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PER CURIAM. Petitioners Samuel Spann and Janet Spann, the grandparents of the minor child ASF, sought to adopt ASF after the parental rights of ASF’s biological parents were terminated. The superintendent of the Michigan Children’s Institute (MCI) withheld consent to adopt. Petitioners challenged the superintendent’s decision in circuit court. After conducting a hearing pursuant to MCL 710.45(2) (§ 45 hearing), the circuit court found that the superintendent’s decision was not arbitrary and capricious, and accordingly, the circuit court upheld that decision. The lawyer-guardian ad litem (LGAL) for the minor child appeals the circuit court’s decision, and petitioners have filed a cross-appeal also challenging the circuit court’s decision. Because the trial court did not clearly err by concluding that petitioners failed to present clear and convincing evidence demonstrating that the superintendent’s decision was arbitrary and capricious, we affirm. In January 2011, ASF and her biological sister, SF, were removed from their mother’s care for a variety of reasons and they were placed with petitioners, who became licensed foster parents. Samuel is ASF’s maternal grandfather and Janet is his wife, but she is not a blood relative of ASF or SF. ASF was 9 months old at the time of her placement with petitioners, and SF was 11 years old. Although reunification services were provided, ASF’s biological parents made no progress in their treatment plans, and their parental rights were terminated in April 2013. By all accounts, petitioners took excellent care of SF and ASF for a number of years, and once termination of parental rights occurred, the adoption agency began to plan for petitioners’ adoption of ASF. In July 2013, however, Samuel contacted the adoption worker and suggested his son, Damon, and daughter-in-law, Julie, as alternate potential adoptive parents, citing his age and his uncertainty about his own ability to provide long-term care for ASF. Damon, who was in his mid-40s, and his wife, Julie, had a young son who was six months older than ASF. At a family team meeting held a short time later, Samuel reversed his position and indicated that he now wanted to proceed with the adoption of ASF. But in light of the offer of Damon and Julie as adoptive parents for ASF, and their expression of interest, the agency treated the case as a competing-party adoption. Unfortunately, as a result of this conflict, the relationship between petitioners and Damon and Julie became strained. After conducting an adoption assessment, the adoption worker, Samantha Slack, recommended that petitioners’ request for consent to adopt be denied. A case conference was held, but the adoption agency, Bethany Christian Services (BCS), again recommended that consent to adopt be denied. BCS recommended that consent to adopt be given to Damon and Julie. The BCS recommendation was sent to the MCI superintendent, and he denied petitioners’ request for consent to adopt ASF. When considering the request for consent to adopt, the superintendent weighed, among many factors, the following: (1) petitioners’ ages, particularly the significant age difference between petitioners and ASF, (2) petitioners’ minor health issues, (3) Samuel’s vacillation regarding the adoption and his recommendation of Damon and Julie as adoptive parents, (4) ASF’s sibling relationship with SF, (5) the potential for a companion relationship between ASF and Damon’s son, (6) the psychological ties between ASF and petitioners, and (7) the potential for each petitioner to continue his or her relationship with ASF by assuming the role of a grandparent. After the superintendent denied consent to the adoption, petitioners filed a motion in circuit court challenging the superintendent’s decision. See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify. The LGAL was permitted to participate in the proceedings by cross-examining witnesses and participating in arguments. After petitioners rested their case, the LGAL was also able to call Slack, the adoption worker, to testify. The MCI moved for involuntary dismissal pursuant to MCR 2.504(B), and the circuit court granted the motion over the LGAL’s objection. The court concluded that petitioners failed to demonstrate by clear and convincing evidence that the MCI superintendent’s decision to withhold consent to adopt was arbitrary and capricious. From this decision, the LGAL and petitioners now appeal. On appeal, the LGAL and petitioners argue that the trial court clearly erred under MCR 2.504(B)(2) by granting the MCI’s motion for involuntary dismissal. Petitioners first contend that the trial court’s decision must be reversed because the trial court failed to make specific findings of fact and conclusions of law as required by MCR 2.517(A)(1). See MCR 2.504(B)(2). Petitioners further argue that the superintendent’s decision to deny consent was arbitrary and capricious because there were no “good reasons” to withhold consent, the superintendent failed to consider ASF’s individual circumstances, and the denial amounted to discrimination against petitioners based solely on their ages. In addition, the LGAL similarly asserts that the superintendent’s decision was arbitrary and capricious because he failed to consider, or to adequately consider, ASF’s unique circumstances, including, for example, her attachment to petitioners and to SF, as well as the tension between petitioners and Damon. The LGAL also maintains that granting the MCI’s motion for involuntary dismissal was premature because the LGAL was not given a full opportunity to present her own evidence regarding the purportedly arbitrary and capricious nature of the superintendent’s decision. According to the LGAL, denying her a full opportunity to participate in the proceedings also denied ASF her rights to due process and the equal protection of the law. This Court reviews de novo questions of law, including the interpretation and application of court rules and statutes. Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 258; 739 NW2d 121 (2007). A trial court’s decision to dismiss an action under MCR 2.504 is reviewed for clear error. Rodenhiser v Duenas, 296 Mich App 268, 272; 818 NW2d 465 (2012). A trial court’s finding is clearly erroneous when, although there is evidence to support it, “the reviewing court. . . is left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks and citation omitted). Whether a trial court applied the correct standard to its review of the superintendent’s denial of consent to adopt poses a question of law that we review for clear legal error. In re Keast, 278 Mich App 415, 423; 750 NW2d 643 (2008). Under MCR 2.504(B)(2), involuntary dismissal of a hearing tried without a jury is appropriate when, after the presentation of the plaintiffs evidence, the court determines, based on the facts and the law, that the plaintiff has no right to relief. Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995). In full, MCR 2.504(B)(2) states: In an action, claim, or hearing tried without a jury, after the presentation of the plaintiffs evidence, the court, on its own initiative, may dismiss, or the defendant, without waiving the defendant’s right to offer evidence if the motion is not granted, may move for dismissal on the ground that, on the facts and the law, the plaintiff has no right to relief. The court may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in MCR 2.517. Under this rule, “a motion for involuntary dismissal calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inferences.” Marderosian v Stroh Brewery Co, 123 Mich App 719, 724; 333 NW2d 341 (1983). The plaintiff is not entitled to the most favorable interpretation of the evidence. Id. In the instant action, petitioners sought relief under MCL 710.45, which allows a petitioner to challenge the superintendent’s withholding of consent to an adoption. Accordingly, the MCI’s motion for involuntary dismissal under MCR 2.504(B)(2) was properly granted if, during their presentation of evidence, peti tioners failed to demonstrate their entitlement to relief under MCL 710.45. In relevant part, MCL 710.45 provides: (1) A court shall not allow the filing of a petition to adopt a child if the consent of a representative or court is required by [MCL 710.43(1)(b), (c), or (d)] unless the petition is accompanied by the required consent or a motion as provided in subsection (2). (2) If an adoption petitioner has been unable to obtain the consent required by [MCL 710.43(l)(b), (c), or (d)] of this chapter, the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious. A motion under this subsection shall contain information regarding both of the following: (a) The specific steps taken by the petitioner to obtain the consent required and the results, if any. (b) The specific reasons why the petitioner believes the decision to withhold consent was arbitrary and capricious. (7) Unless the petitioner establishes by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall deny the motion described in subsection (2) and dismiss the petition to adopt. (8) If the court finds by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall issue a written decision and may terminate the rights of the appropriate court, child placing agency, or department and may enter further orders in accordance with this chapter or [MCL 712A.18] as the court considers appropriate. In addition, the court may grant to the petitioner reimbursement for petitioner’s costs of preparing, filing, and arguing the motion alleging the withholding of consent was arbitrary and capricious, including a reasonable allowance for attorney fees. As these provisions make plain, to obtain relief under MCL 710.45 at a § 45 hearing, petitioners bore the burden of establishing, by clear and convincing evidence, that the superintendent’s denial of consent was arbitrary and capricious. MCL 710.45(7). In other words, the family court is not permitted to decide the issue of adoption de novo; rather, “a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear and convincing evidence that the MCI superintendent’s withholding of consent was arbitrary and capricious.” Keast, 278 Mich App at 423. The clear and convincing evidence standard is “the most demanding standard applied in civil cases . .. .” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Under this standard, evidence is clear and convincing when it producéis] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [Id. (quotation marks and citation omitted).] Whether action is arbitrary and capricious is evaluated as follows: The generally accepted meaning of “arbitrary” is “determined by whim or caprice,” or “arrived at through an exercise of will or caprice, without consideration or adjustment with reference to principles, circumstances, or significance, ... decisive but unreasoned.” The generally accepted meaning of “capricious” is “apt to change suddenly; freakish; whimsical; humorsome.” [Keast, 278 Mich App at 424-425 (quotation marks and citations omitted).] To decide whether a denial of consent to adopt was arbitrary and capricious, a trial court initially focuses on the reasons for withholding consent to the adoption. Id. at 425. “It is the absence of any good reason to withhold consent, rather than the presence of good reasons to grant it, that indicates that the decision maker has acted arbitrarily and capriciously.” Id. Thus, the focus is not whether the representative made the “correct” decision or whether the probate judge would have decided the issue differently than the representative, but whether the representative acted arbitrarily and capriciously in making the decision. Accordingly, the hearing under § 45 is not... an opportunity for a petitioner to make a case relative to why the consent should have been granted, but rather is an opportunity to show that the representative acted arbitrarily and capriciously in withholding that consent. It is only after the petitioner has sustained the burden of showing by clear and convincing evidence that the representative acted arbitrarily and capriciously that the proceedings may then proceed to convincing the probate court that it should go ahead and enter a final order of adoption. [In re Cotton, 208 Mich App 180, 184; 526 NW2d 601 (1994).] In the present case, among the superintendent’s reasons for denial of consent were the following; (1) the identification of Damon and Julie as “suitable” relatives who were “very appropriate” and willing to adopt ASF, (2) the ages of Samuel (age 71) and Janet (age 65) in relation to ASF (then age 4), particularly when Samuel had expressed doubts about petitioners’ ability to parent ASF into the future, (3) there remained the possibility that each petitioner could assume a grandparent role to ASF if she were to be adopted by Damon and Julie, (4) petitioners’ health conditions, including diabetes and hypertension, as well as SF’s health concerns that required “close monitoring,” and (5) Samuel’s lack of steady commitment to parenting ASF for the next 14 years as evinced by his vacillation on the adoption and his identification of Damon and Julie as a better alternative. When reviewing the reasons given by the superintendent, the trial court determined that there was not clear and convincing evidence that these reasons were arbitrary and capricious, and for this reason the trial court granted the MCI’s motion for involuntary dismissal. The trial court explained: The initial focus is whether the MCI superintendent acted arbitrarily and capriciously. I’m not supposed to focus on what reasons existed to authorize adoptions. I’m deeply impressed that Janet and Sam Spann are wonderful people. They did a wonderful job with the child. But what I have to decide is whether there’s the absence of any good reason to withhold consent. Well, motion [for involuntary dismissal] granted. [The superintendent] had reasons for doing what he did. I’ve held four or five now Section 45 hearings, and there are times when I wish he would have considered factors that he didn’t and factors that he considered that I didn’t think were that important but he did think they were that important. I believe that [the superintendent] acted within the law. He did have a focus on the ages of the parents [sic]. I don’t believe it’s unconstitutional for him to have considered it but he did. He was very worried that the abilities of Sam and Janet Spann would not be up to the needs of the child in ten years. He worries about the commitment that Mr. Spann had. And he did have the feeling that the relationship between Sam and Janet Spann would continue in some form. I cannot say there’s the absence of any good reason to withhold consent. In reviewing the trial court’s assessment of the superintendent’s decision, we initially note that, con trary to petitioners’ arguments on appeal, the trial court made findings of fact and conclusions of law as required by MCR 2.517. The trial court plainly applied the correct legal standard to its review of the superintendent’s decision, recognizing that the focus was on the reasons for denial and whether those reasons were arbitrary and capricious. See Keast, 278 Mich App at 425. Further, as a factual matter, the trial court clearly identified the superintendent’s primary reasons for denial: Samuel’s vacillation on the adoption, petitioners’ potential difficulty parenting ASF into the future, and the availability of another relative to adopt ASF that would allow ASF to continue a relationship with petitioners as her grandparents. While the trial court’s explanation was relatively concise, the trial court was plainly aware of the issues involved and its “[b]rief, definite, and pertinent findings and conclusions” regarding these issues were sufficient “without over-elaboration of detail or particularization of facts.” MCR 2.517(A)(2). See also Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 176; 530 NW2d 772 (1995). In short, the trial court applied the correct legal standard, and its findings were sufficient to satisfy MCR 2.517. On appeal, petitioners posit that the circuit court did not comply with MCR 2.517 because the court referred to reasons offered by the superintendent that petitioners believe were contrary to the evidence. For example, petitioners maintain that, contrary to the superintendent’s determinations, their relationship with ASF may not continue because their relationship with Damon and Julie is strained, there is no evidence that their age or health will affect their ability to parent ASF, and there is no evidence that Samuel lacked commitment to the adoption of ASF. While petitioners frame these arguments in relation to the trial court’s compliance with MCR 2.517, these arguments actually concern the factual and legal merit of the superintendent’s decision, not the adequacy of the trial court’s factual findings. That is, the fact that petitioners disagree with the trial court’s findings regarding the conflicting evidence does not render the trial court’s findings inadequate under MCR 2.517. In any event, it is clear that the superintendent’s opinion and the findings of the trial court were supported by the evidence. For example, evidence was presented that BCS and Slack were aware that Samuel and Damon had an amicable relationship until Damon and Julie were viewed as a prospective adoptive family in lieu of petitioners, at which time the relationship became strained. Given their past amicable relationship, it was not erroneous to conclude that the parties could set aside their differences for ASF’s best interests. Further, there was evidence that Samuel lacked commitment to the adoption because he expressed doubts regarding petitioners’ long-term ability to care for ASF, and he offered Damon and Julie as alternative adoptive parents. Further, both Damon and Samuel’s daughter, Deanna, reported that Samuel did not want to proceed with the adoption. Finally, neither the superintendent nor the trial court concluded that petitioners’ ages and health prevented them from caring for ASF. Rather, their age and health were considered as pertinent factors in long-term planning, particularly since Samuel had previously questioned petitioners’ ability to permanently plan for ASF in light of Samuel’s age. Any conflicts in the evidence were resolved by the superintendent and the trial court, and the trial court’s findings were thus supported by the evidence presented. Recognizing the underlying factual support for the superintendent’s determinations, contrary to argu ments by petitioners and the LGAL, we also conclude that the trial court did not clearly err when, at the close of petitioners’ case, it determined, based on the facts and law, that petitioners were not entitled to relief because they had not shown by clear and convincing evidence that the superintendent’s denial of consent was arbitrary and capricious. See MCL 710.45(7); MCR 2.504(B)(2). In particular, petitioners and the LGAL both argue that the superintendent’s decision was arbitrary and capricious. They further contend that the decision was discriminatory and a violation of law to the extent that consent to adopt was withheld because of petitioners’ ages. We disagree. Preliminarily, petitioners contend that the superintendent’s consideration of their ages violated MCL 722.957(1) and the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. The Foster Care and Adoption Services Act, MCL 722.951 et seq., addresses adoption facilitators and the refusal to provide services. MCL 722.957(1) states, in relevant part: Except as provided in subsection (2), an adoption facilitator shall not refuse to provide services to a potential adoptive parent based solely on age, race, religious affiliation, disability, or income level. A child placing agency shall not make placement decisions based, solely on age, race, religious affiliation, disability, or income level. [Emphasis added.] The CRA prohibits a person from “[d]eny[ing] an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.” MCL 37.2302(a) (emphasis added). In this case, the record clearly establishes that the MCI superintendent did not violate MCL 722.957(1), because he did not withhold consent to adopt solely on the basis of petitioners’ ages. The superintendent testified that petitioners’ ages were only one factor that he considered. He identified many other factors involved in his decision to withhold consent, including petitioners’ health, Samuel’s vacillation regarding the adoption and his recommendation of Damon and Julie as adoptive parents, and petitioners’ ability to maintain the role of grandparents in ASF’s life. Thus, there was no violation of MCL 722.957(1). Further, the superintendent’s consideration of petitioners’ ages did not violate the CRA. The purpose of the adoption code is to provide the adoptee with adoption services, to safeguard the adoptee’s best interests, and to achieve permanency for the adoptee. MCL 710.21a. The best interests of the adoptee are the overriding concern, and “[i]f conflicts arise between the rights of the adoptee and the rights of another, the rights of the adoptee shall be paramount.” MCL 710.21a(b). In this context, the superintendent did not deny petitioners the full and equal enjoyment of a public service because of their ages. See MCL 37.2302(a). Rather, consent for adoption was denied because the superintendent found that adoption by petitioners was not in ASF’s best interests in light of a number of factors, including petitioners’ ability and willingness to provide long-term care for a then four-year-old child. Indeed, petitioners were first to inject the issue of their ages as a factor to consider. In short, in assessing ASF’s best interests, it was not improper, or discriminatory, for the superintendent to consider petitioners’ ages relative to their ability to provide for ASF’s long-term care. As we have previously noted, the circuit court did not clearly err by concluding that petitioners did not present clear and convincing evidence to establish that the superintendent’s decision was arbitrary and capricious. In a close case such as this one, it is important that we remain mindful of the standard governing our review and that of the circuit court. That is, we are not insensitive to the fact that petitioners indisputably took excellent care of ASF for 3V2 years beginning when she was only nine months old, and the fact that ASF is closely bonded to petitioners as well as to her sister, SF. Given ASF’s close bond to petitioners and to her sister, who remains in petitioners’ care, reasonable minds might well question the wisdom of denying petitioners consent to adopt and of removing ASF from the continuity of a stable family setting. See MCL 710.22(g). But neither this Court nor the circuit court reviews the matter de novo, and it is not for us to say whether the superintendent made the “correct” decision. Keast, 278 Mich App at 424-425; Cotton, 208 Mich App at 184. Instead, considering the reasons given for withholding consent, we look at whether the trial court clearly erred by finding that petitioners failed to present clear and convincing evidence that the superintendent acted arbitrarily and capriciously. Keast, 278 Mich App at 423-425. “[I]f there exist good reasons why consent should be granted and good reasons why consent should be withheld, it cannot be said that the representative acted arbitrarily and capriciously in withholding that consent even though another individual . . . might have decided the matter in favor of the petitioner.” Cotton, 208 Mich App at 185. Such is clearly the case here. There may be good reasons why petitioners should have been permitted to adopt ASF. But our focus must be on the reasons given for denial, and considering those reasons — Samuel’s apparent vacillation in his commitment to adoption, petitioners’ ages and health in relation to their ability to parent ASF for the long term, as well as the suitability of adoption by Damon and Julie, which will allow for a continued relationship between ASF and petitioners — we cannot find clear error in the trial court’s conclusion that petitioners failed to present clear and convincing evidence that the superintendent acted arbitrarily and capriciously. Moreover, contrary to petitioners’ arguments, the superintendent and the trial court considered ASF’s individual circumstances, none of which invalidated the denial of consent. See In re CW, 488 Mich 935, 936 (2010). Most relevant to the arguments by petitioners and the LGAL, the superintendent acknowledged that petitioners had taken excellent care of ASF for 3½ years, since she was 9 months old. He also recognized that there was a bond between petitioners, SF, and ASF. Neither the superintendent nor the trial court ignored these important facts; rather, in light of other considerations, as previously detailed, the superintendent nonetheless determined that consent to adopt should be denied. While petitioners “may be able to marshal evidence” in opposition to these conclusions, they have not shown by clear and convincing evidence that the superintendent’s determinations were “frivolous or fanciful or without factual support.” Cf. Cotton, 208 Mich App at 186. Under these circumstances, petitioners and the LGAL have not shown that the superintendent acted arbitrarily and capriciously by withholding consent. When challenging the trial court’s grant of the MCI’s motion for involuntary dismissal under MCR 2.504(B)(2), the LGAL, in particular, maintains that the motion was prematurely granted because she was not allowed to present her own case in its entirety before the trial court determined that petitioners were not entitled to relief. Contrary to the LGAL’s arguments, a motion under MCR 2.504(B)(2) is properly granted “after the presentation of the plaintiffs evidence.” (Emphasis added.) The “plaintiff’ is the party who commences the action. MCR 2.201(A). A § 45 hearing is commenced by a petitioner who is unable to obtain consent to adopt. MCL 710.45(2). By statute, a “petitioner” is defined as “the individual or individuals who file an adoption petition with the court.” MCL 710.22(r). The petitioner initiates a § 45 proceeding by filing a motion alleging that the withholding of consent was arbitrary and capricious, and the petitioner bears the burden of proof during the hearing. MCL 710.45(2) and (7). Samuel and Janet are the petitioners in this case. In contrast, the LGAL is not a “petitioner,” and as such, she could not request a § 45 hearing. Further, neither ASF nor the LGAL is an “interested party” in the adoption proceedings. MCL 710.24a(l). The LGAL could not intervene as a party in the proceedings to challenge the withholding of consent. See In re Toth, 227 Mich App 548, 555; 577 NW2d 111 (1998); see also MCL 710.21a(e). Instead, petitioners requested the hearing, petitioners were the parties seeking relief, and petitioners bore the burden of proof during the hearing. Consequently, at the close of petitioners’ proofs, it was appropriate for the trial court to consider whether petitioners were entitled to relief given the facts and the law, without providing the LGAL an opportunity to present a case separate from petitioners. MCR 2.504(B)(2). Moreover, we note that in this case, the LGAL specifically complains that she was not allowed to present additional evidence regarding ASF’s attachment to petitioners and to SF, including expert testimony on attachment. However, although the LGAL objected to the MCI’s motion for involuntary dismissal, the LGAL failed to make an offer of proof in the trial court regarding this evidence. See MRE 103(a)(2); Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 291-292; 730 NW2d 523 (2006). Further, based on the minimal information we have regarding the LGAL’s proffered expert witness, additional evidence regarding ASF’s attachment to petitioners and to SF would not have altered the outcome; the superintendent testified that he was aware of ASF’s attachment to petitioners and to SF, and he acknowledged that because of those attachments, a change in placement would have to be very careful and monitored. Thus, the superintendent and the trial court were plainly aware of ASF’s circumstances, and the superintendent did, in fact, recognize that ASF’s attachment to petitioners favored granting consent to adopt, but he found that other factors provided good reasons to withhold consent. See CW, 488 Mich at 935. Given the good reasons for denying consent despite ASF’s attachment to petitioners, it was not sufficient for the LGAL to show that ASF’s attachment to petitioners provided a good reason to grant consent, and thus, even assuming that the LGAL’s evidence would have established good reasons to grant petitioners consent, such a showing does not establish that the superintendent acted arbitrarily and capriciously by withholding consent for other reasons. See Cotton, 208 Mich App at 183-185. Consequently, even if the LGAL should have been permitted to present additional evidence, the LGAL has not shown that ASF was prejudiced by this denial, and substantial justice does not require reversal of the trial court’s decision. See MCR 2.613(A); In re Utrera, 281 Mich App 1, 14; 761 NW2d 253 (2008). Finally, the LGAL maintains that the trial court violated ASF’s rights to due process and equal protection by refusing to permit the LGAL to present evidence and call witnesses at the § 45 hearing. This cursory argument, made without citation to relevant authority or application of the law to the facts, is insufficiently briefed, and we consider it to be abandoned. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Further, and without addressing these claims in detail, we note that the LGAL had notice of the hearing, and she participated in the proceedings on ASF’s behalf by presenting some evidence and calling a witness to testify. Under these circumstances, we fail to see how ASF’s due process rights were violated. See Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995). Regarding the claim that ASF was denied her right to equal protection, the LGAL failed to even identify a similarly situated group that was treated differently than ASF was treated. Thus, this claim must also fail. See Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010). Affirmed. HOEKSTRA, P.J., and JANSEN and METER, JJ., concurred. Petitioners pursued a guardianship of SF, and that guardianship is not at issue in this appeal. Another of ASF’s siblings was adopted at birth by ASF’s aunt and resides in Arizona. The superintendent “represent[s] the state as guardian of each child committed” to the MCI following termination of parental rights, MCL 400.203(1), and the superintendent “has the power to make decisions on behalf of a child committed to the [MCI].” MCL 400.203(2). The superintendent’s specific authority to consent to the adoption of a child is set forth in MCL 400.209(1). On appeal, the MCI challenges this Court’s jurisdiction over the case. As a general matter, this Court has subject-matter jurisdiction over appeals from a trial court’s decision on a motion under MCL 710.45. MCL 710.45(10). The MCI claims, however, that the LGAL is not an appropriate party to bring an appeal under MCL 710.45(10), and that because the LGAL lacks statutory standing, this Court lacks jurisdiction. See In re Beatrice Rottenberg Living Trust, 300 Mich App 339, 355; 833 NW2d 384 (2013). Although the appeal was initiated by the LGAL, petitioners timely filed a cross-appeal. MCR 7.207(A)(2) and (B)(1). A cross-appeal may be prosecuted to its conclusion even if this Court dismisses the initial appeal. MCR 7.207(D). Thus, at a minimum, even supposing the LGAL lacked standing to initiate the present appeal, petitioners’ cross-appeal is properly before this Court. See MCL 710.45(10). Moreover, although the LGAL for an adoptee under the age of 14 is not considered an “interested party” in adoption proceedings, MCL 710.24a(1), ASF was appointed an LGAL during child abuse and neglect proceedings, MCL 712A.17c(7), and an LGAL appointed in this manner continues to represent the child’s best interests provided that, as in this case, the child remains subject to the supervision of the MCL MCL 712A.17c(9). During this time, the LGAL must advocate for the child’s best interests, and the LGAL is “entitled to full and active participation in all aspects of the litigation . .. .” MCL 712A.17d(1)(b). There is no indication that the LGAL in this case was discharged. Consequently, in connection with petitioners’ appeal, we see nothing improper with the LGAL’s continued participation insofar as she represents the child’s best interests. Therefore, we will consider the LGAL’s arguments. See, generally, MCL 710.45(5); MCL 712A.17c(9); MCL 712A.17d. The Michigan Court Rules apply to adoption proceedings, except as modified by MCR 3.801 to MCR 3.807. MCR 3.800(A). Those rules do not contain a specific provision regarding involuntary dismissal. We do not suggest that an LGAL is entirely prohibited from participating in a § 45 hearing. There is support for the proposition that, when an LGAL has been appointed during child abuse and neglect proceedings, some participation by an LGAL is anticipated during ensuing adoption proceedings that occur during the LGAL’s continued representation of the child. See MCL 710.45(5); MCL 712A.17c(9); MCL 712A.17d. See also In re Row, unpublished opinion per curiam of the Court of Appeals, issued June 24, 2014 (Docket No. 319389); In re AEG, unpublished opinion per curiam of the Court of Appeals, issued November 7, 2013 (Docket No. 316599). This participation does not, however, make an LGAL for an adoptee under age 14 an “interested party” or a “petitioner.” See MCL 710.22(r); MCL 710.24a(l). Because the LGAL was not a petitioner or an interested party, the trial court could grant a motion for involuntary dismissal -under MCR 2.504(B)(2), before the LGAL completed her presentation of evidence.	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Moore, J. On or about March 2, 1895, appellant, as plaintiff, procured a writ of attachment to be issued out of the Muskegon circuit against the goods, chattels, and real estate of John H. Clark, who was then sued with one Zacheus C. Dyer as codefendant. This attachment was levied on certain lands in said county as the lands of said John H. Clark on or about March 22, 1895. On the 16th day of December, 1895, said attachment case came on for trial. The trial was ended on the 17th day of ¡December following, when plaintiff recovered judgment against said defendant. On the 16th day of December, John H. Clark presented his petition to a circuit court commissioner for the county of Muskegon, and procured a citation as commencement of proceedings to dissolve said attachment, which citation was returnable December 20, 1895. The citation was served upon appellant by delivering a triplicate original to both appellant and his attorney. It was not read to either of them. Appellant and his attorney were both nonresidents of the county of Muskegon, and only present at the time of service for the purpose of trying the attachment case before mentioned. The only allegation, in the petition for dissolution of attachment, that the said Clark had any interest in the property attached, is as follows: “Your petitioner further shows that the legal title to said described parcel of land is in one Isaac Manchester, but that your petitioner is entitled to the possession thereof under a contract for sale of land, and that the said described parcel of land, or a portion thereof, constitutes the homestead of your petitioner. * * * And your petitioner therefore prays that the said attachment may be dissolved, and that the lands and property so seized and taken under said attachment may be wholly released therefrom, and may be restored to this defendant, who is still entitled to the full and free possession and enjoyment thereof.” On the return day of the citation, appellant appeared for the purpose of making a motion to dismiss the proceedings for dissolution of attachment, for the reasons: 1. That there had been no service of the citation as required by law; consequently, the court had no jurisdiction. 2. That, as both the appellant, who was plaintiff in attachment, and his attorney, were nonresidents of the county in which the proceedings were begun, and as they were only present in that county for the purpose of attending upon the court then sitting, in the trial of the cause In which they were both interested, no service was made. 3. That the return of the officer on the citation did not show that any copy thereof was served. 4. That the petition nowhere alleged that the petitioner was, at the time of making the petition, the owner of the land attached. 5. That the petition did not allege that the petitioner was the owner of the land, or that he was entitled to the possession, at the time the attachment was levied. 6. That the petition did not allege sufficient facts to warrant a conclusion, as alleged, .that it was his homestead. Said motion was overruled by the commissioner, and the defendant had judgment that the attachment be dissolved, and for his costs. Plaintiff then removed said cause to the circuit court for the county of Muskegon by certiorari, where the judgmént of the said circuit court commissioner was affirmed. The case is brought here for review by certiorari. It is now the claim of the defendant that plaintiff has mistaken his remedy,—that since 1881 (2 How. Stat. § 8030) the remedy is by appeal, and not certiorari. No claim of that sort was made in the circuit court, and we think it too late to insist upon it here. The circuit judge returns that, in the hearing before him, it was not contended that the service upon the plaintiff was legal; so that the only question necessary to consider here, in relation to the service, is, was the service upon the attorney sufficient ? It is claimed by the plaintiff, and admitted by defendant, that there could be no service of the citation upon the plaintiff, for the reason that he was not a resident of the county. It is also his claim that there could be no service upon the attorney for the plaintiff, because he was. in the county solely for the purpose of attending court, and was privileged. We think it a complete answer to this contention to say that his attendance upon court was to try the same cause in which the interlocutory proceedings were instituted. We can see no reason for saying that service of papers in an interlocutory proceeding in the same case cannot be made. To so hold would be very unjust. j 2 How. Stat. § 8028, contemplates service upon the attorney under some circumstances. It is urged, in addition to the reason already assigned, that the service on the attorney was not good because, instead of serving a copy, a triplicate original was served, and the citation was not read to the attorney. We think the service on the attorney was insufficient. The service was by delivering a triplicate origing.1 of the citation, and the citation was not read to the attorney. The statute provides that the citation shall be served three days, at least, before the return day thereof, by reading it to plaintiff in attachment, if found within the county, and, if not, then the same may be served upon the agent or attorney of the plaintiff, by the sheriff, either of his deputies, or any constable, etc. We think it is clear that the service is to be made in the same manner, whether served upon the agent or attorney or the plaintiff himself. No other method of service is prescribed by the statute, and it must be held that, where the alternative of serving upon the agent or attorney is resorted to, the method prescribed for service governs. The order should be reversed. The other Justices concurred.	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Hooker, J. Fisher and Seligman owned certain city lots in common, adjoining other real estate owned by Fisher in the city of Detroit; and Fisher gave to the plaintiff, Nolan, an option to purchase his interest in both for $450,000, for the period of 30 days. This writing is alleged to have been made on December 8, 1891, and on January 9, 1892, it was extended in writing until February 1, 1892. There is nothing to show that it was extended longer, unless it be a letter from Gray, Fisher’s son-in-law, written by Fisher’s direction and dictation on February 5th. It is as follows: “February 5, 1892. “Jno. E. Nolan, “E. Saginaw. “Dear Sir: I am requested by Mr. A. C. Fisher to notify you that unless a sale of his entire interest or division is made with Mr. J. Seligman or others before Saturday night, 6th inst., all obligation on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease. “Chas. B. Gray.” On February 5th, being the same day that this letter was written, Nolan, who had been for several days endeavoring to persuade Seligman to agree on a division and purchase of the property, succeeded in obtaining a promise—presumably oral—from Seligman that he would take Fisher’s individual property and a portion of that held in common, giving to Fisher the remainder of the property held in common, and $100,000. Nolan thereupon went to Detroit, and on Monday following (being the 8th of February) Seligman followed, and had an interview with Mr. Gray, who is shown to have been the authorized representative of Fisher, in the presence of Nolan and others and one Doyle, who was present in the interest of Seligman. Mr. Gray then and there said the price was $125,000, instead of $100,000; and Doyle testified that Seligman said he would not pay it, and the deal ended then and there, and that the next day he (Doyle) went to the house of Fisher, who was sick, and, after working all-day with him, prevailed on him to accept $100,000, and the deal was closed upon the terms talked at Saginaw between Seligman and Nolan. This action is brought by Nolan to recover a commission of 2 per cent. on the amount involved in the transaction (that being the usual commission charged on sales of real estate in Detroit), and he received a judgment for the amount claimed. The case is before us on error assigned upon the chai-ge. Fisher died before the case was tried, and the plaintiff gave no testimony as to what occurred between them. In addition to the testimony stated, Gray testified that he knew, at the time he wrote the letter of February 5th, that there was an arrangement between Nolan and Fisher, and that what Nolan was doing he was doing for Fisher, and that he was negotiating with Seligman. The charge contained the following: “ Gentlemen of the jury, if the plaintiff was authorized by the defendants’ testator to procure a purchaser in Mr. Seligman, by dividing this land, and if, before that authority was revoked, he brought about a division satisfactory to Mr. Fisher, then he is entitled to be compen-, sated for what his services were reasonably worth. Now, we have no evidence of what the arrangement between Mr. Nolan and Mr. Fisher was. So far as the writings were concerned, that expired bn the 1st of February. They do not control this transaction. Was there an arrangement made between them which continued after the 1st of February, and was it in existence on the 9th day of February ? The only evidence that there existed any such arrangement is contained in this letter of February 5th, the terms of which are entirely familiar to you. I will read that letter to you, because it is the only evidence of the existence of any agreement between them after that date,—the 1st of February. It is dated February 5, 1892: “ ‘John E. Nolan, Esq., “ ‘East Saginaw. “ ‘Dear Sir: I am requested by A. G. Fisher to notify you that unless a sale of his entire interest or division is made with J. Seligman or others before Saturday night, the 6th inst., all obligation on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease. “ ‘Very truly yours, “ ‘Charles B. Gray/ “Now, I say to you that the only evidence in this case of any arrangement between these parties exists in that letter, because Mr. Nolan cannot testify, and does not assume to testify, to any arrangement, his mouth being stopped by the statute. Mr. Fisher cannot testify, because, of course, he is not here. Now, was there such an arrangement? That is for you to say. It is for you to say what inference is to be drawn from this letter. If there was no arrangement, or if that arrangement ended on the 6th of February, 1892, there could he no recovery. ' So that you must find, in order to render a verdict for the plaintiff, that there was an arrangement after the 1st of February, continuing up to the time this deal was consummated, which the testimony shows was the 9th of February. If there was such an arrangement, was it revoked? The testimony is undisputed that on the 5th of February this letter was written and mailed, but I charge you that a revocation would not be conclusive unless this letter, or knowledge of this letter, or knowledge of the revocation, in some way reached Mr. Nolan before this deal was made. The testimony of Mr. Nolan is that this letter did not reach him until Thursday after the deal was consummated, on Tuesday. The important question in this case for you to determine is whether, on Saturday night, Mr. Nolan was here in Detroit, and had this interview with Mr. Gray, and Mr. Gray told him the contents of this letter, and showed him the letter in the letter-book. Mr. Gray testifies he did do that, and Mr. Nolan testified that he did not do that. Now, if, on that occasion, Mr. Nolan was notified of the revocation of his authority, he cannot recover in this case, because, in my judgment, the arrangement which existed (assuming an arrangement to exist) was one which Mr. Fisher might have terminated at any time. I do not agree with counsel that it was an arrangement which could not be terminated except by a reasonable notice. I charge you, as a matter of law, that it was an arrangement which might be terminated at will. Either party might terminate it as he chose. If, therefore, on the morning of the 6th of February, Mr. Nolan was notified of the termination of his authority, he cannot recover in this case. That, really, as counsel have argued to you on both sides, is the vital question submitted to you. If you find, however, that Mr. Nolan had an authority to procure a purchaser, and that he never had any notice of the revocation of it until after the deal was made, on the 9th of February, then your verdict should be for him; but if, on the other hand, you find either that he had no authority, or that the authority was revoked by notice which he received on the morning of the 6th, then your verdictfmust be for the defendants.” The effect of this instruction was that Mr. Nolan might recover if the jury should find that an arrangement for Nolan’s services existed after February 1st, and up to and including the time when the deal was consummated, and that Nolan’s authority to act was not terminated by Gray’s letter, unless it was brought to his notice, and that the only evidence that there was any arrangement at ail was contained in the letter. Under this charge, we must conclude that the jury found that the writings did not warrant a verdict based upon the option, that plaintiff had no knowledge of the contents of the letter, and that some other arrangement than the option existed previous to and on February 5th,—presumably, an oral understanding that Nolan should continue his efforts to effectuate a trade or sale to Seligman; and, if the circumstances proved warrant the inference of such an understanding, the law will imply a promise to pay for such services their reasonable value. - In Beach on Contracts we find this subject discussed. The learned author says: “The term ‘implied contract’ is generally used to denote a promise which the law, from the existence of certain facts, presumes that a party has made. An implied contract is where the intention of the parties may be gathered from their acts and from surrounding circumstances, as distinguished from an express contract, where a party stipulates in direct terms, verbally or in writing. Implied contracts, it has been said, are such as reason and justice dictate, and which the law presumes that every man has contracted to perform, and, 'upon this presumption, makes him answerable to such persons as suffer by his nonperformance. But all true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, the contract is called an e express ’ one. When it' is not expressed, it may be inferred, implied, or presumed from circumstances as really existing, and then the contract thus ascertained is called an ‘ implied ’ one. Both express and implied contracts are founded upon the actual agreements of the parties, the only distinction being in the character of the evidence by which the contract is proved. An express contract is proved by an actual agreement; an implied contract, by circumstances and the general course of dealing between the parties. ‘A great mass of human transactions depends upon implied contracts,— upon contracts which are not written, but which grow out of the acts of the parties. In such cases the parties are supposed to have made those stipulations which, as honest, fair, and just men, they ought to have made.’ Marshall, C. J., in Ogden v. Saunders, 12 Wheat. 213, 341.” 1 Beach, Cont. § 639, and note 1. Again Mr. Beach states that— “Where one person renders services for another, which are known to and accepted by him, the law ordinarily implies a promise to pay therefor.” 1 Beach, Cont. § 642. Again, in section 650, the following language is used • “Where there is no relationship between the parties, and one accepts and retains the beneficial results of another’s services, which he had no reason to suppose were gratuitous, and which he could or not accept at his option, the law will imply *a previous request for the services, and a promise to pay what they were reasonably worth.” See authorities cited in note. In 1 Add. Cont. 22, the author says: “ The intention of the parties to any particular transaction may be gathered from their acts and deeds, in connection with the surrounding circumstances, as well as from their words; and the law therefore implies, from the silent language of men’s conduct and actions, contracts and promises as forcible and binding as those that are made by express words, or through the medium of written memorials.” While we must admit the correctness of the contention that, if the only evidence of the arrangement was‘to be found in the letter, the circuit judge should have construed it, this contention loses its force, because the judge was in error in so stating. The contract which the plaintiff was contending for was not one which, like the option, was to give him, or any one else, a right to purchase, and which, therefore, was void unless in writing. It was one which called for the plaintiff’s services in finding a purchaser on satisfactory terms, and, if made, was performed when such purchaser was found and the premises were conveyed. The option expired, according to its terms, on February 1st. Not only does the testimony fail to show that it was extended, but Mr. Gray testified that he knew of negotiations for a division subsequent to that time, under an arrangement between Fisher and Nolan. The letter is not limited to the option, but was evidently intended to cover all arrangements. Nolan brought Seligman to Detroit to effect the deal which was finally consummated, and Gray had an interview with him and Nolan about it, at which time he refused to accept the sum of $100,000 as a basis for a trade. He says he then and there declared the deal off; but the matter was followed up with Fisher, and the trade was consummated. These facts are uncontradicted, and were sufficient to warrant an instruction that Fisher and Nolan had an understanding that'Nolan should bring about a deal with Seligman, for which he should receive compensation, and therefore the instruction appears to have been harmless error. The fact that, after the termination of the written contract or option, Nolan was still trying to effect a deal with Seligman, is shown by the testimony of Gray, and by the letter dictated by Fisher, who was willing to extend the time until February 6th, or, as counsel would say, desired to place a limit upon or show that he wished to place the matter beyond controversy. Whether the contract is to be considered terminated by the letter might depend upon two things, viz.: (1) Whether it could be terminated without actual notice to Nolan. (2) Whether the conduct of the parties after the letter was written did not manifest an intention to recognize and accept the benefit of the labors of Nolan ■under it, notwithstanding the writing of the letter. The ■court instructed the jury that the contract could not be terminated without actual notice, and this is alleged to hiave been erroneous. We must bear in mind that this ■question does not involve the validity or invalidity, or, more accurately speaking, perhaps, the binding force upon the principal, of some act or conveyance done or made, in the representative capacity of agent, by Nolan. There is nothing to indicate that any one supposed that Nolan had made a contract with Seligman which bound Fisher. What,, is claimed is that he produced a purchaser satisfactory to Fisher, under a contract which could, at the most, be terminated by notice. We think there is a radical difference between the termination of an agency and a contract, and that a contract might be made that would not be terminated without notice, though an agency that might be involved therein might be. Clark, Cont. § 310. This being so, this record shows that the jury found (1) that a contract was made; (2) that it was not terminated by the letter; (3) that plaintiff produced a purchaser, which Fisher accepted. We think these facts justify the verdict, and the judgment is therefore affirmed. The other Justices concurred.	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Montgomery, J. This case was once before the'court, and is reported in 104 Mich. 606. A new trial has been had, and the plaintiff on the second trial recovered a verdict of $7,360. The record is voluminous, containing a large number of assignments of error. The defendant contends that the evidence on the second trial presented a different case from that passed upon in our former opinion, and strenuously argues that the verdict should have been directed for defendant. A careful examination of the record has convinced us that in no fact material to the questions of law involved does this record differ from the former to such an extent as to change the result. We think the charge of the court upon the subject of defendant’s liability was fair, and within the lines of the former decision. We are constrained to hold, however, that there was error in receiving evidence bearing upon the subject of damages, and in the charge of the court upon this subject. The widow of deceased testified, under objection and exception, as follows: “ Q. You may state what, if anything, your husband did towards assisting his children in the matter of their schooling. “A. He did all that was necessary for him to do. They would bring their arithmetic and slate home some nights. He would help them with them. “ Q. Now, have your children gone to school since their father’s death ? “A. The youngest one is all; just the youngest one. At the time of his father’s death, the oldest one was attending Lake Street School. The oldest child was in the seventh grade, I think, at the time of his father’s death. Barbara was also going to school at Laké street. She was in the seventh grade. “ Q. You state that they have not been sent to school since their father’s death. You may state why not. “A. Because they didn’t have any chance. “ Q. You state that they have had no chance. What do you mean by that, Mrs. Walker? “A. Because I was not keeping house so that they could go. The oldest one hasn’t been at all since that. ‘ ‘ Q. Why not ? “A. He did not have any home to stay to so he could go. I was working at housework. I went to keeping house about a year ago, and took in washings. “Q. What did the boy do ? “A. He worked for his grandfather a while, on the farm. Since then he has not done much of anything. He could get no work. The daughter worked out after a while. She worked in the card factory about a year. She was married last fall. I have tried to keep the youngest one at school most of the time.” In his charge to the jury, the circuit judge said: “In estimating the plaintiff’s damages, you would be at liberty to take into consideration the nurture, instruction, physical, moral, and intellectual training which you may be able to find by the testimony the children of John Walker would have received from their father had he lived during their minority; that is, until they attained the age of 21 years. ” And also: “And I desire, also, at this point, gentlemen, to withdraw from your consideration entirely one piece of the testimony which was offered in the case; and that is that after the death of J ohn Walker his family was broken up, and his widow and children went with his father to live. At the time that testimony was introduced the court had an idea that it might be of some value to you in determining this second proposition; that is, whether the family had been deprived of the value of Mr. Walker’s services in attention to, superintendence, and care of his family. On reflection, the court is satisfied that it would have no value in deciding that question, so that you will disregard that testimony entirely, for every purpose, in making up your verdict.” It is very doubtful indeed if the effect of the testimony which the court recognized as improper could be counteracted by withdrawing it from the jury at that stage of the case. But we need not determine whether, if the instructions were otherwise proper, we should say that the error in the receipt of this evidence was cured, as we are of the opinion that there was error in permitting the jury, under the testimony in this case, to award a sum as damages for loss of nurture, instruction, and moral and physical training. It has been frequently decided by this court that in an action for the recovery of damages for death by wrongful act, based upon our statute, the damages to be awarded must be limited to the pecuniary loss sustained by those in whose interest the case is prosecuted. