ponent to the Casket & Shell Company, of which said Scranton was treasurer, would be paid by said Scranton Lumber Company; that deponent from time to time sold certain merchandise to said Casket & Shell Company, and the payments thereof were received from the Scranton Lumber Company; that said J. P. Scranton was treasurer of both the Scranton Lumber Company and the Casket & Shell Company; that the attorney, one Trevor, was the general manager of the Casket & Shell Company, and director in the other, and both concerns were under the same management; that both institutions are now insolvent, and there is now a balance due petitioner of $5.85, instead of your petitioner being in debt $37.19, as rendered by the court; that the said Casket & Shell Company had no credit whatever with the plaintiff, and it was only upon the understanding and agreement with J. P. Scranton Lumber Company that all merchandise sold to the Casket & Shell Company would be paid by the Scranton Lumber Company that said sales were made; that said sales so made were adjusted and satisfied by the Scranton Lumber Company up to the amount of about $53, and the balance, $37.19, for which the judgment was rendered, said J. P. Scranton Lumber Company repudiated and refused to pay, and which deponent avers and maintains is part of its contract made and had between them, and that said judgment is unjust to deponent." The affiant then asks that an appeal be allowed. The respondent returns that: "Upon presentation to me of the annexed affidavit of Edward Frohlich, and upon reading the same, it became apparent to me, and I was of the opinion, that injustice had been done to said Edward Frohlich Glass Company, and an unjust judgment rendered therein. I did, in pursuance of section 10, No. 460, Loc. Acts 1895, appertaining to justice courts of Detroit, and in pursuance of the discretion therein vested in the court, and in construing the act that no notice being required, it being sufficient and satisfactory to the court that justice required that said appeal be granted to said petitioner, I caused an order to be entered to that effect."

Section 10 of the act referred to provides: "No appeal shall be taken from any judgment of any justice of the peace in said city of Detroit, except in the following cases: First, when said justice shall disallow any claim in favor of any plaintiff or defendant in any cause in said justice's courts, in whole or in part, to the amount of fifty dollars; second, when such justice shall render a judgment to the amount of fifty dollars, exclusive of costs. In either of which cases the party aggrieved may appeal; third, appeals may be authorized by the circuit court of the county of Wayne, when the party making the appeal has been prevented from making a defense upon the merits of the cause in which such appeal is taken by circumstances not under his control; and such appeal may also be authorized when justice requires that such appeal should be authorized and in all

cases where the party against whom such appeal is sought has appeared in said justice's courts by an attorney or agent it will be sufficient to serve such attorney or agent with the notices of all subsequent proceedings in such cause, and all orders made therein by said circuit court may be served on said attorney or agent, and such service shall have the same effect as though made on the party against whom such appeal is taken." It is contended by counsel for relator that the respondent had no power to allow the appeal, for the reasons (1) that no no tice of the motion or affidavit upon which the hearing was had which culminated in the order aforesaid was served upon the plaintiff or its attorney, as provided by law; (2) that said plaintiff was not present nor represented at said hearing, nor did said plaintiff or its attorney have any knowledge or reason to believe that said hearing was to be had, nor did said plaintiff or its attorney know of said hearing or order until the same had been had. It is not contended that the defendant was prevented from making a defense upon the merits before the justice, and the sole ground upon which the appeal is asked is that justice requires that said appeal should be authorized.

We are of the opinion that, under the third subdivision of section 10 of the act referred to, parties making application for an appeal must give notice to the opposite party by serving upon him, his attorney, or agent the petition and grounds of the motion, and the affidavit upon which the same is based; and that such opposite party shall have an opportunity to be heard before the circuit court before such appeal is allowed. That subdivision provides for such notice. While it does not provide for the length of time to be contained in the notice, we think the time is governed by the circuit court rules pertaining to special motions. We think the court below was in error in granting leave to appeal, without notice to the opposite party and an opportunity to be heard. The writ of mandamus must be granted as prayed. The other justices concurred.

