ant Cyrus F. Moors to the effect that he had conveyed the premises in question to his wife for the purpose of defrauding the complainant in this suit, and preventing him from collecting the judgment afterwards recovered by him out of the property of the defendant Cyrus F. Moors. He also introduced the judgment and execu tion issued thereon and levied upon the property in question, and took no further Caroline A. Moors had been introduced. testimony until after that of the defendant The testimony on the part of the complainant was begun to be taken in 1885. Mrs. Moors, the defendant, produced herself as a witness in her own behalf, and she was sworn, and testified without objection from her husband or any other person, and was examined and cross-examined at great length respecting the conveyance of the property to her, her knowledge of her husband's debts, the amount and nature of her property when she married the defendant Cyrus F. Moors, and what she had accumulated and spent since that time, all with a view of showing on the part of the defendant Caroline A. Moors that the property was conveyed to her in part payment of an actual indebtedness owing to her by her husband Cyrus F. Moors, and on the part of the complainant's solicitor to show that the conveyance was voluntary and fraudulent as to the complainant in the suit as a creditor of Cyrus F. Moors. After the defendant had introduced her proof, and on the 21st day of November, 1887, the complainant called Cyrus F. Moors, the husband of Caroline A. Moors, as a witness in his behalf. The solicitor for the defendant Caroline A. Moors objected to his being sworn, on the ground that he was a party defendant, and that his testimony would be against his wife, and therefore incompetent. His testimony was taken by the commissioner, and forms part of the testimony in this case; and the first question to be determined is whether this testimony is competent, and should be received as proof in the case. CHAMPLIN, C. J. The bill of complaint in this case was filed April 18, 1885, in aid of an execution, charging that a certain deed from Cyrus F. to Caroline A. Moors, his wife, was fraudulent as to creditors of Cyrus, and praying that it be set aside, etc. This deed conveyed the property described in the bill; was dated December 5, 1882, and acknowledged December 11th, the same year, and recorded January 15, 1883, in Book 51, page 484, in the Wayne county register's office, and was expressed to be in consideration of $3,000. The bill further charges that prior to date of said deed said Cyrus was indebted to complain. ant in a large amount, for which a suit was pending at that time, and that afterwards, and on the 17th of March, 1885, judgment was duly rendered in said case in favor of the complainant and against said Cyrus for the sum of $3.683.69: that afterwards execution was duly issued and levied upon the property described, which is alleged to be the property of Cyrus, and that said conveyance was voluntary, and without consideration, and was made for the purpose of defrauding his creditors, and complainant in particular, and of defeating his claim. The defendant Cyrus F. Moors did not answer, and the bill was taken as confessed against him. Caroline A. Moors answered, and denied that Cyrus F. was ever indebted to the complainant, and that whatever judgment was obtained against said Cyrus F. Moors was gotten by his connivance and fraud, and for the purpose of defrauding her out of said property. That said deed was made It is claimed on behalf of the complainfor the purpose of part payment of a debt ant by his solicitor that it is competent, due from her said husband, Cyrus F. and ought to be received, for the reason Moors, and for no other purpose; and she that there is no harmonious feeling between expressly denied that it was made for the the husband and the wife, but that their inpurpose of hindering or defrauding any terests are the same; that, so far as this creditors whomsoever. That when the record shows, their interests are identical. deed was made said Cyrus represented Whether or not it is competent testimony that he did not owe complainant anything must be determined by the language of whatever, and that she received said deed the statute on the subject. Section 7546 in good faith, and in part payment of the of Howell's Annotated Statutes, debt which said Cyrus owed her. That amended June 17, 1885, (Sess. Laws 1885, her said husband, Cyrus, had been for a p. 288,) reads as follows: "A husband long time conspiring with the complain- shall not be examined as a witness for or ant and others to defraud her out of her against his wife without her consent, nor just rights and her interest in said prop- a wife for or against her husband without erty. That she had occupied said prop- his consent, except in cases where the erty for years as a homestead, and that cause of action grows out of a personal she still so occupied it. That she has no