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hind foot in a hole in defendant's bridge, and, while struggling to free himself, got the other hind foot in also, and fell upon his knees. The plaintiff sent his wife for help, and attempted to hold the horses until assistance should arrive, to prevent injury to the imprisoned horse by his struggles or by his mate. While so engaged plaintiff was injured by the struggles of the horse.

It is contended by defendant's counsel that the negligence of the township in failing to keep its bridge in repair was not the proximate cause of the injury. We think otherwise, as was held in two cases cited by counsel for plaintiff on all fours with this. Page v. Bucksport, 64 Me. 51; Stickney v. Town of Maidstone, 30 Vt. 738.

Error is assigned upon the admission of testimony and the charge, which are said to have allowed the jury to give damages for a permanent injury to the horse. There was testimony showing that the horse was injured to the extent of $30, but we find no exception in the record. The declaration alleged:

"By means whereof, also, the said horse was greatly injured and damaged, and became sick, bruised, lame, and injured, and so remained for a long space of time, to wit, for the space of two months thence hitherto, during which time said plaintiff was put to great cost and expense in taking proper care of and in purchasing medicines, in a large sum of money, to wit, $50, and was deprived of the use of said horse for all that time, to wit, two months, to the loss and damage of said plaintiff in the sum of $25."

This expressly says that the horse was greatly injured and damaged. This would have permitted the recovery of damages for the permanent injury to the horse, as well as for the value of his services while disabled.

The testimony showed that plaintiff was injured in his arm and shoulder by the struggles of the horse. The third count of the declaration contains the following language:

"The said plaintiff *

*

* was injured by the

struggling of said horse to get out as aforesaid, by means of which he became bruised, sick, lame, disordered, and permanently injured and disabled in his left arm and shoulder, so that he was confined in his home, under the care of a physician, for a long time, to wit, for the space of six weeks, and suffered great pain, and was unable to attend to his accustomed business during all that time, and paid and expended a large sum of money for his care, medical attendance, and medicines, to wit, the sum of $100, and has lost the use of his said arm and shoulder, and is permanently disabled in the same.'

We think this sufficient to support a verdict for injury. to the left arm and shoulder, although it did not appear that the arm or wrist was broken, or the shoulder dislocated, as alleged in another count.

The charge of the court, that proximity of residence on the part of the highway commissioner was evidence tending to show notice to the defendant, was unobjectionable.

hurt his arm, and that he

Nor can it be considered

But one other question need be noticed. Plaintiff's wife. testified that after the horse was extricated, and the plaintiff had hitched up and started to drive home, he said to her that the horse had could not hold the lines in his hand. We think this is hearsay. It did not occur at the time of the injury, but some time after; hence it was not a part of the res gesta. People v. Newton, 96 Mich. 586. an expression of pain or anguish. and was admitted to prove the hurt. plaintiff's testimony by the fact that he mentioned it soon after the accident. But the plaintiff had himself testified to the same injury, and was nowhere disputed; hence, under the evidence, the jury could not properly have found otherwise, and the error did not injure the defendant. See Tillotson v. Webber, 96 Mich. 144, 150.

It states a circumstance,
It reinforced the

We find no prejudicial error in the record, and the judgment must be affirmed.

The other Justices concurred.

EDWARD B. ROBINSON V. SAMUEL W. STEWART.

Replevin-Certificate of deposit-Real-estate brokers—Lien.

1. Replevin will lie for a certificate of deposit indorsed and delivered to a real-estate broker, to be returned to the payee if not used as a deposit on the purchase of certain property, on the broker's failure to make the purchase, and his refusal, on demand, to surrender the certificate to the payee.

2. Real-estate brokers have no lien on money or papers placed in their hands to use in the purchase of land.

Error to Wayne. (Reilly, J.) Argued October 13, 1893. Decided November 10, 1893.

Replevin. Defendant brings error. Affirmed. The facts are stated in the opinion.

James H. Pound, for appellant.

Atkinson & Atkinson, for plaintiff.