TURNER v. ST. CLAIR TUNNEL CO. (Supreme Court of Michigan. Feb. 18, 1897.) TORTS-CONFLICT OF LAWS.

Where defendant was constructing a tunnel under the St. Clair river, and sent plaintiff, who was in its employ on the American side, to the Canadian side, to work at that entrance of the tunnel, the right of recovery of plaintiff for negligence of defendant in allowing him to enter on dangerous work there is governed by the laws of Canada.

Error to circuit court, St. Clair county; Samuel W. Vance, Judge.

Action by David Turner against the St. Clair Tunnel Company. Judgment for plaintiff. Defendant brings error. Reversed.

Geer & Williams and L. C. Stanley (E. W. Meddaugh, of counsel), for appellant. Chadwick & Mellwain, for appellee.

HOOKER, J. The defendant is a corporation, and was engaged in constructing a tunnel under the St. Clair river between Ft. Gratiot, Mich., and Port Sarnia, Ontario. Compressed

air was used to prevent caving, access to the tunnel being had through an air lock, in which the air was made to correspond in density with that in the tunnel or with that of the atmosphere outside, by the use of valves. Letting air into the lock from the tunnel accomplished the former, and allowing it to escape outside from the lock effected the latter. It was known by defendant that those who entered the tunnel experienced an inequality of air pressure, which, for a time at least, caused an unpleasant pressure from the outside upon the eardrums, and perhaps a similar pressure from within upon going out. It was also known that after going out some persons were attacked with violent pains in the members and joints, which, among the men, at least, went by the name of "the bends." It is, perhaps, not improper to say that these were more common among beginners in work in compressed air, and that it was generally understood that they might be avoided, or at least that the danger of their occurring might be greatly lessened, by changing the pressure gradually and slowly in the lock. It was shown that the practice of the company was to require an examination by a surgeon of the men employed, to ascertain that they were in a proper physical condition to make it prudent for them to work in compressed air. This tunnel was constructed by starting a drift from each side of the stream, and each had its overseer or superintendent, though both were under one management. Mr. Hobson was chief engineer, Murphy had charge of the excavation, and Eams was in charge of the mechanical work and the working of the machinery. to was assisted by Eams, and looked after work at the Canadian end. Hushin was employed by Eams as mechanical foreman on the Michigan side. The plaintiff was employed by Hushin, and first worked outside as a laborer, but was desirous of getting a job where he could draw more pay, which seems to have been understood to mean that he applied for work inside, and he was finally given such work, and worked a day, or perhaps two, before the occurrence which gave rise to this action. After the plaintiff commenced work in compressed air, he and three or four others were requested or directed by Hushin to go to the Canadian side to work, and to report to Minto, which they did, and they were set at work in the tunnel, where, after working eight hours, they were persuaded by the overseer in charge to remain for another shift of eight hours. At the end of that time they came out through the lock. They started for the Michigan side, but before getting across the river the plaintiff was attacked by the bends, and had to go home. He became unconscious, and when he recovered consciousness he found that be had lost his hearing altogether. There was testimony from experts tending to show that

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they had many patients whose ears were temporarily affected by work in compressed air, but it is claimed that it was shown that up to the time of plaintiff's experience no case of total deafness or permanent injury to the ears had fallen within the observation of the defendant or any of the witnesses. This action was brought, charging the defendant with negligence, and plaintiff recovered a verdict and judgment, which the defendant has brought to this court by writ of error.

