telling he had made.”

But one inference is to be drawn from this testimony, that is, that the respondent himself sought out Dean. No attempt at an assault on him was made by Dean. Mr Prout, the deputy sheriff, had gone to Dean for the purpose of securing the knife which he held in his hand. Dean had opened his hand with the knife in it to permit Prout to take it, as appears by the testimony in the case, and .at this moment the respondent assaulted him, as he had entered the saloon with the evident purpose of doing. At all events, he assaulted him not in resistance of any assault, at a time when an officer of the law had succeeded in disarming Dean, and clearly the case was not one of self-defense at all. Had the alleged weapon with which Dean was armed been a firearm, or something of a dangerous character which might have been thrown at respondent at a distance, there might have been some basis for such a theory as was put up in this case. But according to his own testimony, he was in a place of perfect safety from any assault by Dean, he was in the presence of 40 or 50 people, he had but to retire or remain where he was and be safe. The trial court was under no obligation to treat a mere theory in conflict with the respondent’s own testimony as calling for any other instruction than that given. The trial judge performed his whole duty when he gave instructions appropriate to the facts as they were made to appear in the case.

The conviction is affirmed.

Grant, C. <L, and Blair, Ostrander, and Carpenter, JJ., concurred.