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 214; Batch v. Railroad Co., 67 Mich. 394; Mynning v. Railroad Co., 59 Mich. 262; Van Brunt v. Railroad Co., 78 Mich. 530; Nelson v. Railway Co., 104 Mich. 582. In our former opinion in this case we said: “We are aware that some courts have held that the jury may take into account the loss sustained by the children of the deceased for loss of physical care and mental and moral training of the father or mother, and we are not prepared to say that cases may not arise in which there may be sufficient proof of damages suffered by reason' of the withdrawal of these ministrations as to justify a recovery upon that basis. But it is distinctly against the previous holdings of this court to say that such elements may be considered, and the jury left to roam at large, and draw upon their imagination as to the extent of the injury suffered through this cause.” On the second trial there was no evidence of the value of deceased’s instruction given to his children, nor of the value of any physical, moral, or intellectual training, nor could there well have been. It was not claimed that deceased was in any sense a tutor to his children. The most that can be inferred is that he rendered to them occasional assistance, such as a parent is supposed to render to his children, but which, in its very nature, is as incapable of measurement by a pecuniary standard as is the loss of love, affection, and sympathy. See Chicago, etc., R. Co. v. Austin, 69 Ill. 426; State v. Baltimore & Ohio R. Co., 24 Md. 106 (87 Am. Dec. 600). The rulings conflict with our former opinion, and cannot be sustained. The judgment will be reversed; but we think it would be a hardship to require the plaintiff, upon this appeal, to pay for the printing of the voluminous record and brief, in which have been presented, in the main, the same points passed upon in our former opinion. We think the questions left us for consideration by our former opinion could have been presented by a record of 60 pages, and that a brief of 20 pages would have been ample for their discussion, and the defendant will be allowed for printing of brief and record of 80 pages. The other Justices concurred.	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Grant, J. On December 4, 1894, plaintiffs made a ■written contract with the defendant by which they agreed to furnish him “one monument after design Henika, of gray granite [giving the dimensions and inscriptions]; also three granite markers; the said monument to be delivered and set up in the E. Martin Cemetery, on or before May 15, 1895, or as soon thereafter as possible, in a good and workmanlike manner.” The price was $175. The other terms of the agreement are immaterial. Defendant, soon after its execution, requested some changes, which were agreed upon. Plaintiffs claimed that they had delivered and completed the monument in accordance with the terms of the contract. Defendant claimed that they had not, and refused to accept or pay for it. Plaintiffs brought suit to recover. The parties gave testimony tending to support their respective claims. The jury, under the order of the court, went to the cemetery, and viewed the monument. Verdict and judgment were for the plaintiffs. . Three facts are settled by the verdict against the defendant : (1) That the monument was in compliance with the contract; (2) that it was constructed and delivered as soon as possible; (3) that the defendant waived a cap of a different design than the one called for by the contract. The first and principal question in the case is: Had the defendant the right to reject the monument after it was placed in the cemetery, but before it was erected, on the ground of certain defects ? To state the question conversely: Had the plaintiffs the right to remedy defects before tender and formal delivery ? Plaintiffs sublet the contract to one Fox, in Concord, N. H., who made the monument and shipped it. On its arrival, plaintiffs sent their agent to pht it in place. Before this was done, and on June 4th, defendant went to the cemetery, and, upon seeing the monument, stated to the agent that it was not what the contract called for. The agent admitted that there were defects in it, and that defendant was not obliged to accept it in its then condition, but informed him that -the defects could be remedied. June- 13th, defendant wrote plaintiffs as follows: “I have suffered all the vexations and unnecessary delay and blunders I am willing to bear in regard to that monument; so you may consider our contract void, and I wish you would remove the same at once from our lot.” July 14th, defendant, in response to a letter from plaintiffs, met their workman, a Mr. Walker, in the cemetery. They discussed the question of remedying the defects, but defendant testified that he declined to give any directions about it. On the next day, Mr. Eldred, plaintiffs’ agent, saw defendant, and said to him, “Mr. Walker tells me you would not let him fix the monument,” to which defendant replied, “I did not hinder him from fixing it, but I told him I would not direct him.” July 22d, Mr. Black, one of the plaintiffs, met defendant, by agreement, in the cemetery. Mr. Eldred also was present. Defendant objected to Mr. Eldred’s presence, and declined to stay there, and talk the matter over, unless Eldred went away. Black replied that he did not care whether he (defendant) stayed or not, but that he (Black) could measure it, and find what was wanted. No conversation after this occurred. Several letters passed between them, but we do not consider them material. We will assume that there was evidence to show that defendant, upon first seeing the monument, informed plaintiffs that he would not accept it. The markers were too short, were returned to Mr. Fox, and others of the agreed length furnished. Defendant stated that both he and his wife liked the cap as well as or better than the one specified by the contract; that' he found no fault with the cap as far as the design was concerned; and that the only question was as to the workmanship. Plaintiffs gave evidence tending to show that the defects in the monument could be, and were, remedied, by a few hours’ work. Defendant insists that this case is ruled by American White Bronze Co. v. Gillette, 88 Mich. 231. He insists that the delivery was made the moment that the monument was taken to the cemetery. Plaintiffs insist that the delivery was not made until the monument was in place, and that they had the right to remedy any defects before delivering and tendering it as complete. The Gillette Case is clearly distinguishable from this,' in that a material part of the inscription had in that case been omitted. It could not be changed except by making an entirely new monument. The first one had been delivered and tendered as complete. Mr. Gillette promptly notified the plaintiff that he refused to accept the monument, and that he rescinded and revoked its order, and declined to accept any other proposition. The company-removed the monument, cast and put in place a second, which also was defective. They removed this, and put up a third, for which they brought suit. Had the first monument been of granite, and that part of the inscription omitted could have been chisled in so as to comply with the contract, the case would have been like this. As the court said to the jury in this case, the monument could have been made anywhere, and rough blocks of granite could have been taken to the cemetery, and the monument there completed. It is not good law nor good sense that a party, under such circumstances, could not remedy a defect, and thus complete his contract. The plaintiffs did not make a formal tender and delivery until they had made the monument so as to comply with the contract. Had they delivered it without remedying the defects, and without producing markers of the length required, there could, of course, be no recovery. If, when the defendant saw the monument as the plaintiffs were putting it in place, he had absolutely refused to accept it when the defects were remedied, he would still be liable. The fact that the markers were not of the length required did not prevent the plaintiffs from supplying their place with others of the proper length. The monument was the principal thing. If A. contracts to build a house and fence for B. within a specified time, and the house is completed, but the fence posts are not of the length contracted for, can B. reject the entire contract if A. is willing to, and does, provide other posts and complete the fence? The difficulty with the defendant’s position is in assuming that there was a delivery when the monument was deposited upon the ground" in the cemetery, whereas, in fact, there was no delivery, and could not be, until the monument was set in place. Until this was done, it was under the control of the plaintiffs, and subject to any changes which could be made so as to complete it according to contract, Having determined that the monument was in compliance with the contract, the only other questions were whether the plaintiffs had completed it within the time prescribed, and whether there was a waiver of the particular cap. We think there was evidence to support all the points upon which the case was left to the jury, and that there was no error in the charge. The judgment is affirmed. The other Justices concurred.	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Moore, J. This is a proceeding brought to test the effect of a resolution adopted by a majority vote of the-supervisors to accept the bid of Henry George & Son to construct the stonework of the new county building about to be erected in Wayne county. This building is to cost a large amount of money. It is agreed by counsel representing all parties in interest that the only question necessary to be determined in this proceeding is whether a two-thirds vote of all the supervisors elected is necessary to authorize the letting of contracts for the construction of the building. The learned counsel have prepared very exhaustive briefs, containing all the legislative and constitutional provisions which have been adopted from the earliest history, of the State in relation to the powers conferred upon the board of supervisors. These briefs have been of great value in examining the questions at issue, but we do not deem it necessary, in this discussion, to go over all the ground covered by the briefs. Section 9 of article 10 of the Constitution provides that— “The board of supervisors of any county may borrow or raise by tax one thousand dollars for constructing or repairing public buildings, highways, or bridges; but no greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.” The question of raising money for the erection of the county building was voted upon by the people, and was authorized by them. It is urged by the counsel for the petitioner that the power conferred upon the board of supervisors by this section is exclusive, and that the legislature cannot place any limitation upon the power so conferred, and that, having been authorized by the electors to raise this money, the board can expend it in the erection of buildings, free from any limitations placed upon them by the legislature. Before accepting this view, I think we must consider this section in connection with the other constitutional provisions, and give them all such a construction, if possible, as will make them all operative. Section 6 of article 10 provides that— “A board of supervisors, consisting of one from each organized township, shall be established in each county, with such powers as shall be prescribed by law:” These two sections are to be construed together, and it was evidently contemplated that the legislature might confer upon the board of supervisors such powers, and surround them with such limitations, as were not inconsistent with the powers and limitations placed by the Constitution itself. Section 9 authorizes the board to raise money for certain purposes, but is entirely silent as to the method of its expenditure. Can it be doubted that section 6 was intended to authorize the legislature to place such safeguards around the expenditure of public funds by boards of supervisors as the public interest requires? Section 475,1 How. Stat., provides thata majority of the supervisors of any county shall constitute a quorum for the transaction of the ordinary business of the county. Subdivision 6, § 483, 1 How. Stat., authorizes the board of supervisors “to cause to be erected the necessary buildings for poor-houses, jails, clerks’ offices, and other county buildings, and to prescribe the time and manner of erecting the same.” Section 484 provides, “None of the powers mentioned in the sixth subdivision of the last preceding section shall be exercised without a vote of two-thirds of all the members elected to such board.” What effect is to be given to these provisions ? The unlimited power to raise and expend large sums of public money appeals to the cupidity of the weak and dishonest. Its tendency is to encourage the extravagant use of public funds. It was in recognition of this fact, and to prevent raising unnecessary sums of money, that section 9 of article 10 was placed in the Constitution. There is no provision of law requiring boards of supervisors to let contracts for the construction of county buildings to the lowest bidder. Was it not the legislative intent to guard the public interests by requiring that the action of the board of supervisors in spending the funds, when raised for the construction of public buildings, must command the approval of two-thirds of the members elect? It is urged that Act No. 295 of the Local Acts of 1895 makes an exception of Wayne county, and authorizes the construction of county buildings by a majority vote of the supervisors. _ A careful reading of this act discloses that its purpose was to enable a special meeting of the board of supervisors to be held to determine the necessity for the construction of the county buildings, and to provide a method of submitting to the electors of Wayne county the question of raising by loan the money required in the construction of the buildings. The legislature did not indicate, by any language used in the act, a purpose to remove the limitations upon the powers of the board of supervisors in relation to the construction of county buildings contained in the Constitution and the general laws. The act does not repeal, either expressly or by implication, subdivision 6 of section 483, or section 484, 1 How. Stat. Whatever power boards of supervisors have to construct county buildings, and to make contracts therefor, is derived from subdivision 6 of section 483, and section 484, 1 How. Stat. It becomes important, then, to determine what is the obvious and natural meaning of the words used in conferring this authority upon the board. Can it properly cause to be erected a county building at a cost of nearly a million of dollars, so as to guard the interests of the public, and prescribe the time and manner of its erection, where the construction is to be done by con tract, without knowing who the contractors are, when they are to commence their contract, and when to finish it? How much they are to be paid, and when? The kinds and qualities of the materials to be employed in the construction? Must not the board be put in possession of a knowledge of all the essential things to be contained in the contracts necessary to enable them to pass upon the contracts' intelligently? And must not these contracts secure the approval of two-thirds of all the members elect, if the provisions of the statute are to be given effect ? There is but one answer to these inquiries, and that is an affirmative one. The petition for the writ of mandamus is denied, with costs. The other Justices concurred.	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Montgomery, J. Defendants are trustees of the estate of William B. Wesson. Defendant Green also acts as agent for Mrs. Wesson, paying her bills, and taking receipts therefor, and accounting to her. Defendant Green employs one John Brinket, who was a former employé of Mr. Wesson in his lifetime, and who still continues to look after Mrs. Wesson’s affairs to some extent. In the spring of 1891, plaintiff was employed to work for Mrs. Wesson. Mr. Brinket did the business for Mrs. Wesson, and testifies that the hiring was under instructions from Mrs. Wesson, and that he did not confer with defendants at all about hiring plaintiff. Witness Brinket, who was called for the plaintiff, also testified that he had no general authority to employ workmen in behalf of the defendants, and that he never hired any men except under special instructions from Mr. Green. According to the plaintiff’s testimony, after he had been employed some time, he' was told by .Mr. Brinket to go up and watch a grove on Baldwin avenue. This grove belonged in part to the Wesson estate, and in part to Mrs. Wesson. Plaintiff proceeded to follow this instruction, and, as he testified, visited this grove four or five times a week from March, 1892, to September, 1894, and this action is brought to recover for these services; plaintiff claiming that the direction to go and look after this grove amounted to an independent hiring on behalf of the defendant estate. During all this time, at the end of each month, plaintiff was paid his $40 per month, and signed receipts, both before and after March, 1892, reading, in substance, as follows: “Received of Lacyra E. Wesson, forty dollars, in full for services to date.” These payments and receipts continued down to the time that plaintiff ceased work. Plaintiff’s own testimony as to the instructions given him to look after this grove is as follows: “ On the first day of March, 1892, Mr. Brinket gave me the order to see to that bush,—so much timber was cut up. “Q. How long did you work watching before you were ■ called to look to the grove ? “A. From the 14th of May, 1891, to the 1st of March, 1892. “Q. It was then you were ordered to look after the grove ? “A. Yes, sir. I looked after the grove two years and a half. There was no bargain made as to how much I was to receive for watching the grove. “Q. You said there was no bargain? “A. No bargain.” On cross-examination, witness testified:. “Mr. Brinket was my boss. That was my first experience with Mr. Brinket. I haven’t ever been in his employ there before. He hired me. Whenever there was an order he gave me the order. ctQ.„ You have stated how he hired you? “A. Yes, sir. “Q. He sent you to Mrs. Seyburn? “A. Yes, sir. “Q. And Mrs. Seyburn told you to go to work? “A. Yes, sir; and I continued to watch inside the fence. I had nothing to do outside the fence. Mr. Brinket gave me an order to see after'the bush. I didn’t have any orders to go outside of the fence. “Q. -Did you have any orders to do anything while you were there? “A. Yes, sir; Mr. Brinket gave me an order to sprinkle the street. * * * I knew Mr. Brinket was my boss; that he bossed me afterwards once. I was not acquainted with his business before that, except that I knew that he was employed at the Wessons’. That is all that I knew. * * % “Q. Why didn’t you demand pay for taking care of the grove before ? “A. I was keeping my family up with them $40 I have for night work. I thought I would let that stand. Whenever I wanted it, I would call for it. “ By a Juror: When you were asked by Brinket to do this extra work, was there anything said about your getting additional pay ? “A. No; not a word. “Q. Didn’t you say to him, at the time, that you expected to get additional pay ? “A. I expected it. “Q. Did you say that,to him? “A. I told him a couple of times. “Q. At the time you were engaged by him? “A. No.” On redirect examination, he was asked when he told Mr. Brinket that he expected pay for the additional work, and answered that he didn’t know the exact time. “Q. What did he say about it? “A. Oh, nothing.” The circuit judge left it to the jury to find—First, whether Brinket had authority to make the contract; and,' second, whether there was an agreement that the estate should pay plaintiff such amount as such work was reasonably worth. We think the circuit judge erred in submitting the case to the jury upon the evidence offered. It is clear that these orders were given upon the assumption that the work demanded of plaintiff fell within his employment, and there was not the slightest indication by the plaintiff, at the only time any contract is alleged to have been made, from which Brinket or the defendants could draw the inference that he had any other understanding. And when the fact is taken into account that for nearly two years thereafter he signed a receipt in full for his services at the end of each month, the rank injustice of permitting him to assert a secret intention to make an additional charge for his services is plainly manifest. The case falls directly within the principle of Bartlett v. Railway Co., 82 Mich. 658. The judgment will be reversed, with costs, and no new trial ordered. The other Justices concurred.	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MOORE, J. The bill was filed in August, 1889, by complainant, for the purpose of obtaining an accounting between Feige, Gates, and Babcock, doing business under the firm name of the Michigan Lumber Company. It alleges that on the 15th day of February, 188 8, they entered into articles of copartnership for the purpose of manufacturing, etc., under the name of the Michigan Lumber Company, and states that the partnership was to date from February 15, 1888, and continue for three years, unless sooner dissolved by mutual consent. The articles of copartnership are made a part of the bill. They show that Gates owns 13-24 of the property, Feige owns 8-24, and Babcock 3-24, subject to the contract with the Seminole Lumber Company. By the articles, Feige was to be the general manager of the business. Babcock was to be represented by her husband, John W. Babcock, as assistant manager, who was to receive $1,000 per year. An agreement between the Seminole Lumber Company and Samuel G. M. Gates, of date the 27th day of October, 1887, is made a part of the bill. This agreement recited that on the 4th day of October, 1887, the Seminole Lumber Company agreed to sell to Gates and Helen M. Babcock a large quantity of lands, situated in the county of Baldwin, State of Alabama, and county of Escambia, State of Florida, upon the terms named in the contract; that, after making this agreement, another agreement was made, by which the lands were to be purchased by Gates, and Helen M. Babcock’s interest protected by a contract between herself and Gates. A contract between Gates and Feige, of date February 15, 1888, is also made a part of the bill of complaint. This contract is for the purchase by Feige of one-third of all the benefits and advantages of the contract with the Seminole Lumber Company. Another contract is made a part of the bill of complaint, bearing date October 27, 1887, between Babcock, Gates, and Feige, by which Babcock releases Gates from her right to acquire one-fourth of the property, and reserves only the right to acquire one-eighth. It provides for the employment ■ of John W. Babcock for the term of three years, at an annual salary of $1,000. The bill alleges that Feige went to Millview, Fla., and assumed the management of the business; that, when he arrived there, he found that large lumber contracts had been let by Gates and Babcock; that he continued in charge of the business as manager, and they carried on the business of manufacturing, selling, and shipping lumber and timber, until the 30th day of March, 1889, when they closed down, for the reason that Gates and Babcock refused to furnish their share of the money necessary to carry on the business; that on the 30th day of March, 1889, with the knowledge and consent of Gates and Babcock, he sold out his interest in the copartnership property and assets to Bucki, Bucki assuming to pay the firm liabilities to the extent of $49,000; but that in stich sale he reserved all the rights which he had against his copartners for advances in excess of his share, and the right to call them to an accounting. He alleges that he advanced a large amount in excess of his share; that, by reason of Gates’ and Babcock’s failure to 'contribute their share to the business, they were obliged to borrow $15,000 from the Merchants’ Bank of Pensacola, and to secure the payment thereof by mortgage upon their personal property; that, to meet this mortgage indebtedness when it became due, they were obliged to sell their lumber at a sacrifice. The bill further alleges that the $13,572.99 which the complainant agreed to pay Gates for his interest in the property was based upon the producing by Gates of vouchers showing that the property up to that date had cost him three times this amount, and that the amount which he was really to pay for the interest was to be increased or diminished by so much as the vouchers should show a less or greater sum to have been so paid by Gates; and he charges that the sum paid by Gates up to that date for the property was much less than three times the $13,572.99, and much less than Gates then represented it to be. The bill contains a prayer for an accounting, and for general relief. The answer of defendant Gates to the original bill sets forth an admission of the execution of the written instru ments in the bill, but denies that the Gates-Feige purchase agreement sets forth the true agreement; admits the commencement of the business shortly after the 15th of February, 1888. and that it was carried on until the spring of 1889, under the name of the Michigan Lumber Company; admits a sale by Gates of his interest in the partnership property to Charles L. Bucki, subject to the rights of Helen M. Babcock; alleges that Feige sold his interest in the partnership property at the same time Gates did, and that the effect of such sales was to cut off the right of a further accounting between Gates and Feige; that it was a fact that complainant and Bucki making the agreement they did make was an inducement to Gates to sell to Bucki; that Gates did not know personally of any reservation in the sale of Feige to Bucki, and that, if such reservation was made, it was a fraud on Gates; denies that Feige furnished more than his share of the partnership money, and alleges that, on an accounting, the other parties will owe Gates; alleges.that, by agreement, Feige was the manager of the company, but did not manage it profitably, and abandoned it about April, 1888, by reason of which facts defendant has a claim, against Feige of $10,000; that, before the purchase by Feige, Gates had expended more than $34,000 in advances for the business and as purchase price of the property; that the agreement by which Feige purchased was that Feige was to pay $3,000 more than one-third of the cost of said property and advances thereon, and that an omission to set forth this provision in the contract was a mistake. The answer prays that the answer be treated as a cross-bill for reforming said Gates-Feige contract; that said contract be reformed so as to show Gates’ right to said additional $3,000, and that it be decreed that Feige shall pay it to Gates; that Feige pay Gates any balance found on accounting. Mrs. Babcock filed an answer to the original bill, and a cross-bill, which sets forth the filing of the. original bill, and the proceedings thereon, • up to and including the replications to the answers to the original bill, and alleges the pendency of the suit; that she is the wife of John W. Babcock; and describes his experience as a lumberman, and his discovery of the property in controversy; describes the same in general terms, the same being generally described as the property of the Seminole Lumber Company, Limited; that he gave his information respecting the property to the defendant Gates, who, it is alleged, was then a man of large means, notifying said Gates that it was the wish of Helen M. Babcock to pay for an interest in the property out of the proceeds thereof and of the business carried on in connection therewith, said John W. Babcock to be connected with the business; that Gates was desirous of entering into the arrangements as thus proposed; that pursuant to this arrangement, about October 4, 1887, Gates and Helen M. Babcock entered into an agreement for the purchase of this property, which was followed by a new agreement of purchase, dated October 27, 1887, this agreement being only between themselves, pursuant to which agreement Gates made a purchase of the property from the Seminole Lumber Company, dated October 27, 1887; and it is alleged that, in making the contract and purchase, it was understood that Helen M. Babcock had no means except they should be derived from the proceeds of the property and business, and that Gates agreed that he would make payments and advances for the purchase of the property, and allow Mrs. Babcock to repay Gates for her share of such advances out of her share of the property and business, and that John W. Babcock should be empolyed therein; that, after the purchase was made, Helen M. Babcock and Gates proceeded at once, as partners, to lumbering said property, and that in order to carry on the business, and with the intention and understanding that he would make advances to her, which would be repaid out of the business, Gates made the written agreement of November 12th with Mrs. Babcock, which is set out in the cross-bill; that Gates and Mrs. Babcock, as such pur chasers, and as partners, in the interest of three-fourths to said Gates and one-fourth to Mrs. Babcock, took possession of said property, and carried on such business pursuant to such intention; that John W. Babcock was employed in the business at $50 per month. The cross-bill further sets forth that said property was treated, and intended to be, and was in fact, the partnership property of Gates and Mrs. Babcock; that said business was a partnership business,'and was continued until about the 15th day of February, 1888, when George Feige sought to purchase from Gates an interest in said property and business; that Gates desired to introduce said Feige into the business, by selling a portion of his interest in the property to Feige; that Mrs. Babcock was unwilling to enter into this arrangement, lest it would interfere with her contract with Gates in respect to the property; that her unwillingness was explained to both Gates and Feige, and that she was assured by both of them that her interests would be promoted by the proposed sale from Gates to Feige; and that, relying upon such statements, she consented to reduce her interest in the property to one-eighth, instead of one-fourth, which was accomplished by a contract which was made on or about the 15th day of February, 1888; that said contract was signed by her relying upon said statements and agreements of Feige and Gates, and that no change of understanding or arrangements was made as to her right to pay for her interest out of the proceeds of the property and business; that thereupon Gates sold one-third of the property to Feige by a contract dated February 15, 1888, and that at the same time a copartnership agreement was made between Gates, Feige, and Mrs. Babcock, dated February 15, 1888, which was intended by the parties thereto as the means of lumbering said property, and enabling Mrs. Babcock to pay for her interests therein; that, by means of said contracts, all of the property and the business carried on therewith became the partnership property of Gates, Feige, and Mrs. Babcock, in the shares and interests of 8-24 thereof to Feige, 13-24 to Gates, and 3-24 to Mrs. Babcock; that it became the right of Mrs. Babcock to have the purchase contract with the Seminole Lumber Company, Limited, carried out, and to have said partnership continued, and said business carried on, and said property made use of in said business, for the full term provided by said contract; that neither Feige nor Gates had the right to terminate the same at an earlier date than provided by the contract, without her consent; that, pursuant to the contract agreement, the parties entered into and earned on business. It is further alleged that about June 22, 1888, Gates commenced negotiations with parties for the sale of two-thirds of said business and property, which negotiations resulted in a sale and transfer thereof by him to one Charles L. Bucki; that Feige also sold a third interest in said property and business to said Bucki; that, by such sales and transfers, the entire property and business was transferred to Bucki, the firm dissolved, its business terminated, and Mrs. Babcock was deprived of its advantages and all her opportunity to purchase under it; that Mrs. Babcock did not sell or transfer her said business; that, by the sale above set forth, the business was broken up, and her opportunity to realize out of said property, and pay for her part of the same, was destroyed; that, in respect to said business, her husband, John W. Babcock, acted for her, and represented her. in all respects as fully as she could herself in his place; that Feige and Gates made large profits in the sales they made to Bucki; that the conduct of Feige and Gates and their sale destroyed the business, and her power to proceed therein and save her interest therein, thereby causing her loss and damage to the amount of many thousand dollars; that she was ready to perform the contract on her part all of the time; that she made a tender in May, 1889, of the contract amount falling due in February, 1889; that such tender was made to Gates and the Southern States Land & Lumber Company; that, by the acts of Gates and Feige, she was wholly excluded from and deprived of all her rights in the property and business, the partnership, and its assets, and to the purchase of one-eighth of said property, which was worth many thousand dollars more than she had agreed to pay for it; and that no account of the business has been had. It was the prayer of the cross-bill, among other things, that a partnership accounting be had between the three parties; that a,n accounting be had as to the sale of the property and business, so that the interest of Mrs. Babcock in said partnership business, and in said property and business, be determined and decreed; that the loss or damage she has suffered through the acts and conduct of Feige and Gates be settled and determined, and that Feige and Gates be required to pay the amount due her on such accounting; and that they, one or both of them, be decreed to pay said amounts, and to pay to her an equitable share of the proceeds of the sale of said property; and a prayer for general relief. The answer of defendant Gates to the cross-bill admits the execution of the papers set forth in the cross-bill; admits that John W. Babcock brought to the notice of defendant the property in question; says that Mrs. Babcock was unable to carry out the purchase of October 4, 1887, and that, consequently, the agreements of October 27,1887, were made; that between the 27th day of October, 1887, and the loth day of February, 1888, no agreement as to advances by Gates to Helen M. Babcock other than the agreement of November 12, 1887, was made; that no specific amount was agreed upon to he advanced, and that the arrangement for the advance made by this agreement was a temporary one; that it was through the solicitation and consent of Helen M. Babcock that the negotiations and sale to Feige were made; that the business of the partnership was not profitable or satisfactory to any of the parties, and that its continuation would not have worked out a payment of the interest of Mrs. Bab cock therein; that it was with Mrs. Babcock’s consent that negotiations were carried on for the sale of the interest of Gates in the partnership; that, in making the sale, the parties who purchased the property purchased with notice of the rights of Mrs. Babcock therein, and without prejudice to her rights; that the papers setting forth the sale stated that the sale was made subject to the rights of Helen M. Babcock; that, as to the sale actually made to Charles L. Bucki, the same was made with the knowledge and consent of Mrs: Babcock. In February, 1893, the defendant Gates moved the court to be allowed to amend his answer to the cross-bill, so as to show that when the various contracts Were made, to which Mrs. Babcock was a party, she was then a married woman; that the contracts were made in Florida; that they related to real estate, and, according to the laws of Florida, were ■void. This motion was denied, with leave to renew it on the hearing of the cause. This was done, and it was again denied. The printed record contains more than 1,000 pages of testimony, and the record is not all printed. In February, 1896, a decree was made, in which it is found, in substance, that the said Samuel G. M. Gates and the Seminole Humber Company, Limited, executed the contract dated October 27, 1887, by which said Gates purchased of the Seminole Lumber Company, Limited, the lands and property mentioned in said contract, on the terms therein stated, consisting of pine lands and sawmill property, and ."that Gates and Helen M. Babcock contemporaneously executed the contract of date October 27, 1887, by which Gates agreed to sell to said Helen M. Babcock an undivided one-quarter of said lands and property, upon the terms stated in said contract; that, under said contract, Gates and Helen M. Babcock took steps for lumbering on said lands and operating the mill situated thereon, constituting a part of said property; that, with a view to such lumbering operations, Gates and Helen M. Babcock executed the contract dated November 12, 1887, by which Helen M. Babcock agreed to pay the said Gates interest at the rate of 10 per cent, per annum on all moneys advanced by Gates for the carrying on of said business; that, under the three contracts, said lumbering business was carried on by Gates and Helen M. Babcock until the 15th day of February, 1888; that Gates advanced moneys to carry on the business; that on February 15,1888, Gates and Feige executed a contract by which Gates sold to Feige an undivided one-third of said land and property, and that at the same time Helen M. Babcock and Gates and Feige executed a contract, by which Helen M. Babcock released to Gates the right to purchase the undivided one-quarter of said land and property, and reserved the right to acquire an undivided eighth of said land and property; that, at the same time, Gates, Feige, and Helen M. Babcock executed a contract, dated February 15,1888, by which Gates, Feige, and Helen M. Babcock made and entered into a copartnership under the firm name of the Michigan Lumber Company ; that said three last-mentioned contracts were executéd contemporaneously, and, upon their execution, Gates, Feige, and Helen M. Babcock proceeded to carry on a lumbering business with said land and property, which business was carried on in the name of the Michigan Lumber Company; that, in carrying on the business, Gates advanced certain moneys; that, by virtue of said contracts, Helen M. Babcock was entitled to acquire an undivided one-eighth of the lands and property, and was entitled to have the copartnership business carried on, and to have the share of the profits thereof, belonging to her, applied to the payment of the sum owing by her to Gates for advances made by him, and to the payment of the purchase price for said undivided one-eighth of said lands and property to be paid by her to Gates; that Gates and Feige sold to Bucki all the partnership property of the said Michigan Lumber Company, and it was transferred to Bucki, and, by said transfers, said partnership was terminated; that the sale and transfer made by Gates to Bucki was made by said Gafes without the consent, and against the protest, of said Helen M. Babcock; that, on the 15th day of February, 1889, the sum of $2,500 became due from Helen M. Babcock to Gates, upon the purchase price of an undivided one-eighth of said land and property, and afterwards, and on the 25th day of May, 1889, said Helen M. Babcock tendered payment to Gates, which tender was refused; that the rights of said Helen M. Babcock as purchaser of said one-eighth of said lands and property were preserved. The decree provided for an accounting, and the manner of it, and decreed that— “It will be referred to Hon. Chauncey H. Gage, special commissioner, of Saginaw, to take and state the account between Gates and Helen M. Babcock, and to report the same to this court. Such accounting is to be made upon the files and records of said cause, and the testimony heretofore taken therein. It is decreed that Mrs. Babcock is entitled to her costs upon the cross-bill, to be taxed. “It is also decreed that the $13,572.99 named in the contract of date February 15, 1888, includes the $3,000 which in these proceedings is termed a ‘ bonus ’ to be paid to Gates by Feige for the privilege of acquiring one-third interest in said property; that the balance of $10,572.99 was assumed to be one-third of the amount, with interest thereon, paid by Gates for and on account of the property conveyed to Feige under said contract, prior to such conveyance, but of this assumed amount only such part thereof is payable to Gates under said contract as the vouchers produced by Gates show payment for and on account of the property conveyed by said contract; and that said sum of $10,572.99 assumed to be payable to Gates shall be lessened or increased by so much as said vouchers show payments of a greater or less amount than that sum. ‘ ‘ Feige, under the contracts set out in this bill, paid money to Gates upon the purchase price of his interest in said property, and advanced money for the carrying on of the business; and he paid money to Gates on account of his purchase of the one-third interest in the property by paying it to the Michigan Lumber Company for Gates. It is decreed that Feige is entitled to an accounting against Gates for all the payments and transactions made and had by Gates in connection with the property prior to Feige’s purchase, and for moneys paid Gates after the purchase, and for money paid to the Michigan Lumber Company on - account of purchase.. And he is also entitled to an accounting against his copartners, Gates and Helen M. Babcock, of and for all business transactions and doings of the Michigan Lumber Company, and of and for all moneys and property which each of the copartners have paid to and for the Michigan Lumber Company, and of and for all moneys and property which each of the copartners have received from said company, and of and for all moneys and property at any time owned by said company. The basis upon which the accounting is to be had is that Gates is the owner of 13-24, Feige is the owner of 8-24, and Babcock is the owner of 3-24, of said property and interest in the co-partnership; and, Gates having agreed to furnish Babcock’s share of the contributions, advances, and payments to the company, he is chargeable, on an accounting, with the payment of the 3-24 which Babcock’s interest should make. “By the contracts of the parties, Gates and Feige were each to receive a salary of not less than $1,000 for the first year, 'and not less than $1,500 for subsequent years, and John W. Babcock was to receive a salary of $1,000 each year. These salaries will be allowed for the time in which the respective parties were acting for the benefit of the company, except as they are modified by the court upon the report of the commissioner, on testimony which may be taken before him concerning the connection of Gates with the McLennon mortgage, and further consideration of the testimony already taken upon Gates’ connection with the McLennon mortgage. The salary of J. W*. Babcock will be an allowance to Helen M. Babcock. The time which each of the copartners are entitled to receive the salary, and the amount of salary to which each would be entitled, without reference to the question of Gates’ connection with the McLennon mortgage, will be reported by the commissioner separately from the other items in his report. “It is further decreed that the whole matter in controversy between the parties be refereed to said circuit court commissioner, to take and state an account between Feige and Gates, and between Feige and Gates and Babcock, upon the basis herein indicated, and report the same to the court. In making and stating the account between Feige and Gates of the payments and disbursements claimed to have been made by Gates for and on account of the property purchased by Feige, and for and on account of the business carried on in connection with said property before the date of Feige’s purchase, the commissioner will not allow any payments or disbursements claimed to have been made by Gates for which there are no vouchers ; and’ checks, drafts, or orders payable to Gates or order, Gates or bearer, or payable to bearer, or payable to any party whose name Gates is authorized to sign, shall not, for the purpose of this accounting, be considered as vouchers. The commissioner, in such accounting, will give Gates credit for only such sums paid by him after he and Feige sold out as he has shown affirmatively exceed $50,000, and he shall give him credit for payments in such cases only when such payments have been made with Gates’ money, and have not since been repaid him. Gates is not entitled to receive credit in the accounting for any payments or disbursements made by him after the 15th day of June, 1888, while he acted as the agent for, Bucki. In the accounting, the commissioner shall take, state, and report an account agreeable to the practice of the court, between the parties: ‘ ‘ First. As to the true amount of moneys paid by Gates to the Seminole Lumber Company at the time of the purchase by Feige of his one-third interest in the property under the contract of February 15, 1888, as determined by the vouchers which the said Gates has submitted therefor. “ Second. As to the true amount of moneys before that time advanced and paid by Gates for the Michigan Lumber Company, or on account of the business of himself and Babcock, other than for the real estate, and which Gates claims enter into the $13,572.99, as shown by vouchers produced by him, entitled to be considered under the direction respecting vouchers hereinbefore contained. “ Third. To make, state, and report a true account of all the money received by the Michigan Lumber Company, and a like statement of all the moneys disbursed in the course of operations of said company: (a) From the date of the purchase by said Feige down to the 22d day of June, 1888, when Gates gave his option for the sale. (6) A like account from said date of February 15, 1888, to March 30, 1889, when Feige sold and dis- - posed of his interest therein, (c) A like statement of such account extending from February 15, 1888, to the time of the final delivery of possession to Bucki, or to his assignees, of all the property and assets of the Michigan Lumber Company, and conclusion of its business. (d) To make, state, and report the account, separately, of the said Gates with said Michigan Lumber Company, showing all moneys advanced by him to said Michigan Lumber Company in the course of its business, and all moneys received by him therefrom, exclusive of salary, and showing what, if any, sum he paid on account of the McLennon mortgage, and any sum repaid him from or through the action taken on the McLennon mortgage. (e) To make, state, and report a true account between the said Feige and said Michigan Lumber Company, showing all moneys advanced by him to said Michigan Lumber Company in the course of its business, and all moneys received by him, exclusive of salary, making in both cases rests at the date of the respective sales by Feige and by Gates, so as to indicate the state of the account at the date of such sales, as well as at the conclusion of the business. (/) Also to make and state an account, separately, showing the character and value, as near as may be, of all the assets, independent of land, owned by the Michigan Lumber Company at the time of the sale by Feige and Gates to Bucki, and also the indebtedness, in itemized form, owing by the company at the time of making of such respective sales, and also at the time of the final delivery of the property into the hands of said Bucki or his assignees. “And, for the purpose of such accounting, the said commissioner shall have access to and examine all the records of this case, and all the testimony heretofore taken therein, and no other, except that the commissioner shall take, consider, and return, as a part of his report, testimony of such witnesses as shall be produced, concerning Gates’ connection with the ‘McLennon Mortgage,’ so called. “It is further ordered, adjudged, and decreed that the said George Feige is entitled to receive his costs of this suit upon the oi’iginal bill, to be taxed.” Defendant Gates appeals from the decree, and in an original brief of nearly 100 pages, followed by a supplemental brief of nearly 50 pages, states his reasons for the appeal. They have all had careful consideration, but the interests of the parties and the public do not require a discussion of them all here. It is claimed by defendant Gates that, when Feige and Gates sold to Bucki the business and property, these sales conveyed to Bucki all the interest that both of them had, .and that neither of them after that could require the other to account for the contracts made between each other which resulted in the partnership, and for the business done during the existence of the partnership, and that, therefore, the original bill must be dismissed, and that the dismissal of the original bill would carry with it the cross-bill. The contention of the solicitors for Mr. Gates cannot be sustained, for the reason that the record shows very clearly that neither Mr. Feige nor Mr. Gates expected that the result of the sale to Bucki would relieve either from accounting to the other for the results of the business during the existence of the partnership, nor was it expected by either of them that Mr. Gates was to be released from the contract he made with Mr. Feige, when the latter entered into the partnership, that he would produce vouchers showing the cost of the plant and business up to that time, and that the amount paid for a third interest in the business by Mr. Feige should be adjusted upon the basis of the cost to Mr. Gates, up to that time, upon the terms of the contract, less the $3,000 bonus which Mr. Feige was to pay for being allowed to come into the business. We think the complainant was entitled- to a decree for an accounting.' In this connection we should determine whether the circuit judge erred in decreeing that the commissioner, in making an accounting as to the amount of the cost of the property to Gates at the time Feige became a member of the firm, and of the part thereof payable to Gates, should be limited, in determining the amount thereof payable by Feige to Gates, to the amount for which Gates produced vouchers. If the contract is to be literally construed, the decree is right; but we think the record clearly establishes that Feige was rrot only to pay a bonus of $3,000 for be coming a member of tbe firm, but that he was to pay to Mr. Gates one-third of what Mr. Gates had at that time invested in the business and property; and it would be inequitable in this equitable proceeding, commenced by Mr. Feige, to require Mr. Gates to lose what he had paid out on account of the property and business at the time Mr. Feige acquired an interest in the firm, one-third of which Mr. Feige agreed to pay, simply because Mr. Gates is not able to produce a written voucher showing the payment. We think the decree should be so modified as to allow the commissioner to consider any legal evidence in the case bearing upon that feature of it. The decree provides that the commissioner, in the accounting between Feige and Gates for the business done after Feige became a member of the firm, should not credit Gates for any disbursements made by him after the 15th day of June, 1888, while he acted as the agent for Bucki. We agree with the circuit judge that, in the accounting, the partnership ought not to be charged with any of the debts assumed by Bucki, and that Mr. Gates ought not to be credited with any payments of debts contracted after he had sold to Bucki; but we think, in the accounting, that he should be credited with any payments he may have made of the debts of the firm consisting of Feige, Gates, and Babcock, in excess of the 150,000 assumed by Bucki, even though some of those debts were paid by him after June 15, 1888, and the decree should be modified in that respect. Complaint is made of that portion of the decree giving costs to Feige against Gates. The decree gives Gates affirmative relief to the extent of reforming the contract made between Gates and Feige by finding that it was intended by the parties that Feige was to pay Gates a bonus of $3,000 for the right to purchase a one-third interest in the property. In view of that fact, the modifications made in the decree here as affecting Feige and Gates, and the uncertainty of what their respective interests are, until the commissioner has made his report, we think the matter of costs between Gates and Feige should await the result of the final decree, and the decree will be modified in that respect, and neither of them will be awarded costs in this court against the other. It is urged upon the part of defendant Gates that, in the accounting before Judge Gage, he should be allowed to put in further proof. More than six years have elapsed since this litigation commenced. The parties to it have had every opportunity to put in testimony bearing upon any phase of the case. The -record i« very voluminous. Not all of it appears in the printed record. The printed record contains more than 1,000 pages, and embraces testimony taken at great expense in several States. If there is anything omitted that is essential to the proper disposition of the case, it is the fault of the party omitting it. We think the case should proceed to a speedy determination, and we decline to direct further testimony to be taken except as provided for in the decree. It is claimed by Mr. Gates, among other reasons, that the cross-bill cannot be sustained, because it makes a defense which was equally available by way of answer to the original bill, and that, as Mrs. Babcock takes no decree against Feige, she does not need a decree against Gates to make perfect a decree against Feige. We understand that “ whenever it is necessary to bring all the equities of all the parties fully before the court, that even and complete equity may be done, as well in favor of the defendant as of the complainant, it becomes necessary to file a cross-bill; and this may be done by any or all the defendants, against any or all of the complainants, or by a defendant against his co-defendants, or a part of them, as the nature of the case may require.” Put. Mich. Ch. (2d Ed.) 322; Story, Eq. PI. § 392; Andrews v. Kibbee, 12 Mich. 94 (83 Am. Dec. 766); Farmers & Mechanics' Bank v. Bronson, 14 Mich. 372. We think this case comes clearly within the rule that a cross-bill is designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant' or against some co-defendant. It is difficult to see how the equities of this case could be worked out between the complainant and the two defendants, and between the defendant Babcock and her co-defendant, Gates,- and the complainant, Feige, so as to do justice to all of them, without the filing of the cross-bill. Cornwell Manfg. Co. v. Swift, 89 Mich. 503; Worrell v. Wade’s Heirs, 17 Iowa, 96; Wilkinson v. Roper, 74 Ala. 140. It is also urged that Mrs. Babcock cannot maintain her cross-bill, because, when she entered into the contracts with Mr. Gates, she was under coverture, and, by the laws of Florida, could not lawfully enter into such contracts. Three years and more after this action was commenced, Mr. Gates asked the court for permission to amend his pleadings, so as to enable him to interpose this defense. His application was denied. Mrs. Babcock and Mr. Gates made their contracts with each other, treating each other as residents of Michigan, and so describing each other in the contracts. The record shows the contract of October 4, 1887, was made in Michigan. This contract was changed by the two contracts made in Chicago, October 27, 1887. The contract of November 12, 1887, was made in Michigan, and was dated at Bay City, and Mrs. Babcock and Mr. Gates were both residents of Michigan; and the other contracts were made having in view that the parties were residents of Michigan, and competent to enter into contract relations. All the parties dealt with each other as though there were no disability. Their business relations were commenced, continued, and ended with the belief on the part of both of them that both were competent to make the contracts and engage in the business. In pursuance of her agreement with Mr. Gates, and because of it, Mrs. Babcock surrendered the interest she had in the Seminole Lumber Company contract, which was the right to purchase a one-fourth interest in 146,000 acres of land. Because of thp surrrender of this contract, a new contract was made out between the Seminole Lumber Company and Mr. Gates, it being expressly provided that Mrs. Babcock’s interest in the previous contract should be protected by a contract between her and Gates. A new contract was drawn, in which Mrs. Babcock’s interests were protected, if the contract was valid. Where one has contracted with a married woman, knowing her to be such, and the contract includes a contract of partnership, and the contract has been entered upon, and in part executed, „,and he has received substantial benefit therefrom by the surrender of a contract to which she was a party, and by conducting the partnership business for nearly two years, in an action brought by her to compel him to account for the results of the partnership, and for what he has received by virtue of the contract, is it not too late to plead coverture as a bar to her maintaining her action? Can it be'the law that one can appropriate the fruits of such a contract, and at the same time disavow the contract ? ■ The business relations between Mr. Gates and Mrs. Babcock were entered into, both supposing they had a right to enter into such relations. Business was conducted by virtue of these contracts, on a large scale, for upwards of a year and a half. These relations were terminated by Mr. Gates, both parties still supposing Mrs. Babcock was competent to make the contracts. This litigation was commenced, and Mr. Gates, by the pleadings, admitted the making of the contracts, but claimed that Mrs. Babcock’s acts were such as to release him from any liability to her; and the parties entered upon th¿ taking of the testimony, and a large amount of expense was incurred. The testimony was taken, and the case was ready to be heard, before any suggestion was made that the contracts were not valid. It was not until 1891 that Mr. Gates learned what the law of Florida was in relation to the disability of married women to make contracts in relation to real estate. When he did learn, did he act promptly? No application was made to the court to amend the pleadings until in 1893. It is true, an endeavor was made to excuse the delay. The trial judge had full knowledge of the situation. The case presented by Mr. Gates did not appeal very strongly to the sense of justice of the circuit judge, and, in the exercise of his discretion, he denied the motion to amend. In doing this, we do not think he abused his discretion, and we decline to interfere. Haines v. Haines, 35 Mich. 138; Bussey v. Bussey, 71 Mich. 504; Mills v. McLeod, 94 Mich. 627. It is the claim of Mr. Gates that he sold his interest to Mr. Bucki subject to Mrs. Babcock’s interest in the business. We do not think this claim is sustained by the evidence, but, if it were, Mrs. Babcock would not be bound by it. Her contract was with Mr. Gates, and she had a right to look to him for its performance. Atkinson v. Scott, 36 Mich. 18; Weaver v. Aitcheson, 65 Mich. 285; Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602). We note the claim of counsel that the cross-bill interposes new controversies between- defendants to the original bill, the decision of which is unnecessary to a determination of the controversy set up in the original bill between the complainant and defendants, and thereby becomes an original bill, and that, as there cannot be two original bills in one case, the cross-bill must be dismissed. We also note the claim that the case stated in the cross-bill is not sustained by the evidence, and the claim that Mrs. Babcock, by her husband, consented to the sale to Bucki; but we do not deem it necessary to discuss them. The facts disclosed by the record fully justify the decree, except as herein noted. The decree will be modified in the particulars suggested, and affirmed, with costs to Mrs. Babcock against defendant Gates. The other Justices concurred.	