wrong or injury done by one to the other, other property whatever; and that she is or grows out of the refusal or neglect to now aged and infirm, and supports her- furnish the wife or children with suitable self by renting rooms and keeping board- support within the meaning of act numers, and has no other means of livelihood. ber one hundred and thirty-six of the SesThe testimony introduced on behalf of the sion Laws of eighteen hundred and eightycomplainant in the first instance consist three, and except in cases where the hused of the testimony of witnesses who band or wife shall be a party to the record swore to admissions made by the defend-in a suit, action, or proceeding where the as title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through, or under the husband or wife so called or offered as a witness, shall be the subject-matter in controversy or litigation in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action, or proceeding; and in all such cases such husband or wife who makes such claim or title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto, without the consent of said husband or wife who is a party to the record in such suit, action, or proceeding, as though such marriage relation did not exist." We think the statute in this case prohibits the husband from being examined as a witness for or against his wife without her consent. It is conceded that the complainant introduced the husband as a witness to testify against his wife, and it is said in the brief of counsel that his testimony makes out a complete case for the complainant. It is therefore a case where, against his wife's consent, he is offered as a witness in a cause where both he and his wife are parties to the record as defendants, in which his wife's separate property is concerned, but in which his interest is identical with hers, and, therefore, there being no conflict between them in interest, he does not come within the exception in the statute. Had the contest been between the husband and wife concerning their separate property, or between the wife and some other party claiming through or under the husband, then the exception in the statute would perinit either party to be competent wit, nesses as against the other without the consent of either. We think the case of Hubbell v. Grant, 39 Mich. 641, applies to this case. The statute was also explained and commented upon in the case of Hunt v. Eaton, 55 Mich. 362, 21 N. W. Rep. 429. That was a controversy between the husband and wife as to certain personal property belonging to the wife, which she had assigned to Hunt; and for reasons stated in that opinion we held that within the statute her interests were not identical with his, but were adverse. But in this case it is conceded by complainant's solicitor that the interest of the husband and wife in this suit are identical with respect to this property; therefore we lay out of the case the testimony of Cyrus F. Moors. The complainant's solicitor, however, insists that if his testimony was not competent, neither was hers; although it was taken without objection, yet it was taken without his consent; and if the husband's testimony is stricken out, so should be hers also. My brethren are of the opinion that her testimony was admissible. The testimony in the case will be left to rest, on the part of the complainant, mainly upon the admission of Cyrus F. Moors made to certain parties, and some admissions made by Mrs. Moors, and testimony tending to show that she had knowledge of the pending suit by Blanchard against her husband, coupled with the fact that the conveyance was made while such suit was pending. In passing upon the merits of the case it is not to be forgotten that the burden of proving fraud rests with the complainant in the suit. He must introduce testimony, and show such a combination of facts and circumstances as will lead an unbiased mind to believe that a fraud has been perpetrated. The admissions of Cyrus F. Moors cannot in any respect affect the rights and interests of his grantee. It would be a hazardous position to assert that a grantor, after parting with his interest in the property, can turn around and by his admission defeat the title which he has conveyed. And, aside from these admissions of Cyrus F. Moors, there is nothing in the testimony which war rants the conclusion that this conveyance was either voluntarily made or was executed for the purpose of defrauding the complainant of his debt. On the contrary, the testimony introduced in behalf of the defendant tends quite strongly to prove that the conveyance was for a consideration which was good in law, and there is an absence of proof tending to convince us that it was made with any intention of defrauding the creditors of Cyrus F. Moors. Such being the conclusion reached from a perusal of the testimony not rejected, it follows that the decree of the court below should be affirmed, with costs. The other justices