ment until March 19, 1839. Plaintiff claimed 68 X. W. 677. In Palmer v. Palmer, 36 Mich. that it was understood between the parties | 489, the court said, in speaking of demand that it was to be a permanent loan, though notes: "If the note had been negotiable, and there was no time of payment agreed upon indorsed over, any long delay to present it except as expressed in the note. The court, would unquestionably have released the inin stating the case, said that, if there had dorser.

* It is now well settled that been any agreement as to the time when a note payable on demand is payable at once, the note should be paid, it could not affect and without demand, so that the statute runs the rights of the indorser unless he was a from its delivery; and this rule has been apparty to the agreement; and even then it plied where, from the form of the contract, might well be doubted whether parol evi- it is manifest that immediate payment was dence of any agreement to extend the time not expected. Thus, in Norton v. Ellam, 2 of payment, thus altering the force of the Mees. & W. 461, the note called for interest written contract, would be admissible. The which indicated at least an expectation of note was transferred to the plaintiff for mon- some delay." In that case the action was ey borrowed. Some contention was made that, on a note payable 30 days after demand, and the note being payable with interest, it was it was held that it was barred by the statute, thereby taken out of the rule applicable to as against the maker, after the lapse of 6 commercial paper. It was said that it was a years after the 30 days named in the note. note upon which immediate payment might | The courts are sometimes embarrassed with be demanded; that the indorser contemplat- the question whether the time when demand ed a short credit, and that that was the con- is made, under the circumstances of the givsideration upon which he agreed to be re- en case, is a reasonable time. In the pressponsible; that if it was the object of the ent case, however, no such embarrassment borrower to effect a permanent loan, and a arises. The parties all resided in the same protracted day of payment was in the con- city, so that the bank could have presented templation of the parties, a corresponding it at any time to the company, and notified note would have been drawn; and that the the indorsers; and yet it carried it from Janborrower would not have put it in the power uary 15, 1891, to July 24, 1893, over 212 years of the owner of the note to call upon him from its date, before taking any legal steps immediately for payment. It was held that to demand payment or notify the indorsers. the demand should have been made earlier, The demand was not made within a reasonand that the judgment should have been di- able time to hold the indorsers on this paper. rected for defendant. In Field v. Nicker- We need not, therefore, discuss the question son, 13 Mass. 131, the note was payable on as to the sufficiency of the demand and nodemand, with interest. It was given for tice. This item of the claim should not have money loaned. The action was against the been allowed by the court below. The judgindorser. No demand was made for eight ment of that court must be modified in acmonths, and it was held that it should have cordance with these views, and, as modified, been made earlier. The cases of Rice v. will be affirmed. Defendants will recover Wesson, 11 Metc. (Mass.) 400, Thielman v. costs of this court. The other justices conGueble, 32 La. Ann. 260, Turner v. Mining curred. Co., 74 Wis. 335, 43 N. W. 149, are all to the same effect. In the last case the court said: “It has been held in New York, and perhaps elsewhere, that an indorsed promissory note,

LANDRY V. LANDRY. pa yable on demand, with interest, is a con

(Supreme Court of Michigan. Dec. 28, 1898.) tinuing security on which the indorser will

ERROR-EvidexcE-BIAS. remain liable until an actual demand, and

Error in excluding a question, irrelevant upon which the holder is not chargeable with

except to show bias, was harmless, where the

bias was otherwise shown. neglect for omitting to make demand within any particular time. Merritt v. Todd, 23 N.

