GRANT, C. J. (after stating the facts). 1. The second count the one upon which respondent was convictedcharged him with keeping a saloon, "the same being a place where spirituous, intoxicating, malt, brewed, and fermented liquors were sold and kept for sale; such saloon. not being a drug-store." Objection was made to a conviction under this count, because it did not state that liquors were kept for sale either at wholesale or retail. The proposition deserves no discussion. The statute provides that all saloons where any such liquors are sold or kept for sale, either at wholesale or retail, shall be closed. It was not necessary to allege that the saloon was a wholesale or a retail one. The statute applies to either. The offense and punishment are the same. 2. The other defense is covered by previous decisions of this court. People v. Schottey, 116 Mich. 1; People v. Bowkus, 109 Mich. 360. The fact that the only entrance. to his home was through this room is no defense. Conviction affirmed. The other Justices concurred. In re GRAMMEL'S ESTATE. GUARDIAN AND WARD-INVESTING FUNDS-FAILING BANK-NEGLI- The fact that a guardian, instead of loaning his ward's money 120 487 146 352 Error to Ingham; Wisner, J., presiding. Submitted May 3, 1899. Decided June 28, 1899. The probate court of Ingham county disallowed certain items in the final account of Frederick Schneider, as guardian of Rudolph and Louise J. Grammel, minor heirs of George Grammel, deceased, and the guardian appealed to the circuit court, where the order settling the account was set aside. Rudolph and Louise J. Grammel bring error. Affirmed. Kilbourne & Harris, for appellants. HOOKER, J. On July 25, 1892, George Grammel died intestate, leaving a widow and five children, of whom the appellants were two. Prior to October, 1892, the appellee was appointed guardian for them; and among other property was two-thirds of the proceeds of a life-insurance. policy for $5,000. It was received about October 7, 1892. He deposited this sum in the Central Michigan Savings Bank, a banking institution organized under the law of this State, and took a certificate bearing interest at 4 per cent., upon the condition that the deposit be continued three months or more. The bank failed and closed its doors on April 18, 1893, and has not fully paid its depositors. Upon a final accounting, the guardian claimed credit for the deposit, and charged himself with dividends received. The probate court refused to allow this claim. In the circuit court this decision was reversed, and he was given credit for the amount, and allowed the statutory commission, amounting to $120, and the statutory per diem of $1 for 175 days. The wards have appealed, alleging that the court erred in allowing the guardian credit for the amount lost through the failure of the bank. The only question that we may consider is whether we should say that upon this record it conclusively appears that the guardian was negligent in depositing or leaving the money in this bank for so long a period. We agree with counsel for the appellants that a guardian is required to use care and diligence in handling the property of his ward, but we cannot say that he may not deposit it in banks that have good standing, and of whose stability he is honestly confident. Under some circumstances, he would be negligent if he did not. See Woodruff v. Snedecor, 68 Ala. 437. The length of time that he should permit a fund to lie in a bank must depend upon circumstances, and these circumstances may be as variable as the exigencies of the situation may be variable. Ordinarily it is the duty of guardians to invest funds with a view to their safety and increase. In so doing they are bound to the observance of fidelity, and such diligence as men of ordinary intelligence observe in managing affairs of their own. Woerner, Guardianship, 197. In the language of Lord Hardwicke in Knight v. Earl of Plymouth, 1 Dickens, 120, "if there is no mala fides, nothing willful in the conduct of the trustee, the court will always favor him." Counsel strenuously insist that the guardian should not have left this fund in the bank, where it drew but 4 per cent. interest, when, as they contend, it could have been loaned for more. The implied argument is that, if he had done his duty, the money would have been loaned upon real estate, and consequently would not have been in the bank at the time of the failure. In Post's Estate, Myr. Prob. 230, it was held that a guardian is not responsible for the loss of funds occurring by reason of the failure of a bank in which he had deposited the ward's funds, unless by the exercise of reasonable diligence and prudence he might have known it to be in an unsafe condition. See, also, 1 Perry, Trusts, 443; 2 Beach, Trusts, §§ 492, 499; In re Hunt, 141 Mass. 515. There are cases which indicate that deposits with bankers are permissible only for temporary purposes. See Moyle v. Moyle, 2 Russ. & M. 710; Johnson v. Newton, 11 Hare, 160; Darke v. Martyn, 1 Beav. 525. But, if we adhere to that doctrine, it is nevertheless true that the length of time that a fund may prudently be left with a banker depends upon the condition and reputation of the bank, and the duty of the trustee as to investing the fund. In this case there was evidence tending to show a sufficient reason for not investing it elsewhere, and raising a question of fact as to his negligence. This was passed upon by the circuit judge, and it is not our province to review his decision upon the facts. We cannot say that they conclusively show negligence, and therefore affirm the order of the circuit court. The other Justices concurred. FISHER v. HARDWOOD MANUFACTURING CO. JUSTICES OF THE PEACE-LOG-LIEN PROCEEDINGS-SERVICE UPON OWNER-WAIVER OF DEFECTS. Where the owner of logs attached in proceedings under the log-lien law appears before the justice on an adjourned day, pleads the general issue, and goes to trial upon the merits, he waives the right to object that service was not made upon him until the return day of the writ. Error to Bay; Maxwell, J. Submitted May 4, 1899. Decided June 28, 1899. Proceedings under the log-lien law by Samuel Fisher against the Hardwood Manufacturing Company, Limited, and Nathan B. Bradley. From a judgment for defendant Bradley on verdict directed by the court, plaintiff brings Reversed. error. This suit was commenced in justice's court by attachment to enforce a lien for labor. The work was done for the defendant the Hardwood Manufacturing Company, and defendant Bradley claimed to be the owner of the property attached. Service was made upon defendant Bradley on the morning of the return day of the writ. Bradley did not appear. Three adjournments were had without his appearance. On the last adjourned day Bradley appeared by his attorney, declaration was filed, plea of the general issue entered by both defendants, case adjourned, trial had upon the adjourned day upon the merits, and judgment rendered for plaintiff. Defendant Bradley took a general appeal. Upon the trial in the circuit court, without the introduction of any testimony, the court directed a verdict for the defendant, on the ground that the justice obtained no jurisdiction. J. E. Kinnane, for appellant. Simonson, Gillett & Courtright, for appellee Bradley. GRANT, C. J. (after stating the facts). The cases of Noyes v. Hillier, 65 Mich. 636, and Newbauer v. Newbauer, 112 Mich. 562, have no application. In those cases the defendant did not appear. In this case the jurisdictional defects were waived by a general appearance, plea of the general issue, and trial upon the merits. Manhard v. Schott, 37 Mich. 234; Dailey v. Kennedy, 64 Mich. 211. Judgment reversed, and new trial ordered. The other Justices concurred. |