concurred. LONG, J. On December 16, 1890, Lewis Wright, J. Franklin Wright, and Almon Wright, copartners as Wright Bros., all residents of Boston, Mass., commenced an action in assumpsit in the Wayne circuit court, this state, against Bernard Altman and Samuel Altınan, both residents of the state of New York, as principal defendants. The suit was commenced by summons returnable January 5th following. There was no personal service of the summons on the principal defendants in this state. On the day this summons was issued an affidavit of garnishment was filed in this case, and writ of garnishment issued directed to the relators, all of whom reside in Detroit, Wayne county, this state. On January 5th a motion was made and argued before the circuit judge to dismiss the writ of garnishment on the ground that the plaintiffs and defendants in the principal suit were all non-residents of the state of Michigan. This motion was denied. This is a proceeding for a mandamus to compel the circuit judge to set aside the order and to dismiss the writ of garnishment. Section 8087, How. St., under which this proceeding is sought to be enforced, provides as follows: "If the plaintiff, in addition to the allegations herein before required to be contained in the affidavit for the writ of garnishment, shall set forth in such affidavit that the principal defendant is a non-resident, or a foreign corporation, created in any jurisdiction, [naming it,] the principal writ, [or declaration,] and affidavit may be filed of the day of issue, and the writ of garnishment may be served as in ordinary cases, and within sixty days after such service the plaintiff shall cause to be delivered to such non-resident defendant, or to the president, secretary, cashier, or treasurer of such foreign corporation, residing out of this state, or upon any officer, clerk, or agent residing or to be found within this state, a true copy of the principal writ, [or declaration,] affi. davit, and writ of garnishment, with return of service thereon, and with a written or printed notice attached, signed by the plaintiff or his attorney, and stating that said non-resident defendant or for eign corporation is notified to appear and defend within thirty days after such service or default will be entered, and judgment taken, and upon filing an affidavit of such service further proceedings to judgment may be had as in ordinary personal actions. It was held in Moore v. Wayne Circuit Judge, 55 Mich. 84, 20 N. W. Rep. 801, that the courts of this state had jurisdiction under this provision of the statute against the property of non-resident defendants by process of garnishment. It was there said: "It is a well-recognized principle that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory, and it may make laws to subject property situated within its limits owned by nonresidents to the payment of claims due to its own citizens from them. Such legislation is based upon the necessity of the case, and the injustice which would result from permitting non-resident debtors to withdraw their property or assets from the jurisdiction of the state as a legitimate exercise of its authority to hold and appropriate the property of such debtors to satisfy the claims of its own citizens." In that case, however, the plaintiff, as well as the garnishee defendant, were both residents of the state of Michigan. No case has before been presented to this court arising under this statute where the garnishee alone is a resident of this state and the parties to the original suit both residents of other states. Section 7547, How. St. par. 2, provides that all suits on contract should be tried in the county where one of the parties reside. This statute has reference to the commencement of action in the several courts of this state. In Cofrode v. Gartner, (Mich.) 44 N. W. Rep. 623, this court compelled by mandamus the Wayne circuit court to reinstate that cause on the calendar and to proceed to the trial thereof. It appeared in that case that the parties to that proceeding were all non-residents of this state, but that they had consented to the jurisdiction of the court. The question presented here is v.48N.w.no.9-35 whether the plaintiffs, who are non-residents of the state, may bring their action against a non-resident defendant and proceed to judgment in the courts of this state for the purpose of subjecting credits in the hands of a third person to the payment of such debt, though no personal service is or can be made upon the principal defendant within the state. The contract between the plaintiff and defendant is not one to be performed within this state. The whole purpose of this proceeding is the bringing the defendant within this state, and to adjudicate between himself and his creditor, a resident of the state of Massachusetts, and to subject credits in the hands of third parties to the payment of such indebtedness. Garnishment is a special auxiliary remedy for the more