after diligent attempts to find the defendant Louis De Lemos he could not find him in Wayne county, and left a copy of the attachment and inventory duly certified by him with Demas St. Louis, in whose possession he found the goods attached, the said Louis De Lemos having no last place of residence within the county. The return of service appears to have been in accordance with section 6841, and the court, in case of two joint debtors, is au thorized to proceed if personal service is had upon one by section 6845.

The further objection, that the affidavit was void in stating that there was a debt justly due the plaintiff from Louis De Lemos and Demas St. Louis upon express and implied contract, is not good. If it was in the disjunctive it would be bad, but it is equivalent to saying that the debt is due upon express contract, and upon implied contract, which would be the sense if a comma were inserted after the word "express;" and if it would be good with a comma inserted, it is good without. We think the judgment of the circuit court should be affirmed, without prejudice to any remedy the surety may have for relief in a proceeding where his claim for relief may be brought before a proper forum. Judgment affirmed. The other justices concurred.

LINDNER et al. v. HINE. (Supreme Court of Michigan. Feb. 6, 1891.) ESTOPPEL-CLIENT-EMPLOYMENT OF ATTORNEY.

One who knows that an attorney is prosecuting a suit in his behalf, and who, when judgment is obtained, collects money under it and enters satisfaction, is estopped to deny the attorney's employment, and is liable for a reasonable fee.

and refused payment. Plaintiffs brought suit before a justice of the peace, where the case was tried before a jury, who found for the defendant. Upon appeal to the circuit the case was tried, and another verdict rendered for defendant by a jury. A new trial was granted, and under the instructions of the court the jury returned a verdict for the plaintiffs. Defendant assigns error upon the refusal of the court to charge as requested by the defendant and upon the charge as given. Upon the trial the plaintiffs introduced testimony which tended to prove that Mr. Hine employed them to bring the suit and perform the services sued for; and also that defendant Hine also employed Mr. Lyon, of the firm of Shepard & Lyon, to assist them in the preparation and trial. The defendant Hine introduced testimony tending to prove that he never employed plaintiffs to perform any services or bring any suit against the insurance company for him, or in his name; that one of the plaintiffs met him on the street, and told him that suit had been commenced and said to him: "Hine, you had better get Lyon to do the work in that insurance case;" and that he afterwards employed Shepard & Lyon, and paid them for their services. He also introduced testimony tending to prove that Schucker & Hopp employed plaintiffs to commence suit in Hine's name; that they were interested in the insurance, and in having the amount collected, as it would reduce their indebtedness to Hine that much. There appears in the printed record what purports to be the defendant's requests to charge, but they are not contained in the bill of exceptions, and it does not appear that they were called to the attention of the court, nor does the bill of exceptions show that any exception was taken to any refusal to charge as re

CHAMPLIN, C. J. Schucker & Hopp were the owners of a stock of liquors, and gave Gustave Hine a chattel mortgage thereon. Afterwards they obtained a policy of insurance upon the stock from the People's Insurance Company, the loss, if any, payable to Hine, as his mortgage interest might appear. A fire occurred, which consumed the property insured. The plaintiffs had been the attorneys of Schucker & Hopp in some litigation which they had before that time had, and the plaintiffs made out the proofs of loss. The insurance company denied liability, and Schucker & Hopp thereupon assigned their claim under the policy to Gustave Hine; and the plaintiffs then brought suit against the company in Hine's name, and recovered a judgment for $1,066. Hine afterwards settled with the company by discounting some $91, and received the balance of the judgment, and discharged it of record. The settlement was made and the money received without the knowledge or consent of the plaintiffs, who soon thereafter presented to Hine their bill for services and for $14.75 for costs, which they had paid to the clerk of the court in the suit. Hine denied all liability to them,

sidered. The declaration was upon all the common counts in assumpsit before the justice, and the following bill of partic ulars was filed, viz.: "Services in suit of G. Hine vs. the People's Insurance Com. pany of Pittsburgh, $150.00; costs paid Wm. Gaffney, county clerk, in Hine vs. People's Insurance Co., $14.75; total amount, $164.75." The verdict rendered by the jury was $164.75, which appears to be the precise amount claimed.