Appeal from circuit court, Saginaw county, Y. 28. But much of the reasoning in that

in chancery; Byron A. Snow, Judge. case seems to have been disapproved by sub

Bill by Elizabeth Landry against James sequent cases in that court. The case of

Landry. There was a decree for plaintiff, Merritt v. Todd has been expressly repudiat

and defendant appeals. Affirmed. ed in Louisiana, where it is held that a de- John F. O'Keefe, for appellant. E. L. mand note must be protested, and notice giv- | Beach, for appellee. en within a reasonable time, to hold an indorser; and the fact that the indorsement MONTGOMERY, J. The defendant appeals is for accommodation, and that the note from a decree of divorce, granted on a bill bears interest, makes no difference. This rul- charging extreme cruelty and nonsupport. ing seems to be in harmony with the current The solicitor for defendant contends that the of authority in this country, as appears from proofs wholly failed to sustain either charge. the valuable notes of Mr. Freeman in 80 Am. We think the charge of nonsupport is not Dec. 250-251." The delay in the above case well sustained, but, as to the charge of cruwas 10 months. The case was followed and elty, we have, with some hesitation, reached approved in Leonard v. Olson, 99 Iowa, 162, the conclusion that it is sufficiently sustained

Mich.)

DETROIT, G. R. & W. R. CO. v. COMMISSIONER OF RAILROADS.

OIT,

631

to justify the decree. In reaching this re- original panel in justice's court. It is error sult, we take into account the fact that the to allow a peremptory challenge not authortestimony was taken in open court, and that ized by statute. In re Convers, 18 Mich. 468. the circuit judge had better opportunity to On a trial at circuit, where the record shows judge of the candor of the witnesses than that the regular panel is not exhausted, this we have. On the cross-examination of a wit- may be error without prejudice. See Luebe ness for complainant, a question was asked, v. Thorpe, 94 Mich. 268, 54 N. W. 41; People which had no relevancy, except to show bias v. Fowler, 104 Mich. 449, 62 N. W. 572. But of the witness. This was improperly ruled in justice's court the trial should proceed beout. While the circuit judge was mistaken fore the jury struck by the parties, unless as to the practice, we do not think the case there be challenge for cause; and we cannot should be remanded for new trial because hold that this right is unimportant, in view of this error, for the reason that the interest of the fact that there is no reserve of jurors and bias of the witness were otherwise selected in like manner. shown, and the defendant has evidently not 2. We regret to say that under the rule suffered by the ruling. The decree will be early established a question of this nature affirmed. The other justices concurred. may be reviewed by certiorari. Dooley v.

Eilbert, 47 Mich. 615, 11 N. W. 408; Boatz v. Berg, 51 Mich. 8, 16 N. W. 184; Gordon v. Sibley, 59 Mich. 250, 26 N. W. 485; Whittle

v. Bailes, 65 Mich. 640, 32 N. W. 874; Harris, ELDRIDGE v. HUBBELL.

Certiorari, § 508 et seq. We say we regret (Supreme Court of Michigan. Dec. 28, 1898.)

the existence of this rule for the reason that JUSTICES OF THE Peace - JURORS PEREMPTORY

we are convinced that the remedy by appeal CHALLENGES-CERTIORARI-DECISIONS REVIEWABLE.

is ample in all cases where jurisdiction of the 1. It is error to allow a peremptory challenge

cause is obtained by the justice. We have, in a justice's court, as there is no statute au- in numerous cases, pointed out that appeal is thorizing such a challenge.

the better remedy. But, in the absence of 2. A question as to whether a justice of the peace erred in allowing a peremptory challenge

legislative restriction, we can go no further of a juror may be reviewed by certiorari. than to require that, if the aggrieved party

3. A plaintiff in a justice's court has no resorts to certiorari, he make the error to right to a trial by a jury composed of men selected by a method other than the one pre

appear affirmatively and clearly. This has scribed by law.

been done in this case, unless we are to say

that the right to a trial by a jury other than Error to circuit court, Ionia county; Frank

the one to which plaintiff was entitled, and D. M. Davis, Judge.

composed of men selected by a different Action by Martha Eldridge against Nathan

method, is the equivalent of a trial by a lawHubbell in a justice's court. Judgment for

fully constituted jury. We do not feel justiplaintiff, and defendant brought certiorari to

fied in so holding. The judgment of the cirthe circuit court, which reversed the judg.

cuit court is affirmed. The other justices conment, and plaintiff brings error. Affirmed.

curred. Frederick & W. H. Mains, for appellant. F. H. Stowe (M. A. Nichols, of counsel), for appellee.