effectual recovery of debts. Its object is to enable a creditor to subject the property, effects, and credits of his debtors in the hands of third persons to the payment of his claim by means of a delivery or payment by compulsion of law. It is not instituted for the purpose of the recovery of property, nor the enforcement of a lien thereon. Its primary object is to reach the res in the hands of third persons, against whom there is no foundation for a personal claim when the summons issues. The statute provides a mode of service upon the principal defendant, who is a non-resident, by which the courts of this state may acquire jurisdiction. The court must have jurisdiction of the parties to the principal suit, so that, as between them, a valid judgment could be rendered, as the rights between these parties must be adjudicated, at least to the extent of the claim made against the garnishee, before the court could enter judgment against the garnishee. There is no valid reason why the courts of this state may not acquire jurisdiction over persons and choses in action, as well where both parties to the original action are non-residents of the state, as where the plaintiff in the original suit is a resident of the state. The plaintiff, a non-resident, comes into the state, and submits himself to the jurisdiction. The statute points out the mode of procedure to acquire jurisdiction over the defendant in the principal suit; not for the purpose of rendering a personal judgment against the non-resident defendant, but to subject the choses in action in the hands of the third party to the payment of the plaintiff's demand. To this extent the statute confers upon the court jurisdiction to proceed. The writ of mandamus must be denied. The other justices concurred. WRIGHT V. SENN'S ESTATE. (Supreme Court of Michigan. April 17, 1891.) CLAIMS AGAINST DECEDENT'S ESTATE-EVIDENCE. Deceased visited his married daughter, and lived as one of the family for over a year. Before and during his visit he let his daughter and her husband have money, which was never paid back. He furnished a great deal of the provisions for the family. Nothing was said during or after his visit about paying for his board, and the daughter and her husband testified that they did not intend to put in a claim until a note signed with the daughter's name was found among deceased's papers. The note bore date nine months after deceased first came to his daughter's house, and provided that a certain sum therein named should be deducted from her interest in the estate after his death. There was also a claim for care bestowed by the daughter on the father. The daughter claimed that the note was not signed by her. Held that, whether or not the note was genuine, there was no evidence to go to a jury in support of the claim against the estate. Error to circuit court, Livingston county. Rollin H. Person, for appellant. D. Shields, for appellee. tion to make any charge against her father, or against her father's estate, for board or washing or care during his stay with the Wrights until the discovery some time after his death among the papers of deceased of the following: "$200. I, Rosina Wright, formerly Senn, promise to pay to her father, John Senn, the sum of two hundred dollars. The father is willing to let this sum stand where it now is as long as he lives. After his death I promise to have the sum deducted from my interest in the estate. Dated April 1st, 1882. ROSI NA SENN WRIGHT." Mrs. Wright testified before the commissioners that they calcu lated up to the time of the discovery of this paper that her father's bill was fully paid; that plaintiff had said that he presented this account so as to offset the $200 claim mentioned in the paper, so as not to have that counted against Mrs. Wright. It further appears that Mrs. Wright and her three sisters, after her father's death, went to a lawyer's office, and there made arrangements for dividing up the estate, and Mrs. Wright there stated that there were no claims against the estate anywhere. The claimant was sworn, and testified, under objection, that his wife told him that her father meant to pay his way. The facts so far stated ap pear from the testimony offered on behalf of claimant, and the plaintiff's claim rested solely upon his testimony and that of Mrs. Wright. The note, a copy of which is given above, was produced, and Mrs. Wright testified that she did not sign it, and knew nothing about it, and claimant produced a witness who testified that Mrs. Wright had done business at his bank, and that the signature, as well as the body of the paper, was in one handwrit MCGRATH, J. John Senn died at Iosco in April, 1883, at the home of his daughter Mrs. Pelts. It appears that deceased came from Ohio, in March or April, 1881, rewained with his daughter Mrs. Pelts until July 12th of the same year, and then went to visit his daughter Mrs. Lyman Wright, at Dexter, where he remained till November 1, 