dissenting. Relator sued the Marquette & Pacific Rolling Mill Company and Luther Beecher, one of its stockholders, upon a claim set up as a labor debt, under Act No. 113 of the Public Laws of 1877, revising the statutes concerning mining and manufacturing companies. This statute, which enables the holders of labor debts to enforce them against stockholders in the same action in which the corporation is sued, requires the joint action to be brought within two years; and it also declares that personal actions against the corporation “ shall be commenced only in the county where the mine, or smelting or other manufacturing works are situated, or in the county where the business office in this State is located.” Sec. 37, p. 96.
The suit was brought just before it would have been otherwise barred by the statutory limitation. It was begun in Wayne county, where Beecher lives, and where the president was also found. The company, however, appears to have neither mine, factory nor business office, within the statute, except in Marquette' county.
On the-23d of June, 1879, declaration was filed. On the 9th day of July, 1879, a plea was filed by Atkinson & Atkinson, as attorneys for the corporation, verified by the oath of Beecher, setting up the fact that the company’s business and offices were not in Wayne, but in Marquette, and claiming that the suit was wrongly brought *371in Wayne. This plea the plaintiff’s attorneys refused to accept, on the ground that they had already received notice of retainer from Meddaugh & Driggs, and on inquiry agreeing that they had no other objection. Beecher himself appeared by J. P. Whittemore and set up the same defense under his notice attached to the plea of the general issue.
On the motion to be presently referred to, before the circuit judge of Wayne county, there were affidavits that on the 23d of June Meddaugh & Driggs informed plaintiff’s attorneys, through one,, of their clerks, that they were retained, and plaintiff’s attorneys served a copy of declaration on them. No written notice of retainer and no written acceptance of declaration was given until after the plea was served by Messrs. Atkinson. Then a written notice of retainer was made out and dated back to June 23d.
Messrs. Atkinson were employed by Beecher to appear for his co-defendant, the corporation, and set up this defense to the jurisdiction of the Wayne circuit. Meddaugh & Driggs had been engaged in previous litigation for the corporation, but on this occasion were employed by William W. Wheaton, who had been and continued, so far as appears, general agent and manager. The corporation had quit business, and he resides in Detroit. There were affidavits indicating that his interests in the present controversy were adverse to those of the company, and that he was desirous of enforcing the claim.
Upon the refusal of plaintiff’s attorneys to accept their plea, Messrs. Atkinson applied to Meddaugh & Driggs to induce them to concur in setting up the defense referred to, offering indemnity for costs, and stating their willingness to have -the appearance for that purpose made in the name of whichever firm of attorneys those gentlemen saw fit to designate. Meddaugh & Driggs refused to concur in that defense, and put in a plea of the general issue alone.
Atkinson & Atkinson in due time entered default of *372plaintiff for not answering their plea, and the default was made absolute. Plaintiff applied to the Wayne Circuit Court to open the default and set aside the plea upon the facts before stated. The court found that there had been no written notice of retainer or acceptance of declaration before the Atkinsons pleaded, and refused to open the default except on payment of ten dollars as costs of motion.
Application is now made for a mandamus to compel the action applied for as matter or right.
Upon a former- application, made to us ex parte, we declined to interfere, on the ground that Mr. Beecher was entitled to this defense, and that the company could not deprive him of it. We allowed'a further application to be made, on the claim that he' had waived the defense. We have now heard all that the parties on either side, have to present on the-subject, and may dispose of it advisedly.
I think the circuit judge was right in holding that when Messrs. Atkinson appeared there had been no such appearance by any one else as could have been made the foundation of legal action to be had under it. Buie 6 requires all notices to be in writing. Bule 12 requires all agreements between parties or their attorneys to be in writing. Bule' 11 declares that a defendant shall be considered as appearing when written notice of retainer is served or when he pleads in any way. And service may be accepted by a defendant himself, but there must be sworn proof of the genuineness of the acceptance, which plainly contemplates written acceptance. These rules do not contemplate that any party can be bound by action of himself or his attorneys in subjecting him to liability in the suit, where proof of the fact can only be made by the uncertain means of parol evidence.
When the Atkinsons appeared there was nothing to authorize their action to be treated as a nullity. The plaintiff had no right to assume they were acting with*373out authority. The authority of attorneys in good standing is presumably valid, and if there is any appearance which is not authorized, there must be an application to the court by some one who has a right to 'make it before it can be disregarded.
But inasmuch as all the facts are substantially admitted, it will not be improper to consider the questions raised, without, however, assuming to question any mat: ter legitimately within the discretion of the circuit judge.
The statute of 1877 is one relied upon by the plaintiff himself as his only authority for bringing the present action in such a way as to reach stockholders in the same proceeding with the company. It cannot be doubted that the Legislature may make regulations concerning the venue of personal actions, and courts must respect their wishes. There are manifest reasons in such eases as this why debts for labor may have been subjected to peculiar provisions. It is certainly much cheaper to bring one suit than two, and to reach a judgment at one time against not only the company, but any or all of its corporators. It is also not unlikely that the evidence on one side or the other, if not on both sides, can .be found on the spot where work is done, or in the company’s office, and that delay and expense are usually to be saved by having the suit tried where the evidence is to be found. The statute is much more explicit than most statutes fixing a venue, and contains a positive prohibition against suing elsewhere. We need not inquire as to what may be done to waive such a right by the consent of all parties. No doubt a judgment would be good where no such point is raised, because the pleadings would not indicate necessarily where the proper place of suit is. The questions we are now considering do not involve this general subject. We are to see in what position these litigants are placed.