DETROIT, G. R. & W. R. CO. 7. COMMISMONTGOMERY, J. This case originated in

SIONER OF RAILROADS. justice's court. The defendant demanded a

(Supreme Court of Michigan. Dec. 28, 1898.) jury. The jury was selected in the usual

TAXATION - RAILROADS Gross IXCOME-SWITCHmanner, and the jurors selected by the par

IXG RECEIPTS-RET FOR TRACKS ties summoned. Five of the jurors appeared,

-INTEREST-MUEAGE. and plaintiff challenged one of the original

1. Money received by a railroad company for

services in switching is a part of its gross inpanel peremptorily. The challenge was al

come, on which is estimated the amount of lowed by the justice, and defendant declined taxes, under Pub. Acts 1897, No. 228. to take any further part in the proceeding. 2. The rent of tracks and terminals is a part The plaintiff proceeded to judgment. De

of the gross income of a railroad company, on

which taxes are estimated, under Pub. Acts fendant removed the case to the circuit on

1897, No. 228. certiorari, alleging, as ground of error, that 3. Interest received by a railroad company on the justice erred in excusing a juror of the its loans and deposits is gross income received

in carrying on its business, on which taxes are regular panel on a peremptory challenge.

estimated, under Pub. Acts 1897, No. 228. The circuit court reversed the judgment of 4. In making the compilation of the mileage the justice, and plaintiff brings the case here operated by a railroad company, under Pub. for review. Two questions are presented:

Acts 1897, No. 228, fixing a specific tax com

puted on all the gross income not exceeding a First, whether it was error to permit a per

specified sum per mile of road actually operated emptory challenge; and, second, whether cer- within Michigan, tracks over which the comtiorari is a proper remedy to review the rul- pany runs its trains, but in conjunction with ing of the justice.

other companies, should not be included. 1. There is no statute authorizing a per- Original mandamus proceeding by the Deemptory challenge of the members of the troit, Grand Rapids & Western Railroad Company against Sybrant Wesselius, the commis

ing. It was certainly a part of its gross insioner of railroads. Denied.

come, and if the charges were collected by

other railroad companies, and paid over to Smith, Mims, Hoyt & Erwin, for relator.

the relator, it is not quite clear why it should Fred. A. Maynard, Atty. Gen., for respondent.

be treated as a part of the gross income of

such other company, any more than the MONTGOMERY, J. This is an application freight charges advanced. In relator's pefor mandamus to compel the railroad com- tition in this case it is represented that the missioner to change the assessment made sum set forth as received for switching was against the relator for the present year. The a sum received of its customers, and paid commissioner's report showed an operation of over to other companies, for switching done 451 miles of road, and that its gross income by such other companies, the relator simply was $1,316,739.50. The respondent required acting as a collecting agent. If the relator a further report, which was furnished, show- had shown this by its report, we should not ing gross receipts for switching of $5,052; regard the sum so received as a part of the rental of approaches, tracks, and terminals, gross earnings, but we do not so read the re$5,445.12. The report also showed that re- port. If any mistake has been made in the lator received during the year interest on report, doubtless the railroad commissioner deposits, $5,052. These three last-named will permit a correction. items were not included in the original 2. We are unable to see why the sum reamount of the gross receipts, and were added ceived for rental of tracks and terminals is to the amount first reported in making the not a part of the gross income received by assessments. It further appears that the re- relator, lator included, in its report of mileage oper- 3. The report shows there was received by ated, 4.6 miles from Detroit to Delray; 8.4 the relator, interest on loans and deposits, miles from Detroit to Oak; 1 mile from Lan- $5,013.90. It is contended that this was not sing to North Lansing; 7.3 miles from Paines, a part of the gross income received in carryin the county of Saginaw, to the city of ing on the business, within the meaning of Saginaw; 15.5 miles from Grand Rapids to the statute. We think it is clearly within the Sparta; and 34.2 miles from Sparta to Sheri- language of the statute. dan,-a total of 71 miles over which relator 4. The most important question in the case ran its trains, but as to which road it did is whether, in computing taxes, tracks over not have exclusive control. On the contrary, which relator runs its trains, but not exthese lines of road were used by other rail- | clusively controlled by relator, should be comroad companies as a part of their several sys- puted as a part of its mileage. The language tems. Four questions are presented: First, of the statute is "road actually operated withwhether the item for switching is a part of in this state." The contention of relator is the gross income; second, whether the inter- that it is immaterial whether this company est on deposits is to be so treated; third, operates this road exclusively, or whether it whether rental for tracks is to be so treated; is operated in conjunction with other comfourth, whether, in making the compilation, panies. On the other hand, while it is conthe mileage should be that exclusively oper- ceded by respondent that the statute does not ated by the relator, or should include other require that the road should be owned by the roads over which it ran any of its trains to company, yet it is contended that it does rethe extent so used.