The court instructed the jury as follows: "There is no denial in the case that Lindner, Porter & Haffey were managing that insurance case, and there is no denial that Mr. Hine knew that they were managing it. There is no pretense anywhere that he objected to their managing it; and he knew that the suit was commenced; that he had a suit in this court against the insurance company, in which Lindner, Porter & Haffey were his attorneys. It is denied that he ever employed them to do it so as to make himself liable to pay them their fees, but it is not denied that he knew they were doing it. Neither is it denied, but it is claimed on all hands, that Schucker & Hopp knew that they were doing it. Now, they were doing it rightfully. There is no pretense anywhere that they were doing it wrong,-that they were representing a name there which

39

they had a right to represent. They were not doing a wrong to Mr. Hine, then, in managing that suit, and prosecuting it to completion. They were not doing any wrong to Mr. Hine. The suit went on to completion under their management, and judgment was rendered, and execution issued, a judgment was rendered which produced the money, at any rate. Now, I say to you as a matter of law that as soon as that judgment was rendered, whoever might be the owner of the judgment, Hine or Schucker & Hopp, Lindner, Porter & Haffey had a lien upon it for the amount of their fees and disbursements in the case. It was money that they had a lien upon. I almost said a mortgage, but it is not technically a mortgage, but a lien on it, which entitles them to so much of that money as they are entitled to, so that whatever they were entitled to collect from Schucker & Hopp or Hine, they were entitled to take out of the money that was received upon that execution. He also instructed them that it was in evidence that Mr. Hine received the money upon that judgment, and that in so doing he received money to which the plaintiffs were entitled, to an amount which the jury should find their services in procuring the judgment was reasonably worth, and the disbursements they had made, if any, for costs in the case, and that the jury must find a verdict for the plaintiff for such amount. No objections were made to the introduction of testimony upon which the foregoing charge is based. It was admissible under the common counts in assumpsit, and, had objection been made, the bill of particulars could have been amended. There was no error in the instruction of the court. This action is not between the attorneys for the prevailing party and the judgment debtor, and consequently the question of notice to such debtor does not arise in the case. The question is one between attorney and client. The undisputed fact that Mr. Hine received the money for which judg- | ment was rendered, and discharged such judgment by indorsing a satisfaction thereof upon the execution, estops him from denying the authority of the attorneys in acting for him in procuring such judgment. If no original employment had been proved, this act would be a full and complete ratification of the acts and services performed by the attorneys in obtaining the judgment. He cannot take the money due by virtue of the judgment and deny the authority of the attorneys to procure such judgment for him. The relation is established by his own act. The lien of the attorneys attaches to the fruits of the judgment. It attaches to the money payable to the client if it is the proceeds of the labor and skill of the attorneys. It attaches also on moneys received by way of compromise by the client in the cause, for the money is regarded as the fruit of the attorneys' labor and skill. And if the client settles the case after judgment, so as to deprive the attorneys of their costs and fees, the latter have an action against the former. 1Amer. & Eng. Enc. Law, pp. 970, 971, and cases cited; Weeks v. Circuit Judges, 73 Mich. 256, 41 N.

W. Rep. 269; Potter v. Hunt, 68 Mich. 242, 36 N. W. Rep. 58; Kinney v. Taber, 62 Mich. 517, 29 N. W. Rep. 86, 512. Had the money been paid to the plaintiffs, instead of to the defendant, they would have had the right to retain their costs and fees from it by virtue of their lien; and when the defendant received the money upon the judgment, which had been obtained by their labor and professional services, he received money which in equity and good conscience belonged to the plaintiffs. We think the circuit judge might also have instructed the jury that, the defendant having received and receipted for the money due upon the judgment, he was estopped to deny that the relation of attorney and client existed between himself and the plaintiffs; that by so doing he ratified their acts in bringing suit and prosecuting it in his name and for him, and was liable to pay for those services what they were reasonably worth.

