45 121

150 240

WILLIAM LAMPSON V. DRAIN COMMISSIONER OF INGHAM
COUNTY.

Proceedings to lay out ditch-Notice of application for appointment of commissioners.

Proceedings to lay out a drain were quashed because the record did not show that notice had been given that application would be made to the probate judge for the appointment of the commissioners to determine the necessity for constructing the ditch and to assess the consequent damages.

Certiorari to bring up proceedings for laying out a ditch across the premises of the petitioner, under the County Drain Law, Comp. L. ch. 47. Submitted November 10, 1880. Decided January 5, 1881.

J. C. Shields for plaintiff in certiorari.

MARSTON, C. J. The record does not show any notice whatever that application would be made to the probate judge for the appointment of commissioners, and they having been appointed and acted without such notice having been given or waived, the proceedings cannot be sustained, but must be quashed, with costs.

Divorce-Extreme cruelty-Execution for temporary alimony not issuable.

A wife went to the house of her parents to be confined, and did so against the objection of her husband who, however, was living with his own parents, and whose household arrangements were not therefore interfered with. When she was confined she sent word to him, but he did not go to see her at first, and when he did go in reply to a

reproachful letter from her, he told her he had received a letter from her full of lies, and had come to warn her that if she was not back before the issue of the next week's paper he should advertise her; he also intimated that the child was her father's and not his own, saying that if it had been, it would have been born at home, but now it had been delivered where it belonged. Held, a case of extreme and wanton cruelty entitling the wife to a divorce.

Execution cannot be awarded under Act 44 of 1877, to enforce the collection of temporary alimony.

Appeal from Ingham. Submitted Nov. 10. Decided Jan. 5.

DIVORCE. Defendant appeals. Affirmed.

H. P. Henderson for complainant. The facts are within the definition of extreme cruelty. Cooper v. Cooper 17 Mich. 205; Goodman v. Goodman 26 Mich. 417; Bennett v. Bennett 24 Mich. 482.

M. V. & R. A. Montgomery for defendant.

COOLEY, J. This is a bill for divorce on the ground of extreme cruelty. The parties were married in October, 1874. In October, 1875, a child was born to them, and in 1877 complainant was pregnant a second time, and went to the house of her parents a few miles away to remain until after confinement. The husband seems to have objected to this, but nevertheless went with her, and then returned to his own residence. When the second child was born she sent him word, but he did not come to see her, and in a few days she sent her father over to ascertain why he did not The father testifies that "he said we had undertaken to run his business, and we might continue to do so: he should not run after her: she might go to the devil." This was repeated, and as the father was going away he said if his wife was not back as soon as she could come he should commence legal proceedings. When this was reported to complainant she wrote him a reproachful letter, and he then went to see her. According to the evidence he commenced the conversation by saying he had just got a letter from her full of lies, and he had come to warn her that if she was not

come.

back before the next week's paper was issued he should advertise her. He then turned to go away and she called him back, but this only made matters worse, for before he left he by indirection charged her with incest with her father, intimated that the child just born was not his own, and said that if it had been it would have been born at home, but now it had been delivered where it belonged. At this time the wife was still confined to the bed. He actually went then, as he had threatened, and advertised her in the next issue of a local paper as having deserted him.

In the evidence produced nothing appears to justify or excuse the defendant's conduct, unless it is to be found in the wife's desire to be confined at her mother's notwithstanding his wish that she should remain and be confined at home. They were then living with his parents, and there was nothing unnatural or unreasonable in her desire to be with and have the assistance of her own mother. Few men under like circumstances, it is to be hoped, would have made objections. It put him to little or no trouble, and to no cost, and it did not interfere with ordinary household arrangements. His failure to visit his wife immediately on receiving notice of her confinement stands wholly unexcused, and his conduct when he did so fully justifies us in holding that it makes out a case of extreme and wanton cruelty, and would entitle the complainant to a divorce without any aid from the subsequent insult in the newspaper. If she was a decent and self-respecting woman—and there is no evidence to the contrary-she could not with comfort cohabit as wife with the defendant afterwards. Briggs v. Briggs 20 Mich. 34. The decree granting a divorce must be affirmed.