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Hooker, J. In May, 1893, relators, and others, who were doing business under the name of S. Simon & Co., were joint mortgagees in a mortgage given them by Kositchek & Bro., of Alpena. In June of the same year, the sheriff of Alpena county attached the mortgaged property in an action brought by other creditors against the Kositcheks. Simon & Co. and the relators brought separate actions of trover against the sheriff, and Simon & Co. recovered judgment for $3,267, and relators for $505. The jury in the latter case, which was the last case tried, found the value of the stock to be $3,772. Subsequently, Simon & Co. assigned to the relators such part of their judgment as would make the amount due each concern equal to that due the other, and each brought an,action in the Alpena circuit upon the sheriff’s official bond. While these actions were pending, the defendants in such actions paid to the relators and to Simon & Co. the amount of such judgments, interest, and costs, less $425, which was retained; notice having been given by I. S. Canfield that he claimed an attorney’s lien for such amount on said judgments. Thereupon relators and Simon & Co. assigned their respective judgments to one Comstock, one of the sheriff’s bondsmen, he being a defendant in such actions; and thereupon relators and said Simon & Co., through Sloman, Groesbeck & Robinson, their attorneys of record, stipulated with the defendants’ attorney for the discontinuance of said actions, and filed such stipulation. No order of discontinuance was entered. Canfield obtained an order striking said stipulation from the files, and relators ask a mandamus to vacate said order. It is claimed upon behalf of the relators that Canfield was not the attorney of record, but only counsel in each and every of said causes, and that, as such counsel, merely, he had no control over said causes, or lien upon the judgments. The circuit judge returns that Sloman, Groesbeck & Robinson appear upon the records as attorneys, and Canfield and Frank Emerick as counsel; that the evidence showed, and he found the fact to be, that Canfield commenced said actions, and at all times had control of them, and'was recognized as attorney of record by counsel for the adverse parties; that the names of Sloman, Groesbeck & Robinson were placed upon process and pleading by said Canfield out of courtesy; and that they did not appear or take part in any of the proceedings. Relators profess to be able and willing to pay to Canfield a reasonable sum for his services, but deny that he is entitled to the sum claimed by him. Upon this record, it appears that the court has found that the relators’ attorney, Canfield, had a lien upon the judgment rendered against the sheriff. This gave him an equitable interest in such judgment. An action was brought in the name of the plaintiffs against the sureties of the defendant, upon his official bond, Canfield being their attorney. Thereafter plaintiffs undertook to settle with such bondsmen, and, through their Detroit attorneys, stipulated to discontinue such proceeding, without the consent of Can-field, or in any way providing for his pay. Such action having been instituted with plaintiffs’ approval, we think the case is governed by Weeks v. Wayne Circuit Judges, 73 Mich. 256, and Carpenter v. Myers, 90 Mich. 210, and could not be discontinued to the injury of Canfield without his consent. The writ of mandamus is denied. The other Justices concurred.	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Grant, J. The claimant was the daughter-in-law of the deceased, whose wife died in September, 1886. After her death deceased lived with his son, John 0. Boughton, the husband of claimant. The deceased was possessed of some means, and he paid his son three dollars per week for board. John 0. Boughton died in May, 1894, and Darius died six weeks thereafter. The claim presented against the estate was as follows: Board of Darius Boughton from May 14, 1894, to June 26, 1894, 6 weeks,' at $3 per week___________________ §18 Washing for said Darius Boughton from Sept. 6, 1886, to June 26, 1894, 406 weeks, at 50 cents per week---- 203 Booms, extra lights, fuel, and attendance furnished said Darius Boughton from Sept. 6, 1886, to June 26, 1894, 406 weeks, at §3 per week____________________1,218 The case was submitted to the jury upon the theory that there was testimony from which a contract to pay might be implied, and verdict and judgment were rendered for the claimant. The item for board is conceded, but it is insisted that there is no testimony upon which to base an implied contract to pay for. the other items. The deceased lived with his son and daughter as a member of the family, and was .treated as such. There is nothing, aside from the payment of board, to indicate that there existed any other relation. The agreement to pay so much a week for ‘ ‘ board ” excluded any implication to pay for any other services which naturally come within that term.’ There is no testimony to indicate that a word was ever said to the deceased by his son or the claimant that he was expected to pay anything more than the stipulated weekly amount. No contract can be implied where the express contract, in substance, covers the same subject-matter. Schurr v. Savigny, 85 Mich. 144. In order to bind the estate of the deceased, it was incumbent upon the claimant to prove that the deceased knew that Mrs. Boughton intended to charge him for the items for which she now claims, and that he assented to the arrangement. Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201). Not only is there no testimony to show the existence of such an arrangement, but the claimant herself shows that any such intent was purposely kept from him. She testified that something was at one time said between herself and her husband about her making a claim against the estate. She said: “The care of the old gentleman was such that I often told my husband it was no compensation, and my husband said ‘No,’ but that after grandpa died he wanted a claim made. My husband did not want to hurt grandpa’s feelings. Grandpa did not realize that he was a care. * * * My husband said that he did not want to speak about it, because his father would feel hurt., The old gentleman did not realize that he was a care. I cannot recollect that anything else was said upon the subject.” The mere fact that a father, living with his son, contributed something out of his own means as a compensation for his support, is not sufficient to negative the existence of the family relation, and open the door to speculation as to whether there was an agreement to pay such further compensation for maintenance as a jury might think the equities of the case justified. The judgment is reversed, and, inasmuch as no different state of affairs can be shown to exist upon a new trial, none will be ordered. Judgment will be entered in this court for the amount of the board, $18, and interest. The estate will recover the costs of both courts. Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.	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Moore, J. Plaintiff sued defendant to recover for injuries sustained by her from a fall received on a defective sidewalk at about 7 o’clock in the evening of October 7, 1893, which, resulted in severe injuries to her. Mrs. Ottley had been ordered by the proper authorities to construct a new walk in front of her premises, upon a grade recently established. She built a cement walk, which was completed the daj7- before the injury occurred. The walk was not dry, and had not been thrown open to the public, at the time of the accident. The west end of the walk was about 6 inches higher than the walk on the adjoining property. At the east end of the new walk there was a drop of 18 or 20 inches. The city authorities had notice of the situation of the walk. It was at the east end of the new walk that the accident occurred. It is the claim of the defendant that the contractor who built the walk erected at each end of the new walk suitable and proper barriers to exclude the public from using the walk, and that these barriers were known to be in place as late as half past 5 o’clock upon the afternoon of .the accident, and that they had been removed by some evil-disposed person,—just how long before the accident, no one knows. It was also the claim of the defendant that suitable lights were kept on the barriers when it was dark; that upon the evening in question the lights were all prepared, but had not yet been put out, because it was not dark enough to require them. It was the claim of the plaintiff that proper barriers had not been erected by any one; that, when the accident occurred, it was so dark that she could not see the dangerous condition of the walk. It was also her claim that the city authorities, after knowledge of the condition of the walk, had not acted at all. After the testimony was all in, the trial judge was requested to direct a verdict for the plaintiff. This he declined to do, and charged the jury as follows: “The legislature of this State has made it the duty of a city to keep in reasonable repair, so they will be reasonably safe and convenient for public travel, all sidewalks within its jurisdiction. The law does not require that the sidewalks shall be kept absolutely safe, but only reasonably so, and fit for public travel. It is the duty of the defendant city to exercise, through its officers and its agents, a reasonable and supervisory care over its sidewalks, and, within reasonable limits, to be watchful of their condition and safety. The defendant is not bound to extraordinary diligence, but only to an ordinary and reasonable care and diligence. It is not an insurer of safety. It does not undertake to warrant against accidents and injuries. But it does undertake to exercise reasonable care and diligence in respect to the condition of its sidewalks. “The plaintiff in this case bases her claim to recover upon the allegations that the defendant city has been guilty of negligence in the care of its sidewalks, and that she met with her accident and injuries by reason of such negligence on the part of the city. * * * The particular negligence complained of by the plaintiff against the defendant is that this sidewalk, when completed, was left in a dangerous situation; that no danger lights or proper barriers were put there to warn and protect the public against accident. It is undisputed that the walk was ordered and laid upon a grade established by the city, and that the street commissioner was present at some time or times during its construction. “Now, you will determine from the evidence whether or not this walk, when completed, was dangerous, and whether or not, at the time this accident occurred, this sidewalk was in a dangerous situation or condition. If you find from the evidence that, at the time this accident occurred, this walk was in a dangerous condition, and unfit for travel, then it was the duty of the defendant to see that proper barriers were placed there during the-day, and suitable lights at night, to warn the public of this alleged danger,—that is, such barriers and such lights should be placed as would be sufficient to warn persons of reasonable and ordinary prudence of the presence of this alleged danger; and, if the city failed so to do, it would be liable to the plaintiff for any injury which she suffered, caused thereby, and to which she did not contribute. As far as the question of barriers for the daytime is concerned, if they were maintained until 5 o’clock of the day the accident occurred, and then removed by some unknown person, without the knowledge or authority of either the defendant or Mrs. Ottley, there could be n'o charge of negligence for want of these barriers; but if, at the time this accident occur red, the barriers, if there, would not have been a reasonable caution or protection, and if you find from the evidence that warning lights should have been there for the protection of the public, and that none were so placed, and if you further find that the city failed to take any measure or action to see that such lights were so maintained there, the defendant would be guilty of negligence, if you find that such lights were necessary to the reasonable protection of the public.” The jury returned a verdict in favor of the defendant. A motion was made for a new trial, upon several grounds; the only one necessary to notice here being that one of the jurymen, Mr. Taylor, was a member of the common council. The record discloses that the attorney for plaintiff at the time the jury was selected knew that Mr. Taylor was an alderman, and made no objection to him on that account. The motion for a new trial was overruled, and the case is brought here by the plaintiff. The motion for a new trial was properly overruled. Counsel cannot risk a verdict, and, when it is adverse to them, then move for a new trial, basing their application upon facts which were known to them when the verdict was received, which facts they failed to call to the attention of the trial judge. Bourke v. James, 4 Mich. 336; Sleight v. Henning, 12 Mich. 371; Johr v. People, 26 Mich. 427. It is urged in the brief filed on the part of the plaintiff that the city is liable for defects of construction, as well as for defects for want of repair (citing Carver v. Plank-Road Co., 61 Mich. 590; Sebert v. City of Alpena, 78 Mich. 165), and that the city is liable for a dangerous drop in the sidewalk, even when made by a private citizen (citing Shippy v. Village of Au Sable, 85 Mich. 295), and that the city must close the street or sidewalk to all travel, if necessary to protect the public (citing Southwell v. City of Detroit, 74 Mich. 438; Alexander v. City of Big Rapids, 76 Mich. 284). Undoubtedly, these positions are well taken, and, if we read the charge of the circuit judge correctly, they were accepted as true by him. No case can be found, however, that requires the closing of a street to travel because a new sidewalk is in process of construction. The most that is required is that the public shall be excluded from that portion of the walk that is not reasonably safe and fit for travel, while it is in that condition. An effort was made to do this by the contractors. If we understand the position of the counsel for the plaintiff, it is that inasmuch as the city, by its officers, placed no barriers or lights, and the accident occurred, the city is liable, even though the contractor and the property holder had erected barriers and placed lights. We do not think this position can be maintained. All that is required is that the city shall see that the sidewalk is reasonably safe and fit for travel. If the walk is kept in that condition, whether it be done by the contractor, the property owner, or the city, it is to be treated as done by the city, and there can be no liability. The charge of the court was a careful and full explanation of the law as applicable to the case. If the charge is open to any criticism, it is that it was even more favorable to the plaintiff than she was entitled to have it; for it may well be questioned whether there would be any liability, where barriers had been placed as was shown to have been done here, when they were removed by some wrong-doer, and there was no knowledge on the part of the city of the removal of the barriers. Klalt v. City of Milwaukee, 53 Wis. 196 (40 Am. Rep. 759); Mullen v. Town of Rutland, 55 Vt. 77; Raymond v. Keseberg, 91 Wis. 191; Weirs v. Jones Co., 80 Iowa, 351. We do not discover any error in the record. Judgment is affirmed. The other Justices concurred.	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Montgomery, J. ' The village of St. Louis became incorporated as a city by and under Act No. 211, Local Acts 1891. By this act the city was divided into four wards, and it was provided that the city should elect a city assessor, and that such assessor should constitute the representative of the city on the board of supervisors. The general act for the incorporation of cities, being Act No. 215, Pub. Acts 1895, provides for the reincorporation of all cities previously incorporated of a certain class, unless 50 or more of the qualified voters of an existing city shall petition for an election to determine whether the city shall remain incorporated under its previous special act. No such action was taken by the city of St. Louis, and Act No. 215 therefore became operative. In the spring of 1896 the city elected the several relators- as supervisors of the respective wards of said city. Relators appeared at the June session of the board of supervisors, and claimed the right to a seat upon the board. Their claim was rejected, and thereupon they instituted a proceeding by mandamus in the circuit court of Gratiot county to have their claims recognized. After a hearing, such mandamus was granted, and the respondent has sued out a writ of certiorari to this court to review the action of the circuit judge in granting the mandamus. The question turns upon the construction of three sections of Act No. 215, being section 26 of chapter 7, section 1 of chapter 31, and section 2 of chapter 5. Section 26 reads as follows: “The supervisors of the several wards are authorized to perform the same duties in relation to the assessment of property and levying taxes for all purposes in their respective wards as are imposed by law upon supervisors elected in townships, and they shall have the like powers and perform the like duties in all other respects as supervisors so elected, except as herein otherwise provided, so far as such powers and duties are required to be exercised and performed in their wards. They shall represent their several wards in the board of supervisors of the county in which the city is located, and shall have all rights, privileges, and powers of the several members of such board of supervisors: Provided, that any city now having a greater representation upon the board of supervisors of any county than is provided by this act shall continue to have such representation as it may have at the time of such reincorporation, and, if the office of any officer now representing any such city upon the board of supervisors is abolished by this act, the council of such city may annually appoint some suitable person, being a resident elector of such city, to represent the city upon the board of supervisors in the place of such officer whose office has been abolished.” The provisions of this section would seem to be clear and unambiguous, when construed in connection with section 2 of chapter 5, which provides that “in each ward a supervisor * * * shall be elected.” Section 26 defines the duties of such supervisors, and in terms provides that they shall represent their several wards on the board of supervisors of the county. The only proviso is that any city now having a greater representation upon the board of supervisors of any county than is provided by this act shall continue to have such representation. As this city had not previously a greater representation, it is clearly not within the terms of the proviso, unless the language of the proviso is to be controlled by other provisions of the act. It is contended that the proviso to section 1 of chapter 31 should be construed in connection with section 26 of chapter 7. That proviso is contained under the title, “Assessment and Collection of Taxes,” and follows a provision requiring supervisors to make a complete assessment, etc., and is as follows: “ Provided, that any city now incorporated, and which shall become reincorporated under this act,“now having an assessor for the assessment of property and the levying of taxes, such city may retain its present method of assessing property and levying taxes, and such assessor in office at the time this act shall take effect shall remain in office until the expiration of the term for which he was appointed or elected, and until his successor shall have been appointed and qualified.” We' think this latter provision is merely permissive, and that, notwithstanding this proviso, cities incorporated under Act No. 215 are entitled to elect supervisors in the various wards of the city, as authorized by said act, and that there is no fair construction of any provisions of the statute which leads to any other result. The order of the circuit judge will be affirmed. Long, 0. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit.	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Moore, J. The statement of facts prepared by coun-sel for defendant’ is so terse and clear that it is adopted here: “This is an action of assumpsit. Prior to March 14, 1892, plaintiff was the owner of a house and lot in the city of Grand Rapids, Mich., incumbered by a mortgage of $1,850, and some accrued interest and back taxes, which he had placed in the hands of Averill & Frary, real-estate agents, for exchange for property with less incumbrance. Defendant was the owner of a house and lot in Coopersville, Mich., incumbered by two mortgages,'—one of $200 and one of $300, each with some accrued interest. Through the efforts of the real-estate agents an exchange of these properties was effected, the deeds being executed and delivered March 14, 1892. 'The deed from defendant to plaintiff was an ordinary warranty deed, and the covenants in the deed read as follows: ‘And the said Emeri J. Savage and Eunice Savage, his .wife, parties of the first part, their heirs, executors, and their administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever, except two mortgages (one of three hundred dollars, and one of two hundred dollars) given to Isaac Manchester, of Coopersville, Michigan; and that they will, and their heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except two mortgages (one of three hundred dollars, and one of two hundred dollars) given to Isaac Manchester, of Coopersville, Ottawa county, Michigan.’ “Plaintiff’s claim was that defendant was to take his property subject to the mortgage of $1,850, the accrued interest, and back taxes, and give him in exchange therefor $200 and the Coopersville property, subject to the principal, only, of the mortgages of $200 and $300 mentioned in his deed, and that defendant was to pay, not only the interest accrued on them at the time of the trade, but as well what would accrue to the 9th day of April, 1892. Defendant admitted the bargain was as stated by plaintiff, except as to the interest on his mortgages. He paid plaintiff the $200, and deeded him his Coopersville property subject to the two mortgages, but did not pay any interest on them, claiming the bargain was that plaintiff was to take his place subject to the mortgages and accrued interest. March 30, 1892, _ the interest not having been paid, foreclosure proceedings were begun on these mortgages. July 5, 1892, plaintiff paid the mortgages, including the costs of foreclosure. He afterwards brought this suit, and was permitted to recover a judgment, against defendant, for the interest claimed to have accrued on these mortgages to the 9th day of April, 1892, being interest claimed to have accrued at the time of the exchange and for 26 days thereafter. This judgment defendant seeks to have set aside.” The jury, under the rulings and instructions of the court, found for the plaintiff; and it is those rulings and instructions of which defendant now complains, and which he asks this court to review. The first group of assignments of error relates to the opening statement of counsel. A great deal was said by the attorney for the plaintiff in his opening that it would have been well to leave unsaid, but we do not think what was stated was so prejudicial as to justify us in reversing the case for that reason alone. The assignments of error that next require discussion relate to the admission of oral testimony of the agreement of defendant to pay, not only the accrued interest on the two mortgages, but also the interest up to April 9, 1892. Counsel insist—First, that it is an attempt to vary the terms of a written agreement; second, that it is an agreement in regard to real estate, and, to be binding, must be in writing; and, third, that the deeds themselves were the final agreements about the exchange, in which all prior or contemporaneous agreements merged; citing Cook v. Bell, 18 Mich. 393; Abell v. Munson, 18 Mich. 306 (100 Am. Dec. 165); Vanderkarr v. Thompson, 19 Mich. 85; McEwan v. Ortman, 34 Mich. 327; Adams v. Watkins, 103 Mich. 431. It is undoubtedly the rule in this State that you cannot vary the terms of a deed by parol, and that a conveyance of an interest in real estate must be in writing to be of binding force; but we do not understand that this was the purpose of the testimony. It was sought to show by the testimony what was the actual consideration for the giving of the deed. Our understanding is that parol testimony is competent to show the consideration for a deed. See Doty v. Martin, 32 Mich. 462; Strohauer v. Voltz, 42 Mich. 444; Dean v. Adams, 44 Mich. 117; Hyler v. Nolan, 45 Mich. 357; Flynn v. Flynn, 68 Mich. 20. These cases are in point, and establish the correctness of the ruling of the trial judge. Upon the trial, Mr. Goodrich, who was the attorney in the foreclosure proceedings, was allowed to testify what defendant told him about paying the interest. We think this competent, as bearing upon the theory of plaintiff that defendant had agreed to pay the interest. Mr. Goodrich was also allowed to testify that he made a computation of the amounts due on the mortgages at the time they were discharged and paid, and made a memorandum thereof, which he produced, and from which he testified how mtích was due on the mortgages. It is said that the mortgages ought to have been produced, and that Mr. Goodrich had nothing present to base any figures upon, so that it could be told whether or not they were correct. Mr. Goodrich was cross-examined at length about his knowledge of the amount due on these mortgages, and, while it appeared that he was not present when the payments were made, and could not remember what indorsements were made on the mortgages, it was made to appear that the computation was made while the mortgages were in his possession and in process of foreclosure, and for the sole purpose of learning how much was due upon them. We think Mr. _ Goodrich was shown to have sufficient knowledge of the subject about which he was testifying to make him a competent witness. It might be suggested, in this connection, that Mr. Savage was a witness, and was examined about the two mortgages and his payments thereon. He did not contradict the testimony of Mr. Goodrich as to the amount due. The other assignments of error have had consideration, but we do not deem it necessary to discuss them here. The judgment is affirmed. The other Justices concurred.	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Long, C. J. December 12, 1891, George P. Booth and Randall T. Van Vaulkenburg, who were stockholders in the Belding Chemical Fire Engine Company, entered into a land contract and agreement with the Belding Land & Improvement Company of Belding for the purchase of certain lots. It was agreed: First. That Booth and Van Vaulkenburg should have immediate possession. Second. That Booth and Van Vaulkenburg should erect, within six months, upon the premises, a brick factory two stories high, 50 feet wide, and 150 feet long, for the purpose of manufacturing chemical engines, etc. Third. That the Belding Land & Improvement Company, upon the completion of the building, and upon the boiler and engine being set in the building, should pay Booth and Van Vaulkenburg $5,000 in cash. Fourth. That Booth and Van Vaulkenburg should cause to be employed a daily average of 35 men per year for four years next ensuing after said six months. Fifth. That, upon all these conditions being performed by Booth and Van Vaulkenburg, the Belding Land & Improvement Company should, at the expiration of five years, give to Booth and Van Vaulkenburg a warranty deed of the premises, but that, in case they failed to perform any of the conditions, the Belding Land & Improvement Company should have the option to declare the contract void, and should have the right to re-enter and repossess the premises, but upon the condition that, if it exercised such option, Booth and Van Vaulkenburg were to have the right to remove from the premises all machinery, boilers, engines, shafting, tools, etc., and that they were to have a reasonable time for that purpose. In August, 1892, the Belding Land & Improvement Company claimed that the work had not progressed as rapidly as agreed, and refused to pay over the $5,000 until the words “boilers” and “engines” were stricken out of the fifth paragraph of the contract, and it be given a bill of sale of the boiler and engine, to be used in the building, by Wiennett & Bauer, from whom Booth and Van Vaulkenburg had purchased them. The contract was so modified, and the bill of sale given. The building was completed, and the boiler and engine placed therein. Some time during the summer of 1892, the defendant had loaned to Wiennett & Bauer something over $2,000, and had taken a note therefor, and in the month of December she took as security from them a chattel mortgage upon certain personal property, including this boiler and engine. Thereafter she took two bills of sale of this property covered by the mortgage, but did not include the boiler and engine. A few days afterwards, and on January 9,1893, the defendant, who had not learned until then that the boiler and engine were left out of the bills of sale (said bills of sale having been taken for her by her son), was advised that the Belding Land & Improvement Company claimed them as a fixture, that company having gone into possession of the property at that time. The defendant thereupon purchased the whole of the plant from the Belding Land & Improvement Company, taking a warranty deed therefor, and went into immediate possession. Wiennett & Bauer had purchased this boiler and engine from the Lansing Iron & Engine Works, the plaintiff in this case, under a written contract, by the terms of which the title and right of possession were retained by the Lansing Iron & Engine Works until the property was fully paid for. Wiennett & Bauer having failed to make payments under the contract, the plaintiff made inquiry in reference to the boiler and engine, and for the first time learned that the defendant claimed title. Demand was made upon her for the property, which she refused to surrender, and this action was brought in trover to recover its value. In the contract between plaintiff and Wiennett & Bauer, it was provided that the boiler and engine and fixtures therewith should be used in Belding, Ionia county, and that the vendees were to retain the use so long as they took reasonable care of the machinery, and were not in default in payments; but in case of default or failure of payment of any part of the price, or interest thereon, at the time and in the manner specified in the contract, or if the vendees should attempt to sell, assign, or dispose of the same, or remove, or attempt to remove, the same from Belding, that the Lansing Iron & Engine Works might take the property into its possession, and retain it as its property, or sell it at private sale, and apply the proceeds on- the contract. The manner in which the boiler and engine were placed in the building at Belding is described by Mr. Barnes, the president of the plaintiff company, as follows: “We found the boiler and engine located in the large brick building at Belding. The boiler was bricked in, or arched in with brick. Could not say whether the arch formed a part of the side of the building against which the boiler set, or not; but the arch that covered the boiler was connected with the outside wall of the building. The boiler room in which this boiler was placed was all brick, and joined onto the main building. I think the boiler could have been taken out of the door without removing any of the outside walls, although the foundation and arches over the boiler would have to be torn down; also, the smokestack that goes through the roof would have to be removed. This boiler and engine were placed in the building as permanently and solidly as ever I saw a boiler and engine placed in a building.” On the trial, it was disputed whether or not the boiler could be taken out of the building without injuring the outside walls, some of the witnesses testifying that it could, and others that it could not. It appears, however, that the engine was placed upon a stone foundation, and fastened with rods and bolts which went down through the foundation and clinched at the bottom; that the boiler was arched over with bricks, with rods running through the boiler, and stayed by cleats on the outside of the building to the outside of the arch over the boiler on the inside of the building; also, that there was a smokestack that went up through the roof, which would -have to be taken down to take the boiler out. There were steam pipes running from the boiler, through the brick walls, connected with the engine, and connected also by belts, pulleys, and other machinery with the engine. It also appears from the testimony of Mr. Clark, who made the contract on behalf of the Lansing Iron & Engine Works with Wiennett & Bauer, that he had been told by them where the engine and boiler were to be placed, arid for what purpose; and the testimony of Mr. Barnes shows that the plaintiff furnished blue prints to purchasers, showing how engines and boilers should be set, and that these in question were set according to the prints, and that this boiler and engine were not portable. At the close of the testimony in the case, the court charged the jury as follows: “Now, gentlemen, a title can be surrendered upon notice of forfeiture, but this gave the improvement company no better title than Booth and Van Vaulkenburg obtained from Wiennett & Bauer. They had treated it as personal property. This lady, the defendant in this case, claims that she had a chattel mortgage upon this property, taken soon after it was put in this building. That, in the judgment of the court, was notice to her of the character of the property, and she could not come in here, and contend she was an innocent purchaser of the property, by reason of afterwards obtaining a deed of the real estate upon which this property stood. So, I say to you, gentlemen of the jury, that, under the undisputed evidence in this case, your verdict must be for the plaintiff.” The court further charged: “There is no question in this case but what the title to that property was reserved, and is now in the Lansing Iron & Engine Works.” Under this charge, verdict and judgment were entered in favor of the plaintiff. Defendant brings error. The only question in the case is whether, under the facts here stated, this boiler and engine are to be treated as personalty, or whether they became so affixed to the realty that they passed to the defendant under the deed taken by her from the Belding Land & Improvement Company. The controlling principle in determining the question of fixtures is the intention of the parties. It is well settled in this State that the vendor may retain title to personal property sold until paid for, and that the vendee cannot, before his title becomes absolute, pass a good title, and that the good faith of a purchaser from the vendee is immaterial. Nor is the question of notice of the vendor’s rights material. Lansing Iron & Engine Works v. Walker, 91 Mich. 409 (30 Am. St. Rep. 488); Gill v. De Armant, 90 Mich. 430; Thirlby v. Rainbow, 93 Mich. 164; Marquette Manufacturing Co. v. Jeffery, 49 Mich. 283; Pettyplace v. Manufacturing Co., 103 Mich. 155, and note. In the first case cited, the plaintiff sold to one Myers a boiler, engine, and fixtures under a similar contract to the one in controversy, retaining the title until the property was paid for. The property was to be removed to the township of Sandstone, and was taken there. The boiler was bricked in and arched up, and the engine was set upon brickwork, and bolted down to the foundation. Myers owned an undivided interest in the real property where the boiler and engine were placed. About a year after the boiler and engine were placed in this mill, Myers conveyed the real estate by quitclaim deed to the defendant. Payments became due under the contract. Thereafter demand was made for the boiler and engine. Defendant refused to surrender them, and trover was brought to recover the value of the property. The court directed verdict for the plaintiff for the balance due on the contract. The defendant contended that the case should have been submitted to the jury upon the question of fact raised by the testimony as to whether the purchase made by the defendant from Myers was in good faith, for a valuable consideration, and without notice of the claim of plaintiff against the property purchased. The court refused to give such request. It was said by this court: “ There was nothing done by plaintiff indicative of an intent to permit the machinery to be so annexed to the realty as to change its character. The state of the title to the realty, and the conduct of Myers regarding the machinery, negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged. The circumstances of the purchase by defendant clearly indicate that he took the entire interest in this machinery, while he took but an undivided interest in the realty.” The judgment was affirmed. It was held in that case that it was ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Mich. 777. In the first of these cases it was said by this court: “All the time, therefore, the parties have had title to the machinery distinct from their title to the land, and this fact of itself is conclusive that the former was personalty; for, to constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to another undivided interest be personalty. It must be the one thing or the other. And the position which is taken by Lee in this case involves this absurdity: That Kaufman, at the time when he and Kinney were severally the owners of an undivided half of the land, might have sold that, and, as a necessary consequence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be. the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an undivided interest in the land only.” In the present case, every person connected with the matter, at some time during the dealing, regarded and treated this machinery as personal property, and not as a fixture. At the time of the sale to Wiennett & Bauer, they had no interest in the realty. They placed the machinery in position in the mill, the title to the mill being in Booth and Van Vaulkenburg under their contract with the Belding Land & Improvement Company. Booth and Van Vaulkenburg forfeited their contract, and the company took possession of the land, not with the understanding that this machinery belonged to and was a part of the realty, but that the title to it was in Wiennett & Bauer, from whom it demanded that a bill of sale should be given. The defendant also regarded the machinery as personal property, as she took a chattel mortgage from Wiennett & Bauer on it as security for her debt from them, though afterwards, and without her knowledge, her son, in taking the bills of sale of the property, left out the boiler and engine. It is undoubtedly true that she presumed, in making the purchase of the realty from the Belding Land & Improvement Company, that she was acquiring title to the boiler and engine; but we think there is nothing in the' case which indicates that it was the intent of any of the parties that this machinery should be so annexed to the realty that it should become a part of it. As was held in Wheeler v. Bedell, 40 Mich. 693, there is no universal rule by which the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned. In Colemanm v. Manufacturing Co., 38 Mich. 30, the court, commenting upon the line of authorities which seems to regard the manner of attachment to the realty as the test, say: “This, however, is a very extreme view, and is hardly compatible with the tenor of our own previous decisions.” If the manner in which the boiler and engine were attached were to be treated as the sole" test, there might be some force in. defendant’s contention; but in view of the fact that there was never unity of title of the realty and the personalty in one and the same person or persons, and of the manner in which the property has been dealt.with, together with the respective interests, we are compelled to hold that the defendant did not acquire title under her deed from the Belding Land & Improvement Company. The court was therefore correct in directing verdict and judgment in favor of the plaintiff. The judgment must be affirmed. Grant, Montgomery, and Hooker, JJ., concurred. Moore, J., did not sit.	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Montgomery, J. Complainant, in January, 1895, became the purchaser from the State of the 78.89 acres of land in controversy, under a tax deed; the State having become the purchaser at the annual tax sale in December, 1893, the lands having been sold for the delinquent taxes of the year 1891. This bill is filed to quiet complainant’s. title under his tax deed. It is claimed that under the law of 1889, as amended by the law of 1891, lands assessed for taxes of that year, upon which the taxes were unpaid, must be returned delinquent to the county treasurer in March, 1892, and that section 51‘of the act provides that all lands returned delinquent shall become subject to sale one year from the 1st day of July next after their return, and that by section 62 these lands could be sold on the first Monday in May next following the date at which they became subject to sale, so that they could not have been sold under that act before the first Monday in May, 1894, and that by section 68 the owner can redeem at any time previous to one year from and after the 30th day of September next succeeding such sale; so that, if these lands had been sold under the act of 1891, they would have been subject to redemption until September 30, 1895, whereas under the amended law the sale was made in December, 1893, and complainant’s deed was executed in January, 1895. It is claimed that the amended law of 1893 does not apply to these lands at all, and that the act of 1891 is .yet in force as to them. It is conceded that some parts of the act of 1893 seem to contemplate that the provisions of that act -shall apply to the sales of certain lands returned delinquent for taxes of previous years. Section 60, Act No. 206, Pub. Acts 1893, is as follows: “All lands which have been or may hereafter be returned to the auditor general as delinquent for taxes, and upon which any taxes are now or shall hereafter remain unpaid, after their return to the auditor general under the provisions of this act, or to the several county treasurers of the State under the provisions of Act No. 200 of the Public Acts of 1891, for the period of one year or more, shall be subject to disposition, sale, and redemption for the enforcement and collection of such tax liens, in the method and manner as hereinafter provided.” These provisions would seem to be clear. But it is contended that the provisions of section 125, which reserves all rights which have accrued to any person under-the previous tax laws, and section 126, which, after repealing contravening acts, provides that such repeal shall not destroy or affect any rights which may have accrued or which may hereafter accrue under such acts or parts of acts while the same were in force, are inconsistent with the provisions of section 60, and indicate that it was not the intention that proceedings to enforce the collection'of the' tax assessed under the law of 1891 could be taken under the law of 1893. It is asked, “Is not the right to own and hold property one of the dearest vested rights known to the law?” The answer is, of course, obvious. But we think it clear that section 125 and section 126 were not directed to the reservation of these- rights, but to the protection of such rights as accrued tmder the -previous acts. The right of defendant or his grantors to own this property was not derived under the tax laws. It is next said that section 71 of the tax law of 1893 shows that the legislature did not intend to shorten the periods of sale and redemption of lands delinquent for the tax of 1891. This section gives the form of the certificate of sale, which contains the statement that the purchaser will be entitled to a deed of conveyance in one year from the 30th day of September next following. It is evident that, in copying this certificate into the law of 1893, a mistake occurred, as it was taken bodily from the certificate provided for by the law of 1891. But other sections of the statute of 1893 make the intention of the legislature clear as to the date of redemption. Section 70 provides that certificates shall be given to each purchaser of the lands and interests bid off by him, showing the year and the tax for which he has purchased, and also the amount thereof, and of all other taxes paid by him at the time of such purchase, stating that he will be entitled to a deed after the period of redemption provided for in section 74 has expired. Section 74 provides that “any person owning any of the lands sold as aforesaid, or any interest therein, may, at any time within one year from and after such sale, redeem any parcel of such lands, or any part or interest in such lands,” etc. These provisions make it clear that the period fixed by law for redemption was 'one year, and the original owner cannot be con-c'erned as to the form of the certificate given to the purchaser, nor would it be material if no certificate was given at all. The law fixes the time within which redemption can take place, and his rights are not affected by the evidence of purchase which the statute has provided shall be furnished to the purchaser. It is next contended that, if the law of 1893 be construed to apply to the taxes for the year 1891, it hastens the time of sale of lands delinquent for taxes, and cuts down the period of redemption provided by the previous law, and is to that extent unconstitutional, in that it violates section 10 of article 1 of the Constitution of the United States, prohibiting enactments by the State impairing the obligation of contracts, and article 6, § 32, of the Constitution of Michigan, in that it deprives persons of their property without due process of law. We think neither of these positions is tenable. A labored argument is made to show that the relation between the State and the owner of the land is a contract relation, for the reason that the taxes assessed become a debt to the township from the person to whom they are assessed. But the proceeding is essentially in invitum, and the proceeding on a sale of land is a remedy for the delinquency of the taxpayer. The law affecting the remedy is in such cases subject to amendment, even though the time fixed for the sale or redemption be shortened. 