The court further instructed the jury upon the question as to the services of Mr. Lyon as follows: "Now, it is claimed here upon one side that they did request the assistance of Mr. Lyon, and if that is true, and if that is correct, and it shows that there should be a rebate upon that account, that will make a difference in the amount that you will allow Lindner, Porter & Haffey for fees. But it is claimed, on the other hand, that Mr. Lindner never requested that Mr. Lyon should be brought in the case at all, but that he said he had confidence in the case, and did not need any help, and did not want it, but that Mr. Hine himself suggested putting Mr. Lyon in the case, and it was done on his motion. If that is true, then no rebate should be made. " It may be inferred from the amount found by the jury in favor of the plaintiffs that they found the facts as testified to by plaintiff Lindner. There was no error in permitting the witness Lindner to testify in rebuttal. The judgment must be affirmed. The other justices concurred.

HURST V. DETROIT CITY RY.

(Supreme Court of Michigan. Feb. 6, 1891.) DEATH BY WRONGFUL ACT-PECUNIARY INJURY

PLEADING.

1. How. St. Mich. § 8314, giving to personal representatives a right of action for negligently causing the death of their decedent, and Pub. Act Mich. 1885, No. 113, giving them a right of action for negligent injuries to the person of their decedent, provide distinct grounds of recovery, which cannot be joined in one action.

2. In an action for death by wrongful act under How. St. Mich. § 8314, which provides that the jury may give "such damages as they may deem fair and just with reference to the pecuniary injury resulting from such death" to the persons entitled to them, pecuniary injury must be alleged and proven.

3. Nominal damages cannot be recovered in the absence of such allegation and proof.

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

D. Augustus Straker and John Miner, for appellant. Brennan & Donnelly and Sidney T. Miller, for appellee.

LONG, J. This cause was tried before a jury in the Wayne circuit court, where the defendant had verdict in its favor under direction of the court. Judgment being entered upon the verdict, plaintiff brings the case to this court by writ of

error.

The declaration alleges substantially that the defendant is a corporation organized and existing under the laws of this state. That on the day of August, 1889, it was engaged in the carrying of passengers, for hire, in cars drawn by horses, through and along Brush street in the city of Detroit. That Brush street was and is densely populated, whereby it became the duty of the defendant, by its servants and employes, to use due care and precaution in managing and driving said cars and horses attached thereto, and in such manner as not to endanger the safety of persons crossing Brush street, within the space mentioned in the declaration; but that the defendant, disregarding its duty in that behalf, on the

on

day of August, 1889, a certain car, to-wit, car No. 100, then and there in the charge and custody of the servants and employes of said defendant, and then and there engaged in the service and business of said defendant, did so recklessly, negligently, and unlawfully operate while passing the space aforesaid Brush street, that plaintiff's intestate, the said Lorenzo Hurst, who was then and there an infant of the age of 1 year and 11 months, and who was then and there in the exercise of such due and reasonable care as was compatible with his age, in the act of crossing said road-way of said Brush street, by the said car and horses attached thereto was knocked down, trampled upon, and by the wheels and other portions of said car crushed and mortally injured, from which said injuries, as aforesaid negligently, recklessly, and unlawfully by the said servants and employes of said defendant inflicted upon said Lorenzo Hurst, he, the said Lorenzo Hurst, did die. By reason of which negligence of said defendant and injury to and death of said Lorenzo Hurst an action hath accrued to the said plaintiff as the representative of the next of kin of said Lorenzo Hurst, and in which he claims damages from the said defendant in the sum of $10,000. After the trial of the cause had commenced, the plaintiff asked leave of and was permitted by the court to amend his declaration by inserting the following: "From which said injuries, as aforesaid negligently, recklessly, and unlawfully by the said servants and employes of said defendant inflicted upon the said Lorenzo Hurst, he, the said Lorenzo Hurst, did languish in great pain and agony and suffering for the space of two hours thereafter, and, so languishing, did live, until afterwards, to-wit, on the day and year aforesaid, he, the said Lorenzo Hurst, by reason of the said injuries so as aforesaid by the negligence of the said defendant received, did die." Counsel for the plaintiff, in asking leave to file the amendment to the declaration, stated that the only cause of action sued for was the negligent killing of intestate, and he did not

intend by the proposed amendment to change the cause of action from the one set up in the declaration, and in opening the case to the jury stated that he sought to recover in the suit under section 8314, How. St.