There was evidence tending to show that shortly before the plaintiff was ordered to go to the Canadian side some difficulty had occurred there, owing to a stratum or pocket of loose soil, which threatened to cave and let the water into the tunnel, which would have been a serious damage, if it had not made abandonment of the enterprise necessary; that to prevent it the air pressure had been increased, and that, owing to a reluctance to work under such pressure, most of the men had quit work, and it was difficult to secure others to take their place. Whether this was from fear of injury from work in the air, or from a lack of faith in the efficacy of the air, and a fear that the water would get in and drown them, is perhaps not altogether clear; but at all events men were needed, and were sent from the Michigan side. The plaintiff testified that he told Hushin that he did not want to go, because he had heard that they were working over there in a pressure of 28 pounds, and that the men agreed that they would not work in that pressure, and that Hushin denied it, saying there was only 19 or 20 pounds, and said: "Go over and stay until eight in the morning, and that won't hurt anybody, and come out and bring a good record back." That upon that assurance they went. There was testimony tending to show that the pressure carried that night was from 26 to 28 pounds, and Hushin testified that he knew it was 26 pounds when he sent the men over. The plaintiff also testified that he informed Hushin that he was fatigued, and needed sleep, and that Hushin replied that he could sleep to-morrow. It also appeared that the men went in at 4 o'clock, and at 12 they prepared to go out, but, on solicitation of the overseer in charge of the work inside, who said he would be without men if they did not stay, and that it would not hurt them to stay until morning, they remained. There was testimony that they were from one and a half to five minutes in going through the lock. The court instructed the jury that: "Fearing that I may not have made it sufficiently specific, I desire again to repeat the proposition to you that this plaintiff caunot recover unless he shows, by a fair preponderance of evidence, to your satisfaction, (1) that the use of compressed air in the manner in which it was used on the Canadian side was dangerous; (2) that the defendant knew it when it directed Turner to go to work, or that it should have known it by the exercise of reasonable care and caution through its officers, superintendents, and foremen; (3) that

Turner was ignorant of the danger; (4) that the danger was latent, or, in other words, concealed and hidden; (5) that the plaintiff did not know of this concealed or hidden danger; and (6) that he was not cautioned by the tunnel company, or its officers or foremen, who employed him, of this danger, and that he did not know it from any other source. That his injury was caused by working in compressed air, and that while he was doing that he was in the exercise of due care and caution. Each one of these, I repeat, must be proven to your satisfaction before the plaintiff can recover." It is contended by the defendant: (1) That this injury to the plaintiff was not to have been anticipated, reasonably, so as to lay a duty on defendant to avoid it by warning him. There was no latent danger which the defendant knew, or ought to have known. (2) That the acts of Hushin and Minto and the overseer in the tunnel were the acts of fellow servants. (3) That the defendant was not obliged to make the place of labor safe, under the rule laid down in Beesley v. Wheeler, 103 Mich. 196, 61 N. W. 658, and Petaja v. Mining Co. (Mich.) 64 N. W. 335; Id., 66 N. W. 951. (4) That the work was voluntarily performed in Canada, and that the case is governed by the law of the province, which does not permit a recovery. At the threshold of the case lies the fourth question mentioned, because, if it is true that under the law of Canada there could be no recovery, it is the end of the case, unless it can be said that the law of Michigan governs. In support of their contention counsel for the defendant cite a number of cases where wrongs were perpetrated in foreign states; such wrongs as assaults and batteries, malicious arrests and prosecutions, and false imprisonment, injuries to passengers and employés on railroads, etc. In all of these cases the rule is said to be that the action for the wrong is transitory, but that the right of recovery depends upon the law of the place where the tort is committed. In this case the alleged wrong consisted in allowing the plaintiff to enter upon a dangerous work, in ignorance of dangers known, or which it is said the defendant should have known, whereby the plaintiff was injured. This occurred in Canada, and we are of the opinion that the case falls within the authorities mentioned, which will be found cited in the briefs of counsel. Counsel for the plaintiff claim that the breach of duty occurred in the United States, by the defendant falsely assuring the plaintiff that the employment was safe. Continuing, he says: "There are two elements necessary to constitute liability for negligence, viz. wrong and injury. Neither, alone, is sufficient. While it is true that negligence without injury gives no right of action, it is equally true that injury without negligence gives no right of action. The action is based on negligence. Negligence is simply a neglect of duty. The neglect of duty constitutes the 'wrong' which gives the right of action, which is founded upon the application of the general principle of law that 'where there

is fault there is liability.' The breach of duty, the fault, and wrong were all on the American side. Upon these plaintiff's right of action is founded. The injury is but the result of the breach, the fault, and the wrong. The injury alone created no liability. It is defendant's connection with the responsibility for the injury which makes it liable, and that responsibility was fixed upon defendant when it gave the wrongful order which resulted in the injury. None of the cases cited by defendant are authority for the case at bar. They do not contain the initial wrong by the master to the servant injured which creates the right of action, viz. the deceit and wrongful order. They are all cases where the tort was committed in some foreign country or state. In this case the tort was committed on the American side, and committed by the master."

