Error to Manistee. (Judkins, J.) Submitted on briefs October 7, 1892. Decided November 4, 1892. Replevin. Plaintiffs bring error. Affirmed. The facts are stated in the opinion. Smurthwaite & Higgins, for appellants. Dunlap & Weaver, for defendant. GRANT, J. Action of replevin in justice's court. Judgment for plaintiffs for two dollars damages. Case taken to the circuit court by certiorari, where the judgment was reversed, and judgment entered for defendant for costs and an attorney fee of $15. Defendant appeared specially in justice's court, and moved to quash the proceedings, for the reason that no bond had been filed as required by law. The suit was commenced in the name of George W. Hopkins & Son as plaintiffs. The name of the son was not given either in the affidavit, writ, bond, or declaration. The bond was executed by George W. Hopkins & Son as principals, and George W. Hopkins as surety. The justice returned that "plaintiffs, through their attorney, offered to amend or give a new bond; but the said attorney [for defendant] refused to accept the amendment, claiming it was no bond, and could not be amended." Thereupon the justice overruled the motion to quash, and the defendant withdrew from the case. The bond was irregular, but it might have been. amended or a new bond filed. How. Stat. §§ 6856, 7631. The statute requires security additional to the pecuniary responsibility of the plaintiffs. One of several copartners, plaintiffs, is no additional security. Defendant was under no obligation to accept an amended bond, or a new bond; nor did he waive any rights by refusing his consent thereto, and by insisting that the bond could not be amended. The justice should have directed either an amendment or a new bond, and given the plaintiffs reasonable time to furnish it, and, on their failing to do this, he should have quashed the proceedings. One other objection to the jurisdiction of the court. was raised by certiorari, but, inasmuch as it was not made in the justice's court, it cannot now be considered. cox v. Railroad Co., 45 Mich. 280. Judgment affirmed. The other Justices concurred. Wil THE GRAND RAPIDS HYDRAULIC COMPANY V. THE AMERICAN FIRE INSURANCE COMPANY. Fire insurance-Conditions of policy-Use of oil-Increased risk. 1. Where the use of a certain kind of fuel is excepted from the prohibitions of a fire insurance policy, the usual and ordinary method of such use is included in the exception. 2. A reduced oil, the residuum from the distillation of petroleum, and less inflammable than current kerosene oil of the standard required by the Michigan State law, comes within the products of petroleum expressly excepted from the prohibitions of the Michigan standard fire insurance policy. Error to Kent. (Grove, J.) Argued October 7, 1892. Decided November 4, 1892. Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinion. Norris & Norris, for appellant. Blair, Kingsley & Kleinhans, for plaintiff. MCGRATH, C. J. This is an action upon a fire insurance policy upon plaintiff's "engines, boilers, pumps, and connections, including smokestack, fire fronts, breeching, and tools, all while contained in frame pump house." It is a Michigan standard policy, and contains the following provisions: * * * * "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * the hazard be increased by any means within the control or knowledge of the insured; or if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein; or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, * * naphtha, * * * or gasoline, petroleum, or any of its products, of greater inflammability than kerosene oil of the United States standard (which last may be used for lights, and kept for sale, according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by day-light, or at a distance of not less than ten feet from artificial light)." This case turns upon the construction of these provisions. The policy was dated November 29, 1890, at which time plaintiff was using coal as fuel under its. boilers. In May, 1891, plaintiff began the use of fuel oil, or "reduced oil," which is the residuum from the distillation of petroleum. In the process of distillation the lighter parts of the crude petroleum, such as naphtha and illuminating oils, are eliminated. The chemists by whom the oil used was subjected to an analytical examination testified that "This oil has a flash point 52 degrees safer than kerosene oil, standard of the Michigan State law. It is much safer, much less combustible, and much less explosive by formation of combustible vapor, than current kerosene oil which conforms to legal standards in any part of the United States, by laws of the several states and of the general government. In gravity it is 15 commercial degrees, or 0.077 of the water unit, heavier than the common kerosene of safe, legal grades in the average gravity of such grades." Other testimony tended to show that it was less inflammable than crude petroleum, and less so than kerosene. This testimony is undisputed. The reduced oil was fed to the fire-box by its own and gravity pressure from an 80gallon iron tank, and was sprayed within the fire-box by superheated steam. It is claimed, too, that coal was being used under one of the boilers, and reduced oil under another, and that both breechings led into one smokestack. The fire caught in the stack, and was simply a burn-out, and the only explanation given is that the soot caught fire. The court instructed the jury that the policy did not prohibit the use of reduced oil, and that the only question for their consideration was as to whether the use and the manner of the use increased the hazard, and that, if they found that the use and the manner of the use materially increased the hazard, their verdict should be for the defendant; otherwise they should find a verdict for plaintiff. The defendant has nothing to complain of in this instruc. tion. The reduced oil used, under the testimony, came within the products of petroleum expressly excepted from the prohibitions contained in the policy. The use being excepted, the usual and ordinary methods of such use were included in the exception. It is suggested that, while the policy refers to a United States standard, there is no known United States standard, and that the Michigan standard has been reduced, and was reduced at the time of the trial; but the testimony is that the reduced oil used was much less explosive and much less combustible than current kerosene oil which conforms to legal standards in any part of the United States, by laws of the several states and of the general government. out force. The case was submitted to the jury upon the theory most favorable to defendant, and the judgment is affirmed. The other Justices concurred. WILLIAM MCRAE AND MICHAEL LALLY V. THE GRAND Constitutional law–Trial by jury—Jury of less than twelve. 1. Article 6, § 27, of the Constitution of this State, which provides that "the right of trial by jury shall remain," means that right as it existed at the common law, namely, a trial by a jury of 12 good men and true, whose determination must be unanimous upon the rights of the parties. 2. The power vested in the Legislature by article 4, § 46, of the Constitution, to "authorize a trial by a jury of a less number than twelve men," cannot be delegated to any court or other tribunal. 3. Act No. 142, Laws of 1861 (How. Stat. § 7622), which authorizes the court to proceed with the trial of a case before a less number of jurors than were originally impaneled to try the same, when by reason of death, sickness, or other cause any of the jurors are unable to attend, is unconstitutional. Error to Wayne. (Hosmer, J.) Argued October 11, 1892. Decided November 4, 1892. Assumpsit. Defendant brings error. Reversed. The facts are stated in the opinion. |