The plaintiff gave evidence on the trial tending to show that about mid-day of the 21st of August, 1889, plaintiff's intestate, a male child of 23 months of age, and just beginning to walk, was engaged with 15 or 20 other children in some childish amusement upon Brush street, in Detroit. The neighborhood is a populous one, in which many children reside. The width of the street between curbs at this point. is 28 feet. Through the center of this space runs the track of the defendant corporation, upon which it operates a line of cars, drawn by horses, for the carriage of passengers for hire. One of the cars of defendant came along at rapid speed. The car thus progressed a distance of 125 feet before reaching the intestate, while the driver kept his face turned aside from in front of the car. Plaintiff's intestate was knocked down and driven over while he was in the act of crossing the track. Both the front and rear wheels passed over his body, crushing and wounding him so that he died in less than an hour afterwards. The driver did not attempt to check the speed of the car until after the injury had occurred. The father and mother of the intestate are both living. The father is 54 years of age; ån invalid, poor, and unable to render any assistance in supporting the family. The mother worked at washing and ironing, at which she supported herself and family, including the husband, (plaintiff in error.) The family consisted of the parents and 7 children, the oldest of whom was 16 years, and the youngest 23 months, (the intestate.) The mother, on the day in question, had gone from home at half past 6 o'clock in the morning, to work, leaving the infant intestate under the care of a child 10 years of age. The father (the plaintiff) at this time had been away from home, and at the Soldiers' Home, Grand Rapids, for about 10 days. No evidence of specific pecuniary damages was given. No testimony was offered on the part of the defendant, and the parties rested their case. Defendant's counsel thereupon requested the court to charge the jury that, under the pleadings and proofs, the plaintiff could not recover. After the argument, upon such request to charge, the plaintiff asked to be permitted to amend his declaration so as to include a claim for damages under the provisions of Act No. 113, Pub. Acts 1885. The court refused to allow this amendment and directed verdict for defendant.

Two questions only are raised: (1) That the court erred in refusing to allow the amendment; (2) that the court erred in directing the verdict, as requested by defendant's counsel. The court very properly refused the plaintiff's amendment to his declaration. The act referred to, which is an amendment to section 5828 of the Compiled Laws of 1871, provides: "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 of assault and battery, false imprisonment, for goods taken and carried away, for negligent injuries to the person, and actions for damage done to real or personal estate." By the amendment the plaintiff sought to introduce into the cause a right of recovery for the injuries inflicted upon plaintiff's intestate, and for the recovery of which the plaintiff's intestate might have had an action if living; and which action, it was claimed, survived to the plaintiff by virtue of this statute. This amendment would have introduced into the case a new and different cause of action than that stated in the declaration. Under the declaration as framed, if any damages were recoverable at all, it was only such damages as resulted from the loss of service by reason of the death of the child; while the claim of recovery under the proposed amendment was for the injuries inflicted and suffered up to the time of its death, that is, such damages as the child might have recovered for the injuries if living, and which it was claimed survived, by this statute, to the father and mother. Satisfaction of the claim made by the declaration would be no bar to the other if such an action could be maintained. The claim is one given by statute, and which did not exist at the common law. The proposed amendment is for the recovery for injuries, and the right to which is given by the common law, and which died with the party, unless made to survive by this statute of 1885; thus showing two separate and distinct causes of action. The proof of one would not sustain the other, and the right to damages, and the measure thereof, depended upon a different class and kind of proof,-one measured by the pecuniary value of the service of the child, less the cost of maintenance; and the other, the actual damage sustained by the child by reason of the injury, such as the inability to perform his usual labor, physical pain and suffering, depending upon the degree of the injury and pain and suffering endured.