If it is true, as counsel concede, that the liability rests upon the concurrence of an injury and a neglect of duty, without which neglect the injury would not have occurred, the tort cannot be said to have been committed in Michigan, and it can be said to have been done in Canada, where the dangerous service began when the plaintiff entered the dangerous place without warning, and which warning up to that time might have been given by the master or any other person. If, before he incurred the risk, knowledge of the danger came to the plaintiff in any way, or from any source, there would have been no actionable wrong. Counsel have not cited an authority for the position taken, and we think, as already stated, that the law of the place of the injury as to the duty of the master must apply. See Wingert v. Circuit Judge, 101 Mich. 396, 59 N. W. 662; Suth. Dam. § 1280. The trial court reached a different conclusion upon this troublesome question, and we are constrained to hold that therein he erred. The importance of this ruling is seen in the following statement of the question involved: For plaintiff it was asserted that it was the duty of the master to warn the plaintiff that an increased and higher pressure was maintained in the Canadian tunnel than in the Michigan, where the plaintiff had worked, and that this increased the danger; also that it was dangerous to work for twice the usual time in this high pressure, and that greater deliberation in passing the lock in such case was necessary to safety. If the Michigan rule was to be applied, giving notice of the danger was a duty of the master, which he could not escape by authorizing a representative to perform it; while, if the Canadian rule governs, it was claimed that the master might safely leave that to a competent foreman, his duty being discharged by the exercise of due care in the selection and employment of such foreman. From the evidence offered, such would seem to be the law in Canada, and the injury to the defendant's case by the ruling is manifest.

We think it unnecessary to discuss the large number of questions raised by this record, most of which turn upon legal principles repeatedly

considered by us, and upon which we see no reason for anticipating difficulty upon another trial. The judgment is reversed, and a new trial ordered. The other justices concurred.

STONE v. JENISON.

(Supreme Court of Michigan. Feb. 18, 1897.) BANKS INSOLVENCY-PREFERENCES - EVIDENCE. 1. To bring a case within 3 How. Ann. St. § 3208e6, providing that payments by a bank, "either after the commission of an act of insolvency or in contemplation thereof, with a view to the preference of one creditor over another," are void, there must be, not only an act or a contemplation of insolvency, and a payment resulting in a preference, but the payment must be made with a view to create the preference.

2. For three days there was a slight run on a bank, which suspended on the third day at 3 p. m. The cashier believed the bank had sufficient assets to pay all depositors could it avoid suspension, and in the forenoon of the third day paid defendant his deposit. He testified that in making payments he acted to protect the bank, and not with a view to making preferences. During the run, and before the payment to defendant, he had persuaded some depositors not to withdraw, in one instance giving as a reason for the request the closeness of the money market. Held, that a receiver of the bank could not recover the amount so paid defendant, on the ground that it was a payment after an act of insolvency, or in contemplation thereof, with a view to giving a preference (3 How. Ann. St. § 3208e6),-Grant, J., holding that there was no act of insolvency; Moore and Hooker, JJ., holding (Long, C. J., and Montgomery, J., dissenting) that there was no evidence that the payment was made with a view to create a preference.

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Suit by George W. Stone, receiver for the Central Michigan Savings Bank, against Nelson F. Jenison. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

M. V. & R. A. Montgomery, for appellant. Kilbourne & Harris and Smith & Lee, for appellee.

MOORE, J. The plaintiff sued the defendant to recover from him the amount of deposits paid to him by the Central Michigan Savings Bank on the forenoon of the day in the afternoon of which the bank closed its doors for want of funds to carry on its business. The defendant had judgment in the court below. The plaintiff appeals.