25 Am. & Eng. Enc. Law, 410; Black, Tax Titles, § 353; Baldwin v. Ely, 66 Wis. 171; Negus v. Yancey, 22 Iowa, 57. Defendant relies upon Cargill v. Power, 1 Mich. 369, which case proceeds upon the view that the period of redemption on a mortgage sale, as fixed by statute at the time the mortgage was executed, is to be deemed a part of the engagement of the parties. No such construction can be placed upon the statute here under consideration. There was no agreement between the State and the taxpayer as to the period of redemption. It is contended that under the law of 1893 there was no provision for any private sale of State bids until after the period of redemption had expired, and that it was the duty of the county treasurer to offer the land held on State bids for sale at the next annual sale. The distinction claimed is that, when lands are bid off to the'State for taxes, they remain State bids until offered for sale the second time, under section 78, and if again bid off to the State, and not redeemed, when redemption expires they become State tax lands, and that they may then be sold at private sale, under section 84. It is evident that the provision for the sale of State tax lands at private sale is not one for the benefit of the original owner, as the period of redemption fixed by the statute is precisely the same whether the State or an individual becomes the purchaser. Section 78 provides that'—• “All lands heretofore or that may be hereafter bid off to the State for taxes, which have not been redeemed or otherwise disposed of, shall be offered for sale by the county treasurer at the regular annual tax sales.” Section 84 provides that— “Any person may purchase any State tax lands by paying therefor the amount for which the same was bid off to the State, with interest on the same at the rate of 8 per cent, per annum from date of sale, together with the other taxes remaining a lien on such lands at the time of the purchase so made, with the interest thereon at the rate provided in this act. Upon making payment as above, such purchaser shall be entitled to and receive a certificate and a deed conveying all the right, title, and interest of the State to such tax lands acquired or accrued by virtue of the original salp or sales to the State.” The contention of defendant has some support in the fact that the legislature in 1895 apparently deemed it necessary, or at least wise, to amend section 84 by inserting “State bids” before the words “State tax lands.” This is, negatively, perhaps, a legislative construction of the previous act. On the other hand, it is evident that the auditor general’s department construed the words “State tax lands” to include all lands of which the State had become purchaser, either upon the original sale or upon a second sale to the State. Turning to section 70,' we find a use of the words ‘ ‘ State tax lands ” consistent with this construction, and which, we think, shows the sense in which the term “State tax lands” was used. This section provides, in substance, that, in case a sale of lands cannot be made at the annual sale, the county treasurer shall bid off the same in the name of the State, and in such case the county, township, school, and other taxes assessed on the lands so bid off to the State, and the interest and charges thereon, shall remain a lien upon said lands, and any person or persons who shall afterwards purchase such lands of the State, as State tax lands or otherwise, shall be liable for, and shall pay, all taxes then remaining unpaid. We think the sale was regular. It is claimed that the judgment is void for the reason that on the petition and published list the dollar mark does not appear. The figures were divided in such manner as to indicate a place for dollars and cents, and in the judgment they wei’e sufficiently designated. We held in the case of Millard v. Truax, 99 Mich. 159, that a judgment entry was insufficient if it failed to show any dollar mark, or anything in terms to indicate that money was intended. This rule is supported by Cooley, Tax’n, (2d Ed.), 529, but, we think, should not apply to other proceedings in the course of taxation. See Black, Tax Titles, § 117. It is claimed that there was no sufficient proof of the publication of the petition. The affidavit is sworn to by a Mr. Tinklepaugh, who swears that he is printer and publisher of the Kalkaska Leader, and who swears positively to the fact of publication. The statute (section 66) provides, “Any person familiar with the facts may make an affidavit as to the publication required.” It is claimed that, as the affidavit does not contain a statement that the person making it is familiar with the facts, it is insufficient. We think this contention is without force. The intention and purpose of the statute were to authorize any person who was able to swear to the facts to make the affidavit, and the fact that he swears to the facts is evidence of his ability to do so. It is contended that there was no decree entered in the case. The statute providing for the decree (section 67) provides that it shall have the usual caption of decrees, and shall be substantially in the following form: “In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for Taxes Assessed Thereon,” etc. In this case the decree was entitled, “State of Michigan. The Circuit Court for the County of Kalkaska, in Chancery. State of Michigan, Complainant, vs. C. P. Sweet and Certain Other Delinquent Taxpayers of Said County, Defendant.” Following this, the usual caption, and thereafter, “In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for the Taxes Assessed Thereon.” We think this was clearly enough to identify the proceedings, and that the previous entitling was not' misleading, and, although irregular, may be treated as surplusage. The other questions presented relate to the regularity of the proceedings prior to the decree. We must hold that these questions were all foreclosed by the decree. In Cole v. Shelp, 98 Mich. 58, we held that every owner of land is presumed to know the law, and that he knows that his land is subject to taxation. The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to the validity of the tax. The purpose of the statute is to give every person his day in court, in an equitable proceeding. We are cited to the case of Fowler v. Campbell, 100 Mich. 398, in which it was held that where lands were improperly assessed to the estate of R. M. Risdon many years after the estate had been closed, and where there was no personal service upon the resident heirs, the court was without jurisdiction to grant the decree. This case was put distinctly on the ground, however, that personal service was required by the statute then in force.' Under the law of 1893, no personal service is required. The notice by publication is notice to all landowners Avithin the county, and the question for adjudication as to the lands named in the published list is whether there is a tax due to the State from the owner. . This includes the question of whether it is properly assessed, and whether proper steps have been taken to charge the land after the assessment. If the owner permits the case to proceed to decree, all these questions become res adjudícala. The statute (section 70), in terms, provides that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation, and that in such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same' aside. There is no claim in this case either that the taxes had been paid or that the lands were exempt from taxation. This construction of the law may, in particular cases, work a hardship; but the law is the outgrowth of many years of investigation and experience, and was conceived by the lawmakers to be the best measure which could be adopted, having in view the purpose of compelling the owner to pay his taxes promptly, and it is not the province of the court to fritter away its plain provisions by forced construction. The decree of the court below will be affirmed. Long, 0. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit. The distinction sought to be drawn by counsel between “State bids” and “State tax lands” is not the precise distinction recognized by the auditor’s department. Lands bid to the State are there regarded as “State bids ” before, and “ State tax lands ” after, the expiration of the redemption period. In this connection it will be observed that the statute (section 78 et seq.) does not in terms provide for a second bidding off to the State, and, in practice,'lands once bid to it are merely carried upon the State books until purchased by individuals, either at the annual sales or at the office of the auditor. In the present case, the lands were bid off to the State in December, 1893, and complainant bought at private sale January 15, 1895, after the period for redemption had expired, and after one regular public sale had intervened.—Reporter.	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Moore, J. Mrs. Rhea presented a claim against decedent’s estate as follows: Wages from May SO to July 3, at $15, one and one-half months............................... $23 50 Wages for attending store nine months, extra.-- 45 00' Value of cottage and store building and ground promised claimant by deceased for services_____ 2,500 00 Work and labor done for deceased at his request, agreed to be paid for by his property known as the “Cottage”__________.................... 2,500 00 Interest at 6 per cent, after July 3, 1894________ Work and labor done for deceased at his request-. 2,500 00 Interest at 6 per cent, after July 3, 1894........ The commissioners allowed claimant $1,720. An appeal was taken to the circuit court, where a jury rendered a verdict in favor of claimant for $2,790. The estate appeals. Jacob Meyers died in June, 1894, at Grand Rapids, where he had lived many years. At the time of his death he left no children, but left an estate of upwards of $20,000. His wife died in June, 1889. ■ At this time Mrs. Rhea was a resident of Clyde, N. Y. It is the claim of Mrs. Rhea that Mrs. Meyers desired Mrs. Rhea to come on to act as housekeeper for Mr. Meyers; that Mr. Meyers telegraphed for her, and that she arrived three days before Mrs. Meyers’ death. The evidence discloses that for many years before his death Mr. Meyers had been a hard drinker, and that the habit was worse after his wife’s death. When he was under the influence of liquor, he was unfit to do business, and was given to squandering his money, and making foolish bargains. It is the claim of Mrs. Rhea that she acted as Mr. Meyers’ housekeeper and cook, and that when he was ill or drunk she acted as his nurse, and took charge of his money and business; that Mr. Meyers knew his failings, and instructed Mrs. Rhea, when he began a spree, to take charge of his money, watch, diamonds, and keys; that she did this, and, when he got sober, returned them to him; that when drunk Mr. Meyers had to be watched constantly, as he would fall and hurt himself, and would drink anything within reach, even though it was hurtful; that he would light matches and. cigars, and throw them down while on fire, imperiling his person and property; that when drunk his habits were filthy; and that she had to and did look after him. It is also claimed by her that she found the work so hard that she left Mr. Meyers, and went to work as a cook for Mr. Stevens, for $8 a week, and board for herself and daughter. It is her claim that Mr. Meyers came to her there, and urged her to return; that she at first declined, but that she finally consented to go, upon his promise that if she would go back he would give her $15 a month, and the cottage where he then lived, for her services, and that this was a renewal of a promise he had made to her before. It is her claim that under this agreement she went back, and performed services for him of the character already described until his death, a period of nearly four years; that at the time of Mr. Meyers’ death he had paid her in part, but had not deeded or willed her the cottage. On the hearing she introduced testimony tending to support her claim, and it is evident that the jury believed her claim to be established by the evidence. It is claimed for the estate that this contract, even if established, is not good, because it lacks definiteness, and because it cannot be ascertained what was meant by the parties when they spoke of the “Cottage.” It is said to be impossible to tell whether the parties intended to include simply the building in their agreement, or whether land was to be included, and, if land, how much. We do not think this contention can be sustained. The evidence discloses that a piece of land 49 feet front and 222¿ feet deep, with the cottage upon it, was bought by Mr. Meyers, eight years after he purchased the land adjoining it. Some of the testimony is that he always referred to this purchase as the “Cottage,” and the jury were justified in concluding that Mrs. Rhea and Mr. Meyers understood each other with reference to the real estate Mrs. Rhea was to have, if she performed her contract. It is also claimed on the part of the estate that the contract is void for all purposes, because: “First, it is founded upon a pretended verbal agreement to convey land, and is void under the statute of frauds; second, because there was no such part performance as would take it out of the statute; third, because plaintiff was never let into possession, and never made any improvements,”—and that the jury should not have been allowed to consider it in estimating the value of plaintiff’s services, or the amount she was entitled to recover from the estate. The questions thus presented by counsel were at issue in the case of In re Williams’ Estate, 106 Mich. 490'. We think this case must govern the case now under consideration. In that case, Justice McGrath entered into a full and detailed discussion of the issues involved. His opinion was so recently handed down that it is not necessary to review the authorities here. We do not think there was error in the trial of the cause. Judgment is affirmed. The other Justices concurred.	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Hooker, J. The defendants, on December 29, 1871, while residents of the State of New Jersey, executed a bond for $6,000, payable January 1, 1873, interest payable semi-annually, accompanied by a mortgage upon New Jersey land owned by defendant Catherine M. El well, the defendant John A. El well having signed the bond as surety. The defendants paid interest on the bond regularly up to January 1, 1877, the last payment made by them being on January 3, 1877. On January 10, 1877, they joined in a conveyance of the mortgaged premises to Christine H. Arkell, for $14,500, subject to said mortgage, the property being then worth $20,000. In July, 1877, the defendants l’emoved to Michigan, where they have since resided, giving plaintiff no notice of their removal, and paying no further attention to the matter of their indebtedness. Christine Arkell paid the interest upon the bond until December, 1891, when she sold the property to James W. Arkell, and he paid interest to July 1, 1892, since which time no interest has been paid. In 1893, foreclosure was commenced in the chancery court of New Jersey, and the premises were bid in by the plaintiff for the sum of $4,300, leaving a deficiency, including costs, of $2,401.15. The defendants were not made parties to the foreclosure proceedings, and were ignorant of them until after the sale had become absolute. This action was begun in the circuit coui't for the county of Gratiot, to recover the deficiency, upon the bond. The defense is the statute of limitations, and the court held that the plaintiff’s action was barred by the statute of Michigan, and that the statute of New Jersey had no application. It was further held that the plaintiff .should, have brought its action within 10 years after the defendants became domiciled in Michigan, to prevent the claim from being barred by the Michigan statute, and that the payments of interest by the Arkells were not such payments by defendants as to arrest the running of the statute. Counsel for the plaintiff contends: 1. That the court erred in finding that the statute of Michigan barred the claim, inasmuch as the plaintiff had no knowledge that the defendants resided in Michigan. 3. That the payments made by the Arkells were payments upon the debt, and for the benefit of the defendants, and had the effect of arresting the running of the statute, the same as though made by the defendants. It is a uniform rule that the law of the forum applies, and therefore it is the statute of limitation in force in Michigan, and not that of New Jersey, which must govern. See 1 Wood, Lim. § 8; Howard v. Coon, 93 Mich. 442. When the defendants came to Michigan, the statute had begun to run, the bond being due. No provision of our statute relieves a foreign plaintiff from the force of the statute because he is ignorant that the defendants have removed to Michigan; it is only when the defendants are absent from Michigan that the statute is arrested. These defendants were residents of the State continuously for over 10 years after the statute commenced to run, and we are not advised of any authority which suspended the statute by reason of plaintiff’s want of information concerning their whereabouts. There is nothing to show that the payments made by the Arkells were other than payments for their own benefit, to relieve the premises from the incumbrance. In Littlefield v. Dingwall, 71 Mich. 223, it was said that payment by a joint debtor does not arrest the running of the statute against his co-defendant. Rogers v. Anderson, 40 Mich. 290; Ottawa Probate Judge v. Stevenson, 55 Mich. 320; Holcomb v. Sloan, 39 Mich. 173; Howard v. Coon, 93 Mich. 442. This is contrary to the doctrine laid down in the case of Pears v. Laing, L. R. 12 Eq. 56, and possibly Barrett v. Prentiss, 57 Vt. 300, though that case is perhaps distinguishable. See, also, Emory v. Keighan, 88 Ill. 488, where it is sáid that grantees of a mortgagor may be affected by payments made by the mortgagor upon the debt secured by the mortgage after the statute has run. It is, however, the law here, whatever the rule may be elsewhere, and we think it accords with the weight of authority. The theory upon which part payment takes a case out of the provisions of the statute is that it may be supposed to imply a new promise to pay the debt; and the cases hold that this result will not follow where the payment is accompanied by circumstances which preclude such inference. See A’Court v. Cross, 3 Bing. 329; Tippetts v. Heane, 4 Tyrw. 772; Linsell v. Bonsor, 2 Bing. N. C. 241; Bateman v. Pinder, 3 Q. B. 574; Collyer v. Willock, 4 Bing. 313; Wakeman v. Sherman, 9 N. Y. 85; Chambers v. Garland, 3 G. Greene, 322. This is the rule in Michigan. Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508. And, where the payment is made by another, it has been held that such other must be one authorized to make a new promise on behalf of the debtor for the residue. Brown v. Latham, 58 N. H. 30 (42 Am. Rep. 568); Harper v. Fairley, 53 N. Y. 442; Littlefield v. Littlefield, 91 N. Y. 203 (43 Am. Rep. 663). And see 1 Wood, Lim. § 101 et seq. There is nothing in this record to show that any such authority was given to the Arkells. Presumably, the payments were made upon their own behalf, to save their estate; and we cannot say that an expectation on the part of the defendants that they would pay (if we may infer that) was tantamount to authorizing or directing them to bind defendants by a new promise. We are therefore of the opinion that the circuit court was not in error in his conclusion. The other Justices concurred.	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Long, C. J. In October, 1892, Charles H. Child, of Cleveland, Ohio, claiming to be the owner of valuable patents for the construction of vapor stoves, came to Grand Rapids, and interested with himself T. J. Lucas, one of the complainants. Together they interested other parties in the formation of what was called the Grand Rapids Vapor-Stove Company, Lucas claiming that he had investigated the proposed business, and representing it as very profitable. A prospectus of the business was shown, exhibiting large profits. The defendants, together with Lucas and Child and some other parties, became the stockholders in the company. Child transferred his patents to the company, and received therefor $5,000 of the capital stock. The company was capitalized at $25,000, but at that time only $18,500 was paid in by the stockholders. None of the stockholders had ever had any experience in the business, and they claim to have invested in it on the representations of Child and Lucas. Lucas was made manager of the company at a salary of $100 per month, because he was one of the promoters, and claimed to have posted himself in the business. He and Child proceeded to purchase machinery, tools, and stock suitable for manufacturing stoves under the Child patents, and Mr. Child was to get up the patterns for the stoves. The business was commenced in a rented building. It was represented to the stockholders that the business could be conducted on the capital paid in, and that several thousand stoves could be manufactured the first year. The stoves -which were to be made the first year were contracted to Leonard & Sons, of Grand Rapids. A large quantity were manufactured and delivered to this firm, and by it placed on the market; but the stoves failed to work, and were returned by the public to Leonard & Sons, and by it turned back to the company. Stoves commenced to come back early in the season, and continued to come back during the whole year. A large quantity of materials had been bought for the construction of the stoves, similar to those put. out, which became practically worthless, -so that the main business of the company after that time consisted in attempting to fix over the old stoves, and to devise some new stoves which would prove marketable. The money which had been paid in had been expended, and the company commenced borrowing at the bank to continue the business. In June, 1893, a meeting was called to arrange for the indebtedness. $7,500 had been borrowed at the National City Bank of Grand Rapids on Mr. Friant’s indorsement. At that meeting it was proposed to provide funds by which each stockholder should voluntarily advance to the company an amount equal to 10 or 20 per cent, of his stock in the company. In this way $1,295 was advanced by different stockholders. The complainant Thomas J. Lucas, though a stockholder, made no advances, and no money was paid in by Mr. Child. These moneys did not meet the obligations of the company, and on September 4, 1893, a regular meeting of the directors was held at the company’s office, át which were present Friant, Raniville, Lucas, Child, and Bundy,—a majority of the directors. A resolution was unanimously passed by them as follows: “The present affairs of the company being under consideration, and its obligations maturing, on motion of Mr. Bundy, seconded by Mr. Raniville, it was unanimously resolved as follows: That the Grand Rapids Vapor-Stove Company, by its president and secretary, execute to the holders of the company’s paper or the in dorser thereon a chattel mortgage on all the property of the company, including its patents, to secure such paper and such indorser; that such mortgage be given on the demand of either the holders of said paper or such indorser.” It was further resolved as follows: “On motion of Mr. Bundy, seconded by Mr. Lucas, it was resolved that a committee of three of the stockholders be appointed by the chair to formulate a plan for the future action of the company for submission to the stockholders.” In October following, the committee made a report to the company, proposing a scheme for the reorganization of the company, by increasing the capital stock from $25,000 to $50,000, and making the new stock preferred stock. This resolution and preamble had been prepared in advance, and stated the purpose of the proposed reorganization as follows: “It is understood that said company is now insolvent, and that this agreement is made to secure the continued operation of the company’s business, and the making valuable all stock thereof, if possible; that some of the present stockholders are willing to subscribe and pay for such new stock on the foregoing conditions, and some of such stockholders are not willing or able to so subscribe and pay for such new stock on any conditions; and that the agreements herein contained are made to indemnify the subscribers to such new stock against losses, so far as possible, and to compensate them for the risk which they take in order to make all the stock of said company valuable, which risk is not assumed by all the stockholders of the old stock.” This resolution was written out in the record of that meeting, and signed by all of those present,' including both complainants, as Mrs. Lucas at that time had become the owner of a part of the stock held by her husband, Thomas J. Lucas. An attempt was thereafter made to get all of the stockholders in the company to agree to this, as it involved the preferring of the new stock, and could be accomplished only by the consent of all the stockholders. This was found impossible.' Mrs. Child, in the meantime, had become the owner of stock held by her husband, Charles H. Child. The defendants Friant, White, and Bundy each consented to the arrangement, and subscribed for some of the new stock. The complainants consented to the arrangement, but did not subscribe for any new stock. During this time the condition of the affairs of the company’s business was growing worse, and it was understood that, unless this scheme for the reorganization could be accomplished, the business could not continue. In the latter part of October, 1893, the company had no funds, except about $30 in the bank, and there was nothing with which to pay the debts, except the property of the company. The creditors urged payment of their debts or security therefor. The mortgage, which had been provided for at the directors’ meeting of September previous, was then given as security for the payment of the debts. It was thereafter foreclosed, and the property bid in by Mr. Friant, who shortly afterwards conveyed equal interests in it to eight of the old stockholders, who had signed the indemnity agreement, and who joined with him in paying up the debts of the company. The complainants set out in their bill that, even up to the 31st of October, 1893, the corporation was in good credit, owing only about $7,500, with assets and business exceeding in value $25,000; that no. creditors were pressing the corporation; that the business of the company was increasing, and its affairs in every way promising; that, shortly prior to this suit, defendants Friant, White, and McCoy, with the pretense that defendant Friant must be relieved of his liability on the paper of the corporation, but in truth and fact to carry out a fraudulent scheme and plan on their part to get the title and control of the business of the corporation, and to divest the corporation and about one-third of its stockholders of all interest in such property and business, commenced to complain of the state of the company’s finances, and that such com plaints and agitation did not come from the company’s creditors; that in the latter part of October the defendants Friant, White, McCoy, and Bundy pretended to hold a meeting of the directors of such corporation; that said last-named defendants, or some of them-, caused a report of said meeting to be written up, representing Thomas J. Lucas as being present and seconding a motion to mortgage the property of the corporation, but that Thomas J. Lucas was not present at such directors’ meeting, if any was held in fact; that he never received notice of such directors’ meeting, and that he never seconded any motion to mortgage the property of the corporation; that he had no notice or information of the scheme of defendants Friant, White, McCoy, and Bundy to mortgage the propery until he saw a notice in one of the'newspapers published in the city of Grand Rapids. He therefore charges that the defendants Friant, White, and- McCoy willfully and fraudulently conspired to divest the corporation of its property and business, and to obtain title to the same for their own purposes, and to continue and carry on such business in their own names; that defendant Bundy has been under their control, and has been influenced by them, and they have shared with him the property and profits of the scheme, and by acquiescence, and by participating in the benefit of said fraudulent scheme, said Bundy has ratified the fraudulent acts of the other defendants; that by such fraudulent scheme all the defendants determined to put a chattel mortgage upon the property and effects of the corporation,- and that they did put a chattel mortgage thereon, reciting that the corporation was indebted to certain of its laborers and employés to the sum of $600, more or less, to the bank $6,500, and to the firm of Leonard & Sons the sum of $400, and appointed in said mortgage Charles Chandler as. trustee; that this mortgage was filed in the city clerk’s office, and thereafter foreclosed, and the property bid in by Friant, for the sum of $1,600, for the benefit of himself and defendants White, McCoy, and Bundy, and that they afterwards started, up the business of manufacturing vapor stoves with the same property; that the mortgage given as aforesaid was fraudulent and void as against complainants and other stockholders similarly situated. The prayer of the bill is that the resolution of the directors authorizing the giving of the mortgage be set aside and held void; that the chattel mortgage be set aside and decreed void, as well as the sale thereunder; and that the defendants Friant, White, McCoy, and Bundy account for the value of the property, together with all profits and income derived therefrom, and all additions thereto. This bill was sworn to by complainant Thomas J. Lucas. The defendants answered the bill, denying all the material allegations therein, but admitting the giving of the mortgage, and asserting that Thomas J. Lucas was present at the time the resolution was passed authorizing it; that it was given to secure the indebtedness of the company, and the foreclosure’was had for the purpose of paying such indebtedness; and that the sale was in all respects fair. The proofs were taken in open court, and the court made a decree reciting that—• “It appearing that the material allegations in the bill of complaint in said cause are not established by the evidence, and that the fraud and conspiracy alleged in said bill did not exist, but have been expressly disproved; and it further appearing that the mortgage therein mentioned was duly and legally authorized by said corporation, and that the giving and foreclosure thei’eof were, in all respects, regular and fair; and it further appearing that, at the time said mortgage was given and foreclosed, said Grand Rapids Yapor-Stove Company was insolvent, and that the value of its property and assets was less than the amount of its indebtedness and liabilities,—it is therefore ordered, adjudged, and decreed that the bill of complaint in said cause be dismissed, and that the defendants Thomas Friant, T. Stewart White, Daniel McCoy, and McGeorge Bundy do recover from said complainants their costs of this suit, to be taxed, and that they have execution therefor.” The charge of conspiracy in the bill is abandoned by complainants’ counsel, and in his brief he makes no claim that complainant Lucas was not present at the meeting when the mortgage was voted, or that the record of that meeting was a false record, and spread upon the books without the knowledge and consent of Lucas. We feel that these questions should not pass unnoticed here. The evidence is overwhelming to our minds that there was no ground for the charge of conspiracy against these defendants, and that, while complainant Lucas charges in his bill that he was not present at the time the resolution was passed authorizing the giving of the mortgage, he was present at that meeting, and took part in the proceedings thereof. We are also satisfied that the liabilities of the company exceeded its assets. Counsel for complainants contends in this court 1. That complainants’ error in regard to the manufacture of stoves, and in respect to the money required to carry on the business, is a defense without merit. 2. That the defendants held the relation of trustees to the stockholders of the corporation. 3. That the resolution to mortgage was not legally adopted. 4. That the resolution to mortgage was waived by the resolution and agreement to increase the stock of the corporation. 5. That the trustees could not purchase the property which they held in trust for others at public auction. 6. That the directors could not sell the company property, even though the corporation was insolvent, against the dissent of any stockholder! 7. That the complainants have not confirmed the foreclosure sale by not opposing it. 8. That the directors of a corporation actually insolvent cannot bring about a sale of its property to themselves for the purpose that they may continue the business of the corporation. 9. That the complainants are entitled to their proportionate value of the property of the corporation, with interest from the date of its conversion. We do not understand that the defendants attempted to make a defense to the complainants’ bill on the ground that the complainant Lucas erred in regard to the manufacture of stoves, or in respect to the money required to carry on the business. The defendants were charged by the bill of complaint with having committed a fraud upon the complainants in the sale of the corporate property, and in the manner of bringing about the sale, while the company had sufficient assets to meet its liabilities. In answer to this claim, the defendants sought to establish, and did establish by the record, the facts that it was through the representations of Lucas and Child that they were induced to go into the enterprise, and that Lucas, being the manager of the company, became greatly indebted, and for the purpose of securing these debts the mortgage was given, as well as the fact that the company was insolvent at the time the resc5ution was passed to place the mortgage upon the property. It is not contended but that the directors of the corporation were trustees of the stockholders and the creditors. The point; made by counsel for complainants, that the resolution to mortgage was not regularly adopted, is based upon the fact that Friant was a director of the company and its president, that he was also the indorser of its paper, and that Bundy and McCoy had in writing indemnified him as indorser, and that for these reasons neither Friant nor McCoy nor Bundy was competent to vote at the directors’ meeting when the resolution to mortgage was adopted. Counsel cites, in support of this proposition, Butts v. Wood, 37 N. Y. 317; Miner v. Ice Co., 93 Mich. 97. We think the case does not fall within the principle stated in those cases. In the last one, it appeared that Lorman was a director and president of the company, had a majority of the stock, and absolutely controlled the corporation in his own interest, without dissent from any of the directors or stockholders, except Miner, who filed the bill in that case. The other directors were simply figureheads on the board, and controlled absolutely by Lorman. Whatever he desired to have voted by the directors.was complied with by all except Miner. Lorman, in fact, by his control of the company, voted himself a salary of $4,000 per year, and kept no account of the company’s business, covered up the proceeds of the sale of ice, and in other ways hindered and prevented Miner from receiving any part of the profits. The bill was filed for an accounting, and the charge of fraud was made and shown against Lorman in the conduct of the business. In the present case no charges of fraud have been sustained. The corporation was insolvent, and the mortgage was given to secure a bona fide indebtedness. Another fact, also, appears in this case, making it very different from the cases cited by counsel. Complainant T. J. Lucas was present at the time the resolution was adopted to mortgage the property, took part in the proceedings of the board, and voted in favor of the passage of the resolution. We think, under such circumstances, that the complainants are not in a position to complain of the adoption of that resolution, though Friant and the other parties voted in favor of it. If the doctrine which is contended for by counsel for complainants could be applied to this case, then it would have been impossible for the corporation, by any action which it might take, to secure either the bank debt or the labor debts, because all the stockholders were liable for the labor debts, and all of them had signed the agreement to indemnify Mr. Friant, to the amount of the stock held by each of them, on his indorsement at the bank. The proposition that the resolution to mortgage was waived by the resolution to increase the capital stock of the corporation has no force whatever. These two resolutions were passed, one at the September meeting, and the other in October following, and it is apparent that the resolution to appoint a committee to formulate a plan for the future action of the company was an effort in the direction of raising funds to continue the business, and that, failing in that, the mortgage was to be placed upon the property. This is shown by the testimony in the case, and by the resolutions themselves. The proposition that Mr. Friant could not become a purchaser at the sale cannot be sustained. That question was settled in Bank of Montreal v. J. E. Potts Salt & Lumber Co., 90 Mich. 345. See, also, Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Saltmarsh v. Spaulding, 147 Mass. 224; Harts v. Brown, 77 Ill. 226. Th'e claim that the directors could not sell the corporate property, even though the company was insolvent, against the dissent of any stockholder, is not involved here. The directors authorized the mortgage to be made by and with the consent of the complainants, and certainly the trustee in the mortgage had the right to sell the property for the payment of the corporate debts. We think the other propositions need not be considered, as the sale seems to have been an open and fair one. The decree of the court below must be affirmed, with costs in favor of the defendants. Grant, Hooker, and Moore, JJ., concurred. Montgomery, J., did not sit.	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Montgomery, J. This is a proceeding for divorce. The complainant filed her bill of complaint, alleging that defendant neglected and refused to provide suitable food for the family, neglected to provide and furnish sufficient help in the house, and exacted of complainant that she perform more labor than she, in her delicate state of health, was able to perform; that for years he habitually used insolent and abusive language towards complainant; that he was habitually profane, and that he accused her of stealing from him. These charges were denied. The case proceeded to hearing upon testimony taken in open court. The circuit judge granted the relief prayed, and awarded alimony in the amount of $&,500 out of the per sonalty of defendant, and the further sum of $2,000, conditioned upon complainant’s releasing her right of dower in the lands of defendant. Defendant appeals. The case is not altogether clear, but, in view of the presumption favoring the conclusion of the circuit judge on a question of fact, where the testimony is so nearly balanced, and where he has had the opportunity of noting the appearance of witnesses on the stand, which-is denied us on appeal, we have, after some hesitancy, determined that we should treat the complainant’s case as made out by the proofs. Upon the question of alimony, we feel well satisfied that the circuit judge did not exceed a proper and reasonable allowance to the complainant, under the circumstances. There was awarded to the complainant the custody and education of the daughter, and the allowance was conditioned that the defendant should not be liable to the complainant for any support she may furnish to the daughter. The decree will be affirmed. The other Justices concurred.	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Long, C. J. At the quarter ending April 30, 1896, the respondent, as county treasurer, had in his hands the sum of $3,255.26 for delinquent real-estate taxes collected by him for the year 1895; and on May 6, 1896, he paid over to the city treasurer said amount, less $1,569.18. He claimed the right to retain this amount, for the reason that he had issued his warrant to the city treasurer to collect certain delinquent personal State taxes for the year 1895, amounting to $526.89, delinquent personal county taxes of 1895, of $785.15, delinquent personal county road taxes of 1895, of $257.14. He settled with the city treas urer on that basis, by deducting the sum of $1,569.18. The city thereafter made demand upon the county treasurer for the payment of the money so deducted. This being refused, the city made application to the circuit court of Muskegon county for a mandamus to compel the payment. The county treasurer made return to the order to show cause, and, after the hearing, the court directed the issuance of the writ to compel the payment. The case comes to this court by writ of certiorari. The contention of the respondent is that he had the right to set off the amount of the personal taxes against the amount which he owed as county treasurer to the city. It is not disputed but that he collected the amount of money charged, and that that amount belonged to the city, and was payable at the quarter ending April 30, 1896. Attached to the return of the county treasurer made in the coui’t below is the affidavit of his deputy, showing that the city treasurer admitted to him that he had collected a portion of these personal taxes, but what amount had been collected is not stated; but, however that may be, we think that fact cannot affect the rights of the parties in the present proceeding. The county treasurer having in his hands an amount of money which it is conceded belonged to the city treasurer on April 30, 189Ó, it was his duty to pay the same over to the city treasurer; and he had no right to set off against it these personal taxes for which he had issued his warrant to the city treasurer to collect. Section 87, Act No. 154, Pub. Acts 1895, among other things, provides: “The county treasurer of each county shall, on or before the first days of Februarsq May, August, and November in each year, make out a statement of the account between the county and the several townships, and render the same to the township treasurer, and pay all moneys shown by such statement so rendered to be due the township to the proper receiving officer of the. township, and notify the township clerk of the items and total amount, thereof. * * * The township clerks shall charge such amounts to the township treasurers on the books of their respective offices.” We think, therefore, that it was the duty of the county treasurer of Muskegon county to pay over to the city treasurer the total amount found due the city by such statement, and that he had no legal right or authority to deduct from it the amount 'which he claimed was due the county for delinquent personal taxes. It is true that the collection of these delinquent personal taxes rested with the city treasurer, but they were to be collected by him upon the warrant issued by the county treasurer. That warrant had been issued, and, so far as shown by this record, was still in the hands of the city treasurer. ■ The order made by the circuit judge will be affirmed. The other Justices concurred.	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Long, C. J. On September 29, 1894, plaintiff, then about 23 years of age, was employed by the defendant company in the capacity of a lineman, and was engaged with one Wilson in constructing a curve in the trolley wire of defendant’s street-railway equipment at the junction of Wells street and Forest avenue, in the city of Ann Arbor. In the performance of his work, plaintiff stood on a platform of the dimensions of 8 by 4 feet, erected upon a common lumber wagon. This platform was about 14 feet above the ground, the workmen being protected by a railing, 2 feet high, erected on three sides of the platform. Plaintiff was endeavoring to fasten a guy wire to the trolley wire, in order to produce the curve necessary. To do this he used a hand vise, to which was fastened a strap. The vise was screwed to the guy wire, the strap thrown over the trolley wire, and the trolley wire drawn into position. The plaintiff then attempted to fasten the slack of the guy wire into the goose necks attached to the trolley wire. To do this he passed under the trolley wire, and into the inside of the curve made •by that wire. He put one arm over the trolley wire. At this instant the vise failed to hold the guy wire, the trolley wire was violently released, and the plaintiff was hurled to the ground, sustaining injuries which nearly paralyzed both limbs, and from which he has never recovered. The trial in the lower court resulted in a verdict and judgment for plaintiff. . Defendant brings error. On the trial the plaintiff contended that the railing around the platform was too low to properly protect the workmen ; that the hand vise used was an improper and unsafe tool for the work required; that it was also defective; that plaintiff was not properly instructed in its use; that a device known as a “come along” should have been used; that plaintiff was not guilty of contributing to his own injury. The court submitted those questions to the jury. But defendant contends: 1. That the evidence is conclusive that the defendant supplied tools that were safe. 2. That it was not bound to furnish the plaintiff with tools of the latest device or pattern, but, if the tool furnished was such as was in common and general use by other companies doing like work, the defendant had discharged its duty to the plaintiff. 3. That the evidence is conclusive that the vise was in common use by other companies. But one question need be considered, as the evidence is conclusive that the vise was in no way defective, and that is whether the tool furnished was such as was in general use by other companies doing like business. Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or appliances which they provide for the use of their employés; nor are they bound to supply the best or newest of those appliances for the purpose of securing the safety of those who are thus employed. Washington, etc., R. Co. v. McDade, 135 U. S. 554. In Sisco v. Railway Co., 145 N. Y. 296, the court say: “The employer does not undertake with the employé that he will use the very best appliances, nor is he called upon to discard machinery adopted by him in his business reasonably suited therefor, although there may be other machinery that may be safer. He is bound to the exercise of reasonable care in providing machinery and appliances, in view of all the circumstances. Still less is the master to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on proof that another method or appliance is better or safer, when both methods or both kinds of appliances are in common use._ * * * Proof that it was dangerous is not enough,”—citing Frace v. Railroad Co., 143 N. Y. 182; Flinn v. Railroad Co., 142 N. Y. 11. See, also, Titus v. Railroad Co., 136 Pa. St. 618 (20 Am. St. Rep. 944); Kehler v. Schwenk, 144 Pa. St. 348 (27 Am. St. Rep. 633); Louisville, etc., R. Co. v. Allen’s Adm’r, 78 Ala. 494, 503 (28 Am. & Eng. R. Cas. 514). In the latter case, it was said: “We conceive the correct and just rule to be that a railroad company’s duty to its employés does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb, or property incident to its service. It is sufficient fulfillment of duty to adopt such as are ordinarily in use by prudently conducted roads engaged in like business and surrounded by like circumstances.” In Titus v. Railroad Co., supra, it was said: “Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery,, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same; and, however strongly they may he convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way, for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community.” This rule is laid down in Hosic v. Railway Co., 75 Iowa, 683 (9 Am. St. Rep. 518); Vinton v. Schwab, 32 Vt. 614; Michigan Central R. Co. v. Coleman, 28 Mich. 449; Hagan v. Railroad Co., 86 Mich. 615. There is no evidence in the present case that the vise was out of repair, and it is shown without contradiction that other street railways, as well as telephone and telegraph companies, used the same device. The court submitted to the jury the question as to whether other companies used this device as follows: “If the jury find that the vise complained of as causing the accident was one of a kind in general use throughout the country, in the same or similar lines of work, and was not itself broken or defective, the defendant cannot be found guilty of negligence in the selection or use of the vise.” We find no evidence in the case that the vise was not so used, and the court should not have submitted that question to the jury. The rule is well settled in this State that an employer cannot properly be held to be under so strict obligation to his servants as to be required, under all circumstances, to make use only of the safest known appliances and instruments, and to be held responsible for any failure to discard what is not such, and to supply its place with something better and safer. Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133. See, also, Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Richards v. Rough, 53 Mich. 212; Sjogren v. Hall, Id. 274; McGinnis v. Bridge Co., 49 Mich. 469; Smith v. Potter, 46 Mich. 259; Piquegno v. Railway Co., 52 Mich. 44 (50 Am. Rep. 243). We are of the opinion that the court below should have directed the verdict in favor of defendant, as requested by counsel. The judgment below will be reversed, and a new trial granted. Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.	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Hooker, J. The plaintiff was injured by falling into a cellar, and has recovered a judgment against the city for the injury sustained. The following is a description of the premises: At the corner of Ottawa and Grand streets, fronting north, is the Michigan Supply Company building. In front is a stone walk 12 feet wide. Next the building is a basement stairway, surrounded by an iron railing, which descends from the west. Immediately west of this building was the cellar in question. In front of this was a concrete walk, the south side of which was on a line with the stair rail mentioned. The plaintiff tes tified that he turned from Grand street, upon Ottawa, passed west upon the stone sidewalk in front of the building occupied by the Michigan Supply Company, and fell into the excavation. He testified that he saw no building material in the street, and no evidences of building there, before he went into the excavation, and that there was no barrier or guard around the excavation so far as he knew; that he met with none, but walked off the sidewalk without hindrance or notice; but that, after he got out, he noticed some barrels and a plank, the plank being up against the bank, and running down into the cellar towards the south. Mr. [Eicher, an alderman of the city, testified that at the west side of the cellar, that being the place where dirt was drawn in, he noticed that it was in bad shape, and he told some of the workmen about July 1st that it ought to be boarded up, so that people could not get by it at all,-—-that “they should be made to go clear around;” and that, on the night of July 4th, some boys, who had taken some whips from some buggies with which to have some sport, saw him and his hired man, and started to run, and were followed by them. They ran north to Ottawa street, and then west. Witness had followed them from the Chapman House, on Michigan avenue, a block south of Ottawa, and reached the corner of Grand and Ottawa in time to see them run into the cellar when he was about 10 feet behind them. He testified that there was no guard where they went in; that there was a barricade on the north side of the excavation, consisting of planks and barrels, sitting east and west on the tar walk, which left a space to walk between the barrels and iron railing; that was where the boys ran. He said that the barrels and plank could be seen plainly. He testified further that, ‘ ‘of course, the barricade was all down daytimes;” that the barrels would protect any one coming from the north; and that he asked the men to nail up the west end. Mrs. Wright testified that she was employed near by the day before the accident, and from 15 to 20 minutes past 6 there were no guards, and the men were all gone. The bank had been dug out near the walk. She did not remembei whether or not she noticed any guard there from July 4th to July 10th. She says that there was a time when it caved out to the middle of the walk, a very little in one place. She said they put up some boards to protect it, but could not tell just how. She did not go by very late, and it was not, protected when she went by until after the accident. She said on cross-examination that she quit work at 6 o’clock, and went right home after washing and getting ready. She worked two doors from the cellar, and usually left at 15 or 20 minutes past 6. She did not know whether or not anybody was left there after she quit work, to put up barricades for the night. Upon the part of the defendant it was shown that care was taken to surround the excavation by planks laid upon barrels, one of which extended from the barrel farthest east to the iron stair rail; that this was the uniform custom; and that it was so placed on the night of the accident, by men whose business it was to remain and see that the lime was covered up, the barricade put up, and everything straightened up. An attempt has been made to state the substance of all of the evidence given upon the trial. There is positive evidence of the erection of the barricade on the night in question, corroborated by the statement of the plaintiff that a plank extended towards the south from the bank into the cellar, which is consistent with the theory that it had been removed. Counsel for plaintiff say that they assume that this was a plank laid down to walk on, but we find nothing in the testimony justifying the assumption. No claim is made that a barricade consisting of plank laid upon barrels, completely fencing in a shallow excavation made for temporary purposes, is not a reasonable one, and, if there were, we should be inclined to say that it is sufficient, as matter of law, in a case like this, and that it should not be left to the jury to say that it was not, under ordinary circumstances. We are of the opinion that there is an absence of proof to support the claim of negligence upon the part of the city. The most natural inference from the testimony is, that the hoard was removed in some unexplained way, for which the city is not shown to be in any way responsible. The judgment is reversed, and a new trial ordered. Long, C. J., Grant and Moore, JJ., concurred with Hooker, J. Montgomery, J. I think there was evidence of negligence sufficient to justify the submission of the case to the jury.	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Long, C. J. The defendant the Detroit Cycle Company, Limited, is a partnership association, organized under chapter 79, 1 How. Stat., and doing-business in the city of Detroit. The complainant is a corporation of Cleveland, Ohio, engaged in the business of manufacturing and selling bicycles and bicycle sundries. On September 16, 1893, the Detroit Cycle Company was indebted to the complainant in the sum of $2,705, and on that day the complainant sent Frank R. Merchant, an attorney, to Detroit, to secure the debt, and such negotiations were had that it was agreed between Mr. Merchant, representing the complainant, and Mr. Matheson, Mr. Holmes,, and Mr. Robinson, representing the Detroit Cycle Company, that the latter should transfer to the complainant certain contracts as security for the complainant’s claim. It was the custom of the Detroit Cycle Company, in many cases, to sell bicycles on weekly and monthly payments, according to the terms of a contract entered into between the parties, by which the bicycle was turned over to the purchaser, but remained the property of the Detroit Cycle Company until the payments had been fully completed. Forty-two of these contracts were selected by Mr. Matheson, president of the company, in the presence of Mr. Holmes,' the treasurer and manager, and turned over to Mr. Merchant, and he left them with the bookkeeper of the Detroit Cycle Company with the understanding that defendant Robinson was to have charge of them, and make collections upon them, and turn the proceeds over to the complainant. A. list of these contracts was made, and is headed, ‘ ‘ List of Contracts Passed Over to E. B. Robinson on Behalf of the Peerless Manufacturing Company, Cleveland, Ohio, September 16, 1893.” Each contract was numbered, and the amount due on each stated in the' list, as well as the names of the parties from whom the amounts were due, amounting in all to $3,537.96. Complainant claims that by this arrangement defendant Robinson did collect certain amounts, and for a time remitted the proceeds, or a part thereof, but that in December, 1893, he refused and neglected to remit anything further. On October 6, 1893, the Detroit Cycle Company gave a chattel mortgage to the defendant the Gormully & Jeffery Manufacturing Company, an Illinois corporation, to whom the Detroit Cycle Company was indebted, and at the same time assigned all its contracts to that company as further security, including many of the contracts formerly turned over to the complainant, and which, the latter contends were in the hands of Robinson as its agent for collection; and it is asserted that the Gormully & Jeffery Manufacturing Company now claims to own those contracts, and has made collections thereon. The Gormully & Jeffery Manufacturing Company claims by its answer that it knew nothing of the arrangement by which Robinson received these contracts, and was to collect them for the complainant, but admits that the defendant Detroit Cycle Company gave a chattel mortgage and assigned these contracts to it, to secure certain indebtedness to it. It denies that it received from the Detroit Cycle Company any contracts belonging to the com- ■ plainant, or that it received any contracts from defendant Robinson, and avers that all the contracts assigned to it were at the date of the assignment in the possession and under the control of the Detroit Cycle Company, and that it had no notice that the complainant had any claim thereto. And it further alleges that, relying upon the apparent ownership of the contracts evidenced by the . possession of the same by the Detroit Cycle Company, and in consideration of the latter’s assignment to it, the Gormully & Jeffery Manufacturing Company advanced to the said Detroit Cycle Company a large sum of money to relieve said contracts from the lien of the Preston National Bank, where said contracts were held as collateral security to certain notes of the Detroit Cycle Company, and that, in addition to paying about $2,000, it extended the time of payment of the aipount due it by the Detroit Cycle Company, and took said chattel mortgage and assignment in good faith, and without notice of any right or interest the complainant had in any of them. It denies that it made any collections on contracts belonging to the complainant. It alleges that on account of its succeeding to the business of the Detroit Cycle Company, and transacting business at the same store, certain moneys have been paid into its hands by various parties, and also several bicycles have been left with it, which, it is informed, belonged to the complainant or to the Detroit Cycle Company, for all of which sums collected and machines left with it the defendant is ready to account to whomsoever it is proper. Defendant Robinson denies by his answer that he ever received these contracts, and alleges that he refused to have anything to do with the collection of them personally, and that, if a.ny amounts have been paid to the complainant upon its account, it was done at the request of the manager of the Detroit Cycle Company; and he denies that he ever made any agreement at any time to collect said contracts for the complainant, or that he is in any way indebted to the complainant. On the hearing the court below made a decree finding that there was due from the Detroit Cycle Company to the complainant the sum of $2,817.62, and that for such amount complainant had a lien upon all the contracts for the sale of bicycles set forth and enumerated in the schedule made and delivered by the officers of the company to the complainant on September 16, 1893, and that this was a first lien thereon, and not subject to any lien acquired by the Gormully & Jeffery Manufacturing Company; that that company should account to the complainant for the moneys received by it upon said contracts; that, as to the remainder of said contracts, Edwin B. Robinson should account for all sums collected thereon after the 16th day of September, 1893, that being the day when the contracts were accepted by him for collection on behalf of complainant, as found by the court. The court referred the matter of accounting to a circuit court commissioner of Wayne county to ascertain the true state of the account, what had been collected upon each contract, and by whom, and what bicycles had been returned, and what contracts had been settled and compromised, and by whom, and directed that the Gormully & Jeffery Manufacturing Company and Edwin B. Robinson should account for such contracts, and pay over to the complainant the amount found due from them, respectively, within 10 days after said accounting should be completed, and directed that, should any deficiency remain, the commissioner should sell bicycles returned to meet it, and report his doings thereon to the court. The court further found that the bicycle contracts for which the Gormully & Jeffery Manufacturing Company should account were the 16 which were included in the assignment to that company, and which had been theretofore turned over to Robinson for collection, and that it should also account for other contracts, enumerated in Schedule A, upon which its agents had received payments, and that, should any default be made in the sum found due to the complainant from either Edwin B. Robinson or the Gormully & Jeffery Manufacturing Company for 10 days after the coming in of the report, the complainant should have execution therefor. Prom this decree the defendants appeal. It would not be profitable to set forth or discuss the testimony given in the case. We are satisfied that the testimony fully sustains the decree made by the court below. It is contended, however, by counsel for defendants, that Mr. Matheson, Mr. Holmes, and Mr. Robinson had no power or authority to act for the company in turning over these contracts to the complainant’s agent on September 16, 1893. It appeared that Mr. Matheson was the president of the company, Mr. Holmes the treasurer, and Mr. Robinson its secretary; and we think there is sufficient testimony to show that they had such authority. It was not an act creating a debt'against the company, but the turning over of property for the purpose of securing a debt. It is admitted that the Detroit Cycle Company was indebted to the complainant. The decree below will be affirmed, and the record remanded for the purpose of an accounting. The complainant will recover its costs. The other Justices concurred.	