quire that if not owned, but merely operated, 1. The act under which the assessment is it shall be operated exclusively, and not made is Act No. 228, Pub. Acts 1897, which merely in common with other companies. provides for a specific tax upon the property

This would be the ordinary meaning of the and business of railroad companies operating language; and, looking somewhat to the conwithin the state, computed upon all such sequences, it will be seen that, if the regross income, not exceeding $2,000 per mile lator's contention be allowed, two connect. of road actually operated within this state, ing roads of equal mileage might, by run212 per cent. of such gross income; on such ning trains at intervals over the whole gross income in excess of $2,000, and not ex- length of the two roads by mutual consent, ceeding $4,000, per mile, 314 per cent., etc. each be said to be operating a road of the Was the sum received for switching a part entire length, thereby materially reducing of the gross income? We think it was. It the rate of taxation. We think the contenis claimed by relator that this item, being tion of respondent's counsel should prevail. paid or credited to relator by other railroad It follows that the writ will be denied. The companies, and charged to its customers, other justices concurred. would be included in the amount reported by such other companies as their gross earnings. There was no direct proof of this before the FITZSIMMONS v. BOARD OF CANVASS. railroad commissioner, although it was claim

ERS OF CITY OF DETROIT et al. ed in a letter filed by the president, but we (Supreme Court of Michigan. Dec. 28, 1895.) do not well understand how this could be.

CONTEMPT-JurisdictioN. Certainly, the relator received the amount A contempt proceeding against a party who of $5,000 and upward for services in switch- disregarded an order of the circuit court after it had been affirmed on appeal, and while it Action by Ella M. Lang, administratrix, retained the original papers, should be initiat

against the H. W. Williams Transportation ed in that court.

Line. Judgment for plaintiff, and defendant Certiorari to circuit court, Wayue county;

brings error. Reversed. Robert E. Frazer, William L. Carpenter, and George S. Hosmer, Judges.

T. J. O'Brien and James H. Campbell (WilProceeding by Thomas W. Fitzsimmons liam H. Condon, of counsel), for appellant. against the board of canvassers of the city

Gore & Harvey, for appel of Detroit and others.

This case was heard December 13th, and VOORE, J. This suit was commenced to affirmed by the court on the 14th inst., with- recover damages on account of the death of out the filing of a written opinion in the Joseph M. Lang, who was in the employ of case. Subsequently, counsel for relator, Fitz- the defendant upon the steamer City of Kalasimmons, to whom the decision of the court mazoo, as one of her crew. This steamer was below in effect gave the office of justice of partly burned in November, 1896. Mr. Lang the peace, applied to the supreme court for lost his life in the fire. The plaintiff recovera contempt order against the board of can- ed a judgment in the court below, from which vassers, who had disregarded the order of judgment defendant has appealed. Nearly all the circuit court, and issued a certificate of the assigments of error relate to the charge election to Fred E.'De Graw. Dismissed. of the court as given, or to the refusal of the

Charles W. Casgrain and Charles B. War- judge to grant defendant's requests. If there ren, for relator.