The court was not in error in directing the verdict in favor of the defendant. The action was brought under section 8314, How. St., which provides: "Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered." No proof was made by the plaintiff of any pecuniary loss, and there is no such allegation in the declaration. It is argued, however, by the counsel that this statute declares the liability of the person or corporation whose negligence caused the death, and that, therefore, no evidence of pecuniary damages was requisite to entitle the next of kin to

maintain the action and to recover suck damages; the statute itself refers it to the jury to give such damages as they shall deem fair and just. The action is by the administrator of the intestate's estate, and, if any recovery is had, it is under the statute for the benefit of the parents,the father and mother, who are both living. It is for the pecuniary loss sustained by them; and the measure of such damages, if any are recoverable in such cases, is limited to the prospective earnings of the child until his arrival at the age of 21 years, taken in connection with his prospect of life, less the expenses of his care and support. Rajnowski v. Railroad Co., 74 Mich. 20, 41 N. W. Rep. 847; 2 Thomp. Neg. 1292. There would also be a limit upon this, dependent upon the probable duration of the lives of the parents, as no estimate of such prospective earnings could extend beyond the expectancy of the lives of the parents and the survivor of them. Clinton v. Laning, 61 Mich. 360, 28 N. W. Rep. 125. It is well stated by counsel for the defendant that it has the same element and the same measure of damage which the parent sustains and can recover in case of permanent injury resulting in partial or total disability of the child to render services to the parent; that it is also equivalent to the element of actual damages recoverable by an injured party who is disabled, and thus rendered unable to perform his usual work, or apply himself to his trade, and thereby he loses his prospective earnings; and that this may be termed the pecuniary damage or loss sustained by the injured party. The question is therefore presented whether damages of this character are special in their nature, and not such as necessarily flow from the injury, or, as in this case, necessarily follow from the fact that death results from the injury. It is contended on the part of the plaintiff that the statute does not contemplate that such damages are special, but refers every such action to the jury, to estimate and give such damages as they shall deem fair and just. The statute provides that when a person is killed by negligence, and pecuniary injury results, the right of action for such injury survives to the personal rep. resentatives. It clearly contemplates that pecuniary injury must result from the negligent act; and therefore, to entitle a party to recover in such action, the negligence must not only be established, but also some pecuniary injury or loss must be shown by evidence. Such damages for the loss of prospective earnings are special in their character, and must be specially pleaded, and a recovery can only be had upon evidence establishing the fact. Pennsylvania Co. v. Lilly, 73 Ind. 254; Gilligan v. Railroad Co., 1 E. D. Smith, 453; Baldwin v. Railroad Corp., 4 Gray, 333; Tomlinson v. Derby, 43 Conn. 562; Taylor v. Monroe, Id. 42; Gilligan v. Railroad Co. 1 E. D. Smith, 459; Dunn v. Railroad Co., 21 Mo. App. 205; Matthews v. Railway Co., 26 Mo. App. 84; Perry v. Banking Co., (Ga.) 11 S. E. Rep. 605; Railroad Co. v. | Orr, (Ala.) 8 South. Rep. 363. There is no allegation of special damages in the declaration, and the declaration does not