The facts, so far as it is necessary to state them, are as follows: The Central Savings Bank was incorporated in 1875, under the general banking act, and conducted a savings and a commercial department, until it suspended, April 18, 1893, when plaintiff was appointed a receiver. During all the time the bank was doing business Mr. Bradley was its cashier, and had general management and control of its af affairs. When the bank suspended, its assets were nominally $860,000, and its liabilities, exclusive of capital and surplus, were about $700,000. After the bank closed, and its affairs

passed into the hands of a receiver, it was found that a large amount of the paper held by it was of doubtful value, because the makers of the paper had become financially embarrassed during the year prior to the suspension of the bank; and it is now evident that the depositors will not be paid in full. The defendant made his last deposit in the bank February 22, 1893. The day the bank suspended, the defendant had six certificates of deposit, four of which he had held more than three months. Those were paid to him, principal and interest. The deposits represented by the fifth and sixth certificates had not been in the bank three months, and no interest was paid on them. It is claimed by the plaintiff that the bank was insolvent, and known to be so by the cashier, and that it had also committed two acts, at least, of insolvency. In relation to the last proposition, the proofs show that the bank owed the state treasurer $25,000, and that two or three days before the suspension the deputy state treasurer called at the bank, and asked for the money. The bank had funds enough to pay him, but he was told by Mr. Bradley that he would much rather he would not draw the money then, on account of the closeness of the money market, and he went away without it, though he was afterwards paid. The proof with reference to the other act of alleged insolvency is that some weeks before the bank closed Herbert Johnson left at the bank, with Mr. Bradley, a $10,000 mortgage belonging to his father, together with a discharge, to be delivered when the money should be paid by the maker; that two or three days before the suspension he called at the bank, and inquired if the money had been paid, and was told by Mr. Bradley that it had not; that on the morning of April 18th, after the bank opened, he called at the bank, and asked again if the mortgage had been paid, and Mr. Bradley replied that it had not; that shortly afterwards he learned that the mortgage had been paid to Mr. Bradley a week or ten days before, whereupon he demanded the money, together with $1,600 due his father on open account, and for which he had a check; that Mr. Bradley tried to induce him to take some securities; that, after waiting some time, Mr. Bement came in, and paid Mr. Bradley $5,000, which money Mr. Bradley gave Johnson, together with a draft on the Third National Bank of Detroit for the entire balance; that he took such draft, and went to Detroit, immediately presented the same, and payment was refused,--for what reason the record does not disclose, though it discloses that the draft was drawn against a fund that the bank had in Detroit. The bank closed on Tuesday. On Saturday and Monday preceding some deposits were made in the bank, and there was a slight run on it. On Tuesday morning there was a run on the bank, and in the effort to stop the run about $108,000 were paid out. Included in this was the amount paid Mr. Jenison. The run then became so great that it was evident the bank must suspend, and its doors were closed at about 3 o'clock, with funds amount

Mr.

ing to about $10,000 still in the bank. Bradley's testimony is that there was no thought of preferring Mr. Jenison when the payment was made to him, that they were paying all certificates of deposit as they were presented, and that he hoped and expected the bank would be able to continue business, and that he then believed that the bank had sufficient assets to pay all of its depositors in full. He also testified that what was done in reference to the deposit of the state treasurer and the Johnson collection, as well as the payment of all the deposits, was done to protect the bank, and to enable it to continue to do business, and was not done expecting the bank would discontinue business, or for the purpose of preferring one creditor over the others.