was any case at all to be submitted to the

jury, it was fairly submitted by the trial PER CURIAM. The order or judgment

court. In our view of the case, the only quesbrought into this court by certiorari was tion open for discussion is, did the plaintiff simply affirmed. The rules adopted after the

make a case which entitled her to recover? amendment to the constitution in 1893 pre- There is not much conflict of testimony in scribe the method for bringing this class of

relation to the important questions of fact. mandamus cases to this court. The original The record discloses that during the season of papers are in the court below. We are of

1896 the City of Kalamazoo, a passenger and the opinion that the proceeding is still in that freight steamer, was navigating Lake Michicourt, and that further steps in the case, if

gan. Her home port was South Haven, Mr. necessary, must be initiated there. That court Lang was a member of the engineer's crew bas jurisdiction of the case, and the contempt all the season,-first as a fireman, and then as proceeding must be there instituted.

oiler. In the winter he lived on a small farm, and for several summers he was a sail

On the 22d day of November, 1836, the

steamer was brought to South Haven, to be LANG v. H. W. WILLIAMS TRANSP. laid up for the winter. The crew consisted of LINE.

16 persons. Six of them, including 2 watch(Supreme Court of Michigan. Dec. 28, 1898.) men, were known as the “captain's crew." MASTER AND SERVANT-DEATH OF SEAMAN-Neg- There were 5 persons in the cabin crew. Five

LIGENCE--ASSUMPTION OF RISK-WATCHMEN. persons, including Mr. Lang, constituted the 1. A steamer was tied up for the winter, and, engineer's crew. After entering the port, the after the fires under the boiler had been put

steamer was tied up to the dock of the deout, the captain's crew, including the watchmen, left the ship; the others remaining on

fendant, where she was to remain during the board to prepare her for the winter. The only winter. The work of preparing her was at fire on board was in a pony engine used for once commenced. It was the duty of the capheating the cabins, and in kerosene lamps used to furnish light. During the night the ship took

tain's crew to gather up the floats, life prefire, and one of the engineer's crew was killed.

servers, lines, chains, and other things of that Held, that the owners were not negligent in not character, and prepare the life boats and rafts keeping a watchman on board.

for the winter; it was the duty of the en2. After a steamer had been tied up for the winter, the captain's crew, consisting of 6

gineer's crew to prepare the engine and boiler out of the 16 members of the crew, and includ- for the winter; while the cabin crew removing the watchmen, was discharged; the cabin ed the bunks, beds, and furniture, and cleaned and engineer's crews remaining on board to prepare her for the winter. During the night she

the cabin. The work of the captain's crew took fire, and a member of the engineer's crew

was finished first. On Friday, the 27th day was killed. It was not shown that deceased of November, the members of this crew were knew that the captain's crew had left, but they had all lived in a common room, and the rest

paid off, and left the boat. The day before of the crew knew it, and the engineers had been

this the fires under the boiler had been put told of it, and the ship left in their charge. out, and the water removed from the boilers. Deceased was an experienced sailor, and had The other crews had not completed their charge of the pony engine, which was the only

work. There was a small upright pony boiler one on the ship containing fire, and knew that the ship was lighted by kerosene lamps. Held,

on the main deck. After the fires were that he assumed the risk of staying aboard drawn from the large boiler, this small boiler without watchmen.

was used to warm the cabins by means of Error to circuit court, Van Buren county; two radiators. It was in charge of the enGeorge W. Buck, Judge,

gineers and oiler. The lights used in the

a

or.

evening were four to six ordinary kerosene , burg, 17 Jich. 119. Would a man of ordioil lamps. There was a fire in the pony boiler nary prudence, under the existing circumduring Sunday, and for at least a portion of stances, anticipate any danger of injury to Sunday evening it was in charge of Mr. Lang. any of the crew because of the absence of a Yearly all the members of the crews remaining watchman? The cook, the engineers, and on the boat, including Mr. Lang, continued to other members of the crew, knew that after sleep and eat upon the boat. Previous to Thursday night the watchmen were not there. leaving the boat, the captain testitied, he but they did not regard their absence as such went to the engineers, and told them he had a source of danger as to prevent them from got through with his crew, and he and they sleeping upon the steamer. We do not think were about to leave the boat, and that what- it can be said there was a want of reasonever duties there were in the boat the en- able care upon the part of the owner in not gineers must look after. No watchman was keeping a watchman after Thursday night, kept after the captain and his crew left. but, if this could be said, we think there is a About 3 o'clock Monday morning the boat difficulty in the way of plaintiff's obtaining was discovered to be on fire. When the fire judgment.

