guarantee a cure. But this does not tend to prove a joint undertaking by these defendants to perform the operation. It is said in the brief for plaintiff that "the husband of plaintiff agreed to employ Dr. Bennett and Dr. Smith to perform this operation." It is the not uncommon case of a practicing physician advising a patient to submit to a surgical operation to be performed, not by himself, but by some surgeon of reputation, skill, and experience, for which operation, with the consent of his patient, he makes the necessary arrangements, in performing which he assists the operating surgeon as directed or advised. The operation was not performed by these defendants jointly. Dr. Smith performed it, as his own testimony and that of each of the physicians and of the nurse conclusively shows. In accordance with modern methods, the operation was an organized performance. Dr. Crosby administered the anesthetic. That was his duty and responsibility. Drs. Bennett and Ransom assisted the operating surgeon.

"They stood with me," Dr. Smith_testified, "at the side of the patient and assisted me as I directed; that is, they retracted the sides of the wound when it was open, pulled them apart, the sides of the wound. They helped in regard to sponging up blood, and perhaps occasionally caught a spurting vessel when it was cut, and that is about all generally. I performed the operation. The duty of Dr. Ransom was practically the same as Dr. Bennett."

The nurse had charge of the sponges before and after they were used, and counted them before and after the operation. That was her duty. The operating surgeon, having inserted the large sponges or pads, and having removed all of them in the immediate field of operation, relied upon the nurse and her assurances that all sponges were accounted for, and closed the wound. Undoubtedly each case of this nature must stand upon its own facts. The length of time required to perform the operation, the nature of the operation itself, as whether the field is deep

157 MICH.-42.

in the abdomen, the number of pads or sponges used to keep the field of operation clear, the opportunity or chance for one or more of the pads to be displaced, rolled upon itself, and hidden, all of these and other considerations measure the required skill and care of the surgeon. It must be considered as established in this case that a sponge or pad was left in the abdomen, and that an injury to plaintiff was the consequence. It is not claimed, and is not to be supposed, that anyone was intentionally at fault. Both defendants are men whose general professional knowledge and skill are unquestioned and undoubted. They were not engaged in a trespass. Neither was employed by the other. Each was required to exercise ordinary skill and care. But direction and control of the operation were with one man. Whether responsibility for what occurred is rested upon contract or upon negligent performance of duty, there is no rule of law which, under the undisputed facts, imputes want of skill or care on the part of Dr. Smith to Dr. Bennett. The jury should so have been instructed.

The statute (3 Comp. Laws, § 10010, as amended by Act No. 225, Pub. Acts 1901) provides that where an action of trespass on the case shall be brought in any circuit court against two or more defendants, one or more of whom shall not reside in the county or be found therein, and service of the process shall be made in such county upon one or more of such defendants, the plaintiff may sue out one or more writs directed to the sheriff of the county where the nonresident defendants may be found, and it shall be the duty of such sheriff to serve such process and make return to the court issuing the same. It is by virtue of this statute and the service of process pursuant thereto that jurisdiction of the court over defendant Smith is asserted. It must be held that the court did not acquire jurisdiction. See Rosenthal v. Rosenthal, 154 Mich. 533 (118 N. W. 18).

It is said in the brief for plaintiff that the declaration not only charges defendants with negligence in the per

formance of the operation, but also charges them with negligence in the treatment of plaintiff at the time of and following the operation, and her treatment and care thereafter. Words of this general import are employed in the declaration. But neither in the declaration nor in the brief are we advised of any particular neglect or want of care after the operation was concluded. What duty defendant Smith owed to plaintiff after performing the operation is not apparent.

The conclusions which have been stated require a reversal of the judgment, and no new trial.

MONTGOMERY, HOOKER, MOORE, and BROOKE, JJ., concurred.

PEOPLE v. WILSON.

1. EMBEZZLEMENT-CORPUS DELICTI-CORPORATE OFFICERS. Evidence that bank deposits, under the control of respondent, had partially disappeared, while the books of the association of which he was secretary did not show the fact; with evidence that certain warrants had been drawn, signed and used by respondent to replace missing funds, and not delivered to the payees, who were told that there were no funds with which to pay them, tends to show an embezzlement of the amount of such warrants.

2. SAME-DEFENSE.

Although proof was made that sufficient funds were transferred from other accounts to meet the amount of the warrants, the fact that the moneys were used by the secretary without paying the claims. would warrant the inference of a misappropriation, if such transferred amounts were found to belong properly in the accounts from which they were drawn.

3. CONSTITUTIONAL LAW-SPECIAL ACT OF FRATERNAL SOCIETIES.

INCORPORATION

The act authorizing the incorporation of the supreme lodge and subordinate lodges of the United Home Protectors' Fraternity (2 Comp. Laws, §§ 7607-7617), is constitutional in providing for more than one corporation, and does not create a corporation by special act. Const. of 1850, Art. 15, § 1.1

Error to St. Clair; Beach, J. Submitted April 30, 1909. (Docket No. 127.) Decided July 15, 1909.

William L. Wilson was convicted of embezzlement, and sentenced to imprisonment for not less than two and one-half nor more than five years in the Michigan Reformatory at Ionia. Affirmed.

Joseph Walsh, for appellant.

Alex. Moore, Prosecuting Attorney, for the people.

MONTGOMERY, J. The respondent was convicted of the crime of embezzlement of the funds of the Supreme Lodge of the United Home Protectors' Fraternity, a corporation organized under Act No. 68, Pub. Acts 1893, being sections 7607-7617, inclusive, 2 Comp. Laws.

Two contentions are made by the respondent in this court: The first is that there was no proof of the corpus delicti; the second, that the statute under which the United Home Protectors' Fraternity was incorporated is unconstitutional and void, and that the respondent and his associates were therefore copartners, and that one partner could not be guilty of embezzling the funds belonging to a copartnership.

The funds which respondent was charged with embezzling consisted of the amount of certain orders or warrants drawn upon the Commercial Bank, by the officers of the association, in favor of Warner Cornell, Dr. Frederick Lohrstorfer, Guy Kimball, A. D. McLaren, Walter Shields, and A. J. Simms. There were kept in the bank Const. of 1908, Art. xii, § 1.

four accounts. The Home Protectors' Fraternity maturity benefit fund, the Home Protectors' general fund, the investment fund, United Home Protectors, and the United Home Protectors' Fraternity. The latter account was commonly referred to as the "Secretary's Fund Account." The withdrawals from the investment fund account could be made only by check signed by the president and secretary, and countersigned by the treasurer. Claims in favor of each of the parties above named were audited, and warrants drawn duly signed by the president and secretary and countersigned by the treasurer. These warrants were made payable to the respective parties in whose favor the accounts were audited, but the evidence showed that the respondent deposited the same in the bank with an indorsement as follows:

"For deposit, to take care of checks drawn on the United Home Protectors' Fraternity.

"W. L. WILSON,

"Supreme Secretary.”

It is contended that as the record shows that on the various dates when these orders were deposited there was withdrawn from the secretary's fund, and placed in the investment fund, an amount equal to or greater than the amount of the several orders, there is no proof of embezzlement of these particular funds. We do not agree with this contention. These transfers were made from time to time covering a period from November 30, 1907, to March, 1908, and it appeared by testimony that the records of the corporation, as kept under the direction of the respondent, showed a balance of cash on hand of $17,898, while the bank records showed on that date that practically all the funds had been withdrawn from the bank; the aggregate balances being not to exceed in all $400. In addition to this, proof was made of the demand of these various holders of warrants on the respondent and of his statements from time to time that there was no money at hand to meet the demands. This testimony certainly had some tendency to show a misappropriation