1882, and then returned to the home of Mrs. Pelts, where he remained till the time of his death. Lyman Wright, his son-in-law, filed a claim against his estate before the commissioners for board, lodg ing, washing, and care, to the amount of $345, and an appeal was had to the circuit court. On the trial it appeared that Senn was 72 years of age; that he came to claimant's house upon a visit, and prolonged his stay; that no arrangements were made with reference to the length of his stay, or for his board; that the visit was expected. And his daughter testifies that "he didn't say anything. He just came there. Nothing was said. He lived there right along as one of the family. Nothing was said about pay between me and him." Nothing was said about paying, and that it was not Mrs. Wright's between him and her husband that she ever heard of. It further appears that before Seun came to live at Wright's he had let them have some money, and during his stay there he had at one time let Mr. Wright have $200. At another time he let Mrs. Wright have $60, at another $40, and that he had from time to time let them have other moneys; and Mrs. Wright testifies that she didn't keep any track of the amount of these other moneys, and that at times when she offered to return to him money that she had borrowed he refused to take it, and said "he meant to pay his way through. He didn't mean to be there on me for nothing." That during his stay at the Wrights he frequently bought groceries and meats for the house, and Mrs. Wright testifies that he bought half of the coffee, half of the corn-meal, and one-third of the flour used while he was there. That Wright owned a number of lots adjoining that upon which his house stood, which he evidently cultivated, for the wife testifies that the father worked in the garden. That none of the moneys paid by the father to Wright or Mrs. Wright were ever paid back. There is no testimony that at the time he left the Wrights, or that at any time subsequently during his life, there was any allusion by the Wrights or by Senn to any account or accounting between them. Indeed, Mrs. Wright testifies that there was no inten- | handwriting. The defendant, at the conclusion of the testimony, asked the court to instruct the jury as follows: "It ap pears as the claimant's case that John Senn, the deceased, lived with claimant and his wife for a length of time as one of the family; that no agreement was made as to pay further than that Mr. Senn said to Mrs. Wright that he intended to pay his way. It further appears that be furnished more or less food, and paid claimant and his wife various sums of money,-to the claimant over $200, and to his wife over $100, the exact amount being unknown. It further appears that the claimant and· his wife considered the claim as paid and satisfied; never made a claim against Mr. Senn in his life-time, nor considered that he had any claim. Under these facts Icharge you that you must disallow such claim.' But the court refused to so instruct the jury, but left it for the jury to say whether there was any promise, express or implied, on the part of Senn, or any expectation of payment on the part of the plaintiff, and the jury found a verdict for $141 in favor of Wright. Mrs. Wright testifies that her father required some nursing, but not much; that it was but a day or two that she took care of him in bed; that he had a sore eye that troubled him about two months, and she poulticed it at night when he went to bed; that she assisted hin Sunday mornings when he wanted to 20 ulate as to the existence of the contract necessary to support them. One of the items for which the claim is made is for care bestowed by Mrs. Wright. Care of an aged and infirm father by a daughter is usually dictated by the better instincts of a common humanity, and is so rarely bestowed upon contract that no implied contract can be predicated upon its bestowal or receipt. The law will not associate with the discharge of a purely filial duty an implied obligation to pay for the same. To support a recovery therefor an express contract must be clearly shown. The judgment below is reversed, and a new trial denied, with costs of both courts to defendant estate. Let it be certified to the circuit and probate courts accordingly. The other justices concurred. SCHURR V. SAVIGNY et al. (Supreme Court of Michigan. April 17, 1891.) MASTER AND Servant-CoNTRACT OF EMPLOYMENT -EXTRA WORK. 1. St. Mich. 1885, Act 137, § 1, provides that in all factories, work-shops, salt-blocks, sawmills, logging and lumber camps, booms, and drives, mines, or other places used for mechanical manufacturing or other purposes, 10 hours shall constitute a day's work, and pro rata compensation shall be paid for extra time, unless there is a contract to the contrary. Plaintiff sued a photographer for extra work done in his gallery on Sundays and evenings. Held, that the statute cited has no application to this kind of employment, or