was put out Mr. Iang was found about 18 As already stated, before the crew of the

no

feet from his berth, dead. It is claimed on captain was withdrawn the engineers were the part of the plaintiff, that, as long as part informed that the crew, including the watchof the crew were sleeping upon the boat, it men, were to leave the boat, and that it must was negligence not to keep a watchman, and be looked after by the engineer and his crew. that, if a watchman had been kept, Jr. Lang It is urged upon the part of the plaintiff that would not have lost his life. It is a some- this notice was not brought home to Mr. Lang, what significant fact that notwithstanding and that the master cannot avoid responsibilour vast inland seas have been navigated for ity by delegating his duty to another; citing many years by hundreds of vessels, employ: Car Co. v. Laack (Ill. Sup.) 32 N. E. 285. An ing thousands of men, the industry of counsel inspection of this case shows that no notice has not enabled them to call the attention of of the changed condition was given, either to the court to a case involving the question as the plaintiff or to the gang of men with whom to whether, under such circumstances as dis- he worked, and there was no opportunity for closed by this record, the owner of the vessel him to know of the changed condition until is liable. There is no claim the steamer was the accident occurred. In disposing of the in a hazardous place. She was not at this case the court uses the following language: time carrying passengers. There was "If, by reason of the omission to supply the steam in her boiler, and no fire in her fur- usual and ordinary means to prevent accinaces. What oil she carried was in an iron- dent, the hazard to its servants was increaslined oil room, which was undisturbed by the ed, and the change in appliances was not fire. The pony boiler was not larger than the known to the servants, or so open and visible boiler used for beating purposes in an ordi- that they by the exercise of ordinary care pary modern dwelling. The steamer was not would see and know of it, the legal duty rest. in motion so that oil lamps were likely to be ed upon the master to notify them of the inthrown from their places. No more lamps creased danger to which they were exposed; were used than are usually used in an ordi- and, it being a duty owed by the master to nary dwelling by a family of usual size. It the servant, it could not delegate it to anothwas not shown that it was customary to keep er, even though a fellow servant of appellee, watchmen after the captain's crew left the and absolve itself from liability for the injury boat. Such evidence of custom as was intro- resulting in consequence of the failure to comduced tended to show that watchmen were municate knowledge to appellee of the innot kept under the circumstances disclosed creased hazard." It is true, the record does by the record. It is true, nine persons slept not show the captain informed Mr. Lang that upon the steamer, but that is not more than he and the watchmen were going to leave; is frequently to be found in dwellings. Sec- but was not their absence so open and visible tion 4477, Rev. St. U. S., provides that every that Mr. Lang, by the exercise of ordinary steamer, carrying passengers during the night, care, would know this crew of 6 men were shall keep a suitable number of watchmen to no longer upon the boat? The other members guard against disasters and give alarms, but of the crew, who were witnesses, knew the no such duty is imposed by statute in cases captain and his crew had left the boat. The like the one at issue. Was there any such cook testified those remaining on the boat negligence at the common law as to create knew the captain and his crew were gone. liability upon the part of the owners ? In Does any one believe that 6 out of 16 persons Railroad Co. v. Coleman, 28 Mich. 410, it is employed upon a small boat like this could said negligence is nothing more nor less than leave the employment for the season, without a failure of duty. In another case it is said the remainder of the crew knowing it? The negligence consists in a want of that reason- men all got their meals in a common dining able care which should be exercised by a per- room. Their work was all upon a comparativeson of ordinary prudence under all the exist- | ly small steamer, where all, or nearly all, of ing circumstances, in view of the probable them stayed nights. It is too improbable to bedanger of injury. Railroad Co. v. Van Stein- lieve that Jr. Lang did not know the captain