HOOKER, C. J. The principal question in this case arises over a claim to a lien upon a certificate of deposit. The plaintiff left with the defendant a certificate of deposit for $500, duly indorsed to the order of the defendant, who gave a receipt for the same as follows, viz.:

"DETROIT, MICH., April 3, 1890. "Received of Edwin Robinson five hundred dollars, to be returned if not used as a deposit on purchase of Earnshaw Woodward-ave. property for him.

"S. W. STEWART."

This was to be used to close a bargain for certain real estate, owned by a Mrs. Earnshaw, if she would sell it for $30,000. Defendant subsequently brought the certificate to the plaintiff, and offered it to him, reindorsed,

with the statement that he could not get her to accept the price. Plaintiff did not have the receipt with him, and told defendant to keep the certificate, and he would come in and get it later. He afterwards asked defendant for it, tendering the receipt, but defendant refused to give it to him; whereupon the certificate was replevied.

The defendant now claims that it was not subject to replevin:

1. Because the title to the money passed to him by the indorsement.

2. Because he has a lien upon the certificate for compensation for his services.

The money never was drawn upon the certificate. It was the plaintiff's property, and, as such, as plainly subject to replevin as any other chattel. He put it in defendant's hands for certain purposes and uses, and the fact that defendant had the physical ability to obtain the money, by a violation of the trust upon which he received it, is no reason why replevin should not lie, as long as he did not do so.

The parties give different versions of the transaction. Plaintiff contends that he was not to pay for these services, while defendant admits that he was not to be paid if the trade was not made, but asserts that plaintiff fraudulently prevented it by buying, conjointly with others, through other parties. It is clear, however, that the only purpose for which defendant received the certificate was to pay to Mrs. Earnshaw if she would sell for $30,000. Under these circumstances, would defendant have a lien upon the certificate if he was entitled to compensation? Real-estate brokers have no lien on moneys or papers placed in their hands to use in the purchase of land. Arthur v. Sylvester, 105 Penn. Stat. 233; Steadman v. Hockleg, 15 Mees. & W. 553, 10 Jur. 819, 15 L. J. Exch. 332; Hollis v. Claridge, 4 Taunt. 807; Sanderson v. Bell, 2 Cromp. & M. 304.

As this is conclusive of the case, other questions do not require consideration.

The judgment will be affirmed.

The other Justices concurred.

GERTRUDE DAVIDSON V. THE GRAND TRUNK ELEVATOR COMPANY.

Transfer of cause.

The statute (How. Stat. § 6495 et seq.) does not authorize the transfer of a suit to a county where neither of the parties or their attorneys of record, but only the counsel of the party making the application for transfer, resides.'

1 For cases bearing upon the construction of and proper practice under How. Stat. § 6495 et seq., which provide for the transfer of civil suits or proceedings in law or in equity where the circuit judge is disqualified, see:

1. Campau v. Dewey, 9 Mich. 381, 407, holding that the statute provides only for the transfer of causes from one circuit to another when the judge of the circuit in which the case is pending is incompetent, for special reasons therein mentioned, to hear the case, or even properly to hear the motion for its transfer.

2. Whipple v. Circuit Judge, 26 Mich. 342, holding:

a-That the clause disqualifying the circuit judge where he has heretofore been consulted, etc., refers to the time when the application for transfer is made.

b-That the contention that a circuit court commissioner, who, under the Constitution and statute, can only exercise the powers of a circuit judge at chambers, is deprived of the power to make the order of transfer because the circuit judge for his county, in consequence of his disqualification, cannot make it, is untenable.

3. Fraser v. Circuit Judge, 48 Mich. 176, holding that the statute applies to an appeal from the disallowance of a claim against the estate of a deceased person pending in the circuit court; and Kittridge v. Circuit Judge, 80 Mich. 200, holding that, upon an application to the chancery court to exercise its supervisory powers over a common-law assignment, the assignment becomes a civil proceeding pending in the circuit court, and subject to transfer under the statute.

4. Grostick v. Railroad Co., 96 Mich. 495, holding that the application for transfer need not be verified, nor need it set forth that the judge of the circuit to which the suit is to be transferred is qualified to sit; but see Kelley v. Circuit Judge, 79 Mich. 392,

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