The plaintiff asked the circuit judge to instruct the jury as follows: "If, when the defendant received his money, the bank was insolvent, and if the defendant demanded to be preferred, and if Mr. Bradley so understood him, and, so understanding, caused the money to be paid to him, and if the defendant was, as matter of fact, preferred by such payment, then the law presumes that what was done was intended; and, if the payment to Jenison was not made with a view to his preference, the burden of proving such facts rests upon the defendant. The refusal by Mr. Bradley to pay over the money to Mr. Johnson on the morning of the 18th was an act of insolvency of the bank. Mr. Bradley is conclusively presumed to have known that it was an act of insolvency, and thereafter, for the few hours the bank remained open, he had no right to pay money to other depositors with a view to their preference. And from Mr. Bradley's refusal to pay Mr. Johnson in the morning, and that he did pay Mr. Jenison a short time thereafter, the jury may presume he did intend to prefer the defendant. If the real

situation of the bank, as it actually was, considering the actual condition of affairs, made it reasonably certain that the bank must suspend, then Mr. Bradley must be held to have known it; and the mere fact, if it be a fact, that he (Bradley) did not expect to suspend, or did not believe he would be obliged to suspend, is of no consequence. If the actual condition of the bank at the time the money was paid to the defendant rendered it morally certain that it must soon suspend, and if such prospect was apparent to any intelligent person, then the mere fact, if it be a fact, that Mr. Bradley did not so believe, is unimportant. If, when the money was paid to the defendant, Mr. Bradley knew and understood that the bank was in a precarious situation, and the suspension was not only probable, but imminent, then such payment was unlawful. The mere fact, if it be a fact, that Mr. Bradley believed or expected, or that he now thinks that he then believed or expected, that the bank would not be obliged to suspend, is of no consequence, if, as matter of fact, there was then no reasonable ground for such belief or expectation." The court declined to give these requests, and charged the jury as follows: "The court thereupon instructed the jury that there

was no evidence that any act of insolvency had been committed when payment was made to Mr. Jenison; to which instruction plaintiff's counsel then and there excepted. The court further instructed the jury that plaintiff was not entitled to recover unless the jury were satisfied from the evidence that when the money was paid to defendant Mr. Bradley expected the bank's suspension, or thought he probably must suspend; to which instruction the plaintiff's counsel then and there excepted. The court further instructed the jury that, if they were satisfied from the evidence that Mr. Bradley did not expect to suspend when the money was paid to the defendant, but thought the probabilities were he should get through, that plaintiff could not recover; to which instruction plaintiff's counsel then and there excepted."

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This case involves the construction of 3 How. Ann. St. § 3208e6, which reads as follows: All payments of money, either after the commission of an act of insolvency or in contemplation thereof, with a view to prevent application of its assets in the manner prescribed in this act, or with a view to the preference of one creditor over another, shall be held to be null and void." It is the contention of the plaintiff, stated in the language of his eminent counsel: "First. That no payment should have been made, nor withdrawal permitted, after the trouble began. Second. That, the bank being insolvent, every such payment (even had there been no run) was unlawful. Third. There were at least two 'acts of insolvency' committed prior to the payment to defendant. He was paid The bank did not suspend. He was preferred. If paid, and if suspension followed, such payment was, of necessity, a preference, and therefore the case is made out." Unfortunately, there has been no construction given to the section of the statute under which this action is brought by our court. The question at issue must be determined by the rulings of other courts in relation to similar statutes. A reading of the statute, giving its words their natural meaning, would indicate that two things must concur to make the payment void: Not only must there be an act of insolvency, or a contemplation of insolvency, but the payment must be made with a view to prevent the application of the assets of the bank in the manner provided by the act, or the payment must be made with a view to the preference of one creditor over another. Can it be the law that when a bank, having assets sufficient so that its officers believe, if it can continue in business, it will be able to pay all its debts, is confronted with a run on the bank, and to avoid the necessity of suspension, pays its depositors as fast as they present their certificates of deposit,-that under such circumstances, if the bank is compelled to suspend, the receiver can sue, and recover the money paid in good faith to the depositors? In the case of Hayes v. Beardsley, 136 N. Y. 299, 32 N. E. 855, which was a case of payment of certificates of deposit after the bank became insolvent, and after the cashier had known for months that it was insolvent,