Beginning with the fact that the plea filed by Messrs. Atkinson is presumptively authorized, the application to get rid of it does not come from thp corporation, but *374from the plaintiff. The defense is one of which it is too plain for argument the corporation cannot justly or lawfully deprive Beecher. There is evidence not overcome that he is the only responsible stockholder, and that the company is not solvent. If this is so, — and whether so in fact, the circuit judge might have been so. impressed, — Beecher is the only substantial defendant, and the company is rather a formal than substantial co-defendant. Whether Beecher in this position had or had not a strict legal right to employ attorneys to represent the company, he had at least a right to expect honest co-operation in saving him from unlawful vexation. We cannot determine the fact whether the company’s agent is or is not really interested against the company, and instructing attorneys for it to waive its right to be sued only in Marquette. But it is very certain a stockholder sued in this way may justly complain of any attempt in the name of the company to compromise his interests. Philipson v. Earl of Egremont, 6 Q. B., 587; Edwards v. Kilkenny & Great S. & W. Ry. Co., 2 C. B. (N. S.), 397: 40 E. L. & Eq., 316. Having offered to allow the substitution of the attorneys whom the plaintiff desires to have substituted, if they would not give away this defense, he makes out a strong equity against any interference, and the circuit court was right in refusing to disturb the case, unless there is some legal rule depriving that court of any discretion in the matter.
If Mr. Beecher has waived any personal right by the form he has adopted in pleading, that is only an additional reason why any advantage obtained by the other-plea should not be taken from him. But we think counsel for plaintiff are entirely in error in so claiming. The remedy given by this statute is a special one, and cannot be governed altogether by the more nice than just rules which, according to some lines of decision, might belong to other cases. The right of a party to object to a suit brought in the wrong forum is a substantial right, and the plea or other form of objection setting it *375up is not regarded as strictly a plea in abatement, or as subject to tbe same minute criticism. We held in Haywood v. Johnson, 41 Mich., 698, that such a ground could be taken upon motion. We held it sufficient ground for prohibition in garnishee proceedings in McCloskey v. Judge of Wayne, 26 Mich., 100. In England the objection, where the proceedings are in any way under statutory limitation, has been permitted in various ways, not only by preliminary plea but otherwise. In Parker v. Elding, 1 East, 362, a statute nearly in terms like the one before us,, requiring that no suits for certain debts should be brought elsewhere than in the court of requests of Ely, was held to authorize the defense to be relied on at the trial, because the law being a general one, the plaintiff was bound to know he could hot sue elsewhere. And Lord Kenyon carefully discriminates between cases where the law requires the objection to jurisdiction to be taken in a certain way, and those where it does not. The case of The Dundalk Western Ry. Co. v. Tapster, 1 Q. B., 667, in some respects resembles the present. There a railway charter provided that suits for delinquent stock subscriptions might be brought in any of the Queen’s courts in Dublin. A suit being brought in an English court the objection was pleaded, and the question came up directly in regard to the judgment on demurrer whether it was in abatement or in bar. The court held that' it was in substance though not in form a plea in bar, and that the defense was complete. Lord Denman remarked: “The right and remedy are both created by the legislature, and the company are bound to pursue the remedy provided by it.” In Bank of Australasia v. Nias, 16 Q. 33., 717, it was held that a remedy’very much like the- present, created in Australia, could only be pursued in the Australian courts.
A somewhat similar question of privilege has been up in the case of attorneys sued in other courts than those where they belong, and it was held by the Common Pleas that such a plea was properly put in by attorney, and *376not in person. Hunter v. Neck, 3 M. & G. 181; Groom v. Wortham, 5 Scott N. R., 799.
It is familiar practice to discharge from arrest on mesne process in such cases on motion. Secor v. Bell, 18 Johns., 52; Watson v. Judge of Superior Court, 40 Mich., 729.
Such questions come up frequently in regard to the' jurisdiction of municipal courts, and a prohibition has been allowed where- a motion for nonsuit on the trial was refused, and after verdict, — it being held there was no waiver. Jackson v. Beaumont, 24 L. J. Exch., 301: 32 E. L. & Eq., 587. And in Le Tailleur v. S. E. Railway Co., 3 C. P. Div., 18, where the liability to suit depended, as here, upon the place of carrying on business, the’ prohibition was granted on affidavits. In Watts v. Kinney, 23 Wend., 484, the earlier eases are discussed.
It would not be wise, — as was intimated in Haywood v. Johnson, — to make such an important right dependent on any mere technicality of procedure. All that a plaintiff can ask is notice in some intelligible way that the defense is relied on. He is bound to know he cannot sue these parties out of the proper forum without their consent, and he cannot complain if they do not give it. The plea to the jurisdiction in such cases is substantial, and under the decisions referred to it should be so treated. ,
I think the defendant Beecher'had a right to rely on the defense by his notice. ■ I think also that the plea of the company was sufficient to raise the same question, and that no reason is shown why the circuit judge had not a right to refuse to disturb it, except on the terms he saw fit to grant. And I also think that under the facts, not seriously disputed, it would do no good to plaintiffs to have a mandamus, when Beecher’s defense is not cut off.
There is no ground in my opinion for the writ.