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Grant, J. The respondent was convicted of keeping his saloon open upon Sunday, contrary to the provisions of section 17, Act No. 313, of the Public Acts of 1887 (3 How. Stat. § 2283e). The contention on behalf of the respondent is that section 17 is unconstitutional and void, and that no conviction can be sustained under it. This section, after providing that saloons and other places where intoxicating liquors are sold shall be closed upon Sunday and certain other days therein mentioned, provides that— “Any person found in the act of violating any of the provisions of this' section shall be deemed guilty of a breach of the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section.” It further authorizes officers to make arrests as for a breach of the peace. The other sections of the statute bearing upon the question are 7 and 18. Section 7 provides that— “A person convicted of the violation of any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than $200,” etc. Section 18 provides that— ‘ ‘ Any person who shall violate any of the provisions of the five preceding sections shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in section 7 of this act.” In Robison v. Miner, 68 Mich. 549, the penal provisions of this act were under consideration, and certain provisions held void. After striking out these provisions, the court held the other provisions valid, giving its reasons therefor on page 564. The court held the penal clause of section 17 void for reasons stated on page 559. We must therefore construe the statute with this penal clause of section 17 eliminated, and look to other provisions for the penalty. Sections 7 and 18 cleai’ly provide it. The conviction is affirmed. The other Justices concurred.	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Hooker, J. The plaintiff and defendant exchanged real estate. The bargain was oral, and the plaintiff alleges that, as a part of the consideration, the defendant promised to pay the excess over $2,000 upon a mortgage then upon the property conveyed by him to the plaintiff. A quitclaim deed was given to the plaintiff, but when she ascertained that the mortgage had not been reduced as promised, and was being foreclosed (which defendant had concealed), she refused to give possession of the property conveyed by her to said defendant until he should pay said sum, alleging that he had deceived her. She claims that he thereupon gave her a writing, wherein he promised to “pay” said mortgage “down to the $2,000,” and to put her in possession of the farm, when she should give him possession of the Stony Creek place. The following is a copy: “June 6, 30, ’8?. “I hereby agree to give Lucina Bennett possession of said property in Liberty when she gives possession of said property in Stony Point, and also to make the mortgage to two thousand dollars, as same as my deed. “E. S. Knowles.” This he failed to do, and the plaintiff brought this action to recover the amount of such excess, and damages for the use of the farm; in which she found others had possessory rights. The jury found a verdict for the plaintiff, and the defendant has appealed. It is claimed on behalf of the defendant that the original contract, being oral, was within the statute of frauds, and, not being in writing, was therefore void; that this agreement to reduce the mortgage was, in effect, agreeing to perfect title,—i. e., to enlarge the rights of Mrs. Bennett, the plaintiff, in the real estate conveyed by quitclaim deed; and that, moreover, it was a promise to pay the debt of another, inasmuch as Knowles did not give the mortgage, but only took the land subject to the mortgage theretofore existing. The writing was objected to because it did not contain the entire bargain, and because it was not signed by both parties, and for want of consideration. The answer to all this is that, if the oral contract made in the first instance was void under the statute of frauds, when both parties conveyed the land by deed, leaving nothing for the defendant to do but to pay the money agreed to be paid, and give the possession agreed in writing to be given, it became valid, and, if the money agreed to be paid had been payable to the plaintiff, she could have brought her action to recover it, but, inasmuch as the promise was to pay the sum to another, her remedy was an action for the breach of the contract. The fact that the effect of such payment was to lessen the amount of a lien upon the land was unimportant. See Holland v. Hoyt, 14 Mich. 238. The paper writing, if it was given, was valid. Each party performed the oral agreement in part. Plaintiff gave her deed, and defendant gave his. She declined to give possession until he bound himself in writing to pay the excess over $2,000 existing as an incumbrance, and to give her possession. This writing is no more without consideration than a promissory note for the money would be, and there was no more occasion for the plaintiff’s signature upon it. It was a conditional promise, the consideration for which he had already received. The proposition that this promise to pay was void because it was an undertaking to pay the debt of another is without merit. It is elementary that an original promise to pay the existing debt of a third party, where based upon a present consideration, is not within the statute of frauds. It has been so held repeatedly in this State, and there is probably no State in which it is not the rule. But, if it were otherwise, the promise is in writing, and therefore not within the statute. This covers the substance of the points involved, and we do not think it profitable to discuss the cases cited by counsel, as they are not applicable to the state of facts before us, the contract apparently being fully executed upon both sides, except in the particulars complained of, for which the jury seem to have found that the plaintiff held the defendant’s written obligation. The judgment is affirmed. Long, C. J., Grant and Montgomery, JJ., concur- • ' red. Moore, J., did not sit.	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Hooker, J. The defendant, being the owner of a certain messuage, sold the same upon contract to a Mrs. Stork. The plaintiffs, being desirous of purchasing the same, negotiated with the husband of Mrs. Stork, and finally purchased the property. They subsequently brought this action against the defendant to recover damages for alleged deceit in certain representations alleged to have been made by the defendant prior to their purchase, when interrogated in relation to the condition of the premises, at a time when and under circumstances showing that he knew of their contemplated purchase. Mr. Stork was called as a witness for the defendant, and testified to the negotiations between himself and the plaintiffs, and that an agreement was made by the plaintiffs to purchase; that five dollars was paid upon it, and a time was fixed to close the matter up, when he was to have the defendant there to give his assent to the transfer of Stork’s interest. He stated that he made no representations concerning the place, and that he did not hear Mr. Miller, the defendant, make any. On cross-examination the witness was asked: “Didn’t you tell Mr. Olf, shortly after this sale, at his place of business, that you had gotten rid of a mighty poor bargain, and that you were glad to get that house off your hands?” And he was also asked: “Did you, about the same time, at Mrs. Russell King’s house, say about the same thing, in substance ? ” To both questions he answered that he had no recollection of saying such a thing. Under proper objections and exceptions, counsel claim that this was error, especially as, upon the argument, counsel was permitted to argue that, inasmuch as the witness’ memory was so poor, and as the questions were answered in this way, he could not impeach him, which he might otherwise have done by the persons mentioned in the questions. There is nothing in the direct examination as printed that shows that these matters were in any way material, but the record is said not to contain all of the testimony, and it may be that the questions were pertinent as tending to controvert Stork’s denial of deceit, or qualifying testimony as to the value or condition of the premises. If it was material, counsel had the right to call impeaching witnesses if the questions were answered in the negative; and the answers as given, falling short of admitting the fact, if, they did not deny it, were sufficient to justify a contradiction by the witnesses named in the questions. The following cases cited by counsel support this proposition: Smith v. People, 2 Mich. 418; State v. Johnson, 47 La. Ann. 1225; Palmeri v. Railway Co., (Sup.) 14 N. Y. Supp. 468. As these questions were proper for the purpose mentioned, we cannot hold that the court erred in admitting the testimony, upon the claim that it was proving a cause of action against defendant, Miller, by admissions of Stork, who was not a party to the record, and whose admissions could not be used for such a purpose; and the charge of the court shows that they were admitted for the purpose of impeachment only. But it was improper for counsel to state to the jury what he could prove by certain witnesses had Stork answered the questions in the negative. Under the authorities cited, he might have called them had he chosen to do so. It is improper for counsel to state what witnesses would testify if called. In Carne v. Litchfield, 2 Mich. 340, it was said that 4 4 the only facts which counsel are properly permitted to comment upon before a jury are such as have been legally elicited upon the trial of the cause.” And in Donovan v. Richmond, 61 Mich. 467, it was said: 4 4 Counsel have no right to comment upon papers that have not been put in evidence, or on the conduct of the parties in connection with them.” It has been held that a trial judge must restrain counsel from commenting on testimony that has been excluded, if objection is made to such comments. Hollywood v. Reed,, 57 Mich. 234. See, also, Hitchcock v. Moore, 70 Mich. 112 (14 Am. St. Rep. 474.). In Amperse v. Fleckenstein, 67 Mich. 247, it was said: 44 Counsel have no right to put before the jury, by way of argument, what they know of the case, outside of the testimony.” And in Rutter v. Collins, 96 Mich. 510, Mr. Justice McGrath said: '“The jury must get the evidence from the lips of sworn witnesses, and not from the unsworn statements of the lawyers in the argument of the case.” It is not every unguarded remark of counsel that will justify the reversal of a case, where it is evident that no harm can result, but in this case the court did not caution the jury against the statements,. On the contrary, the record shows that they were made with his approval and sanction, against the express objection of counsel for the defendant; and we cannot, under these circumstances, call it harmless error. Error is assigned upon the testimony of one Mr. England, who testified to the representations of Mr. Stork, in his first talk, in the absence of Miller, with the plaintiffs. If these statements were admissible at all, it was, as the judge charged the jury, merely by way of impeachment; and we cannot determine from this record that this testimony was not proper for that purpose. There was danger of its being treated as showing representations made on behalf of the defendant. We do not discover a foundation for the reception of this testimony for the purpose of impeachment, though it is possible that a proper foundation was laid; hence we cannot say that it was error. This discussion covers the modification of defendant’s eighth request. The judgment is reversed, and a new trial ordered. The other Justices concurred.	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Moore, J. The respondent was convicted in the recorder’s court, and appeals to this court. The information filed in this case reads as follows: “That Daniel M. Butler and William H. Bird, late of said city of Detroit, heretofore, to wit, on the 1st day of May, in A. D. 1895, at the said city of Detroit, in the county aforesaid, unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together, by divers false pretenses, subtle means, and devices, to attain and acquire unto themselves, of and from the county of Wayne, a sum of money, to wit, the sum of fifty dollars, of the value of fifty dollars, of the money of it, the said county of Wayne, and to cheat and defraud it, the said county of Wayne, thereof, to the great damage of it, the said county of Wayne.” It is the claim of the respondent that this information should have been quashed,—First, because it states no offense known to the law; second, because it contains no allegations of the means by which respondents conspired to cheat and defraud. The claim of the respondent cannot be sustained. The case is ruled by People v. Richards, 1 Mich. 216 (51 Am. Dec. 75); People v. Clark, 10 Mich. 310; People v. Winslow, 39 Mich. 505; People v. Petheram, 64 Mich. 252; People v. Watson, 75 Mich. 582; People v. Dyer, 79 Mich. 480. A number of witnesses were sworn, and records introduced, which tended to show that respondent was coroner of Wayne county in 1895, and that Bird was his clerk; that bills were made out in the name of Bird, against the county, which were certified to by Butler. The testimony disclosed that these bills were for inquests that were never held, and contained charges for services in serving sub pcenas for witnesses, for jurors, and for taking testimony on such alleged inquests. It was also shown that the fees for witnesses and jurors charged for in these bills were fictitious, and were never paid to witnesses and jurors. Something like 15 of these fictitious bills, made out in the name of Bird and certified to by Butler, were introduced in evidence. During the examination in the police court,- Bird offered himself as a witness, and was sworn. His testimony was taken down, and in the trial of the •case in the recorder’s court his testimony was offered and received in evidence. Counsel for the respondents, who were jointly on trial, objected, on the ground that the testimony was incompetent, immaterial, and irrelevant, and also because said witness was in court, and ready to testify. The admission of this testimony is assigned as error. It is claimed that this was a violation of article 6, § 28, of the Constitution, which provides that the accused shall be confronted with the witnesses against- him; and counsel cite Hill v. People, 16 Mich. 351; Ward v. People, 30 Mich. 116; People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49); People v. Jones, 24 Mich. 215. We do not think these cases apply to the condition disclosed by the record. One of the respondents on trial, Mr. Bird, had seen fit to become voluntarily a witness, and give his version in the police court of the offense for which he was arrested. This testimony was certainly competent against him. People v. Eaton, 59 Mich. 559; People v. Arnold, 43 Mich. 303 (38 Am. Rep. 182); People v. Prague, 72 Mich. 178; People v. Gastro, 75 Mich. 127; People v. Swetland, 77 Mich. 53; People v. Taylor, 93 Mich. 638; People v. Kennedy, 105 Mich. 434; People v. Seaman, 107 Mich. 348. No objection was made, so far as disclosed by the record, to the testimony, upon the ground that the admissions of the respondent Bird could not be used against the respondent Butler. Nor was the court requested to caution the jury against using the testimony as incriminating Butler. In the case of People v. Arnold, 46 Mich. 277, which was a conspiracy case, it was stated: 4 ‘ It is further urged that the court erred in receiving in evidence the admissions of John Snediker. These were admissions of a joint offense, made after its commission, and from their nature, it is said, could not be received against Snediker alone. But the fact that the offense is joint cannot exclude admissions. They are admissible against the party making them, and the court must protect the other respondent by cautioning the jury not to permit the confession of his alleged associate to prejudice him. If the participation of the other is not made out by independent evidence, there can be no conviction; but the existence of a conspiracy must commonly be made out by the detached acts and statements of the individual conspirators.” In People v. Saunders, 25 Mich. 119, it was held to be competent, in trials for conspiracy, to connect the several parties charged by evidence of their separate acts and statements. See, also, Beebe v. Knapp, 28 Mich. 67. Bird was swprn as a witness in the case. The i'ecord does not purport to contain all of the proceedings had in the recorder’s court. There is no suggestion in it that any claim was made by counsel that Bird’s testimony could not be used against Butler, nor does it suggest that the trial judge did not caution the jury as suggested in People v. Saunders, supra, and People v. Arnold, supra, and we do not feel called upon to assume that it was not done. Error is assigned because of a portion of the argument of the prosecuting attorney. It is evident that what Mr. Hunt said, was in reply to a suggestion by Mr. Navin, counsel for respondent; and, while it would have been well to avoid some of the remarks made by him, some allowance must be made for the excitement and heat engendered by a trial, and we do not think what was said constitutes reversible error. It is also claimed that the charge of the trial judge was objectionable. We cannot agree with the counsel for the respondent. The charge, taken as a whole, was a fair and careful statement of the law applicable to the case. Judgment is affirmed. The other Justices concurred.	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Grant, J. (after stating the facts). The instruction was correct. Plaintiffs failed to show any negligence on the part of the defendant, or any violation of the contract of carriage. There is no showing that Mr. Cavanagh instructed the defendant to ship by any particular route. It therefore fully performed its contract by shipping the goods in the usual manner.- It was not, therefore, its fault that the cars were separated at Buffalo. There is no showing that the waybill of the Lake Shore & Michigan Southern Railway Company was made by the defendant, or under its instruction. If there were directions to place upon the waybill, “Notify M. F. Hope & Co.,” there is no testimony that this was not upon the waybill made out by the defendant over its own road. What testimony there is upon the point indicates that it was there, and that the omission occurred at Buffalo. The agent of the Lake Shore & Michigan Southern Railway Company—a witness for plaintiffs—testified that he got notice from Buffalo to notify plaintiffs. Each carrier made out its own waybill, and the defendant cannot be held liable under its contract with Cavanagh for any failure on the part of any succeeding carrier to make out a proper one. If, however, there were such testimony, this would not render the defendant liable for the value of the goods. There was a delay of three weeks after their arrival in notifying the plaintiffs. In any event, the defendant could be liable only for the damages caused by this delay, which plaintiffs claim was $14,—the storage charges. The reply to this claim is that plaintiffs have not paid it, and have made no such claim in their declaration. It is clear that the defendant is not responsible for what occurred after the arrival of the goods at their destination and notice thereof to plaintiffs. Somebody’s stupidity or unjustifiable conduct is responsible, but whether it be the fault of plaintiffs, or of either or both of the railway companies, we need not determine. It is only essential for the determination of this suit to say that no blame rests upon defendant. Judgment affirmed. Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.	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Hooker, J. On September 9, 1896, John H:' Powell, for and on behalf of a client, Annie Oorbett, filed a petition for a writ of assistance in a foreclosure case, wherein Frank B. Leland and others were defendants, upon a decree duly enrolled in said court, and sale of the premises to said Annie Oorbett. Said petition shows that the sale was confirmed, and that the petitioner called upon the tenants in the houses upon the premises, viz., Stoddard and Spring, and showed to each of them, and to said Leland, who' is alleged to have owned the fee of said premises prior to the confirmation of said sale, the commissioner’s deed, and a certified copy of the order of confirmation. It also shows that said Leland assured petitioner that he had no other or further interest in said houses, and that Aldrich was then in possession of the house occupied by Spring, and had been for some months, and had been in possession of the Stoddard house for some days; that Spring and Stoddard, tenants in said houses, came into possession thereof after the commencement of the foreclosure suit, and are unwilling to attorn to the complainant; that Aldrich is the solicitor of record for Leland in said cause; and that Leland refuses to give complainant possession of said houses. The circuit court ordered the writ to issue as prayed, and Aldrich, who was not named in the proceeding for writ of assistance, has filed his petition in this court for a mandamus to require the vacation of said order, alleging that on May‘15, 1896, he received from the city of Detroit leases of said premises for 99 years, upon tax sales, and has certificates of sale entitling him to other leases, and that on May 18, 1896, he entered into possession, and rented one of said houses to Spring, and has held possession and received rent of said house, and has been continuously in possession of said house since, and that on July 15, 1896, he entered into possession of another of said houses, which has been continuously occupied since July' 15, 1896, by said Stoddard, and that his possession has been open and notorious, and that he has claimed the absolute right of possession of said premises. His peti-. tion alleges, further, that, upon the hearing of the application for the writ of assistance, he appeared and stated that he was not a party to said foreclosure suit, and not interested in the result thereof, and that he objected to the issue of a writ that should run against his tenants, and, further, that Spring had vacated the house occupied by him, and that he (Aldrich) had rented it to N. E. Moore, who entered and then occupied the same. In response to the order to show cause, the circuit judge returns that, on the hearing of the application, “said Aldrich appeared, as solicitor for Leland, to oppose the motion, and interposed some verbal objections to the granting of the writ of assistance, but that respondent decided that the issue as to tax leases owned or claimed t® be owned by the solicitor for the defendant, who was the owner of the premises in fee, must be tried in some other way than by a verbal argument opposing the enforcement of the decree.” The order complained of authorizes a writ to run against the persons named in the petition. None of them, except Leland, appear to have contested the application, by pleading of any sort, or by evidence in opposition. There is nothing in the record showing that this was not a proper order to make, except the oral statement of the solicitor for Leland that he claimed to be in possession: If the order made was an improper one, in view of the evidence, the parties to the record aggrieved by it should have appealed, which is the usual course in such cases. Baker v. Pierson, 5 Mich. 456; Howard v. Bond, 42 Mich. 133. If Aldrich was actually in possession, or wished to assert that Stoddard and Spring were his tenants in possession, the claim, to be of any avail, should have been shown to the circuit court in chancery in some more formal manner than by the oral statement of a claim. The writ is denied. The other Justices concurred.	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Moore, J. This is an action for slander. There are several counts in the declaration. Omitting the legal verbiage, the allegations are as follows : First count: ‘ ‘ She (plaintiff meaning) is a thief. ” ‘ ‘She stole five dollars from my hired man.” “She stole money from my children.” “She stole money from my wife.” “She stole sugar and soap.” “Ida Hewitt (plaintiff meaning) took five dollars from my hired man, two dollars from my wife, and some money from my children, —(meaning and intending thereby to charge the plaintiff with the crime of larceny).” The second count charged the defamatory words to be: ‘ ‘ I have good proof of Ida Hewitt taking small articles, such as sugar and soap.” The third count stated the defamatory words to be: ‘ ‘ I am satisfied that Ida Hewitt took five dollars belonging to Allie Sober out of my house. I am also satisfied that she took money belonging to our children.” Another count charged the defamatory words to be: “I am satisfied in my own mind that Ida Hewitt stole five dollars from my hired man, and took money belonging to my little girl.” In another count the defamatory words were: “You had better keep quite close watch of Ida Hewitt, for, while she was working at our place, I am satisfied she took five dollars belonging to Allie Sober, two dollars from my wife, and some money belonging to our children.” In the declaration the necessary words of innuendo and colloquium were inserted to make the declaration good pleading. The defendant pleaded the general issue. The jury rendered a verdict for $300 in favor of the plaintiff, and defendant appeals. Upwards of 4=0 errors are assigned, but it will not be necessary to discuss all of them. It is claimed that there is a variance between the pleadings and the proofs, and such a failure of the proofs to establish a case that a verdict should have been directed for the defendant. The record shows this conversation between defendant and Mrs. Markham: “ He came into the store one afternoon, and wanted to know if I was aware that the girl we had was light-fingered. I told him I was not, and he said that they liad missed five dollars belonging to the hired man, and two dollars from his wife’s pocketbook, and some change belonging to the children, and some pocket handkerchiefs, and they felt confident Ida had taken them.” Miss Hewitt was at this time in the employ of the witness. Dr. Sober testified: “He came into my field where I was at work, and told me he was satisfied in his own mind that Miss Hewitt took the five dollars from his hired man, and some nickels from his little girl.” In reply to a question, the witness stated: “He might have said she stole the five dollars, or he might have said she took the five dollars. It all appeared to me the same, right then and there.” Miss Hewitt was not in the employ of Dr. Sober, but the witness was an uncle of the hired man. In the same conversation defendant stated that he did not wish to injure Miss Hewitt, and that he wanted to find evidence of her having taken the things. He told Miss Kempton he thought Miss Hewitt had taken things from the house, —handkerchiefs, and small change from the children. He said he had good proof that she had taken them. He told Mr. Markham, in whose employ Miss Hewitt was at the time, that his hired man had lost five dollars; that five dollars had been taken from him, and he suspected Ida Hewitt of taking it, as she was working for him at that time; also some money belonging to the children,— that he had reason to believe she had taken it. He said to Mr. Markham that he told him as a friend, to put him upon his guard, knowing that she was in his employ, and that he left her in the store, and asked him not to repeat it. Other evidence of a like character was introduced, which it will not be necessary to insert here. The defendant testified that he told her father: “ ‘ Mr. Hewitt, I have said nothing about Ida but what I will say to her or will say to you; nothing but what I believe to be true. We have lost these things from our house. I believe Ida is the guilty person. I have reasons to believe so. I have reasons that justify me in this belief, and I think I would be justified before any jury in Berrien county, if the facts are found.’ Then he says, ‘ If you thought Ida took the money, why didn’t you get a search warrant, and come and see if you couldn’t find it ? ’ I said, ‘ That would be .a nice way to ascertain,—to search for a five-dollar bill! ’ ” During the progress of the cross-examination of the defendant, he said to the court that he intended to convey the idea that Miss Hewitt stole the articles. Any one reading this testimony would have the right to infer that Mr. Morley intended to charge Miss Hewitt with the larceny of the things mentioned by him. That would be a fair conclusion from the language used. There was no such variance between the pleadings and proofs, and no such failure of proof, as would justify the court in directing a verdict for the defendant. Wiest v. Luyendyk, 73 Mich. 665; 5 Wait, Act. & Def. 731. It is the claim of the defendant that what he said was privileged; that it was his duty to say it; and that what he said was either for the purpose of making an investigation he had a right to make, or to impart information to one who had a right to know. The trial judge allowed full latitude in the admission of testimony bearing upon this feature of the defense. The circuit judge charged the jury at the request of the defendant: ‘ ‘ Where a person is so situated that it becomes right, in the interests of society, that he should tell to a third person certain facts, then, if he, bona fide and without malice, does tell them, it is a privileged communication. ‘ ‘If the money or goods of the person to whom he [the defendant] speaks would be in great and obvious danger of being stolen or destroyed, he may volunteer information to those in danger, or to their master, though he be nót himself personally concerned. So, too, it appears that the defendant may, without being applied to for the information, acquaint a master with the misconduct of his servants, if instances have come under the especial notice of the defendant which have been concealed from the master’s eye. “It is necessary, further, that circumstances should be present to his [the defendant’s] mind which reasonably impose on him a duty to make such a statement. If such circumstances exist, the statement is privileged, although it may prove to be untrue. It is not necessary that, before making such a statement, the defendant should have thoroughly investigated the reports which have reached him. Hearsay is sufficient, reasonable, and probable cause, in the absence of malice, unless the defendant ought, for any reason, to have known that his informant was unreliable, and his story undeserving of belief. And, lastly, the defendant must make the statement under an honest sense of duty, desiring to serve the person most concerned, and not for any malicious or self-seeking motive. ‘ ‘ An important question in this case is this: Did the defendant honestly believe it to be his duty to make the communication complained of, and did he do so under a sense of duty ? * * * The jury must place themselves in the position of the defendant at the time these suspicious circumstances were brought to his knowlege,— when first the question arose in his mind, ‘ Ought I not to inform my neighbor ?’ It may well be that another man would have said, ‘It is no concern of mine,’ and would have done nothing, but that does not prove that the defendant was wrong in acting as he did. * * * But the jury should find for the defendant if they are satisfied that he both honestly felt, and had reasonable grounds for feeling, that he could not conscientiously allow the person to whom he made the communication to continue in secure ignorance, and honestly felt that he must communicate to such person that which he was much concerned to know. * * * “If you shall find that the defendant had no malice— that is, hatred or ill will—against the plaintiff, and that he had just cause or excuse for endeavoring to detect the plaintiff in the unlawful taking of his property, or that of his hired man, and that he made any particular charge or accusation simply to detect her, if guilty, then your verdict must be for the defendant, so far as anjr particular charge or accusation is concerned. * * * “If the jury find that any slanderous communication that the defendant made to any neighbor of his was made under the belief, justified by the circumstances that had come to his knowledge, that his duty to the person to whom he made the communication required him to make the same, because of confidential relations, then the communication was privileged, and the jury ought not, because thereof, to find the defendant guilty.” The defendant has no reason to complain of this statement of the law. Moore v. Thompson, 92 Mich. 504. It is urged in defendant’s supplementary brief that the verdict cannot stand because it does not comply with the provisions of section 2, Act No. 216, Pub. Acts 1895, which provides that— “In awarding damages to the plaintiff in any suit brought for the recovery of damages for libel or slander in' this State, the jury shall in all cases specify the amount awarded for damages to feelings separately from the amount awarded for other damages mentioned in the foregoing section.” This act did not take effect until after this suit was begun, but it is urged that the act is a procedure act, without any saving clause,1 and that pending litigation would be affected by it. The provisions of the act were not called to the attention of the trial court, and there is no reference made to it, nor any argument based upon it, in the original brief filed by counsel. There is everything to indicate that the provisions of the new act were unknown both to counsel and the court at the time of the trial, and when the original brief was prepared by defendant’s counsel, and we think it tóo late now to raise the question in a supplemental brief. Black v. Dawson, 83 Mich. 485; Shippy v. Village of Au Sable, 85 Mich. 380; Ashman v. Railroad Co., 90 Mich. 567; Lacas v. Railway Co., 93 Mich. 412. Judgment is affirmed. The other Justices concurred.	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Hooker, J. The facts of this case will be found stated in the report of the former hearing in this court in 101 Mich. 319. Counsel for the appellant states in his brief that the testimony was the same upon both trials. Upon the last trial, the court submitted the case to the jury, and a verdict for the defendant was returned. All assignments of error relate to the charge or refusal to give requests. After examination, we are satisfied that the cause was submitted to the jury in accordance with the views expressed in our former opinion. It is unnecessary to discuss the several assignments of error (of which there are many) to show wherein they are not meritorious. They raise no law questions of interest, and the subject is sufficiently covered by our former opinion. The judgment is affirmed. The other Justices concurred.	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Moore, J. The plaintiff, as assignee, sued the defendant to recover deposits, amounting to $270, deposited with it by Beasley & Co. Defendant claimed by way of defense: 1. That plaintiff was not legally the assignee of Beasley & Co. 2. That, if plaintiff was the assignee, defendant was entitled to retain ont of the deposit- enough to pay two notes, amounting to about $250, which it held, given by Beasley & Co., which matured after the assignment was made and before suit was brought. The circuit judge found the proceedings relating to the assignment fatally defective, and directed a verdict for defendant. The record shows that the assignment was made August 31, 1895; that on the same day a copy of said assignment' was filed with the county clerk; that neither the original assignment nor a duplicate of it has ever been filed with the clerk. It also discloses that, after office hours on September 10th, the assignee and his attorney visited the county clerk’s office with an inventory of assets and a list of creditors that were not sworn to, and with a bond, the surety to which was the Fidelity & Deposit Company of Baltimore, Md. They found a deputy clerk in the office, who had returned to the office for his bicycle. A request was made of this deputy that he approve the bond and file the papers. He declined to do so, on the ground that it was something that he knew nothing about; that it came within the duty of Mr. Christian, another deputy, or the clerk himself. The papers were left in the clerk’s office. The next morning the assignee and his attorney again appeared at the clerk’s office. The assignee wanted to verify the inventory and list of creditors. He was told that this must be done by the assignor, who was summoned, and, after the papers were verified, a filing was indorsed on one of them by the clerk, and the bond was detached and placed in the vault. There was no approval of the bond, or no filing of it, indorsed upon it, and there never has been, though the clerk testified that he regarded the bond as good, and would have indorsed it with his approval on the 11th day of September if his attention had been called to it. Counsel for plaintiff asked that he be allowed at the trial to indorse his approval upon the bond, but the circuit judge declined to let him do so. No proof of the authority of the company to become surety on the bond was made. See Act No. 266, Pub. Acts 1895. Objection was-made to the admission of these papers because they did not comply with the provisions of 3 How. Stat. § 8739; 2 How. Stat. § 8740. A filing of a copy of the assignment, instead of an original or a duplicate, was not a compliance with the statute. A copy is a transcript of an original writing (Bouv. Law Diet.), and may be made by anybody. A copy cannot be given in evidence unless proof is made that the original is lost, or is in the power of the opposite party. While a duplicate is the double of anything. Bouv. Law Diet. It is either one of the two originals, both of which are executed by the same party or parties, and may be offered in evidence. It is no part of the duty of the clerk to file a copy of an assignment, but he could not refuse to file an original or a duplicate. The creditors are entitled to know that an assignment has in fact been made. That they cannot ascertain from inspecting what purports to be a copy. The failure to file an inventory and list of creditors within 10 days with the clerk is not a compliance with the statute. The failure to file with the clerk a bond, approved by him, within 10 days, is not a compliance Avith the statute. Munson v. Ellis, 58 Mich. 331; Beard v. Clippert, 63 Mich. 719; Springett v. Colerick, 67 Mich. 367; Abbott v. Chaffee, 83 Mich. 256. The surety was the Fidelity & Deposit Company of Baltimore. There is nothing in the record to show that this company was authorized to become a surety on the bond. The defendant is a creditor, which seeks to apply funds in its possession to the payment of a debt owed it by the assignors of the plaintiff. The creditor has a right to insist that, before it can be deprived of this fund, the plaintiff shall show a substantial compliance with the statute. It will not be necessary to discuss the other questions raised by the record. Judgment is affirmed. The other Justices concurred.	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Long, C. J. This action is brought to recover damages for an injury to the plaintiff by a passenger train at a highway crossing on the defendant’s road. On Sunday, June 4, 1893, a washout had occurred on the Chicago & Grand Trunk Railway, between Lansing and Durand, so that the through passenger train from Chicago eastward was taken from Lansing to Ionia, thence eastward to Du-rand, over the defendant’s road, passing through the village of Muir, where the accident happened. The train passed the station at Muir, without stopping, a little past noon, running at a rapid rate of speed, the witnesses varying in testimony in regard to it; some stating the rate as high as 45 miles an hour, and others about 20 miles. It was an irregular excursion train. Three blocks east of the depot, and about 1,170 feet distant, the train passed over Plain street at a grade. The plaintiff, a man about 67 years of age, quite deaf, lived at Portland, about seven miles from Muir, and on that morning, traveling from his home to Carson City, passed through the village of Muir. He entered the town from the south side on Prairie street, and turned eastward into Superior street, which is parallel with the track of defendant’s road, and about 200 feet distant from it. He traveled along Superior street about 1,170 feet, when he turned northward into Plain street. No train was in sight when he turned into Plain street. He was riding in a single carriage, with the top up and side curtains off, drawn by one horse, which was gentle and steady. Driving northward along Plain street, his view was for the most part obstructed, first by a dwelling-house, then by some bushes, a hen-house, and a pile of ties, the ties extending up to within 6 or 8 feet of the railroad track. The hen-house was about 6 feet high, and the ties, at the utmost, were only 9 feet high. The plaintiff did not stop his horse, but drove along to a point past the pile of ties, when, looking westward, he saw the train approaching, about 70 feet distant from him. 'His horse was then upon the track. He drove across, and the train caught the carnage, overturning it, and injuring the plaintiff severely, as well as damaging his horse and carriage. The negligence charged is: 1. That the defendant, by allowing the ties to remain there, and obstruct his view, led him into a place of danger. 2. That it failed to provide a watchman. 3. That the train was running at an unlawful rate of speed, and without sounding the bell or whistle. 4. That the defendant had no right or authority to run the train on Sunday. At the close of the case, the court below directed verdict and judgment in favor of the defendant. Plaintiff brings error. From the record it is apparent that the plaintiff took none of the precautions which the law requires of one who is about to cross a railroad track. Some claim is made that Stoddard, who was in advance of the plaintiff, passed over the track in safety, and that the plaintiff had the right to rely upon that fact, and was thereby not required to take the same precaution which he otherwise' would; but it appears that Stoddard was greatly in advance of plaintiff, and had turned the corner off Plain street, a distance of nearly 175 feet, before the plaintiff reached the crossing; and it does not appear that plaintiff in any manner relied upon the fact that Stoddard had passed safely over. Jensen v. Railroad Co., 102 Mich. 176; Houghton v. Railway Co., 99 Mich. 308. The plaintiff, if he could not see an approaching train by reason of these obstructions, was bound to use greater pre cautions in nearing the track. A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and, if either sense cannot be rendered available, the obligation to use the other is stronger, to' ascertain, before attempting to cross, whether a train is in dangerous proximity; and if he neglects to do this, but ventures blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at his own risk. This is the general rule settled in this State, but modified by the proposition that he is not bound to the same degree of care where he has no reason to expect a train to pass at that time. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Guggenheim v. Railway Co., 66 Mich. 150. But the law requires a person to exercise a great degree of care in making these crossings. The track itself is a warning of danger; and, if one goes upon it heedlessly, he assumes the risk incident thereto. Here the plaintiff was quite deaf. It is apparent that he could not hear the noise of the train. He knew the track was there; was familiar with the road.. He could not see because of these obstructions, and yet he did not stop or take any other precaution to ascertain if a train was approaching. He had no right to rely upon the fact that it was Sunday, and that no train was likely to approach, and drive blindly on. He must exercise some care. We are unable to find that he exercised any, even the slightest, care. If he had stood up in his carriage, and looked westward, he could have seen over the hen-house and the pile of ties, and have seen the train when it was some 1,200 feet away. He did not stop, and, if he had, he was, it appears, too deaf to hear the rumbling of the train. The case, it seems to us, is one where the plaintiff was so manifestly guilty of contributing to his own injury that a recovery should not be permitted. In Shufelt v. Railroad Co., 96 Mich. 327, it appeared that, if Mrs. Shufelt had stopped 18 or 20 feet from the crossing, she could have seen the train. Mr. Justice Hooker, in that case, speaking for a majority of the court, said: ‘ ‘ It was her duty to look both ways, after getting where she could see, before venturing upon the track, and she should have taken sufficient ’time to do so, though it became necessa^r to stop her team for the purpose. * * * A person is not justified In driving upon a straight track in the face of an approaching train without looking for it, and obstructions to the view in proximity to the track increase the obligation of extreme caution.” The present case, upon its facts, shows more clearly the obligation resting upon the plaintiff, for not only was his view obstructed, but he was very deaf. Whatever view may be taken of the testimony, giving it all the latitude claimed by counsel for plaintiff, it is difficult to find in it any proof of care or caution taken by plaintiff, as he ran blindly into danger. The contention of counsel that this was a Sunday excursion train, and unlawfully run, we think, can have a bearing only upon the question as to whether the plaintiff would not be required to exercise the same care in making the crossing. If he was not expecting a train, or had a right to assume that no train ever rhn on Sunday over that road, and he was relying upon that fact, it might, in a sense, excuse him from that degree of care that otherwise he was bound to exercise. But it is apparent from the record that, if the plaintiff had that in view, he did not take the precautions which the law requires, for even under such circumstances he had no right to go blindly upon the track. But, though it is the exception on that road to run Sunday trains, yet excursion trains frequently go over the road on Sunday. The judgment must be affirmed. The other Justices concurred.	