to hiring by the week or month. to church. Other days he could dress himself. She says: "I think it was worth five dollars a week to board him and furnish the room and take care of him during the time he was there." The only witness sworn for defendant, Mrs. Pelts, said: "If my father furnished the portion of the provisions as stated, I do not think his board would be worth more than $1.50 per week." The court instructed the jury that they must allow the $200 against plaintiff's claim, as well as all other moneys paid by Senn. The jury, however, allowed plaintiff for the full time at the five dollars per week rate, without reference to the contributions of provisions, and credited the estate with the $200 only, entirely ignoring the admitted payment to Mrs. Wright of the $60, the $40, and other moneys of which she kept no account. We think the court erred in refusing to instruct the jury as requested by defendant. The court instructed the jury that they must be satisfied that the plaintiff expected to be paid for the services, board, etc., but there was absolutely no testimony to go to the jury to show any such expectation. On the contrary, the testimony did show that no charge or claim was made by plaintiff that there was no account kept, no accounting had, and no intention of making any claim against the estate. It is error to submit to the jury a question of which there is no evidence. If the note of $200 was genuine, and was given by her to deceased April 1, 1882, after the father had been there for nine months, it tended to show that at that time no claim was made against the father for board, etc., and that there was no intention to make such claim. If the paper was not genuine, Mrs. Wright's defense to it was absolute. If it is genuine, it is a proper charge against her portion of the estate, and an heir excuting such a paper cannot be permitted to present a claim which is entirely inconsistent with the execution of such an instrument to offset it. Again, the court instructed the jury that they must be satisfied that there was a promise, express or implied, before they could find a verdict. In this class of cases the testimony should be clear and explicit, and should not depend upon mere conjecture. Mrs. Wright claims that nothing was said about pay between the father and herself, and nothing between her father and her husband; that it was evidently in connection with these purchases of provisions by the father, and the repayment of these small loans of money by the daughter, that he said, "Keep it, as I am not here for nothing." It is clear from the testimony that the father was generous, and intended to and did pay from day to day as he went along, and that there was no intention to make a charge against him. The statement that he "wanted a good living, and would fur- LONG, J. Plaintiff entered into defend. nish it for himself;" that he "meant to ants' employ on September 15, 1888, under pay his way," and "didn't mean to be a contract of employment for one year. there for nothing, "-is entirely consistent The defendants are the owners and prowith what he actually did. This class of prietors of a photograph gallery at Lanclaims should not be encouraged by the sing, this state, and employed defendant courts. Indeed, it is the duty of courts to as an operator therein. The contract of protect decedent estates from them, and employment is made up of several letters to require some substantial proof estab-passing between the parties, the plaintiff lishing them before allowing juries to spec- at the time of entering into it residing at 2. Where there was no agreement to pay for extra work, and no testimony is given of a uniform and notorious custom to pay for such extra work sufficient to warrant the presumption that the contract was made with reference thereto, defendant is not liable. 3. Plaintiff testified that he agreed to work a year at $20 per week, including two weeks allowed for a vacation, and that he worked during the vacation period. Held, that it was error to charge that plaintiff was entitled to recover for the two weeks during which he might have taken a vacation. 4. Plaintiff remained voluntarily, and performed services for which he was paid, and did not call for his vacation, nor for extra compenstation, until after his employment ended. Held, that the court erred in refusing to charge that there was no proof tending to show an express promise to pay plaintiff for any overtime, and that a servant cannot be required to labor an unreasonable number of hours, or, if he does labor more than he contracted to do, he cannot recover, except on an express agreement, and that, if the defendants refuse to allow the plaintiff the two weeks' vacation, still the plaintiff cannot recover for this, it appearing that he was paid the usual wages for the two weeks. Error to circuit court, Ingham county; ERASTUS PECK, Judge. Russell C. Ostrander, for appellants. Frank L. Dodge, for appellee. |