An order for temporary alimony was made before final decree, and an execution issued for its collection. This is supposed to be authorized by Public Acts 1877, p. 32, but that statute applies to permanent alimony only. The order, so far as it awards execution, will therefore be reversed. The circuit court reserved the question of permanent alimony, and the custody of the children, and the record will be remanded that they may be dealt with.

The other Justices concurred.

CHARLES E. DAYTON, IMPLEADED WITH JOHN B. HOOKER, V.
HIRAM B. FARGO.

Right of action for deceit not assignable.

A right of action either at law or in equity is not assignable if it does not, directly or indirectly, involve a right of property.

In Michigan equity will not enforce an assignee's claim of a right to sue for a fraud to his assignor if that is the sole ground of the action.

A right of action in trespass on the case for damages from deceit is not assignable.

A new trial is not granted on reversal where the count of the delaration on which the verdict rests presents no cause of action, even though the plaintiff might have recovered on some other count.

Error to Ingham. Submitted Nov. 10. Decided Jan. 5.

CASE and TROVER.

Defendant brings error. Reversed.

M. V. & R. A. Montgomery for plaintiff in error.

J. C. Shields and H. P. Henderson for defendant in error.

CAMPBELL, J. Fargo, as assignee of Henry Hart, sued Dayton jointly with one John B. Hooker, under a declaration containing two counts-one in case for obtaining property under false pretenses, and the other in trover for the conversion of the same property. No process was served upon Hooker and it does not appear from the printed record that there was any return of not found.

The jury found a verdict for Fargo upon the first count and not upon the second. It is necessary therefore to examine into the nature of the count on which recovery was had, in order to see the bearing of some of the errors assigned.

It sets forth a bargain between Hart and both defendants, whereby Hart was to sell certain lumber to them and take in payment a note of Hooker alone. It avers that defendants caused Hart to sell the lumber by fraudulently repre

senting that the note was good and Hooker responsible, and that Hart, confiding in the representations, delivered the lumber and took the note in payment, and that Hooker was worthless and the note valueless. It then avers an assignment of all claim for the price and value of the lumber, and of the cause of action growing out of the transaction, and that by reason of the premises plaintiff has been deprived of the use and value of the property, and that "defendants on the said sale falsely and fraudulently deceived the said Henry Hart, as aforesaid, out of the said lumber," etc.

The only effect which can be given to the count is that it is an action on the case for deceit, to recover damages for the fraudulent representations whereby Hart was induced to part with his property without any valuable consideration.

It is claimed that this cause of action was not assignable. The general doctrine both at law and in equity has always been that nothing is assignable that does not directly or indirectly involve a right of property. It has been held repeatedly in this state that equity will not enforce the demands of an assignee of a right to sue for fraud, when the cause of action is confined to that. Carroll v. Potter Walk. Ch. 355; Morris v. Morris 5 Mich. 171; Brush v. Sweet 38 Mich. 574; Dickinson v. Seaver 44 Mich. 624. In Final v. Backus 18 Mich. 218, it was held that under our statute authorizing suits by assignees of rights in action, the general doctrine is that actions for torts are not assignable, and that only such as survive to the personal representatives of the injured party could be sued for by an assignee. That was an action of trover, and it was held properly brought because the statutes had expressly taken it out of the common law rule. This case has been followed and affirmed in other decisions. Brady v. Whitney 24 Mich. 154; Grant v. Smith 26 Mich. 201.

By section 5828 of the Compiled Laws it is provided that "In addition to the actions which survive by the common law, the following shall also survive, that is to say: actions of replevin and trover, actions for assault and battery, or false imprisonment, or for goods taken and carried away, and