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Moore, J. Litigation growing out of nearly the same facts as in this case was had in the case of Haldeman v. Berry, 74 Mich. 424. A reference to that case will make it unnecessary to repeat all the facts appearing in the record in this case. After that case was decided against Berry et al., they brought this suit to recover the damages which they attempted to recover in that proceeding by way of recoupment. The contract which was entered into by the parties was made, if made at all, by J. H. Mason acting for Berry et al., and by Collins acting for Haldeman. The facts necessary to an understanding of the case, in addition to those stated in Haldeman v. Berry, 74 Mich. 424, are: After Dean died, Collins appeared in Detroit, and presented a letter to Mason, reading as follows: “Louisville, Feb. 13, 1882. “ J. H. Mason, Esq. “ Dear Sir: Mr. Lewis Collins is fully authorized to do business for me. I have purchased from the administrator Mr. A. B. Dean’s interest in the asphaltum business, and as his successor am prepared to fulfill all his contracts. •“W. N. Haldeman.” The presentation of this letter was followed by some talk, which resulted in the execution of the memoranda and letters found on pages 428, 429, and 430 of 74 Mich., which letters plaintiffs in this proceeding claim constituted, a contract for the breach of which this action was brought. They recovered judgment, and defendant appeals. In addition to the letters found in the opinion in the case of Haldeman v. Berry, supra, this record shows letters the substance of which is as follows: April U, 1882, Mason to Collins: “Looking anxiously for advices of shipment.” Aprils, 1882, Collins to Mason: “Latest advices are that first shipment will no doubt be made before last of April.” April 8, 1882, Mason to Collins: “If no certainty of getting it, must take immediate steps to get a supply from other sources.” June 2,1882, Collins to Mason: “ Cargo being delivered at the landings.” June 10, 1882, Mason to Collins: “Is it any more certain now than when you wrote a vessel was being loaded ?” February 2,1888, Collins wrote Mason that by retaining from the cargo delivered in December, 1882, the asphaltum loaned Dean, as well as by demanding 5 per cent, discount for cash, to both of which “I have and do now assent, you have confirmed the contract of February 14, ’82, and it is confirmed and binding.” Further, “Your favor of December 7th shows that your necessities have been supplied from another source, and you are practically without damage.” Collins sent the draft of a new contract, stating, “It is not to be deemed a revocation or canceling of the one now existing, unless distinctly accepted.” February 10, 1883, Mason wrote Collins that he did not consider himself in any way bound by his former contract with Dean; “He failed to fulfill it, and, of course, I am not bound by it.” February 12, 1888, Collins wrote Mason, withdrawing his proposed contract of February 2d, and saying: “I am free to say, and Mr. Haldeman is of the same opinion, that had you ignored the Dean and Haldeman contract wholly, and not have retained the amount of asphaltum loaned Dean, or five per cent, for cash, as agreed with Dean, the effect would have been, to annul the contract. As it is, you have accepted so much and held us to so much as pleased you; and now we will exercise the same privilege. It will be some little time before a cargo can be tendered to you. You will be, notified in advance, and we shall expect $38 and $40 per ton of 2,000 pounds, at 30 days, in payment. I am sorry we could not agree, as I prefer to do business amicably. But what can’t be cured must be endured.” February 12, 1888, Collins telegraphed Mason: “Letter withdrawn. Will stand by old contract.” February 15, 1888, Mason wrote Collins that he need make no tender to be applied on any contract, as, under existing circumstances, he would not receive it. March &, 1888, Mason wrote Collins, offering to take 100 to 200 tons in July or August at prices stated, but not to apply on any contract orders theretofore given to him or Dean, “as all such orders or contracts are void.” March 5, 1888, Collins wrote Mason that he did not mean that, by his offer of a small cargo about July 1st, the obligation under which he thought Mason rested to take 1,130 tons should be of no further force. March 10, 1888, Collins wrote Mason: “We had now best adjust our differences at law, and may the cause of justice win. I will be in Detroit next week to institute suit for breach of contract.” Collins visited Detroit in March, 1883, employed counsel, and commenced the suit against Berry Bros, in behalf of Haldeman. In that suit Berry Bros, claimed damages by way of recoupment, which case is the one reported in 74 Mich. For the purpose of showing a ratification by Haldeman of the acts of Collins, the files in the case of Haldeman v. Berry were offered and received in evidence. It is the claim of Mr. Haldeman that he had no knowledge of the bringing of this suit by Collins until after a judgment in a large amount had been obtained against him; and that he prosecuted the appeal in the Supreme Court, not with a view of ratifying Collins’ acts, but to protect himself against the judgment obtained against him, and that he did this by advice of counsel, and that it should not be treated as a ratification of Collins’ acts. , It is the claim of the plaintiffs that the written ' authority given Collins authorized him to do what he undertook to do, and that, if it did not, if Mr. Haldeman desired to repudiate his contracts, he should have acted promptly; and that, when Collins assumed to bring suit in the name of Haldeman, it was the duty of the latter to deny his authority to do so, and that, if he failed to do so, his action was competent evidence for the jui’y to consider as bearing upon the question of ratification. It is admitted by defendant that he wrote the letter of February 13th to J. H. Mason, but he insists that it did not confer any authority upon Collins to make any new contract with Mason; that it only authorized him to act in relation to the contract then existing between Dean and the Berrys; and that, as the authority conferred is in writing, it was the duty of the court to construe the contract, instead of leaving it to the jury to say, as the court did, whether the letter, taken in connection with all the circumstances and facts surrounding the case, authorized' Collins to make the contract which he did make,— citing Mechem, Ag. § 104. The court left these two questions to the jury in the following language: “When this letter was written, you will remember that Mr. Mason had entered into a contract for the delivery in 'Detroit of a certain quantity of asphaltum by Mr. Dean for Berry Bros. It was really the contract of Berry Bros. After his death this letter was sent by the defendant in this case to Mr. Mason. Now, whatever authority was conferred upon Mr. Collins by this letter, Mr. Haldeman is bound by, and by none other, unless you shall subsequently find that the contract—-whatever was entered into by Mr. Collins—was subsequently ratified by Mr. Haldeman. When an authority is given to an agent by a principal, the principal is bound only so far as the agent shall keep within his contract, and, when that authority is in writing, a fair interpretation of what was intended by that writing is what governs; and I leave it in this case to you to say whether there was any authority intended to be given by Mr. Haldeman to Mr. Collins to execute or enter into any new contract, or simply whether it was authority merely to carry out the contract that had been entered into by Mr. Dean with Mr. Mason. If you shall find that under this letter there was no authority conferred upon Mr. Collins to enter into a new contract, but you shall find a new contract was entered into between Mr. Collins and Mr. Mason, then so far the plaintiffs in this -case would not be entitled to recover, unless you found that authority was given by this writing to enter into this contract,—this new contract. “It is claimed on the part of the plaintiffs that, even if there was no authority conferred upon Mr. Collins, he did' enter into a new contract with the knowledge and approval of Mr. Haldeman, and as evidence of that proposition -the exhibits that have been offered in evidence are permitted to go to you, so that you may determine whether, by the conduct or actions of Mr. Haldeman, he knew of or ratified in any manner this new contract that was entered into by Mr. Collins and by Mr. Mason. The evidence for you to consider in determining that proposition is this: It is claimed that this new contract by the plaintiffs was entered into by Mr. Collins, and that subsequently a suit was brought upon that contract to this court, in the name of the defendant, Mr. Haldeman, and that a judgment was entered against Mr. Haldeman in that case—he being the plaintiff—on the defendants’ (Berry Bros.’) plea of recoupment, for, I believe, something near $18,000. If Mr. Haldeman authorized the commencement of this suit in this court, then he recognized and ratified that contract. Here, on this proposition, so far these parties joined issue, the plaintiffs claiming that the evidence in this case shows that Mr. Haldeman authorized the commencement of that suit, Mr. Haldeman denying it, stating here that he never authorized Mr. Collins to commence this suit, nor never knew the suit was commenced, and knew nothing about the suit until he was informed subsequently that a judgment had been rendered against him in this court. It then follows, gentlemen of the jury, that this case was taken to the Supreme Court of this State, and there determined by a reversal of the judgment. It is admitted upon the part of the defendant in this suit, Mr. Haldeman, that he sent here from Louisville his counsel, who appears here in this case, and who was a witness upon this stand, and it is contended by the plaintiffs in this suit that all the testimony in this case, the brief and record, etc., showed that Mr. Haldeman then recognized this suit, and by that means ratified the contract which was entered into subsequent to the death of Mr. Dean between Mr. Mason and Mr. Collins. On the other hand, it is contended here that it is through the advice of counsel—that is, that counsel that Mr. Collins had hired in the suit in which Mr. Haldeman’s name was used—that this case was taken to the Supreme Court, and that they were informed that that was the only way that Mr. Halde man could defend himself as against the judgment that had been rendered here in this suit of twelve or thirteen thousand dollars against him. Now, right here, it is contended by counsel for the plaintiffs that that was not necessary to do in order to protect Mr. Haldeman at all, but that Mr. Haldeman could have moved in this court, on a motion to set aside that judgment by a bill in chancery, on the ground that his name was improperly used, that it was a fraudulent judgment as far as he was concerned, because he had nothing to do with it, and that that was his proper remedy. Now, gentlemen, that remedy is sometimes resorted to, and it is a legal remedy; but I charge you that in determining that particular question in this case it is for you to determine the intention with which Mr. Haldeman acted, or the advice that he received, or what he acted upon, whether he intended to or did simply try to protect himself against this judgment, or whether he intended .to or did ratify that new contract. If you find that in taking this remedy he simply sought to protect himself against the judgment, and acted by the advice of counsel, and did not. in tend to nor did not recognize that new contract as his own, or the authority of Mr. Collins to make it for him, then there is no ratification of that new contract in this case. But if he did recognize that new contract, or held Collins out,—that is, gave him authority in such a manner that people would be justified in believing that he was acting for him,—or he ratified this contract in the manner I have stated to you, then that ratification would be as binding upon him as if he had actually entered into the contract in the beginning.” It is undoubtedly the rule that a written contract is to be construed by the court. It is another rule of law that, if the language of a contract is obscure or equivocal or ambiguous, it will be construed most strongly against the party using the language (Kirwan v. Packing Co., 12 Ind. App. 1; Falley v. Giles, 29 Ind. 114; National Bank v. Insurance Co., 95 U. S. 673; Marr v. Given, 23 Me. 55 [39 Am. Dec. 600]); and that ‘ ‘ where language is ambiguous, and the agent bona ficle adopts a permissible construction, the principal cannot, on the ground that such construction was not intended by him, disown and dishonor the act of his agent” (Whart. Ag. § 224; Mechem, Ag. § 304; Hopwood v. Corbin, 63 Iowa, 218; Foster v. Rockwell, 104 Mass. 167). The court might well have held that, under the proofs and circumstances of the case, Collins and the plaintiffs having acted under the permissible construction which could be put upon the letter, it must be held to confer authority upon Collins to act for Haldeman. The court did not think best to do this, however, and submitted the question to the jury. "We do not think this was prejudicial error. See White v. King, 87 Mich. 107; Carson v. Smith, 5 Minn. 78 (77 Am. Dec. 539); Kirwan v. Packing Co., supra. This disposes of all the questions relating' to the authority of Collins to make the contract. It is insisted by defendant that plaintiffs rescinded the contract, and that they also, by their acts and letters, waived any damages growing out of the failure of Haldeman to perform it. It is evident, from the correspondence and the action of Collins in bringing the suit of Haldeman v. Berry, that he did not regard the contract as rescinded. December 7, 1882, Mason wrote a letter, in which he stated that he had succeeded in finding .a substitute for the asphaltum in English pitch, which suited him quite as well as the asphaltum; and it is insisted that this was a waiver. Mr. Berry gave his version of the circumstances under which the letter was written, and of the remittance for the asphaltum which was received. .These were all questions of fact, and were properly submitted to the jury. Judgment is affirmed. The other Justices concurred.	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Long, C. J. The plaintiff, and John - Wieland and Egbert Hurd, his assignors, were assessed $180 for cleaning out and widening what is known as the ‘ ‘Gunderman Lake and Prairie Creek Drain,” in Dewitt, Clinton county, for the year 1895. On the 2d day of March the parties paid such taxes to the defendant township treasurer under protest. These protests were signed by the parties, and it appears that prior to the payment of the taxes the defendant had seized and taken into his possession some personal property belonging to John Wieland, for the purpose of satisfying the payment of the tax, and also threatened to take some of the personal property of Egbert Hurd for the payment of his said taxes; and that prior to the commencement of suit these parties assigned their claims to the plaintiff. On the trial it was contended by the plaintiff: 1. That the application for cleaning out the drain was illegal, in that it did not recite that the application was made to the commissioner by whom the drain was constructed, or to. his successor in office, and in that it did not set forth that five applicants are freeholders of the township in which said drain is situated. 2. That the drain was widened beyond its original width. 3. That the contracts for doing the work were let for a drain 1¶ feet slope to one foot rise, and paid for on that basis, while in-fact the work was actually performed on the basis of one foot slope to one feot rise. 4. That there was a fraudulent arrangement between the commissioner and the contractors, by which the taxpayers were defrauded of large sums of money. On the trial the court directed a verdict in favor of the defendant. The statute under which the petition was made is section 1, chap. 8, Act No. 203, Pub. Acts 1893, and provides: “Whenever a drain, or any portion thereof, needs cleaning out, straightening, deepening, widening, or extending, any five freeholders of the township or townships in which such drain is situated, one or more of whom shall be owners of land liable to an assessment for benefits in the cleaning out, deepening, widening, straightening, or extending, as the case may be, may make application in writing to the commissioner by whom it was constructed, or to his successor in office, setting forth its necessity,” etc. The application for the cleaning out of this drain is signed by nine persons, and recites that five of them— giving their names—-are owners of lands that were assessed for benefits in the construction of the drain, and are now owners of land liable to be assessed for benefits in the cleaning out of the drain; and that the drain needs cleaning out to its full capacity its entire length. Counsel for plaintiff contend that the case of Tinsman v. Probate Judge, 82 Mich. 562, settles the rule that the application was insufficient. In that case the petition did not show that one or more of the petitioners were assessed for the construction of the two drains which they asked to have widened and deepened, and it was held that the statute required this, and that such requirement was jurisdictional. That proceeding was had under Act No. 233, Pub. Acts 1889. As has been seen, the petition in the present case shows that five petitioners were assessed for benefits for the original construction, and that they then held land liable to be assessed for the improvement. We think there is no showing that the drain was widened beyond its original width. The contracts under which the cleaning out was done appear to,have been destroyed after all the work had been completed; but it was shown that the contracts referred to a diagram made of the ditch before the letting of the contracts, and after the surveys had been made, and that a certain portion was to be of the dimensions of one foot slope to one foot rise, and another portion, 1\|- feet slope to one foot rise, and there is no showing but that these were the dimensions of the original ditch. There is no evidence that the contracts were let upon any different basis than that shown in the diagram, and whatever the contractors may have done in the construction of the drain in making it wider can in no manner affect the plaintiff’s rights, as the contracts were let simply for the cleaning of the old ditch, and in accordance with the diagram. There is not a particle of evidence in the record that there was collusion between the commissioner and the contractors by which the taxpayers of the township were defrauded. The judgment below is affirmed. The other Justices concurred.	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Grant, J. (after stating the facts). The court should, as requested, have directed a verdict for the defendant. Plaintiff was not in the exercise of ordinary care. He was perfectly familiar with the situation, and knew the danger. He chose to direct his course by a light which was not the one he supposed it to be. It is doubtful whether, at the point where he selected this light as his guide, he could have seen the light in Denton’s house if it had been there, on account of an angle in the street. His counsel in their brief say: “It is absolutely certain that, had there been a railing there, he would not have fallen off. ” It is equally certain that, if he had guided himself by the railing upon the north side, he would have passed over in safety. It may be said that three things contributed to the accident,—the darkness of the night, the mistake of the plaintiff in taking one light for another, and the absence of a rail on the south side. His own mistake caused the accident, and for this the defendant cannot be held liable, however negligent it may have been in leaving one side of the walk unguarded. Had there been no light, it would clearly have been his duty to guide himself by the rail on the north side. He cannot avoid this duty by showing that he followed a false light, instead of the one he was accustomed to follow. The village was in no wise responsible for his own mistake, without which he would not have been injured*, Further discussion is unnecessary. The case is ruled by Black v. City of Manistee, 107 Mich. 60. In that case plaintiff neglected to guide herself by the hand-rail when passing over an icy sidewalk. See, also, Smith v. City of Jackson, 106 Mich. 136; Kuhn v. Walker Tp., 97 Mich. 306; Beach, Contrib. Neg. § 248. Judgment reversed, and no new trial ordered. The other Justices concurred.	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Montgomery, J. Defendant, Day, was the general agent of the Equitable Life Assurance Society of New York. Plaintiff entered into his employment in 1887, under a written contract, as solicitor of insurance. This contract, it would seem, related to insurance effected through the instrumentality of plaintiff alone. Plaintiff claims that during the years of 1887, 1888, and 1889 he assisted defendant in effecting insurance on various lives, upon an agreement to share the commissions received, and that for these items there has never been a settlement and payment by defendant. Plaintiff recovered upon this claim. Defendant entered a motion for a new trial, which was refused, and he brings the case, here for review. But two points are presented. One relates to the admission of a single question on the cross-examination of defendant, and the other assignment of error relates to the refusal of a new trial. The plaintiff had testified that Mr. Day and himself had caused insurance to be written upon the lives of Elias Matter, Mr. Wright, and W. 0. Hughart, under an agreement that the commissions received upon the insurance were to be divided between the two equally. Defendant disputed' this agreement, and testified, in addition, that settlements were made from year to year of the business transactions between the two, and that the settlements were satisfactory. On the direct examination, defendant testified that, as to the insurance written on Mr. Wright, he told plaintiff that, if he could, he would save something for him out of the commissions, and that plaintiff replied that he would be satisfied with that arrangement, and that he (defendant) paid plaintiff out of the commissions a sum satisfactory to plaintiff. On cross-examination, defendant testified to the amount of the premium on the three Wright policies, stating that it was $1,018.20; that the commission was 35 per cent.; and that Mr. Raymond, under his present claim, would be entitled to 50 percent.; that he (defendant) paid to one Lancashire $152 of the premium, and to Mr. Raymond $12?; and that he (defendant) received $29.30. He further testified without objection as to the amount of his commission on certain other policies, and as to the commission he would receive on renewals. He was asked what kind of policies the Wright policies were, and replied that they were 15-year endowments He was then asked: “How much annual commission did you. get after the first year ? ” This was objected to, and received subject to exception, and the witness replied, “Seven and a half per cent.” This ruling presents the first question in the case. We think the testimony was properly received. It was in dispute between the parties as to whether plaintiff was to receive, under an agreement with defendant, one-half the commission, or the amount paid him. As the testimony stood, defendant’s testimony to the effect that he was not to pay more than $127 was fortified by the inference that the jury might draw, that, as he (defendant) had been required to pay $152 to Lancashire, it would be unreasonable to require him to pay substantially all that remained to plaintiff; and, if the fact had been that defendant would have no further concern in the insurance after the receipt of the first premium, the inference to be drawn from this would have been very strong; but, as bearing upon the probabilities, we think the fact that he had a further and other interest in the insurance effected was of some importance, and competent to be considered by the jury. The question is within the principle of numerous decided cases. See Misner v. Darling, 44 Mich. 438; Banghart v. Hyde, 94 Mich. 49, and cases cited. After the trial, defendant discovered in his office a letter written him by the plaintiff, which tends strongly to support the defendant’s claim of a settlement of accounts in February, 1891. An application for a new trial was made, based upon the discovery of this letter. The case was tried on the 2d and 3d of November, 1894. The testimony of diligence is by an affidavit of Miss Thompson, a clerk in the employ of defendant, who states that, some time previous to the 2d of November, she was instructed by defendant to make a careful and diligent search, and to obtain any correspondence or receipts or other evidence bearing upon any agreement between plaintiff and defendant; that, complying with such instructions, she did make a careful search, as she supposed, of all correspondence of said plaintiff; that subsequent to the 2d of November, in compliance with directions of defendant, she spent the greater portion of four days in the examination and careful reading of the correspondence between the parties; and that, on the 12th day of November, she discovered the letter in question. The ground for refusing the motion for a new trial is not stated in the record, but it is assumed in the briefs of counsel that the circuit judge was of the opinion that proper diligence in the effort to discover the testimony before trial was not shown. We should not feel justified in reversing the action of the trial judge where, as upon such a motion as the present, the matter is committed to his sound discretion, except in a case where a clear abuse of such discretion is shown. We think this is not that case; that there was ample room, in the exercise of judicial discretion, for the circuit judge to entertain the opinion that the defendant had not brought himself within the rule of diligence required to justify a new trial upon the ground of newly-discovered evidence. See 3 Grah. & W. New Trials, 1026 et seq. The judgment will be affirmed. The other Justices concurred.	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Grant, J. The defendants are husband and wife. This suit was commenced in justice’s court, based upon two promissory notes, for $63 each, upon one of which a payment had been made. The notes read as follows: “Six months after date, I promise to pay to the order of C. A. Sherrod $63, * * * with interest, value received by me since I have become the sole owner of the stock of groceries formerly belonging to the estate of C. L. Costigan.” This was signed by defendant Therese, and indorsed by defendant Eugene, as follows: “I hereby guarantee the payment of the within note, waiving notice of protest.” Plaintiff recovered verdict and judgment in both courts. C. L. Costigan was the son of the defendants, and kept a grocery store and saloon. After his death, defendant Eugene was appointed administrator, and testified that, as such', he continued to carry on the business of his deceased son for the benefit of his estate, notwithstanding he showed no authority for doing so, and took out the liquor tax receipt in his own name. He attended to the saloon, and his wife to the grocery. Plaintiff owned the building. Eugene executed a lease to him in the name of C. L. Costigan, his son who was dead; plaintiff, however, supposing that to be the name of the defendant, and that he was the one who executed the lease. Therese and her husband testified that she purchased from him, as administrator, the stock of goods and business, shortly before giving the notes. The defense was that these notes had no reference to her own property, and that, therefore, she, being a married woman, was not liable. The court instructed the jury that plaintiff could not recover unless the undertaking sued upon had reference to her sole property, or unless she purchased the, property, and that the rent for which these notes were given was a part of the consideration for the purchase. It is claimed that there was no testimony upon which to base this instruction. We cannot concur in this view. She had purchased the property at the time the notes were given, and was in possession of the building. There was evidence tending to show that Mrs. Costigan had owned the stock for a long time. The inferences to be drawn from all the evidence were properly left to the jury, who were carefully instructed as to the rules, applicable to the case. The judgment is affirmed. The other Justices concurred.	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Hookee, J. Plaintiff had been' in the employment of the defendant corporation for several years, at a stated salary of $13 per week. In December, 1892, Mr. Goodell, then defendant’s manager, “said to the plaintiff that there was a probability of some changes in the management of the company, and the people coming in would make some change, and he would give him an agreement, so that he would be fixed, and not lose his place;” that he afterwards .gave him a writing, and gave him to understand that he could not be put out by the new management, but that he would retain his position for the year. The following is a copy of the writing: “Detroit, Mich., January 1, 1893. “ This is to certify that, in'consideration of the faithful performance of his duties during the last five years, Simeon F. Fuller is to receive twelve hundred dollars ($1,200) per year until further notice, or during the year 1893. The salary is not to be reduced in any event, and may be raised, at the discretion of the Peninsular Co. or its manager, at any time. “Peninsular White Lead & Color Co. “O. D. Goodell, Manager.” Within a short time, Mr. Worcester became manager of the company, and the plaintiff continued to work for the defendant under this arrangement for 1 year 8^ months, without further conversation about the matter. At that time the company sold out its business, and the men were all paid off and discharged, Fuller, among the rest, having knowledge that the company was going out of business; and when the sale was made he was informed that he would not be wanted further. This action is brought to recover plaintiff’s salary to January 1, 1895, upon the claim that his was a yearly hiring, and that, when he commenced on the year 1894, he could not be discharged before the year expired. We think that the evidence shows conclusively that the plaintiff accepted employment upon the terms stated in the writing, which was that he should be paid a salary of $1,200 per year until further notice. It might be raised, but could not be reduced, during 1893, but might thereafter, upon notice. To say that he could only be dismissed at the end of a year would make this provision meaningless, for nobody contends that without it the contract might not be changed, or even terminated, at any yearly period by either party. The only reasonable construction is that for the year 1893 the plaintiff had a right to a salary of $1,200. After that his right might be terminated upon notice, which was equivalent to saying that the defendant might terminate the contract, because he could not be compelled to work at a lower price, or insist upon receiving any stated amount. The judgment is reversed. No new trial should be ordered. Long, C. J., Grant and Montgomery, JJ., concurred. Moore, J., did not sit.	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Hooker, J. The plaintiff furnished to the defendants a machine called a “sander,” upon defendants’ promise to pay \|350 in money and an old sander, which had been in use in their factory. In the action which was brought for the money consideration, the defense is made that plaintiff, as part of the contract, agreed to indemnify the defendants against litigation with another manufacturer, by a letter or bond which should be satisfactory to the defendants. The contract consisted of correspondence. The defendants wrote on June l?th, as follows, viz.: “But the Berlin Machine Co., of Beloit, Wis., represented by Mr. Forbes, one of their company, informs us that you were infringing on their patents, and that it would only be a question of time before we would be liable, if we bought one of your machines. Now, if you can furnish us with satisfactory letter or bonds that yoü will protect us in any such case, we will give you the order for the sander, and would like to have you ship it as quickly as possible.” Plaintiff replied as follows, viz.: “If you can wait about two weeks, we will furnish you machine, and will indemnify you fully against all interference from Berlin Machine Co.” To this the defendants answered, as follows, viz.:' “Please rush the sander as quickly as possible, as per our former coi'respondence.” On November 19th, plaintiff sent a statement of account, with a bond for $1,000, signed by the plaintiff company. On November 23d, the receipt of this letter was acknowledged, and plaintiff was informed that Mr. W. D. Young was absent, and expected home the first of the next week, and that the matter would be placed before him as soon as he should return. On November 30th plaintiff wrote, asking remittance. No attention was paid to this letter, and on December 5th plaintiff drew on the defendants, notifying them by letter. On December 7th the defendants wrote that they could not pay the draft, as they had not had opportunity to go over the bond question with their attorney, signifying willingness to settle as soon as they could see their attorney, and have the bond question fixed satisfactorily to them, and asking a recall of draft. On December 10th they returned the $1,000 bond, asking a bond for $5,000, signed by two satisfactory sureties, who should have a proper rating. On December 14th plaintiff declined to furnish this, saying that the request was unreasonable, and asking a return of the machine. This the defendants refused, claiming a right to the benefit of their contract. Thereupon this action was brought. The judge directed a verdict for the defendants, on the ground that, before the plaintiff could recover, it must prove that the bond was sufficient in amount, and the sureties good; and he did this notwithstanding the fact that counsel for the plaintiff offered to prove such facts, and also to prove other items of account against the defendants. We are of the opinion that the court erred. If it be conceded that the defendants were entitled to demand a bond as a condition precedent to the acceptance of the machine, it is too late to insist upon such condition after taking and using the machine for several months, and they should be limited to the right to recoup such damages as they have sustained by reason of the failure of the plaintiff to perform that part of the contract. They have deliberately elected to keep the machine, have used it for a long period of time, and refused to return it when plaintiff offered to take it back. It is not stated that the defendants have experienced any difficulty, and apparently they were willing to accept and keep the machine in silence, until asked to pay for it, and then seek to avoid payment upon the ground that a condition— very hard, if not unreasonable—was not complied with. Mr. Beach says: “But to permit a party under all circumstances to refuse to pay because dissatisfied, and at the same time to retain the fruits of the agreement, is an unwarrantable extension of the doctrine applied to machines or articles of manufacture which can be rejected. Therefore in all cases, if the party relies upon dissatisfaction as a defense, he must rescind the agreement and restore the status quo.” 1 Beach, Cont. ■§ 106. Such cases were those cited by counsel for the defendants; i. e., cases where acceptance was refused. But we do not find it necessary to go to the extent of saying that defendants should be deprived of the benefit, of their contract, as appears to have been held in the case of Campbell Printing-Press Co. v. Thorp, 36 Fed. 414, which was apparently a Michigan contract. It is sufficient to say that the contract has been performed in a substantial part by the plaintiff, and the defendants have accepted and had the benefit of part performance, and they should not be permitted to rely upon the performance of the residue as a condition precedent to liability. Upon this point the author says: 1 ‘ Conditions precedent must be performed in order to make the conditional promise absolute. But, after the one party has performed the contract in a substantial part, and the other party has accepted and had the benefit of the part performance, the latter may thereby be precluded from relying upon the performance of the residue as a condition precedent to his liability. In such case he must perform the contract on his part, and must rely upon his claim for damages in respect of the defective performance. ‘ It is remarkable that according to this rule the construction of the instrument may be varied by matter ex post factoj and that which is a condition precedent when the deed is executed may cease to be so by the subsequent conduct of the covenantee in accepting less. This is no objection to the soundness of the rule, which has been much acted upon. But there is often a difficulty in its applications to particular cases, and it cannot be intended to apply to every case in which a covenant by the plaintiff forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract.’” 1 Beach, Cont. § 107. And see cases cited in note. See, also, Clark, Cont. 676, and note. The judgment of the circuit court is reversed, and a new trial ordered. The other Justices concurred. Ellen v. Topp, 6 Exch. 424.	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Montgomery, J. One Frances A. Shafer filed a bill in the circuit court for Kent county against the relator, praying that the title to certain land of complainant be quieted, and also praying for an injunction to restrain the defendant from building a cement driveway and cement or stone coping upon land claimed to belong to complainant, and adjoining the boundary line between land owned by complainant, on the one side, and defendant, on the other. The circuit judge granted an injunction. The defendant moved to dissolve the injunction, and, upon the application being refused, applies to this court for mandamus to compel the dissolution of the injunction. The relator contends that a court of equity has not j urisdiction to settle a' dispute over a boundary line, and, therefore, that the court had no jurisdiction in this case to grant the injunctive relief prayed. The cases relied upon are Andries v. Railway Co., 105 Mich. 557; Wykes v. Ringleberg, 49 Mich. 567; Bresler v. Pitts, 58 Mich. 347. These cases undoubtedly establish the doctrine that a court of equity has not jurisdiction to settle every dispute relating to a bound ary line, or, to use the language of Mr. Justice Campbell in the case last cited, that “there is no jurisdiction in a court of equity to settle boundaries merely because disputed and difficult of ascertainment.” O n the other hand, if a case is brought within some other head of equity jurisprudence, it is not conceived that the mere fact that there is involved in the question of the complainant’s right a necessity for fixing a boundary line ousts the court of jurisdiction. This was determined in Wilmarth v. Woodcock, 58 Mich. 482, 66 Mich. 331. See, also, Stewart v. Carleton, 31 Mich. 270. The bill in this case sets out that complainant occupies the premises described in her bill, and has been in the full and complete possession thereof since the 28th of January, 1870; that there was an adjustment of the boundary line between herself and the prior owners of the lot occupied by defendant, upon the line now claimed, and that a fence was constructed upon this line, and has since been treated and acquiesced in by all the parties as the true line fence; that complainant has occupied the premises for more than 21 years; that, when defendant purchased the land, the fence was pointed out to him as a true boundary, a,nd that he bought with that knowledge and understanding; that said fence became old, and was removed in the last few years, but that most of the posts that marked the location of the same are still there in the ground, although some of them, at the rear, have been removed or buried by said defendant; that defendant is about to take possession of said disputed strip, and build on the front portion, and running about 40 feet back, a cement stone coping and cement or tar driveway; that nearly the whole coping and part of the driveway is upon complainant’s lot, and north of the line of said fence or posts; that, for a large portion of said 40 feet, said fence or coping will come under complainant’s eaves; that the strip which defendant declares his intention to take possession of is worth $200, and the building of said .coping will damage complainant over $100; and that two men have commenced to remove the turf to build said coping, and will, unless enjoined, dispossess complainant. This is followed by an allegation of irreparable injury, and by the prayer, which includes a prayer that the title of complainant be quieted, for an injunction, and for general relief. By the case made by complainant below, it also appears that she is in possession, and that the remedy by ejectment was not open to her at the.time of filing the bill, and it would appear, also, that an action, of trespass, or even of ejectment, ' based upon the occupancy by defendant of that portion of the land which he proposed to take for the driveway and coping, would not settle the right to the other portion of the disputed territory in the rear of the lot. 2 How. Stat. § 6626. We think a prima facie case for equitable relief was made out by the bill, and it follows that, the court having jurisdiction of the subject, we will not, by mandamus, review the action of the circuit judge in refusing to dissolve the injunction. The other Justices concurred.	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Montgomery, J. In 1890 the defendant city contracted with one Tennis to construct a sewer in the center of South Lafayette street, together with manholes and catch-basins, or sand traps. These catch-basins were located between the gutter and the sidewalk, and the excavation for the construction of the same was 7 feet 4 inches in depth, with a diameter of 5 feet 4 inches. The contractor entered upon the construction of this work, and, after the excavation of one of these openings for a catch-basin, on the evening of November 17, 1890, plaintiff, then a lad of 15 years, while on an errand to a grocery store, and crossing Lafayette street in a diagonal direction, fell into this opening, and received serious injuries, for which he recovered in this action. The defendant brings error, and relies, in its argument, upon four grounds of error, principally: (1) That the court erred in admitting proof of a pathway running diagonally across Lafayette street, in the course taken by plaintiff . ' (2) That there was no sufficient proof that the basin was left unguarded. (3) That the plaintiff was guilty of contributory negligence. (4) That no notice of the failure to guard the opening was shown. Testimony was introduced tending to show that it was customary for people to cross the street in the direction taken by the plaintiff, and that a path had been worn across the street at this point. We think this testimony could not have damaged the defendant, as it was the right of the plaintiff to cross the street at any portion of the traveled way, and he was not confined to the crosswalk. 1 Thomp. Neg. 387; Lincoln v. City of Detroit, 101 Mich. 245. The fact that others, in considerable numbers, took this same course, bore on the question of plaintiff’s care on the occasion in question. The defendant’s testimony tended to show that, wh’en the men quit work on the day in question, they placed barriers around tbe hole, and left a lighted lantern there. The testimony as to the barriers being there was not wholly undisputed, but, in addition to this, there was testimony tending to show that the lantern did not contain oil enough so that the lantern could be kept lighted. Two witnesses testified that, immediately after the accident, they attempted 'to light this lantern, and keep it lighted, and failed in the attempt. The trial judge properly left it to the jury whether, in view of this testimony, the place was properly and reasonably guarded and lighted. It cannot be said that, if it was a duty to leave a light at this place at all, this duty was performed by leaving a lantern with so little oil that it would not remain lighted during the occasion for its use as warning. 3. The contention that the plaintiff was guilty of contributory negligence as matter of law cannot be allowed. It is true the night was dark, but the public streets are intended for travel in the evening as well as in the daytime, and it is not negligence to attempt to travel the public streets in the evening. We are cited to numerous cases by defendant’s counsel, but, in the main, they are cases where the traveler had left the public highway, or the wrought portion thereof, and are clearly distinguishable from this case, in which the plaintiff kept within the limits of the highway. 4. The further contention is answered by the rule laid down in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), and reaffirmed in Southwell v. City of Detroit, 74 Mich. 438, in which case the rule is laid down %iat a city, when performing a duty imposed upon it by law, cannot shift the responsibility for conditions created by itself in the performance of such duty upon a contractor, and rid itself of its obligations. See Hayes v. City of West Bay City, 91 Mich. 418. See, also, Brusso v. Buffalo, 90 N. Y. 679; 2 Dill. Mun. Corp. (4th Ed.) § 1027, and note, where the authorities are collected. We think no error was committed to the prejudice of defendant, and the judgment will be affirmed, with costs. The other Justices concurred.	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Montgomery, J. This action is based upon a bond made by the defendant Dayton, as principal, and his codefendants, as sureties, in the sum of $15,000, with a condition as follows: ‘ ‘ The condition of this obligation is such that whereas the above suit in chancery is pending for an accounting and settlement of a partnership heretofore existing between the parties thereto, in which each side claims rights not conceded by the other, and each said complainants and said defendant claim a sum of money due, owing, and to be decreed to them, and by mutual agreement it is understood that this obligation shall be filed: Now, therefore, the condition of this obligation is such that if the above-bounden principal shall well and truly pay all such sums of money, and perform and satisfy any final decree made against him in this cause, then this obligation to be void; otherwise, to remain in full force and effect.” Plaintiffs recovered a judgment of $1,665:76, and defendants bring error. Plaintiffs introduced in evidence a decree of the circuit court in chancery, in the suit pending and referred to in the condition of the bond, which provided, among other things, that defendant should pay the receiver the sum of $1,460,11, and should pay to complainants in that case (the plaintiffs in this) costs, which were shown to have been afterwards taxed at the sum of $89.85. The decree further provided that the receiver, out of the sum mentioned to be paid to him, pay to the complainants the sum of $574.08. It is alleged that the declaration did not set out when or why a receiver was appointed, or what his relation to the chancery case was, or why the defendant Dayton should pay him any money, or how the plaintiffs were damaged by his failure to do so. The decree itself is set out in the declaration, and contains a recital that Charles F. Hammond had been theretofore appointed receiver in the cause. We think this is sufficient. We think it also appears sufficiently that the plaintiffs were interested in the payment of this money, at least to the extent of the $574.08, which was by the decree directed to be paid by the receiver to plaintiffs. This much, at least, appears. It is also urged that no consideration was shown for the execution of the bond. We think this case is fully covered by the recent case of Boyer v. Sowles, 109 Mich. 481. It is also contended that there is no proof that the condition of the bond has ever been violated, and no proof that plaintiffs were damaged in any way by defendant’s failure to pay the receiver; that the evidence simply shows that, during the pendency of the chancery suit, each of the parties thereto filed a voluntary bond. We find an insuperable difficulty in dealing with these various questions, growing out of the state of the record. There was no special finding of facts and law, and this court has frequently held that in such case we cannot review the conclusions reached by the court upon the facts and law. See Butts v. Davis, 50 Mich. 310; Cumming Tp. v. Schick, 94 Mich. 222; Gemberling v. Lazarus, 100 Mich. 324. The propriety of this rule is made manifest in the present case. It appears that, at the conclusion of the testimony, two requests to find were presented to the court. The first was: “The court is requested to find, as a matter of law, that the undisputed proof in this case shows no liability on the part of the sureties on the bond, and that the verdict as to such sureties must be for defendant sureties. “Second: Under all the proof in the case, the judgment should be for the defendants Holmes and Stahl.” This did not suggest a failure to make a case against the principal, nor was there any request for a finding of the facts upon which a judgment should be based. The court refused to^adopt these views of counsel, and that is as far as the record goes. We think the contention of plaintiffs that, no other objection except those stated having been made upon the trial, no other is now open, is, upon this record, correct. The judgment will be affirmed. The other Justices concurred.	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Grant, J. Replevin. Property replevied: A gas meter of the value of six or seven dollars. The cause of the suit: The refusal of the defendant to pay a bill for furnishing 60 feet of gas pipe, and labor, to connect deféndant’s stables with plaintiff’s gas-pipe line. The amount of the bill rendered, according to plaintiff’s testimony, was $7.45; according to defendant’s testimony, $11.50. The suit was instituted in justice’s court, and was appealed to the circuit court, and then to this court. The circuit court held that title to the meter was in plaintiff, that the right of possession was in defendant, that plaintiff could not maintain the action, refused to award the return of the property, and directed the jury to assess damages to the defendant, which they did at the sum of $55. As long as the law permits.such petty suits to be appealed from one court to another till they reach the court of last resort, imposing expense upon litigants and the public, costing many times the amount involved, the courts must determine them upon legal principles, notwithstanding they take time which ought to be devoted to important suits. Two, questions are presented: (1) Had plaintiff the right to remove the meter ? (2) If it had not that right, what is the measure of damages ? In disposing of the first question, we shall assume that the defendant is liable for the reasonable cost of putting in the service pipe. It is conceded that the plaintiff owns the meter, and that ’it may remove the same for nonpayment of gas consumed. It is argued that the company could not remove it for nonpayment of the bill for making the connection and piping the defendant’s barn, and the court so instructed the jury. This involves a determination of the contract between the parties. The connection was made, the pipe furnished, and the meter put in for the sole purpose of furnishing gas to the defendant. The agreement to do these things and to furnish gas were parts of. the same contract. If the company may remove its meter for failure to comply with the one provision of the contract, it is difficult to understand why it may not for failure to comply with the other. The defendant agreed to pay for both. The plaintiff is under no obligation to continue to perform its part of the contract when the defendant has refused compliance. Under the defendant’s contention, the gas company might pipe a man’s building at great expense, for which he agreed to pay, and when it was done, and the meter in place, be compelled to furnish gas so long as he paid for the gas consumed, although he refused to pay the other bill. Suppose that, before the meter was put in, the man should refuse to pay, would the company be liable for damages for not putting in the meter? Would he be entitled to the meter without first paying or tendering the reasonable cost of piping? To these questions there can be but one answer. If A. agrees to place a machine, the title to which remains in A., upon B.’s land, and to do further work with it for B. after it is so placed, upon condition that B. pay the expenses of moving and placing the machine, and after A. has done this work B. refuses to pay, B. cannot say to A., “I will not pay you for moving and placing the machine, but you must keep it on my land and work it for my benefit so long as I pay you the agreed price for its use.” A. has two remedies. He may either remove his machine, or he may go on with his contract and sue B. for the labor performed. This practically illustrates the defendant’s position,—that plaintiff must continue to perform its part of the contract, while defendant violates its part. Its counsel cites no authority to support it. The present case is not one of the ordinary performace of labor or the furnishing ,of materials, unattended with any other conditions. We think the plaintiff was entitled to remove its meter, and to maintain the action of replevin upon refusal to deliver it. There was no evidence to sustain the verdict for damages. The defendant did not show that it was entitled to any but nominal damages. After the meter was removed, it used lamps and lanterns, which were cheaper than gas. The court instructed the jury to ‘ ‘ give such damages as defendant is entitled to for being deprived of the convenience and use of gas, * * * and you must make up that estimate of damages as best you can under the testimony.” Inconvenience, unaccompanied by pecuniary loss, is not an element of damage upon being deprived of the use of property. No actual damage being shown, it was the duty of the court to instruct the jury that they could find only nominal damages. Judgment reversed, and new trial ordered. Long, C. J., and Moore, J., concurred with Grant, J. Montgomery, J., concurred in the result. Hooker, J., did not sit.	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Moore, J. Complainants filed a bill alleging the existence of a public highway through the township of Greenfield known as the “Grand River Road,” which road is described as having been in existence móre than 35 years. The bill states that it is 100 feet wide, and is one of the most important public roads in the township. It avers that defendant has erected and now “maintains in said public highway a purpresture in the shape of a public barn;” that said barn occupies a portion of said highway; and that defendant’s use of said road, which is greatly traveled, is unlawful. It also states that the highway commissioner served a written notice upon the ■defendant to remove the barn, and that he declined to do so, and claimed he had some right to the land. The bill prayed for a decree requiring the defendant to remove the barn, and for a perpetual injunction to restrain the replacing of any obstructions in said road upon defendant’s part. The defendant interposed a general demurrer to the bill. A decree was entered dismissing the bill of complaint, from which decree the complainants appeal. We are not favored with a brief from the defendant* so that we do not know what his contention is. The complainants insist that they have a right to maintain this bill under 2 How. Stat. § 6611, which reads: “Said circuit court in chancery shall also have jurisdiction and authority to :\|hear and. determine all cases of' encroachments upon the public highways, streets, and public alleys in organized townships, incorporated villages, and cities, in this State. Such suits may be instituted in the corporate name of such townships, villages, and cities.”’ Five days after the section just quoted became a law* the legislature passed the highway act of 1881, which did not affect cities and villages, but provided very fully for highways in townships, and provided remedies for encroachments where none had existed before. The act of June 8th did not in terms repeal the act of June 3d, and it is insisted here that it did ‘ not repeal it by implication. 3 How. Stat. §§ 1371-1378, treats in detail of obstructions to highways, and of encroachments thereon, of the notices that shall be given in cases of obstruction, and how actions shall be brought. It provides for service of process, and gives the right of trial by jury when demanded, and the right to an appeal to the circuit court, and a right of trial by jury there. It also provides that the encroachment may be removed by the commissioner within 10 days after final judgment. These two statutes were construed by Justice Campbell in the case of Township of Lebanon v. Burch, 78 Mich. 641. In that case, after reciting the various, provisions of the statute, the learned justice said; “ This furnishes complete and specific relief, in connection with trial by jury, to which the landowner is consti tutionally entitled, and leaves no occasion for resort to equity, unless under some possibly peculiar circumstances, which, cannot generally exist.” Continuing the discussion, he said: “ Under the highway law, no township officer, except the commissioner, has 'any right to meddle with highway matters. His duty is, when he thinks a road is encroached on, to satisfy himself in some responsible way, which will bear the test of a lawsuit, where the highway lines are, and how they are encroached upon. * * * The bill and proceedings in the present case are entirely repugnant to the rules which have always been observed in regard to jurisdiction and procedure. In the first place, there is not only an adequate remedy at law, but one devised for the very purpose, and made obligatory in terms, and better adapted to do justice; * * * and in this connection it should be noted that, by the settled practice in England and here, a bill cannot be filed to take into a court of chancery jurisdiction over a controversy of a legal nature, without a verification of such facts as show its propriety.” Applying the language of this able jurist to the case under consideration, it seems to be clearly shown that the bill of complaint was properly dismissed. The complainants have an adequate remedy at law, and no facts are stated in the bill indicating the necessity of the court of equity taking jurisdiction. The decree of the court below is affirmed. The other Justices concurred.	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Moore, J. Plaintiff sued defendant, declaring on the common counts in assumpsit. Defendant pleaded the general issue, with notice of set-off and recoupment. A number of witnesses were sworn on each side. The case was submitted to a jury, who rendered a verdict in favor of plaintiff. Defendant appeals. The counsel who appears for defendant in this court did not take part in the trial of the case in the circuit court. All the assignments of error may be considered under three heads: First, what occurred between counsel during the cross-examination of defendant. ’ Second, the refusal of the court to allow counsel for defendant to prove the general reputation of the defendant. Third, the refusal of the court to allow Mr. "Winter to testify what, in his opinion, was the cause of the dock’s going out. The record does not show that Mr. Winter was an expert, nor does it show such knowledge upon his part as would entitle him to give opinion evidence as to the cause of the failure of the dock to stand.. It was not error to exclude his testimony. As to the second group of errors assigned, no testimony had been offered attacking the general reputation of Mr. Godkin. The most that had been done, as will appear later, was to ask him questions implying, by inference, wrongdoing upon his part. His answer was received, and it denied any wrongdoing. We know of no rule of law that would authorize proof of general reputation in a civil cause under such circumstances. As to the first group of errors, the record shows the following to have occurred: “ Q. Where were you born and brought up ? “A. I was born in Canada, near Toronto. “ Q. In Canada ? “A. Yes, sir. “ Q. And you lived there with your father? Your father owned a farm there in Canada? “A. Yes, sir. “ Q. And you engaged in business there in Canada? “A. Yes, sir. “ Q. In the timber business ? “A. Yes, sir. “ Q. Didn’t you raise money to engage in that business by mortgaging your father’s farm ? “A. No, sir. “ Q. Do you swear that you didn’t execute a mortgage on your father’s farm, and forge your father’s name to it? “A. I swear I never did. “Mr. Humphrey: I think that is an outrage. You don’t propose to attempt to prove such a thing, and you know you can’t prove it. “Mr. Hoffman: If you will permit me to prove it, I will do it. “Mr. Humphrey: Well, sir, we will permit you to prove it, and defy you to prove it. You know you can’t prove it, and it is an outrage on this man to ask such a question. “Mr. Hoffman: I have been informed that that is the truth. “Mr. Humphrey: You know you 6an’t prove it. “Mr. Hoffman: I know I can do it, and, if this witness testifies to the truth, he will admit it. “Mr. Humphrey: Well, I object to any such question, unless they say they will follow it up by evidence that it is so. “Court: Well, that is collateral matter, and within certain limits such questions are allowed. When it reaches the limit, we will see that it is stopped. “Q. How old were you when you commenced business? “A. Seventeen. ■ ‘ ‘ Q. How large a business ? How much money did it involve ? “ A. I think we made about $1,300 the first year. ! ‘ Q. How much capital did it take ? “Mr. Humphrey: I object to that,'as being entirely immaterial and irrelevant. “ Mr. Hoffman: I want the jury to know what kind of a man this is that is testifying here. “ Mr. Humphrey: Suppose it took $ip0,000, and suppose it took $15. I object to the question, and ask that the objection go on record, and I ask a ruling. “ Court: Of course, in cross-examination, we cannot always compel counsel to disclose his purpose. I don’t see the purpose at the^present time, but there may be one. Within proper limits, we have to allow such an examina tion to go on for a limited time. Unless something discloses itself, we shall have to restrain this line of inquiry. 