count upon the pecuniary loss of the prospective earnings of the intestate; the theory of the plaintiff being that no such allegation was necessary, and no proofs required, but that the action was brought for the negligent killing, and nothing else. It is necessary to a recovery in such cases that the pecuniary loss be alleged in the declaration, and that some proof be introduced to establish the facts so alleged. It was said by Mr. Justice CHAMPLIN in Cooper v. Railway Co., 66 Mich. at page 271, 33 N. W. Rep. at page 313: "The statute authorizes the jury in every case of this kind to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury was not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted." Attention is directed to the reasons given in that case why such testimony is necessary in support of the such claim of damages. In Rajnowski v. Railroad Co., 74 Mich. 27, 41 N. W. Rep. 847, this class of testimony was offered, and rejected by the trial court, and we there held this testimony admissible. In Van Brunt v. Railroad Co., (Mich.) 44 N. W. Rep. 321, the action was brought under sections 3391 and 3392, How. St., which provide that in an action by an administrator against a railroad company for the alleged negligent killing of his intestate the jury shall give such damages as are fair and just, which shall be distributed to the persons entitled thereto under the statute of distributions. It was held that the administrator must show that some person has suffered some pecuniary injury by the death. But it is contended by the learned counsel for the plaintiff that the plaintiff was entitled to recover at least nominal damages. As before stated, however, the statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. It is a matter to be made to appear by proper allegation in the declaration, and proof of the fact. Nominal damages cannot be recovered, unless supported by evidence. Franklin v. Railway Co., 3 Hurl. & N. 213; Duck worth v. Johnson, 4 Hurl. & N. 653. Counsel for defendant contends that the administrator must show that the injurious act of which he complains was caused by the negligence of the defendant, and that he is not relieved from the charge of contributory negligence on the part of the deceased, or on the part of those having the care of the deceased. That it is a case where the parents seek to benefit themselves; and, if their negligence in any way contributed to the accident from which they seek a benefit, they should be barred from any recovery. 1 Shear. & R. Neg. § 71, and cases there cited; Glassey v. Railway Co., 57 Pa. St. 173; Railway Co. v. Snyder, 24 Ohio St. 670; Wright v. Railroad Co., 4 Allen, 289; Weil v. Railroad Co., 5 N. Y. Supp. 833,-are all cited in support of this proposition. I should be of this opinion if the question was one necessary to the disposition of the case, but, from the view we take, the court was justified in directing a verdict

upon the other branch of the case. No special damages were alleged or proved, and for this reason the court very proper ly directed the verdict in favor of the de fendant. The judgment must be affirmed, with costs. The other justices concurred.

GREENOP V. WILCOX et al.

(Supreme Court of Michigan. Feb. 27, 1891.) EJECTMENT-TITLE TO MAINTAIN-CO-VENDEE.

Land was sold, under a contract for a deed,

jointly to plaintiff and defendant's assignor, who paid part of the purchase money and agreed to pay the balance in five years. Plaintiff after wards, without the knowledge of defendant, who was lawfully in possession, paid the balance of the purchase money, and received a deed. Held, that he could not maintain ejectment against defendant.

Error to circuit court, Mecosta county; J. H. PALMER, Judge.

Dumon & Cogger, for appellant. F. A. Mann, for appellees.

GRANT, J. This was an action of ejectment, tried before the court without a jury. The facts found are substantially these: On the 16th day of January, 1883, the title to the premises involved was in the executors of the estate of George B. Warren, deceased. Under the authority conferred on them by his will they executed to the plaintiff and one Robert A. Lavery a contract for the purchase of the said premises. Part was paid down, and the balance was to be paid in five years. The vendees were empowered to, and did, take possession of the premises; but it was provided that, if there should be default on their part, the first parties, their representatives and assigns, might re-enter and take possession. Lavery duly assigned his interest to the defendant WilCox, who leased the property to defendant Hyatt, who was in possession under this lease when the suit was brought. Hyatt was made defendant solely because he was found in occupation. Neither Lavery nor Wilcox had made any further payments upon the contract. Wilcox, at the time of receiving the assignment, called upon the agent of the estate, and stated that he was ready to pay his portion of the balance at any time it should be called for. The agent replied that that would be all right, and his interest would not be prejudiced without notice. On June 17, 1889, plaintiff obtained from the executors a deed of the premises, he being the sole grantee. At the time suit was commenced no demand had been made upon Wilcox for the balance due upon the contract, nor had any notice been given to him or to said Hyatt to surrender possession of said premises after said Greenop had obtained his deed; nor did Wilcox have any actual notice or knowledge of the existence of such deed. Prior to plaintiff's obtaining his deed he saw Hyatt, and informed him that he was the owner of the premises, and requested him to vacate, which he declined to do. Judgment was rendered for the defendants, and plaintiff appeals.

1. There is nothing in the record to show the circumstances under which plaintiff obtained his deed. We must therefore as.