11 Mr. Hoffman: I seek'only to be fair. I don’t want to do anything but be fair, and my only purpose in asking these questions is not for the purpose of worrying the witness or filling in the time, but for the purpose of showing to the jury the character of the man who is testifying now. But, at the suggestion of the court, I will drop that, and enter upon another subject of cross-examination.” It is urged with much zeal on the part of the defendant that he was prejudiced by what occurred, and upon that proposition he cites a large number of cases. It will be noticed that the most objectionable language used was in a colloquy, not between the counsel and witness, but between the respective counsel; each of them making assertions that it would have been well to omit, and counsel being alike in fault. No request was made of the court to correct any impression the jury might get from the colloquy prejudicial to the defendant, and no exceptions were taken to what occurred. The trial judge, however, upon his own motion, used, in his general charge, this language: “Your province is to say what the facts are in this case from the testimony which has been offered, and you are expected to decide that, regardless of who are the parties to the litigation, and regardless of their opinions, or the opinions of counsel who have conducted the respective sides of the litigation. If, as it is claimed, any assertions of fact, any statements, have been made by counsel, unsupported by the testimony, you should disregard them. Any charges, criminations, or recriminations of counsel, outside of the testimony introduced, should cut no figure in° this case. The province of the attorneys is to prepare the case, to present the testimony before the jury, and then, they having had time and experience to carefully consider the whole case, they appear before you, and from their standpoint argue the matter. That is, as a rule, of great assistance to the jurors, and their arguments should not be disregarded. It is the duty of the juror to sit and carefully listen and weigh, the arguments of counsel, and, as far as their theories appeal to their better judgment, to adopt them. But mere assertions made by counsel, not supported by evidence in the case, should cut no figure in the case.” The charge covered the questions at issue by the pleadings and proofs, and stated the law very clearly and correctly. The record does not disclose such error as would justify a reversal of the case. Judgment is affirmed. The other Justices concurred.	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Grant, J. (after stating the facts). Three defenses are interposed. It is urged that Davis was not an agent of Smalley; that the latter did not authorize Davis to make any representations ; that he was to have no interest in the corporation; had no partnership relations with Davis; that he was not concerned in and received no part of the purchase money for which the property was to be sold, above his original price of $2,500. This defense cannot obtain. Smalley gave Davis a false paper. He knew it was false, and that it could not be used for any legitimate purpose. He knew that a fictitious consideration was stated in the deed. He testified: “Q. Did you give Davis a receipt? “A. He has got a receipt for $2,500. I must have given it. “Q. Was that receipt a lie? “A. It appears it is. “Q. Did you think it was right to give it to him when you gave it to him ? “A. I did not think it right, but I did it.’” Mr. Macgurn testified that on one occasion Smalley told him that Davis wanted the receipt to show to parties that he was trying to get interested in forming a company. Mr. Redfield testified that Smalley told him that the consideration was to be stated at $5,000, but the mortgage was to be given for $2,500; and Mr. Redfield asked him if Davis had paid a part of the consideration, to which Smalley replied, “That is a matter between us.” Where one deliberately gives another a false statement in writing, knowing the purpose for which it is to be used, which that other uses to deceive a third party, he is a joint wrong-doer, and must be held responsible for the consequences which follow. Smalley cannot defend upon the ground that he received no benefit from the fraud. Weber v. Weber, 47 Mich. 569. It is also urged that an action for deceit in the sale of real estate does not lie for the fraudulent misrepresentation as to the price paid. In support of this, the' learned counsel cites Holbrook, v. Connor, 60 Me. 578 (11 Am. Rep. 212); Medbury v. Watson, 6 Mete. (Mass.) 259 (39 Am. Dec. 726); Mooney v. Miller, 102 Mass. 220. In Medbury v. Watson the question now presented was not in issue, and the language of the court upon which the counsel relies was not necessary to a decision of the case. In Mooney v. Miller the representations relied upon referred to the quantity of wood and hay that could be cut from the land, the possibility of acquiring adjoining lands with buildings thereon belonging to third persons, and to the number of acres in the lot, the boundaries of which were truly pointed out. It was properly held that the action would not lie. The case of Holbrook v. Connor appears to sustain the defendant’s contention. The court was divided in opinion. The authorities are quite fully referred to and discussed in the majority and minority opinions. We cannot accede to the doctriné of that case as applied to this. Macgurn was a stranger to both- the business and the locality, and did not know the value of the property. Smalley was a very old man, and stood high in the community. Davis’ reputation was good. Both had asserted in writing that the price at which Smalley agreed to sell to Davis was $5,000, of which $2,500 had been paid. We think Macgurn was entitled to rely upon these representations, and to recover upon proof of their falsity. The rule of caveat emptor does not apply to such a case. Jandorf v. Patterson, 90 Mich. 40. It is next urged that Macgurn and Davis compromised the fraud, and that this estops complainants. The law is well settled that where one, with full knowledge of the situation, settles with one tort feasor, he discharges not only him, but also the others. This is conceded. 1 Am. & Eng. Enc. Law (2d Ed.), 428. But the facts in this case do not bring the complainants within this rule. Mr. Davis was made president of the company, and had much to do with its management. For reasons unnecessary to mention, Mr. Macgurn became suspicious of Mr. Davis, and about that time he was informed that Mr. Davis had not paid the $2,500. He thereupon went to see Mr. Smalley, who admitted that he had received no money. He also said that he had received a letter from Mr. Davis, which he refused to let Mr. Macgurn see, and that the only paper he considered he was bound under was the mortgage. He then returned to Mr. Davis, who denied Mr. Smalley’s statements, and asserted he had paid Mr. Smalley. Mr. Macgurn, being dissatisfied with his management, insisted that Davis should withdraw from the concern. Mr. Macgurn paid him $280, the balance due him for services rendered to the Company, and he assigned his stock to a person in trust for the corporation, and withdrew from all connection with it. Neither Macgurn nor Davis understood that they were settling the fraud, or that their negotiations had any reference whatever to the transaction connected with the purchase of the property. The rights of neither Davis nor Smalley were affected by that arrangement. Davis had paid nothing for his stock. Mr. Macgurn desired to rid the corporation of any control by Davis, whom he believed to be dishonest, and who was financially irresponsible. This did not amount to an accord and satisfaction, with full knowledge of the facts. Mudsill Mining Co. v. Watrous, 9 C. C. A. 415, 61 Fed. 163. Decree affirmed, with costs. The other Justices concurred.	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Moore, J. The plaintiff sued the defendant to recover from him the amount of deposits paid to him by the Central Michigan Savings Bank on the forenoon of the day in the afternoon of which the bank closed its doors for want of funds to carry on its business. The defendant had judgment in the court below. The plaintiff brings error. The facts, so far as it is necessary to state them, are as follows: The Central Michigan Savings Bank was incorporated in 1875, under the general banking act, and conducted a savings and a commercial department, until it suspended, April 18, 1893, when plaintiff was appointed as receiver. During all the time the bank was doing business Mr. Bradley was its cashier, and had general management and control of its affairs. When the bank suspended, its assets were nominally $860,000, and its liabilities, exclusive of capital and surplus, were about $700,000. After the bank closed, and its affairs passed into the hands of a receiver, it was found that a large amount of the paper held by it was of doubtful value, because the makers of the paper had become financially embarrassed during the,year prior to the suspension of the bank; and it is now evident that the depositors will not be paid in full. The defendant made his.last deposit in the bank February 27, 1893. The day the bank suspended, “the defendant had six certificates of deposit, four of which he had held more than three months. Those were paid to him, principal and .interest. The deposits represented by the fifth and sixth certificates had not been in the bank three months, and no interest was paid on them. It is claimed by the plaintiff that the bank was insolvent, and known to be so by the cashier, and that it had also committed two acts, at least, of insolvency. In relation to the last proposition, the proofs show that the bank owed the state treasurer $25,000; that, two or three days before the suspension, the deputy state treasurer called at the bank, and asked for the money. The bank had funds enough to pay him, but he was told by Mr. Bradley that he would much rather he would not draw the money then, on account of the closeness of the money market, and he went away without it, though he was afterwards paid. The proof with reference to the other act of alleged insolvency is that, some weeks before the bank closed, Herbert Johnson left at the bank, with Mr. Bradley, a $10,000 mortgage belonging to his father, together with a discharge, to be delivered when the money should be paid by the maker; that two or three days before the suspension he called at the bank, and inquired if the money had been paid, and was told by Mr. Bradley that it had not; that on the morning of April 18th, after the bank opened, he called at the bank, and asked again if the mortgage had been paid, and Mr. Bradley replied that it had not; that shortly afterwards he learned that the mortgage had been paid to Mr. Bradley a week or ten days before, whereupon he demanded the money, together with $1,600 due his father on open account, and for which he had a check; that Mr. Bradley tried to induce him to take some securities; that, after waiting some time, Mr. Bement came in, and paid Mr. Bradley $5,000, which money Mr. Bradley gave Johnson, together with a draft on the Third National Bank of Detroit for the entire balance; that he took such draft, and went to Detroit, immediately presented the same, and payment was refused,—for what reason the record does not disclose, though it discloses that the draft was drawn against a fund that the bank had in Detroit. The bank closed on Tuesday. On Saturday and Monday preceding, some deposits were made in the bank, and there was a slight run on it. On Tuesday morning there was a run on the bank, and in the effort to stop the run about $108,000 was paid out. Included in this was the amount paid Mr. Jenison. The run then became so great that it was evident the bank must suspend, and its doors were closed at about 3 o’clock, with funds amounting to about $10,000 still in the bank. Mr. Bradley’s testimony is that there was no thought of preferring Mr. Jenison when the payment was made to him, that they were paying all certificates of deposit as they were presented, and that he hoped and expected the bank would be able to continue business, and that he then believed that the bank had sufficient assets to pay all of its depositors in full. He also testified that what was done in reference to the deposit of the state treasurer and the Johnson collection, as well as the payment of all the deposits, was Jone to protect the bank, and to enable it to continue to Jo business, and was not done expecting the bank would discontinue business, or for the purpose of preferring one creditor over the others. The plaintiff asked the circuit judge to instruct the jury as follows: “If, when the defendant received his money, the bank was insolvent, and if the defendant demanded to be preferred, and if Mr. Bradley so understood him, and, so understanding, caused the money to be paid to him, and if the defendant was, as matter of fact, preferred by such payment, then the law presumes that what was done was intended; and, if the payment to Jenison was not made with a view to his preference, the burden of proving such fact rests upon the defendant. ‘ ‘ The refusal by Mr. Bradley to pay over the money to Mr. Johnson on the morning of the 18th was an act of insolvency of the bank. Mr. Bradley is conclusively presumed to have known that it was an act of insolvency, and thereafter, for the few hours the bank remained open, he had no right to pay money to other depositors with a view to their preference. And from Mr. Bradley’s refusal to pay Mr. Johnson in the morning, and that he did pay Mr. Jenison a short time thereafter, the jury may presume he did intend to prefer the defendant. “If the real situation of the bank, as it actually was, considering the actual condition of affairs, made it reasonably certain that the bank must suspend, then Mr. Bradly must be held to have known it; and the mere fact, if it be a fact, that he (Bradley) did not expect to suspend, or did not believe he would be obliged to suspend, is of no consequence. “If the actual condition of the bank at the time the money was paid to the defendant rendered it morally cer^ tain that it must soon suspend, and if such prospect was apparent to any intelligent person, then the mere fact, if it be a fact, that Mr. Bradley did not so believe, is unimportant. “If, when the money was paid to the defendant, Mr. Bradley knew and understood that the bank was in a precarious situation, and that suspension was not only probable, but imminent, then such payment was unlawful. ‘ ‘ The mere fact, if it be a fact, that Mr. Bradley believed or expected, or that he now thinks that he then believed or expected, that the bank would not be obliged to suspend, is of no consequence, if, as matter of fact, there was then no reasonable ground for such belief or expectation.” The court declined to give these requests, and, as appears from the record,— “The court thereupon instructed the jury that there was no evidence that any act of insolvency had been committed when payment was made to Mr. Jenison; to which instruction plaintiff’s counsel then and there excepted. The court further instructed the jury that plaintiff Was not entitled to recover unless the jury were satisfied from the evidence that, when the money was paid to defendant, Mr. Bradley expected the bank’s suspension, or thought he, probably must suspend; to which instruction the plaintiff’s counsel then and there excepted. The court further instructed the jury that, if they were satisfied from the evidence that Mr. Bradley did not expect to suspend when the money was paid to the defendant, but thought the probabilities were he should get through, that plaintiff could not recover; to which instruction plaintiff’s counsel then and there excepted.” This case involves the construction of 3 How. Stat. § 3208e6, which reads as follows: “ * * All payments of money, either after the commission of an act of insolvency or in contemplation thereof, with a view to prevent application of its assets in the manner prescribed in this act, or with a view to the preference of one creditor over another, shall be held to be null and void.” It is the contention of the plaintiff, stated in the language of his eminent counsel: ‘ ‘ First. That no payment should have been made, nor withdrawal permitted, after the trouble began. ‘ ‘ Second. That, the bank being insolvent, every such payment (even had there been no run) was unlawful. ‘ ‘ Third. There were at least two ‘ acts of insolvency ’ committed prior to the payment to defendant. He was paid; the bank suspended; he was preferred. If paid, and if suspension followed, such payment was, of hecessity, a preference, and therefore the case is made out.” Unfortunately, there has been no construction given to the section of the statute, under which this action is bx’ought, by our court. The question at issue must be determined by the rulings of other courts in relation to similar statutes. A reading of the statute, giving its words their natural meaning, would, indicate that two things must concur to make the payment void: Not only must there be an act of insolvency, or a contemplation of insolvency, but the payment must be made with a view to prevent -the application of the assets of the bank in the manner provided by the act, or the payment must be made with a view to the preference of one creditor oven another. Can it be the law that when a bank, having assets sufficient so that its officers believe, if it can continue in business, it will be able to pay all its debts, is confronted with a run on the bank, and, to avoid the necessity of suspension, pays its depositors as fast as they present their certificafes of deposit,—that under such circum.stances, if the bank is compelled to suspend, the receiver can sue, and recover the money paid in good faith to the depositors ? In the case of Hayes v. Beardsley, 136 N. Y. 299, which was a case of payment of certificates of deposit after the bank became insolvent, and after the cashier had known for months that it was insolvent, this language is used: “There was no satisfactory evidence that these payments were made by the bank to prevent the application of its assets in the manner prescribed in the national banking act, or with a view to a preference of the defendant over the other creditors of the bank. * * * There does not appear from the facts found to be any better ground for claiming that these payments made to the defendant were void than there is for making the same claim in reference to the numerous payments made in the regular course of business by this bank to its customers during many months prior to the closing of its doors. In order to uphold a recovery in an action like this, there should be some satisfactory evidence that the cashier or other officer actually paid the money of the bank in contemplation of insolvency, for the purpose of giving a preference to the payee, and with a view to prevent the application of the assets of the bank to the creditors generally.” The provisions of the act construed in this decision are almost identical with the provisions of the Michigan banking act, and we think the construction a reasonable one. If the receiver can maintain this proceeding, I can see no good reason why he may not sue and recover from each of the depositors who drew their money after the bank became embarrassed. Such a construction does not commend itself to one’s sense of justice. See Curtis v. Leavitt, 15 N. Y. 198; Fidgeon v. Sharpe, 5 Taunt. 545; Tiffany v. Lucas, 15 Wall. 410; Jones v. Howland, 8 Metc. (Mass.) 377 (41 Am. Dec. 525); Utley v. Smith, 24 Conn. 310 (63 Am. Dec. 163); Haas v. Whittier, 97 Cal. 411. The circuit judge was not very fortunate in the language used by him in his charge to the jury. We do not regard his charge as a good statement of the law. However, in view of the decisions already cited, we do not see how, under the record as made, the plaintiff can maintain his action. There is nothing in the record from which the jury would have been warranted in finding that the payment to the defendant was made with a view to prevent the application of the assets of the bank in the manner prescribed in the banking act, or with a view to the preference of the defendant over the other creditors. Taking this view of the case, we affirm the judgment.	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Montgomery, J. The Cross Lumber Company was a corporation organized under tbe laws of this State. In May, 1892, an agreement was made between the Cross Lumber Company and defendant, by the terms of which the Cross Lumber Company was to furnish the capital to be used in the business of buying and selling shingles, etc., and defendant, Dudley, was to manage the affairs of the concern, and the profits and losses were to be equally divided. The business was conducted under the name of F. A. Dudley & Co., and was continued until the spring of 1894, when F. A. Dudley & Co. stopped doing business, closed out the stock on hand,-and collected in the accounts as fast as collections could be made. The books of account were kept by defendant, Dudley, and, after the company had ceased active operations, defendant furnished the Cross Lumber Company with a statement from the books, showing the condition of the business. Plaintiff, claiming to have succeeded to the rights of the Cross Lumber Company, brings this action, alleging an account stated, and was permitted to recover in the court below. Numerous errors are assigned, but we think the case must turn upon the question of the right of the plaintiff to maintain the action in his own name. On the trial it was objected that the plaintiff could not recover, for the reason that no sale or assignment of the Cross Lumber Company’s claim to plaintiff was alleged in the declaration. Plaintiff seeks to avoid the force of this objection by claiming that plaintiff had succeeded to the rights of the Cross Lumber Company, and that the account stated was with the plaintiff. The circuit judge treated this fact as conclusively shown by the testimony, but we think that in doing so the court erred. Plaintiff states in his testimony that, after the company ceased operations, defendant furnished the Cross Lumber Company with a statement from the hooks, showing the condition of the business. The statement sent was a trial balance, which did not purport to be a statement of account between plaintiff and defendant, but in which appeared a debit of the Cross Lumber Company, and also a debit of defendant, to F. A. Dudley & Co., and various other small items of account against different parties. Plaintiff’s testimony as to his succession to the business of the Cross Lumber Company is as follows: ‘ ‘ Q. What became of the Cross Lumber Company ? “A. I purchased the stock of the stockholders, and closed the business up myself. The business of F. A. Dudley and the Cross Lumber Company was carried on under the firm name of F. A. Dudley & Co. “Q. State whether or not the business of F. A. Dudley & Co. was transferred to you, together with the other property of the Cross Lumber Company. “A. Yes; an account against them on our books was. “ Q. State whether there was any written instrument showing such transfer of the property generally. “A. No; transfer of stock,—the only written transfer there was. “ Q. You simply took the property or business yourself afterwards ? “A. Yes.” And on cross-examination he further testified upon the subject as follows: “ Q. Now, you say that, when the Cross Lumber Company went out of business, in 1893 or 1894, this claim, together with other claims, you purchased for yourself ? “ A. Yes, sir; that came into my hands from the purchase of the stock,—owning the stock entirely. “ Q. Let me understand you. You say that this corporation went out of existence in 1894, or the latter part of 1893. What do you mean by that ? “A. Why, according to the law under which we were organized, we were obliged to report to the secretary of state when the business was closed, and we did at that time, or I did it, really. ‘ ‘ Q. Was that the time the corporation went out of existence ? “ A. Yes, sir. “ Q. Closed up its business? “ A. As near as it could; yes. “ Q. And you succeeded to this claim by purchase of the stock from the corporation ? “A. Yes, sir.” We think the evidence did not conclusively show that defendant had made a promise to the plaintiff, understanding that he had succeeded to all the interests of the Cross Lumber Company. At most, this was a question for the jury. This being so, the succession of the plaintiff to the Cross Lumber Company should have been averred in the declaration. But, even if averred, it was not shown, as the extent to which the proof went was that the plaintiff had become the sole owner of the stock of the corporation. This did not entitle him to sue in his own name. Button v. Hoffman, 61 Wis. 20 (50 Am. Rep. 131). The judgment will be reversed, and a new' trial ordered. The other Justices concurred.	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Moore, J. Rouse, Hazard & Co., the plaintiff in these proceedings, recovered a judgment upon November 3, 1894, for the sum of $1,761, damages and costs, in the Wayne circuit court, against the Detroit C3rcle Company, Limited. Hpon this judgment, execution was issued, and returned wholly unsatisfied, after being in the hands of the sheriff of Wayne county for more than 20 days. The Detroit Cycle Company, Limited, is a limited partnership association, organized and existing under chapter 79 of 1 Howell’s Annotated Statutes; and the defendants herein, Edwin B. Robinson, John A. Matheson, and John T. Holmes, were the original subscribing members thereof, and remained so during the whole course of the proceedings in this case. After the execution was returned unsatisfied, plaintiff applied to the Wayne circuit court, under the provisions of section 2366, 1 How. Stat., to have ascertained the amount of the subscriptions, respectively, of the defendants to the capital of the Detroit Cycle Company, Limited, not paid up, and for an order that execution issue against said defendants for the amounts so ascertained. The defendants successfully resisted this application in the circuit court, and thereupon the plaintiff applied to this court for a writ of mandamus to require the circuit judge “to compel the Detroit Cycle Company, Limited, and the defendants, to produce the books of the company, especially its subscription list book, showing the names of the members of the association, and the amount of capital remaining to be paid upon their respective subscriptions, and also to receive such other evidence as might be offered by the plaintiff and the members of the association concerning the amount of capital remaining to be paid upon the subscriptions of the respective members of the association, and, after ascertaining the truth in regard thereto, to forthwith order execution to issue against the said members for the amount of their unpaid subscriptions, if any there should be.” The writ was granted after argument in this court, and the case is reported as Bouse, Hazard & Co. v. Donovan, 104 Miclfi 234. On the filing of the defendants’ answers to the plaintiff’s application, an issue was framed, and ordered tried ^.before a jury. The issue was: “In what amount, if any, are the said John T. Holmes, John A. Matheson, and Edwin B. Robinson, and any or each of them, indebted to the said Detroit Cycle Company, Limited, on account of any unpaid subscriptions to the capital of the said company ? ” This issue was tried before the Honorable Robert E. Frazer, circuit judge, with a jury, on April 16, 1895; and, under the charge of the court, the jury found that each of the defendants was indebted to the Detroit Cycle Company, Limited, on account of unpaid subscriptions to the capital stock of the said company, in the sum of $1,833.33. Certain points of law were reserved by the court for argument after the verdict was rendered; and after an argument of these questions, in accordance with the statute (1 How. Stat. § 2366), and the mandate of this court, an execution was ordered on January 8, 1896, and issued, against each of the defendants, for the amount of $1,833.-33, or so much thereof as might be necessary to satisfy plaintiff’s judgment, with costs. This order, and the proceedings upon which the same was based, defendants are now endeavoring to review in this court by writ of error. The Detroit Cycle Company, Limited, filed its articles in the office of the register of deeds for Wayne county, Mich., as a limited partnership association, under the provisions of chapter 79 of 1 Howell’s Annotated Statutes, on November 1, 1892. The defendants were the original members of said association, and subscribed for equal subscriptions, amounting to the sum of $3,333.33 for each defendant. There was paid in by each member thereafter the sum. of $1,500, in cash; and there remained still unpaid by each of said members up to about the 6th day of October, 1893, the sum of $1,833.33. On or about October 6, 1893, the association became financially embarrassed, owing the Gormully & Jeffery Manufacturing Company, of Chicago, between $14,000 and $16,000, and owing two local banks in Detroit about $6,000. The debts to the banks were in the form of notes made by the Detroit Cycle Company, Limited, and indorsed by all three of the defendants individually, and were further collaterally secured by an assignment of bicycle contracts. An arrangement was made between the Gormully & Jeffery Manufacturing Company and the defendants, whereby the Gormully & Jeffery Manufacturing Company was given a chattel mortgage on all the property of the Detroit Cycle Company, Limited; and at the same time there were assigned to the Gormully & Jeffery Manufacturing Company all the bicycle contracts, including those held by the banks as collateral security. At the same time, and as a part of the same arrangement, each of the defendants gave to the Detroit Cycle Company, Limited, his note for $1,833.33, given for the purpose, as each of the defendants testifies, of paying up his subscription to the capital stock of the Detroit Cycle Company, Limited. These notes were immediately indorsed in the name of the Detroit Cycle Company, Limited, by the defendants, and turned over to the Gormully & Jeffery Manufacturing Company as a further security for the indebtedness of the Detroit Cycle Company, Limited, to it. Thereupon the Gormully & Jeffery Manufacturing Company advanced enough money to take up the notes of the Detroit Cycle Company, Limited, in the two local banks in Detroit; and, these notes having been taken up, the collateral security for the same was turned over by the banks to the Gormully & Jeffery Manufacturing Company. These notes were all payable in one year from the date they bore, namely, October 6, 1893, with 6 per cent, interest, and were never paid by the defendants, and were never protested, though they are still outstanding. Immediately after the chattel mortgage was given to the Gormully & Jeffery Manufacturing Company, the latter sent a man to Detroit, to take charge of the business of the Detroit Cycle Company, Limited; and the Gormully & Jeffery Manufacturing Company sent on new goods, and conducted the business. No amendments of the original articles of association, and no schedule, as provided for in 1 How. Stat. § 2365, or any other paper except the original articles of association, were ever filed in the office of the register of deeds for Wayne county, Mich. It also appeared that in the secretary’s records of the minutes of the stockholders’ and directors’ meetings of the association, running from October 14, 1892, to January 11, 1894, no record anywhere appeared authorizing or making a call for the unpaid subscriptions of the capital stock of the association, or authorizing the receipt of the respective members’ notes therefor, although under date of October 6, 1893, there is a record of a meeting of the directors, and the authorization by them of the execution and delivery of a chattel mortgage to the Gormully & Jeffery Manufacturing Company. The absence of any record of the receipt of the members’ notes was explained by the secretary from the fact that Ee did not enter the minutes of all the meetings in his record, although one of the three members testified that he did not hear of any resolution do this effect, but that it was only agreed to between the members. The defendants requested the court to charge the jury as follows: “3. It appearing from the undisputed evidence in this proceeding that the defendants gave their promissory notes-to the company for the amount of their unpaid subscriptions, which notes were accepted by the company in payment thereof, and which notes are now in the hands of third parties, and the defendants are liable thereon, the verdict must be for the defendants. “4. It appearing from the undisputed evidence in this suit that the defendants gave their promissory notes for the amount of their unpaid subscriptions to the company, which notes were taken by the company, and the amount thereof realized in cash, and applied upon existing indebtedness of the company, the making of said notes and realization of the money upon them constituted a payment of said unpaid subscription, and the verdict must be for the defendants.” “If the foregoing are refused— “6. If the jury believe that the notes in question were given in payment of the unpaid subscriptions, and were accepted by the company as such, and by them transferred to third parties, who now hold them, and the defendants are liable thereon, then the verdict must be for the defendants. “7. If the jury believe that the notes in question were given for the purpose of paying up the unpaid subscriptions, and the same were taken, and cash realized upon them, which cash was applied in satisfaction of existing indebtedness of the company, so that the company received full benefit thereof, the giving of the notes and the application of the proceeds thereof constituted pay ment of the subscriptions, and the verdict must be for the defendants.” The trial judge declined to give these requests. He entertained the view that the statute authorizing the formation of these limited copartnership associations is a special enactment, permitting such organizations with limited liability as to stockholders, and that all the necessary and essential requirements of the statute must be complied with. He held that this had not been done, and that whether the notes had been given and received for the purpose of paying the balance due on subscriptions was not important, and directed a verdict against the defendants. It is the claim of the plaintiff that the law as applied to limited partnerships is to be applied to associations like the defendant, and that subscriptions to the capital cannot be paid by giving notes. On the part of the defendants it is claimed that the law as applicable to corporations should be applied to these associations, and that if defendants gave their notes to pay for the capital subscribed by them, and these notes were received by the defendant association as payment, and the proceeds of the notes were received by the association, and applied to the payment of its debts, this would constitute a good payment of the capital subscribed, and would release the members from further liability? Nearly all the questions involved in this proceeding are involved in the case of Staver & Abbott Manfg. Co. v. Blake, post (decided at the present term of court). It will not be necessary to refer to the opinion in that case further than to say that, as to the question of whether the law of limited partnerships applies to the defendant association, or the law of corporations, the answer is that the case must be controlled by the law applicable to corporations. We have no doubt that subscriptions to capital stock of corporations may be paid by the giving of promissory notes, especially if the notes are at once converted into money, and the proceeds applied for the benefit of the corporation. Goodrich v. Reynolds, 31 Ill. 490 (83 Am. Dec. 240); Hardy v. Merriweather, 14 Ind. 203; Stoddard v. Foundry Co., 34 Conn. 542; Magee v. Badger, 30 Barb. 246; Vermont Gentral R. Co. v. Clayes, 21 Vt. 30; Pacific Trust Co. v. Dorsey, 72 Cal. 55; Clark v. Farrington, 11 Wis. 306; Blunt v. Walker, Id. 349 (78 Am. Dec. 709); Lyon v. Ewings, 17 Wis. 61; Andrews v. Hart, Id. 297; Western Bank of Scotland v. Tallman, Id. 530. It is the claim of the plaintiff that the notes were not given in good faith, and for the purpose of paying up the unpaid portion of the capital. We think the good faith of the transaction was a question for the jury, and that they should have been instructed as requested by counsel for defendants in the sixth and seventh requests to charge. The record discloses that, upon the application of the plaintiff’s attorneys, the circuit court, in chancery, had appointed a receiver for the defendant company, Joseph F. Noera filing the creditor’s bill. A judgment creditor’s bill was also filed by William A. Hulbert et al. against the defendants. John A. Stanbery was appointed receiver in both cases, and claimed the assets of defendant company. Both chancery suits are still pending. The solicitors for the complainants, in their behalf, and in behalf of the receiver in both cases, in open court, waived all claim to any of the unpaid subscriptions to the capital stock of the defendant that were unpaid by Robinson, Matheson, and Holmes, as against the claims of the plaintiff. Objection was made to this offer, and the court replied that he had serious doubt of the power of the receiver to waive the claim, or of the court to grant the waiver, but expressed himself as being settled in relation to the other points in the case. Defendants also introduced in evidence an application for execution under the same statute as is invoked in this proceed ing, against the same defendants, for the same unpaid subscriptions, upon a judgment recovered by the W. Bingham Company, plaintiff, against the defendant association, in the circuit court of the United States for the Eastern district of Michigan. The defendants asked to have the following requests to charge given to the jury: “1. A receiver of all the property and assets of the defendant company having been appointed prior to the judgment in this suit, and being now in office, the plaintiff has no standing in this proceeding, and is not entitled to the order asked. ' “2. It appearing that, since judgment was rendered in this suit, a receiver has been appointed in another suit of all the property and assets of the defendant company, the plaintiff has no standing in this suit, and is not entitled to the order asked.” “5. It appearing from the evidence in this case that an application similar to the one in the present case has been made against the defendants in the circuit court of the United States for the Eastern district of Michigan, upon a judgment recovered against the Detroit Cycle Company, Limited, by the W. Bingham Company, the defendants are therefore liable to have execution issued against them in each case for the amount of their subscriptions remaining unpaid, and to be subjected to a double liability not contemplated by the statute under which the defendant association is organized. This being so, the plaintiff’s remedy is in equity, where the rights of all parties can be protected, and not by an application for an execution, such as is now pending before the court.” The court refused to give either of these requests. This is assigned as error. It is now urged by counsel for plaintiff that defendants cannot avail themselves of any defense they may have to this action, growing out of the appointment of a receiver, for the reason that the receiver was appointed before these proceedings were begun, and before the mandamus case of Rouse, Hazard & Co. v. Donovan, 104 Mich. 234, was decided. It is their claim that as the defense might then have been interposed, and was not, the matter must be treated as res adjudicata. An inspection of the Case of Rouse, Hazard & Co. discloses that neither of the defendants Holmes, Matheson, or Robinson were parties to that proceeding, or that they took any part in it, except to appear in the case before the circuit judge, and enter their protest against the circuit judge’s entertaining jurisdiction over them. There was nothing in the record to indicate that any receiver had been appointed, and we are not prepared to hold that the case is res adjudicate/,. The record as now made does disclose that, before this proceeding was brought, a receiver was appointed by the chancery side of the court; and he still holds his appointment. A receiver is an officer of the court. He is undoubtedly entitled to the assets of the defendant company, if it has any. He is spoken of as the “hand of the court.” High; Rec. § 2. It would be a very anomalous position, indeed, if this proceeding could be maintained after a receiver had been appointed for the very purpose of collecting the assets of the defendant association to pay its creditors. Defendants’ requests 1 and 2 should have been given. Judgment is reversed, and no new trial ordered. Grant and Hooker, JJ., concurred. Long, O. J., and Montgomery, J., did not sit.	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Hooker, J. This case seems to possess the essential features of that of Vincent v. City of Kalamazoo, ante, 230. The complainant owned lot 12 of block 44 of the Cass farm, in the city of Detroit, said lot being 42.04 feet wide. Running through this block is a strip of land which defendants claim to be a public alley, and of this a strip 7.96 feet wide, adjacent to lot 12, has been occupied with said lot by the complainant and his predecessor, from whom he took a quitclaim deed, and was put in possession of said strip at the time he acquired title to the lot. The evidence of exclusive possession for many years more than the statutory period is clear, and it appears that, when the complainant commenced a permanent improvement upon the disputed strip, the city authorities ordei*ed him to desist, upon the claim that it was public ground and part of a public alley. Thereupon the complainant filed this bill to settle the question. Counsel for the city contends: 1. That this is a bill to restrain a trespass, and that there is an adequate remedy at law. 2. That the complainant’s claim is not based upon any paper title. In our opinion, this is something more than a bill to restrain a threatened trespass. The city threatened no trespass, but made a claim, of title to an easement in the land, rendering it imprudent for the complainant to erect his contemplated brick structure thereon until the question should be settled. He thereupon filed this b’ill to quiet his title, and we think that he was warranted in so doing by 2 How. Stat. § 6626, the object of which -section has been held to be “to enable persons in possession of real estate, and having the legal or equitable title thereto, to remove all doubts as to the validity of their titles arising from the claims of other persons who are taking no steps to test the validity of their claims either in law or equity.” See note to section 6626. Upon the other point it occurs to us to say that the statute is not limited to persons holding under paper titles. It includes all legal titles, and titles by adverse possession are legal titles. Nor do we know of any case that sustains defendants’ contention that adverse possession must be based upon a paper writing. In the case cited (Marble v. Price, 54 Mich. 466), it is not so held, but it is said that the occupancy was without claim or color of title. See, also, Hyne v. Osborn, 62 Mich. 235; City of Big Rapids v. Comstock, 65 Mich. 78. In Campau v. Lafferty, 50 Mich. 114, it is said that “adverse possession need not be based on color of title, and it may become perfect even though the possessor originally had no shadow of title.” We think that title by adverse possession may be acquired to land laid out for an alley, as well as to that within the boundaries of a public street. Counsel now seems disposed to admit that the city has no right of control over a public alley in Detroit, and argues that, if the city has no control over the alley, the complainant and his grantor cannot acquire rights in the alley by adverse possession as against the city of Detroit, and therefore the city was not a proper party, and the bill should be dismissed. This is hardly consistent with the other contention, and certainly not with the allegations of the answer, which asserts the right and authority of the city in the premises. A disclaimer would have been a proper pleading, if the claim now made was relied on when issue was joined. The decree of the circuit court in chancery is affirmed, with costs. The other Justices concurred.	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Grant, J. The declaration contains three counts. Upon the trial the plaintiff abandoned the first two counts, and recovered upon the third. The third alleges that the defendant was negligent in “ permitting a quantity of dry grass, rubbish,, and other combustible material to be and remain upon its right of way; in causing a fire to be started in said grass and rubbish, and permitting said fire to pass and escape from its right of way to the adjoining lands of the plaintiff.” The fire occurred July 16th. The combustible material which was charged to have accumulated consisted of grass and dead leaves which had accumulated among low huckleberry bushes along the right of way. The plaintiff based his right to recover upon the accumulation of the combustible material. While there was testimony from which it might be inferred that the fire caught from an engine, it is apparent that the jury were not agreed upon the origin of the fire. After they had been out some time, they returned into court, saying they could not agree. The judge refused to discharge them, and was about to send them back for further consideration, when the following colloquy took place: ‘ ‘ Juror: It is not necessary that we should find that that fire started from that engine, is it,—from the cars running through there? “ The Court: Not if the damage occurred because of the negligence of the railroad company. ‘ ‘ Juror: It don’t make any difference where the fire originated or started,—what was the cause of the fire ? “ The Court: Not if it occurred because of the negligence of the railroad company. “ Juror: That is what I thought. “ The Court: If there is nothing further, you gentlemen may retire.” The instruction, in substance, said to the jury that the origin of the fire was of no consequence, but if they found that, on account of the dry weather, the defendant was negligent in not removing the dry grass and leaves, they should find for the plaintiff, although the defendant might have had nothing whatever to do with starting the fire. Whether there are any circumstances under which a railroad company would be liable for a fire started by a third party in such accumulations along its right of way, we need not determine. If plaintiff did not rely upon the fact that the fire was started by the defendant, it was certainly incumbent upon him to prove its origin, and that his damage resulted from the negligence of the defendant. If plaintiff had started the fire himself, or if a stranger walking along the right of way had intentionally or carelessly set fire to the grass and rubbish, or if an adjoining owner had set fire on his own land, and the fire had run across defendant’s land to plaintiff’s, clearly the defendant would not have been liable. In either of such cases the negligence of the defendant would not have been the proximate cause of the injury. The reason why, under certain circumstances, a railroad company is required by law to remove such inflammable material, when practicable, is to prevent its engines from setting fire thereto, and not to protect adjoining property from the acts of other parties. The court should have instructed the jury that, under the evidence, they could find for the plaintiff only upon the theory that it caused the fire. The duty of railroads in regard to such combustible material will be found discussed in Sibilrud v. Railway Co., 29 Minn. 58; Kesee v. Railroad Co., 30 Iowa, 78 (6 Am. Rep. 613); 2 Rorer, R. R. 792-805; 8 Am. & Eng. Enc. Law, 1. Other questions are raised, but, as they are not likely to occur upon a new trial, we need not discuss them. Judgment reversed and a new trial ordered. The other Justices concurred.	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Long, C. J. The bill in this case was filed to enforce a lien claimed by the complainant on a quantity of goods stored in his building, in the city of Lansing, this State. The cpmplainant is the owner of the building, which, for a term of years, was rented to George M. Dayton as a dry-goods and millinery store. Some time prior to January, 1895, the title to these goods had been transferred by mortgage foreclosure to his wife, Sarah M. Dayton, one of the defendants in this case. On or about the 5th of January, 1895, some arrangement was made by which Mrs. Dayton sold, or agreed to sell, the stock of goods to defendant Stone. During the taking of an inventory, Mrs. Dayton and Mr. Stone had some misunderstanding or dispute in reference to what the terms of the contract were, when the store was locked up, and the key deposited in the People’s Savings Bank, of that city. There was a considerable quantity of goods in the store, both on the main 'floor and in the basement. The complainant’s claim is that about January 5, 1895, Mr. Dayton, acting for his wife, notified the complainant that the goods had been sold to Stone; that the lease was surrendered, and that complainant must look to Stone thereafter for his rent; that, after spending some days in taking an inventory of the goods, Stone went away, declaring that he would not take them; that the Daytons claimed he must take them, and litigation ensued; that both the Daytons and Stone disclaimed any interest in the goods, refusing to take them away, and they were left in the store. The complainant thereupon had a talk with Mr. and Mrs. Dayton, in which he directed them to take the goods away, and told them that, if they did not, he should claim a lien on them for storage. They claimed not to own the goods, and stated that they surrendered their lease. It is admitted that the Daytons gave no express assent that the complainant should have a lien if the goods remained there, but they left the goods, and never removed them. Complainant thereafter caused a notice to be served upon Stone of what the Daytons claimed. The complainant claims that, while the goods remained in the store, he kept watch over the store to see that it was properly fastened up. While the goods were so in storage, and in January, 1896, the defendant Carl Loomis, who is a deputy sheriff of Ingham county, levied an execution upon them for the sum of $1,230. The execution was issued in favor of Clarissa Byam against George M. Dayton. It is not shown from the record just how Loomis obtained admission to the store to make this levy, but it is apparent that it was not with the consent of the complainant. The complainant claims that, under these circumstances, he held the goods as warehouseman; and he offered proof tending to show that the storage of the goods was worth at 'least $50 per month, and asked an accounting for the amount of his claimed lien, and also for an injunction against defendant Loomis, restraining him from interfering with the possession of the goods, or with his (complainant’s) lien thereon, until such amount should be first paid. Upon the filing of the bill in the court be low, an injunction was issued, as prayed, against Loomis, and on the hearing the court entered a decree finding that on January 5, 1895, Sarah M. Dayton was the owner of the goods in question; that she never parted with such title or ownership; that on January 5, 1895, she surrendered all her rights as a tenant in said store to the complainant, and at the same time left such goods and property in said store, and permitted the same to be stored there, after being notified by complainant that he would claim a lien thereon for his charges for storage. The court thereupon found that the complainant had a lien upon the goods, and that $50 per month was a reasonable charge for such storage, and payable so long as said goóds remained in said store, and that defendant Sarah * M. Dayton, or any of the defendants, might pay to the complainant the amount of such storage, but that, in default of such payment, the goods should be sold to satisfy such claim of lien; that the cost of the proceedings should also constitute a lien upon the goods. No personal decree was rendered against any of the defendants. From this decree, defendant Loomis alone appeals. It is contended by his counsel: ■ 1. That there is no evidence upon which the court below could base a decree for complainant. 2. That the store in which the goods were stored is not a warehouse, and the complainant not a warehouseman, within the contemplation of the law governing and regulating warehouses and warehousemen. 3. That, at the time of the levy of the execution, the possession of the goods, as well as of the alleged warehouse, was in George M. Dayton. 4. That a verbal lien cannot be created, as ^against creditors. 5. That the complainant is estopped from claiming a lien, because it was his duty to advise Mr. Stone of his claim at the time he contemplated taking the goods from George M. Dayton, and that it was also his duty to advise defendant Loomis of his claim at the time the levy was made. The contention that there has been no change of pos session of the goods from the Daytons to the complainant, we think, is settled the other way by the evidence. The complainant asked that the goods be removed. Mr. and Mrs. Dayton both disclaimed any ownership in them, and insisted that the title had been transferred to Mr. Stone. They refused to have anything further to do with them, and claimed that they would be no longer bound by the lease. Apparently, the complainant acquiesced in the surrender of the lease, and made no further claim under it. He then notified Stone of the situation, but it is apparent that Mr. Stone made no claim to the goods, and he was not bound, by any contract with complainant', to pay rent or storage. The complainant was then put in the position of having the goods in his store with no party claiming ownership of them. He then asserted to the Daytons that he would insist upon a lien for storage. From that time forth he was the only person having possession. The only change of possession that could be made was the care and oversight which the complainant exercised; and, under the circumstances here, we think it was sufficient to put the goods into the possession of the complainant. The store was locked up. It was complainant’s store, and the lease under which the Daytons held had been surrendered by them. While in fact the complainant may not have been’ a warehouseman, under the provisions of chapter 58,1 How. Stat., and Act No. 220, Pub. Acts 1895, as being employed in the business of a warehouseman, yet, as between himself and the Daytons, he had asserted his rights as such, and had made a claim of lien for store-age. As between those parties and himself, his lien was perfect, as it seems to have been assented to by the Daytons, inasmuch as they did not remove the goods. It is to be remembered that the claim asserted by defendant Loomis is that the goods were the property of Mr. Dayton, and the execution ran against him, and the levy was made by Loomis upon the goods as the property of Mr. Dayton. But the court found that they belonged to Mrs. Dayton. The proofs support this finding. There was no evidence in the case that they did not belong to her. The court found that complainant had a lien. From this decree Mr. and Mrs. Dayton have not appealed. The goods belonging to Mrs. Dayton, defendant Loomis, under these circumstances, was not in a position in the court below, and is not in a position here, to assert any claim under his levy of execution, as he could not take the property of Mrs. Dayton to satisfy the debt of Mr. Dayton. The Daytons not having appealed, the decree, as to them, must stand; and, as to defendant Loomis, it must stand for the reason, among others, that the goods do not belong to Mr. Dayton, against whom defendant’s execution runs. Complainant will recover his costs of this court against defendant Loomis. The other Justices concurred.	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Per Curiam. The relator, William P. Osborn, was employed as special assessment clerk in the office of the receiver of taxes of Detroit. The office of receiver is filled by appointment by the common council, on the nomination of the mayor. The charter is silent as to what employés shall be employed in that office, and as to the method of their appointment and discharge. The com mon council passed an ordinance relative to the clerks and assistants, as follows: “When assistants are necessary for the proper dispatch of the business in his [receiver’s] office, he shall apply to the common council for the same, and such assistants, when appointed, shall receive such compensation as the common council shall by resolution prescribe.” Undoubtedly it is in the power of the council to determine what employes shall be there employed, and to fix their compensation. Among such employés is one called the “special assessment clerk.” September 3, 1895, the receiver sent a communication to the council, appointing Mr. Osborn, and requesting his confirmation. He was confirmed, and filled the position until the 29th day of February, 1896, when the receiver discharged him, informing him that his services, were no longer required. After the close of the year he presented a petition to the circuit court for the county of Wayne, against the common council, asking for a writ of mandamus to compel the payment of the balance of the year’s salary, claiming that his employment was by the year. His contention is that his discharge was illegal, insisting that the common council alone had the power of removal. We find no express provision of the charter placing in the council the power of removal of the employés of the receiver of taxes, and the ordinance above quoted does not confer it. The circuit court should have refused the writ. Judgment is reversed, and an order dismissing the writ of mandamus will be entered, in accordance with this opinion.	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Grant, J. This suit involves the right of the plaintiff to recover the commission on an exchange of real estate which plaintiff claims he effected between the defendant and a third party. He recovered a verdict of $333.41. The claims of the respective parties, as submitted by the court to the jury, are as follows: “Plaintiff claims that defendant entered into an agreement to pay him 2 per cent, for commission for selling or exchanging his property on Lincoln avenue, in this city, for some other property; that defendant asked him what commission he would charge for the sale of this property; that he replied 2 per cent, for sale or exchange; that defendant said he would be willing to pay him 2 per cent., provided that he could bring a man who had property which was satisfactory to him. It is undisputed in this case that afterwards the plaintiff did bring together Mr. Engle and Mr. Elmer H. Stone, and that Engle and Stone made a contract. “The defendant denies that he made any such agreement, but claims that the agreement was that, if plaintiff would exchange his property on Lincoln avenue, having a $5,500 incumbrance on it, for other improved property having less incumbrance on it, he would pay him 1 per cent.; that, if plaintiff brought him a customer who would pay cash, he would pay plaintiff 2 per cent.; if he brought him a customer who had vacant lots without any incumbrance on them, it would be an exchange for that property, and he would give him 1 per cent.; and if he brought him a customer who offered him an exchange of vacant lots with the same amount of incumbrance on them which was on the Engle house, he would not pay him anything.” The testimony of the parties as to the terms of the contract is in direct conflict, each giving testimony to support his claim. Plaintiff did bring the parties together, and they executed a contract. This contract the parties, it seems, did not carry out on account of certain disagreements between them. They attempted to execute another contract, but failed. 1. This was the second trial of the case,'and the defendant insists that the plaintiff tried his first case upon a different theory from that claimed upon the second trial. His testimony upon the first trial was made a part of the record, and we find nothing in it to show any inconsistency. 2. Defendant insists also that there was a variance between the declaration and the proofs. The suit was commenced in the justice’s court, where the declaration was on the common counts, with bill of particulars, as follows: July 15, 1893, to commissions on $10,500, at 2 per cent______________________________-...............$210 And “specially for commission on sale of real estate,” claims damage.................................... 300 Defendant demurred to this declaration in justice’s court, and asked for a more specific statement. This was overruled. The defendant refused to plead, judgment was taken, and on appeal to the circuit court he pleaded the general issue. There is no claim that defendant was misled by the pleadings. The fact that it was called a com mission on “sale,” instead of “exchange,” is not fatal. In one sense, it was a sale of the defendant’s property. Such technical objections will not be considered where defendant is not and cannot be misled. 3. Complaint is made that the plaintiff was permitted to make his case by “piecemeal,” and that the court held at the close of the plaintiff’s testimony on his direct examination that he had made out a prima facie case. Plaintiff had testified to his contract with defendant, that he had brought Engle and Stone together, and that they had drawn up and executed a contract, and that Engle then said, “It is all right.” Plaintiff’s attorney then asked the court to decide whether he had made a prima facie case. While this may be somewhat unusual, we find in it no error. 4. Complaint is made that the court erred- in refusing to instruct the jury, “If you believe that.plaintiff testified falsely about not having an agreement from Stone for a commission, or as to any other material fact, you may consider that in weighing the rest of his testimony.” The court, in his general instruction, covered this point by instructing them that, “If any of the witnesses testified falsely in any particular, you should consider that, and weigh their testimony as to that as you would any other fact in the case.” We find no error upon the record, and the judgment is affirmed. Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.	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Moore, J. This is a proceeding brought to test the validity of the minority of stockholders law. The Michigan Mutual Life Insurance Company was organized-July 3, 1870, under a general law for the incor poration of life-insurance companies, approved March. 30, 1869. 1 How. Stat. chap. 131. Section 1 of that act provides, among other things, that— “Any number of persons, not less than 13, may associate together and form an incorporated company, for the purpose of making insurance upon the lives of individuals, and every insurance pertaining thereto, and to grant, purchase, and dispose of annuities.”' The next section is, in part, as follows: “Sec. 2. The persons so associating shall subscribe articles of association, which shall contain * * * the manner in which the corporate powers are to be exercised; the number of directors and other officers, and the manner of electing the same, and how many of the directors shall constitute a quorum, and the manner of filling all vacancies ; * * * any terms and conditions of membership therein which the corporators may have agreed upon, and which they may deem important to have set forth in such articles.” The articles of association of the Michigan Mutual Life Insurance Company contain the following: “The corporate powers of the company shall be exercised by a board. of directors, which shall consist of 21 members, which may be increased, at the option of the board, to not more than 40. “The first meeting for the election of directors shall be called by the present officers, and held as soon as practicable after these articles shall take effect. “No person shall be eligible who is not owner of at least 10 shares of the guaranty capital of the company, and at least two-thirds of the directors shall be residents of the State of Michigan. The board, at their first meeting, shall divide themselves, by lot, into three equal classes, as near as may be, whose terms of office shall expire at the end of one, two, and three years, respectively; and thereafter one-third of the directors shall be chosen annually, for the class whose term then expires, who shall hold office for three years, or until their successors are elected. * * * They shall be chosen by ballot, and a majority of all the votes cast shall elect. Every shareholder shall be entitled to one vote for directors for every share of guaranty capital standing in his name on the books of the company, and may vote in person or by proxy. And every policy-holder insured in this company for the period of his natural life, in the sum of not less than $5,000, shall also be entitled to one vote in the annual election of directors, which vote must be given in person. * * * ” From the origin of the company, the directors have been elected according to the provisions of said articles. Relator Joseph W. Dusenbury has been a stockholder from November 15,1890, and a director from January 27, 1891. He has attended every meeting of the stockholders from and including January 26, 1892, to January 28, 1896. Until the last-named date he has never objected to the election of directors in the manner prescribed by the articles. The terms of nine directors expired in 1896, and notice was given of an election to fill their places. On January 28,1896, at the stockholders’ meeting, relator J. W. Dusenbury claimed the right to vote his stock, and that for which he held proxies, according to the minority representation law. He did not claim that more than nine directors should be then elected. He multiplied the number of shares for which he voted by nine, and voted half of this amount for himself, and half for his brother, Will J. Dusenbury. The stockholders rejected relator’s claim, and followed the articles of association, in accordance with which nine directors, who received all the votes, save those of relator Joseph W. Dusenbury, were declared elected. Respondents received each 3,655 votes. Relators, through their multiplication, claim to have received each 5,571 votes. In 1885 an act was passed which reads: “An act to secure the minority of stockholders, in corporations organized'under general laws, the power of electing a representative membership in boards of directors. “Section 1. The People of the Stgte of Michigan enact, that in all elections for directors of any corporation organized under any general law of this State, other than municipal, every stockholder shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons as there may be directors to be elected; or to cumulate said shares, and give one candidate as many votes as will equal the number of directors multiplied by the number of shares of his stock; or to distribute them on the same principle among as many candidates as he shall think fit. All such corporations shall elect their directors annually, and the entire number of directors shall be balloted for at one and the same time, and not separately.” 8 How. Stat. § 4885a. The Constitution of Michigan, adopted in 1850, contains the following: “Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed.” Art. 15, § 1. It is the claim of the respondents that the power of the majority to elect all the directors, and so fully control the corporation, is a vested and valuable right of property, secured by the Constitution of the United States against the interference of State legislatures or constitutional conventions; citing in support of this proposition Hays v. Com., 82 Pa. St. 518; Baker’s Appeal, 109 Pa. St. 461; State, ex rel. Haeussler, v. Greer, 78 Mo. 188; Smith v. Railroad Co., 64 Fed. 272. In Hays v. Com., supra, it is true, language of the following tenor was used: “If it be not a vested right in those who own the major part of the stock of a corporation to elect, if they see proper, every member, of the board of directors, then I would like to know what a ‘vested right’ means. This was part of the contract under which they entered into the company, and for which they paid their money,”—and the court cite in support of that proposition the leading case of Trustees of Dartmouth College v. Woodward, 4 Wheat. 518. It is very generally agreed that the Dartmouth College Case would not now apply to a case where the law conferring corporate authority reserved the right to alter, amend, or repeal. The doctrine of the right of the majority of the stockholders to elect the directors being a vested right was not the point upon which the case of Hays v. Com., supra, was decided. In that case it was held that the constitutional provision reading, “In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer,” did not apply to a corporation in existence at the time the constitutional provision was adopted, and the court say: “It is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say, in the second section, sixteenth article, ‘the general assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution ?’ This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the State, by accepting the benefit of some future legislation. It is only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation; but, if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of such provisions, material or immaterial ? It is, indeed, manifest that .such an argument is foreign to the question in hand. It might apply to a legislative enactment attempting to alter this charter, but it cannot apply to this case, arising, as it does, directly on the constitution itself, for it is excluded by the very terms of that instrument. ” The case of Baker’s Appeal, 109 Pa. St. 461, was a proceeding to determine whether the American Academy of Music was brought within the provisions of the constitution providing for cumulative voting, by accepting its provisions in the manner indicated by law. It was held, “If, at a meeting duly called for that purpose, a majority, not in number, but in interest, of the stockholders present thereat in person or by proxy, authorizes such acceptance, then, and not till then, can the holders of the major part .of the capital stock be stripped of their vested right to elect a full board of directors, all of their own selection the court accepting the view expressed in Hays v. Com., that the constitutional provision permitting cumulative voting was not intended to, and did not, apply to corporations in existence, unless accepted by them. In the case of State, ex rel. Haeussler, v. Greer, 78 Mo. 188, it was held that the right of corporators to vote at elections for directors was a property right, and that a provision of law providing for cumulative voting would not apply to a corporation which held its charter from the legislature, where the charter provided that each stockholder should have one vote for each share of stock, and that the directors should be elected by vote of the stockholders, and contained the further provision that the legislature should have no power to alter, suspend, or repeal the charter. It was further held that, if the mode of voting is prescribed by an irrepealable charter, it is protected by that provision of the Constitution of the United States which prohibits the States from passing laws impairing the obligation of contracts. In the case of Smith v. Railroad Co., 64 Fed. 272, it was held that a law passed in 1876 providing for cumulative voting would not apply to a corporation obtaining its charter while Kansas was a territory, though the constitution adopted when Kansas became a State contained a provision providing for the amendment and repeal of acts conferring corporate powers. The constitution had a provision that “all laws and parts of laws in force in the territory * * * shall continue and remain in full force until they expire or shall be repealed.” The territorial statute in force when the charter was granted contained the following provision: “The charter of every corporation that shall hereafter be granted by law shall be subject to alteration, suspension, or repeal by any succeeding legislature: Provided, such alteration, suspension, or repeal shall in no wise conflict with any right vested in such corporation by its charter.” The court said: “Whether or not this act wasin force at the time the defendant’s charter was granted it is not necessary to decide, as the proviso in this section has extracted the meat, and left only the shell.” The case of City of Detroit v. Detroit, etc., Plank-Road Co., 43 Mich. 140, was a case where a charter had been accepted by a corporation which had built a plank road and erected toll gates. It was sought, by an amendment, to require the company to remove a toll gate, and to vacate that portion of its road then within the city of Detroit, without compensation. In an opinion written by Justice Cooley it was held that “the effect of the proposed amendment, if valid, would be to take from the corporation about two miles and a half of the road upon which it collected toll, and that the legislature cannot, under its power to amend a charter, take from the corporation any of its substantial property; * * * that, if the State may deprive the corporation of the right to take tolls on two miles and a half of its road, it may in respect to any other part, and. * * * may annihilate the property of the corporation altogether; and that a statute which could have this effect would not be a statute to amend franchises, but a statute to confiscate property. It would not be a statute of regulation, but of spoliation. ” We do not think any of these cases, when analyzed, go so far as to sustain the claim of counsel for respondents. It is claimed by the counsel that the method of electing the directors of the Michigan Mutual Life Insurance Company was made in pursuance of the statute, and constitutes a contract between the stockholders of the company, which the legislature cannot set aside; and it is asserted that the minority stockholders’ law changes the contract between the stockholders, and is therefore within the constitutional provision which forbids impairing the obligation of contracts. It would seem to be a complete reply to this view to say that the stockholders knew when they entered this corporation that the Constitution reserved to the legislature the right to amend, alter, or repeal the law under which the corporation was organized. 1 Thomp. Corp. § 89. The stockholders are as much bound by this constitutional provision as though it were contained in the articles of incorporation. Parker v. Railroad Co., 109 Mass. 506. In this case it was said: ‘! Many cases have arisen in this court involving the construction and application of the power to amend or alter charters. The reservation of power is broad and comprehensive. Whatever may be its limitation, it at least reserves to the legislature the right to make any reasonable amendments, regulating the mode in which the franchise granted shall be used and enjoyed, which do not defeat or essentially impair the object of the grant, or take away any property or rights which have become vested under a legitimate exercise of the powers granted.” See, also, South Bay Meadow Dam Co. v. Gray, 30 Me. 547; Shields v. Ohio, 95 U. S. 324. In the case of Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 270, it was held, in an opinion written by Justice Harlan: “A legislative grant to a corporation of special privileges, if not forbidden by the constitution, may be a contract; but, where one of the conditions of the grant is that the legislature may alter or revoke it, a law altering or revoking, or which has the effect to alter or revoke, the exclusive character of such privileges, cannot be regarded as one impairing the obligation of the contract, whatever may be the motive of the legislature, or however harshly such legislation may operate, in the particular case, upon the corporation or parties affected by it. The corporation, by accepting the grant subject to the legislative power so reserved by the constitution, must be held to have assented to such reservation.” See, also, Greenwood v. Freight Co., 105 U. S. 13, which is a very interesting case, containing a full discussion of this subject. In Market Street R. Co. v. Hellman, 109 Cal. 571, it was held that, when an individual becomes a stockholder in a corporation, it is with the implied assent on his part to the right of the legislature to alter and amend the law, within the scope of the constitutional provision, and is as binding upon him as a contract to the like effect of his own making would be. This was a case providing for the consolidation of corporations by a majority of the stockholders, without regard to the desire of stockholders opposing the consolidation. In Railroad Co. v. Georgia, 98 U. S. 359, it was held that a corporation held the rights granted to it under and subject to the law as it was when the new charter was granted, and that where the law in existence when the corporate franchise was granted provided that the franchise was “subject to be changed, modified, or destroyed at the will of the creator,” the franchise was held subject to these provisions. We understand the rule in relation to the reservation of power to amend, alter, or repeal to be correctly stated in Parker v. Railroad Co., already quoted; and, as stated by Justice Gray in Commissioners on Inland Fisheries v. Holyoke Water-Power Co., 104 Mass. 446 (6 Am. Rep. 247): “A power reserved to thé legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right.” See, also, Sinking Fund Cases, 99 U. S. 700. The nature of a corporation is therefore an important consideration in determining the extent of the reserved right of the State to alter or amend its charter. Is it a corporation in which the public is interested ? If so, the legislature may exercise the reserved power as just stated. Is not the public interested in the proper control and management of great life-insurance companies, like the Michigan Mutual Life Insurance Company? Is it not true that their incomes are largely drawn from the public, and that the proper or improper management of the company’s affairs affects the public as well as the stockholders? Is it not true that the policy-holders of the company are quite as much interested in what becomes of the assets of the company as the stockholders themselves ? The answer to each of these questions must be in the affirmative. For cases in which the power to alter, amend, or repeal charters or acts of incorporation has been exercised, see Fitchburg R. Co. v. Grand Junction R. Co., 4 Allen, 198; Durfee v. Railroad Co., 5 Allen, 230; Roxbury v. Railroad Corp., 6 Cush. 424; Massachusetts Gen. Hospital v. Assurance Co., 4 Gray, 227; Com. v. Eastern R. Co., 103 Mass. 254 (4 Am. Rep. 555); Commissioners on Inland Fisheries v. Holyoke Water-Power Co.., 104 Mass. 446 (6 Am. Rep. 247); Mayor, etc., of Worcester v. Railroad Co., 109 Mass. 103; Parker v. Railroad Co., Id. 506; Pennsylvania College Cases, 13 Wall. 190; Holyoke Co. v. Lyman, 15 Wall. 500; Oldtown, etc., R. Co. v. Veazie, 39 Me. 581; Boston & Albany R. Co. v. Village of Greenbush, 5 Lans. 461; Schenectady, etc., Plank-Road Co. v. Thatcher, 11 N. Y. 102; Buffalo, etc., R. Co. v. Dudley, 14 N. Y. 336; In re Lee & Co.’s Bank, 21 N. Y. 9; Albany Northern R. Co. v. Brownell, 24 N. Y.. 345; Northern B. Co. v. Miller, 10 Barb. 260; White v. Railroad Co., 14 Barb. 559; Hyatt v. McMahon, 25 Barb. 457; Anderson v. Com., 18 Grat. 295; Joslyn v. Steamship Co., 12 Abb. Pr. (N. S.) 329; Sherman v. Smith, 1 Black, 587; Perrin v. Oliver, 1 Minn. 202; Iron City Bank v. Pittsburgh, 37 Pa. St. 340; Com. v. Fayette County R. Co., 55 Pa. St. 452; Shields v. Ohio, 95 U. S. 324; Maine Cent. R. Co. v. Maine, 96 U. S. 510; Greenwood v. Freight Co., 105 U. S. 13; Close v. Glenwood Cemetery, 107 U. S. 466; Spring Valley Waterworks v. Schottler, 110 U. S. 348; Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 258; Bissell v. Heath, 98 Mich. 472. We do not think it can be said that the minority law changes the character of the business in which the Michigan Mutual Life Insurance Company is engaged, or that it takes away any substantial right acquired by the corporation. It changes the tei’ms of office of the directors, and provides for a representation on the board of directors of a minority of the stockholders. We do not think this disturbs any vested right such as is referred to by the cases cited by counsel for respondents (see Miller v. State, 15 Wall. 478), and that the minority law is constitutional. It is objected that quo warranto is not the remedy. Quo loarranto was brought in many of the cases cited. State, ex rel. Haeussler, v. Greer, supra. Hays v. Com., supra. And we think it the proper remedy. Frey v. Michie, 68 Mich. 323. The relators were elected as directors, and should have been so declared. In view of the fact that the annual meeting of the stockholders will be held so soon, it will not be necessary to make any further order in the proceeding. Costs are given to relators. The other Justices concurred.	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Moore, J. This is an application for a retaxation of costs on the grounds—First, that the clerk did not allow all that should have been allowed for printing the record and briefs; and, second, because an item of $10 paid to a surety company for signing the appeal bond was not taxed. An inspection of the record shows that the. amount taxed by the clerk of this court for printing the record and briefs was all that the appellant was entitled to have taxed. It was fully equal to what printers generally charge for doing work of like character. It is claimed that under the provisions of Act No. 266, Pub Acts 1895, the item of $10 should be taxed. The title of this act reads as follows: “An act relative to bonds and other obligations with surety or sureties, and the acceptance as surety thereon of companies qualified to act as such, and the release of' such surety, and the safe depositing of assets for which such surety may be liable, - and to the charging by fiduciaries of the expense of procuring sureties, and repealing all laws in conflict therewith.” There is nothing in the title of the act to indicate that money paid by a party litigant to a surety company for, signing an appeal bond could be recovered as taxable costs, where the party did not occupy the relation of a fiduciary. I do not think the item of $10 was properly taxable. The motion is denied. The other Justices concurred.	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Montgomery, J. (after stating the facts). The sole, question presented on the record is whether, under the circumstances set out in the statement of facts, the proceeds of the sale of exempt property, designed for investment in other exempt property, to take the place of that sold, are subject to attachment while in the hands of the debtor, kept as a separate fund, or are, before reaching his hands, subject to garnishment. The authorities upon this subject are inharmonious. There are cases holding, as • contended by plaintiff, that the proceeds of the voluntary sale of property exempted from execution are not exempt. Wygant v. Smith, 2 Lans. 185; Knabb v. Drake, 23 Pa. St. 489 (62 Am. Dec. 352). The latter case even goes further, and holds that, where property is taken from the owner by proceedings in invitum, a judgment recovered for such wrong is subject to garnishment. But this holding is in conflict with the great weight of authority, and it is generally held that in such case, as well as in the case of a loss of exempt property by fire, the proceeds are exempt, at least until such time as the owner has reasonable opportunity to' appropriate the proceeds to the purpose of replacing the exempt property wrongfully taken from him, or consumed by fire. See Cooney v. Cooney, 65 Barb. 524; Tillotson v. Wolcott, 48 N. Y. 188; Mudge v. Lanning, 68 Iowa, 641; Rood, Garnishm. § 98; 1 Shinn, Attachm. § 71; Thomp. Homest. & Ex. § 748. It has also been held in various jurisdictions where the rule obtains, as in this State, both as to personal and real property exempt, that the owner has the right to sell or exchange such exempt property, and that such sale does not result in establishing a lien in favor of the creditor, or render the property, after the sale, subject to levy, that the money derived from the sale of a homestead, designed in good faith to be applied to the pui’chase of another homestead, and kept separate from other funds for that purpose, is not subject to seizure by creditors. See Watkins v. Blatschinski, 40 Wis. 347; State v. Geddis, 44 Iowa, 537; 1 Shinn, Attachm. § 71; Rood, Garnishm. § 97. We can conceive of no reason for distinguishing between the proceeds of exempt personal property and the proceeds of an exempt homestead, and we think the rule of the Wisconsin and Iowa courts in harmony with the liberal interpretation of the exemption laws which has always obtained in this court. The judgment of the court below will be affirmed. The other Justices concurred.	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Long, C. J. This is an action of ejectment to recover possession of certain lands described in the declaration. Upon the trial it was shown that plaintiff had title, but defendants claim that they were in possession under a certain contract for the sale of the lands to them. The claimed contract of sale is evidenced by certain letters passing between the parties. November 4, 1891, defendant Daniel Loomis wrote the plaintiff that he desired to purchase the land, and asked him to draw up a contract of sale, and send it to him. He then stated in the letter: “ I agree to pay $25 March the 20th, and $25 every six months after first payment, or more if convenient, and interest at the end of each payment; and I agree to fence and chop down and improve to the amount of $50 worth the first year, or cause it to be done, and also to set out fruit trees the first year, and they will be on hand in the spring for setting,—I think about $10 worth.” On December 15th the> plaintiff wrote defendant, accepting the terms of the offer, and agreeing to charge the same upon book account, charging the defendant with the- land, and crediting payments, and when full payment was made he agreed to deed the land to him. February 8th, plaintiff wrote defendant again, saying he would pay up all taxes prior to 1891. On the back of this letter, he indorsed the contract, as it was then understood between the parties, as follows: “To Daniel Loomis: The land mentioned in letter opposite side of this sheet is the E. -J- N. W. sec. 29, T. 15 N., R. 6 west, containing 80 acres, more or less. I have letter from Mr. Daniel Loomis in which he agrees to pay $250 for the land, as follows: $25 March 20, 1892, and $25 each six months after first payment, or more if he can, and agrees to chop and cut down and improve to the amount of $50 the first year; also to set out fruit trees. They will be on hand in the spring for setting. And he is to pay taxes on said land, including the year 1891 and following years. The above I copy from your letter,” etc. After these letters were written, the defendants went into possession’ of the land. They paid the $25, and made the $50 improvements on the land, and set out the fruit trees, as agreed. They built a house on the land and moved into it, and still continue to reside there. The letters were offered in evidence by the defendants, under the claim that they constituted a contract of sale of * the land, and gave them the right of possession. The letters were objected to by counsel for the plaintiff, but were received subject to the objection then made. On motion, the. court thereafter struck them out of the case, holding that they constituted no more than a mere license, as to any right of possession. All evidence was stricken out as to the contract of sale. Some claim was made by Mrs. Loomis under a tax deed, but the court found that invalid, and, we think, properly, and that will not be discussed. We think the court was in error, however, in holding that the letters did not constitute a valid contract of sale of the land. Ryan v. U. S., 136 U. S. 68; Wilcox v. Cline, 70 Mich. 517. The price was agreed upon, and the time and mode of payment. The letter accepting the defendant’s proposition is signed by the plaintiff, and payments were made thereunder. But counsel contends that the letters do not give the defendants the right of possession, and for that reason they could not defend their possession, as against the plaintiff, inasmuch as they had not made the payments in accordance with the terms of the contract. It appears that the payment of $25, and the clearing of the $50 worth on the land, and the setting out of the fruit trees had been fully performed. No other payments had been made when this suit was commenced in the early part of 1895; that is, over two years had elapsed from the time the last payment was made under the contract to the time of commencement of suit. If the defendants had the right of possession by the terms of the contract, the mere failure to make payments as by the contract agreed would not, of itself, give the plaintiff the right of immediate possession. He must terminate the contract relations by notice of forfeiture or demand of possession. Michigan Land & Iron Co. v. Thoney, 89 Mich. 226. Did the contract, therefore, give the defendants the right of possession ? It provided that they should make certain improvements, and set out fruit trees on the land. While it is not specific as to possession, it cannot be said but that the parties must have understood, at the time of the making of the contract, that defendants were to have possession. It is not like the case, cited by plaintiff’s counsel, of Buell v. Irwin, 24 Mich. 145. There a mere quitclaim deed was provided for, and the contract was wholly silent as to possession. Under the circumstances here, the court should have directed verdict in favor of defendants, as no notice of forfeiture had been given, nor demand of possession made. Judgment is reversed, and new trial ordered. The other Justices concurred.	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Montgomery, J. This is an action on a promissory-note for $330.50, payable to the order of John Lewis, and appearing to have been indorsed by him. On the trial of the case, plaintiff proved that the signature of the payee, John Lewis, was genuine, and introduced the note, and rested. The defendant then offered to introduce evidence to show that the note was procured of Lewis by plaintiff by means of undue influence, and to show that the executor of the estate of John Lewis is defending the present case for the defendants, and indemnifying them against loss. The plaintiff objected to the introduction of the testimony for the purpose of showing the fact of undue influence. The objection was sustained, and this ruling presents the principal question in the case. A preliminary objection is raised to the hearing in this court,—that the assignments of error were not embodied in the bill of exceptions. We would be disposed to remand the record for the purpose of correction, rather than to refuse to entertain the appeal, and, inasmuch as the record clearly shows that the question involved was fully presented and argued before the court, no injustice can be done, either to the court or appellee, in passing upon the question upon the present record. The rule is settled in this State that the defendant may, in an action on a negotiable promissory note, show that the plaintiff is not the real owner. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122); Reynolds v. Kent, 38 Mich. 246; Hannahs v. Sheldon, 20 Mich. 278. It is true, as a general rule, that the defendant is only concerned in the question of whether the plaintiff is the legal owner. But, in the case of Hillman v. Schwenk, 68 Mich. 293, it was held that, where the indorsee of a note sues, it is competent for the administrator of the estate of the payee to take upon himself the defense of the suit upon the trial. Undue influence is recognized by all the authorities as a species of fraud (8 Am. & Eng. Enc. Law, 649), and fraud, inducing a transfer of personal property or a chose in action, renders such transfer voidable, and one of the remedies of the party defrauded or his executors is a rescission of the transfer (8 Am. & Eng. Enc. Law, 650; 2 Pom. Eq. Jur. § 872). As to personal property, the act of rescission does not require the interposition of a court of equity. In case of rescission of transfer of personal property, the title reinvests ipso facto. Bigelow, Fraud, p. 76. The rule is otherwise as to conveyances of real estate, but this is based upon the idea that the legal title to real estate, having passed by the conveyance of the title, cannot be reinvested in the grantor in an action at law. Bigelow, Fraud, pp. 47, 76, 77; Moran v. Moran, 106 Mich. 8. ■ Plaintiff cites, in support of her contention that the only remedy of the administrator is in equity, the case of McKinney v. Hamilton’s Estate, 53 Mich. 497, and McKinney v. Curtiss, 60 Mich. 611. McKinney v. Hamilton’s Estate did not present the question whether the maker of a note, having notice of the claim of the true owner, could defend against one in possession of the note, and prima facie entitled to recover upon it; but the question was whether, in an action at law, the ,true owner could, without production of the note, recover, and it was held that one, even though he be the true owner, could not demand payment and recover without the delivery of the note. But it does not follow that he cannot, in a suit against the maker, intercede and defend against the transferee, where the title of such transferee is tinctured with fraud. Nor does it follow, because he has a remedy in equity, that this is exclusive. 1 Pom. Eq. Jur. § 180; McKinney v. Curtiss, 60 Mich., at page 620. The case mainly relied upon by plaintiff’s counsel in the court below is that of Carrier v. Sears, 4 Allen, 336 (81 Am. Dec. 707). The doctrine of that case was distinctly this: It is no defense, by the maker of a negotiable note, to show that the note was obtained from the payee by undue influence, when he was of unsound mind and incapable of making a valid indorsement, if the payee, or his legal representatives, have never disaffirmed it. But, in the opinion in the case, the court distinguish that case from Peaslee v. Bobbins, 3 Mete. (Mass.) 164, admitting that the text of the earlier case is apparently in conflict with the views expressed in Carrier v. Sears. The writer of the opinion says: “The fact in the case was, as I well remember, that the defendant had been notified by the guardian of the insane payee not to pay the note to the plaintiff, and the defense was conducted by the guardian for the benefit of his ward. We have examined the record, and find, in the original specification of defense, the statement ‘that said Fletcher, as guardian to said Parker [the payee of the note], claims said note as the property or estate of said Parker.’ There was no controversy upon this point; and, the guardian having claimed and exercised the right to disaffirm and avoid the indorsement, the only question was upon the mental incapacity of the payee at the time the indorsement was made. The language of the court was, therefore, perfectly warranted in its application to the circumstances of the case, as it was presented and understood by the parties, but would require limitation, if taken as the enunciation of a general principle.” This doctrine is not in conflict with the decision of this court in Hillman v. Schwenk, supra, although the opinion, in other portions, may conflict with Hannahs v. Sheldon, supra. We think the contention that the right to rescind the transfer does not survive to the executors is without force. See Rogers v. Windoes, 48 Mich. 628. Judgment reversed, and new trial ordered. The other Justices concurred.	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Grant, J. (after stating the facts). The relator contends that, when an attorney is appointed to defend an indigent prisoner in the circuit court, he has the right, upon his own motion, upon conviction, to appeal the case to the Supreme Court, and that the supervisors of the county are required by law to pay the expenses of printing the record and brief, and for his services in taking the case to this court. If such a right exists, it must be found in the statute. The right of appeal in civil and criminal cases is statutory. Section 9046, 2 How. Stat., as amended by Act No. 96, Pub. Acts 1893, provides for the appointment by the court of an attorney to defend an indicted person when he shall be unable to procure counsel, and that the court shall determine his compensation, which shall not exceed $50. Section 9047 is as follows: “An attorney shall not, in such case, be compelled to follow a case into another county or into the Supreme Court, and, if he does so, may recover an enlarged compensation, to be graduated on a scale corresponding to the prices above allowed.” These two sections must be construed together. No attorney can defend a prisoner, and subject the county to pay for such expense, without an order of the court. It is the duty of the circuit judge to examine into the circumstances, and determine whether it is his duty to appoint an attorney to defend at the expense of the county. The order of the circuit court is the sole authority for subjecting the county to the expense of the prisoner’s defense. Section 9047 means this, and nothing more, viz., the attorney cannot be compelled, even by the order of the court, to follow the case into another county, or into the Supreme Court. The attorney is an officer of the court, and as such is required by law to obey its orders. He may therefore be compelled, though against his wish, to defend the prisoner, when ordered by the court to do so. The purpose of this act is to relieve him from this duty if there be a change of venue, or an appeal to the Supreme Court. If the prisoner desires the attorney so appointed to follow the case into another county, he must obtain an order of the court to that effect. If the attorney refuses, as he may, then the court before which the case is to be tried must take care of his rights. If the prisoner desires to have his case reviewed by the court of last resort, he must apply to the court to obtain an order. This was the course pursued in People v. Hanifan, 90 Mich. 516. It seems impossible of belief that the legislature intended that any attorney defending an indigent prisoner under the order of the circuit court should, upon his own motion, subject the county to the expense of an appeal to this court. It is a consistent view to take that the legislature did intend to provide for the employment and payment of an attorney to follow the case to this court if, in the opinion of the circuit court, the case should be appealed. Upon conviction the presumption of innocence has disappeared, and the presumption of guilt prevails. There may be cases involving questions which should be determined by the court of last resort, and in such cases it would be very proper for the circuit court to make an order authorizing the prisoner’s counsel to appeal the case, and he would then be entitled to compensation under section 9047. If he chooses to appeal the case upon his own motion, he must look to his client for compensation. We are confirmed in this view by the fact that this section was enacted 40 years ago, and has never been construed by the profession or the circuit courts to confer the power now claimed. The judgment is affirmed. The other Justices concurred.	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Hooker, J. The complainant, a corporation doing a manufacturing business at Detroit, was largely indebted to the Third National Bank of that city and others, and the following scheme was hit upon, in a consultation between complainant’s officers 'and Frederick Marvin, the cashier of the bank, to afford it relief: It was proposed that the complainant should mortgage its plant to the Union Trust Company, to secure an issue of 100 bonds of $1,000 each, said bonds to be guaranteed by several of complainant’s stockholders, who were already upon its outstanding paper. Said bonds,'when issued, were to be left in the custody of the Union Trust Company, and were to be delivered by it to Frederick Marvin, cashier of said bank, for sale, upon his demand; and, as fast as sold, Marvin was to give the complainant credit for the proceeds, upon its account in said bank. In pursuance of this arrangement, the mortgage and bonds were made and deposited; and a written order upon the trust company for the delivery of such bonds to Marvin, cashier, was given by complainant, and 75 of the bonds were taken by Marvin, and disposed of, and credit given to complainant upon its bank account. Subsequently, Marvin obtained the remaining 25 bonds, numbered, consecutively, from 76 to 100, inclusive; and it is in regard to these bonds that this controversy arises. The circumstances under which these bonds were taken by Marvin appear to us to be as follows: On September 7, 1892, the complainant received notice that certain paper, which it had given to the Third National Bank, was due, some of it in the hands of the Peninsular Savings Bánk, and possibly some in the State Savings Bank. This paper was guaranteed by the Third National Bank, and complainant was notified from said bank that the paper was due. An officer of the complainant called at the Third National Bank to arrange the matter; and, in Mr. Marvin’s absence, the assistant cashier, acting under the direction of the board of directors, agreed to extend credit until Mr. Marvin should return, when the matter could be adjusted with him, upon condition that the remaining 25 bonds should be held by the bank as collateral to secure the bank. This was upon an offer by the complainant to so arrange the matter, and after the assistant cashier had ascertained and informed his directors that the bohds were in the hands of the Union Trust Company, subject to the order of Mr. Marvin, cashier. The following is a copy of a note given upon that occasion: “$20,361.67. Detroit, Mich., Sept. 7, 1892. “On demand after date the Detroit Motor Co. promise to pay F. Marvin, cashier, or order, at the Third National Bank, twenty thousand three hundred and sixty-one 67-100 dollars, with interest at the rate of seven per cent, per annum, value received; having deposited or pledged with him as collateral security, with authority to sell the same at public or private sale, or otherwise, at his option, on the nonperformance of this promise, and without notice, twenty-five thousand dollars of the unsold bonds of the 'Detroit Motor Co., in the hands of the Union Trust Co. of Detroit, Michigan. “Detroit Motor Co., “By F. A. Blades, Sect.” Indorsed on back: “D. B. No. 377. “This note is given for two notes falling due Sept. 7, 1892; one for $15,271.25, at the Preston National Bank; one falling due Sept. 7, 1892, at the Third National Bank, for $5,090.42. Said notes to be arranged for on Mr. F. Marvin’s return to city. “Detroit, Sept. 7, 1892. “By F. A. Blades, Sect. “F. A. Blades.” A few days later, Mr. Marvin returned; and on September 10, 1892, he surrendered this note, at the same time taking i’enewal notes for those for which'it had been given, and obtaining the consent of the complainant that the bank should hold the 25 bonds as collateral security for all debts of the complainant to the bank. Soon after, Mr. Marvin procured the bonds, and deposited them in the vaults of the bank, with its other collateral. It is contended that this is not shown by the evidence, especially as to 10 of said bonds; but, in our opinion, it may be properly inferred from the testimony given. In October, 1892, Marvin executed his note for $10,000, payable to himself, as cashier, and put the amount to his credit in the bank, without the knowledge of the directors,' and without making an entry upon the offering book, as was the custom. Said note stated that he had deposited or pledged, as security, $10,000 of the first ip.ortgage bonds of the complainant. A second note for $5,000 was made May 2, 1893. This stated that he^had “deposited or pledged Detroit Motor Co. bonds,” without stating the amount. In neither case were the bonds designated by number or otherwise, and they do not appear to have been attached to or to have accompanied the notes. Soon after the date of the second note, Mr. Marvin’s conduct was investigated, and his resignation was tendered, but not accepted for some months, it being deemed inexpedient to do so at the time. He was, however, dismissed in September, 1893. At this time the 20 bonds identified by the testimony were found among the securities of the bank which were held as collateral. There was nothing to show that they were not held as collateral to the complainant’s paper, or to whom they belonged. Mr. Marvin is said to have pointed out these particular 20 bonds as collateral to his paper, and claimed that he owned them. Noble, who succeeded Marvin as cashier, testified that they could not tell who owned these bonds, ‘ ‘ except they were the only bonds in our possession pledged as collateral to a certain note, and if they were in our collateral file, arid had been stated to be the property of the person who pledges them.” He also testified that these 20 bonds, which he says were collateral to the Marvin- notes (which does not appear from the notes, however), were transferred to what he calls the regular collateral account, in the absence of Marvin. Hudson, a director of the bank, testifies that he learned that the bank had $20,000 of bonds collateral to Marvin’s notes, and, with Marvin’s consent, they took them away from the notes, leaving the notes without collateral, and gave him credit for $15,000 on his overdraft, and charged them to the bond and mortgage account. The bank was subsequently closed, and went into the hands of a receiver, and this bill is filed to compel the defendants to account for and restore the 25 bonds to the complainant, subject to the right of the bank to hold them as collateral security for the indebtedness of the complainant. Counsel for the receiver contends: 1. That Marvin, and not the bank, was complainant’s agent for the sale of the bonds, and that it is in no way responsible for his appropriation of the bonds. 2. That the bonds were not, in fact, pledged to the bank, because not delivered to the cashier at the bank; and that, legally, they cañnot be said to have come to its possession. 3. That, in appropriating these bonds to his own use, Marvin was not acting within the scope of his authority as cashier, and that the bank is not liable for his acts. 4. That complainant has a complete remedy at law. We are satisfied from the evidence that the scheme of issuing these bonds was the result of the pressure brought by the bank, to induce payment of the complainant’s paper held by the bank; but whether this were so or not, and whether, if it were, we would be justified in holding that the bank undertook the sale of bonds, and that it was within its powers, we are convinced that afterwards, in an attempt to secure itself upon its claims against the complainant, Mr. Marvin, its cashier, demanded and received the bonds in controversy, and brought them into the bank, and deposited them with other collateral security of the bank. It is therefore unnecessary to discuss or pass upon several of the questions raised. We think that the bank is in no situation to take these securities upon Marvin’s indebtedness, and that it holds them as security for the indebtedness of complainant, and the receiver should so apply them. As to 15 of these bonds, there is no dispute over their whereabouts, as they are shown to be in the possession of the bank, which claims title to them. Counsel asks what was done with the other 10, and say that it does not appear. Our opinion is that it satisfactorily appears that all of the bonds were taken to the bank under circumstances that justify the conclusion that they ■ came into the possession of the bank. Beyond this, we agree with defendants’ counsel that “it does not appear what became of them;” and we need not conjecture, but may assume that they are in the possession of the defendants, or have been disposed of for their benefit. It is urged that the complainant’s remedy is at law, or, at all events, that it should filé a bill to redeem; averring a willingness to pay the debt. This does not appear to have been a mooted question below. Counsel did not see fit to raise it by demurrer, as he might have done, but chose to go to hearing upon'his claim of title to the bonds. Under the circumstances, especially in view of the alleged insolvency of the bank, we think this technical defense should not be permitted to prevail. Equity has jurisdiction to compel a replacement of stock held as collateral security, lost through gross negligence or carelessness of, or misapplication by, the pledgee, or payment of its value. Colebrooke, Collat. Sec. § 340. We are of the opinion that the complainant should be decreed to be the owner of said 25 bonds, subject to the lien of said bank, and that defendants restore the same to the complainant upon tender of payment of its indebtedness, or account for them upon said indebtedness at their par value. It is decreed accordingly, complainant to recover costs of both courts. The other Justices concurred.	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Moore, J. This is a proceeding to set aside an attachment levy made by defendants upon one-half of a city lot in Muskegon. The record shows that the attachment was made October 5, 1895, by creditors of a firm of which complainant was a member. This half lot, which was known as “No. 12 Muskegon Avenue,” was bought by complainant, who was then á married man, in 1890. It was occupied by himself and family for about 3£ years. About a year and a half before the levy, complainant and his family moved to No. 53 Muskegon avenue, into a house then occupied by his father and his family, and continued to reside there until after the levy upon the property at No. 12 Muskegon avenue was made. At the time complainant moved to No. 53 Muskegon avenue, his father deeded the property located there to him. There was a mortgage upon the property of about $800, and some back taxes. It is the claim of complainant that he never intended to abandon his homestead at No. 12, but that he and his family always regarded it as his homestead; that he moved to No. 53 to enable him to care for his father, who was very old,—the house at No. 12 not being large enough to accommodate both families. It is also his claim that, when No. 53 was deeded to him, his father was not able to pay the mortgage and taxes, and was afraid he would lose the property. He also claims that the arrangement between his father and himself at the time of the making of the deed was that the complainant should pay the mortgage and taxes, and that, when he could sell the property without sacrificing it, he was to do so, and, after reimbursing himself, was to pay the surplus to his father; that he expected to make the sale, and to carry out his agreement. It was the claim of the defendants that, when complainant moved to No. 53 Muskegon avenue, he intended to abandon his home at No. 12 Muskegon avenue, and that his return to No. 12 was because he was afraid that his creditors would levy upon it, and was for the purpose of defrauding his creditors; that by giving mortgages to his mother-in-law upon both pieces of property for an amount largely in excess of his debt to her, which mortgages were^ signed by complainant’s wife, he has shown his purpose to defraud his creditors, and that these acts of the complainant and his wife characterize them as persons whose testimony ought not to be believed. The case was tried in open court, and the circuit judge granted a decree according to the prayer of the bill. The complainant, his wife, and his father all gave testimony tending to establish the truth of complainant’s claim. The defendants controverted this testimony. In Hoffman v. Buschman, 95 Mich. 540, Justice Hooker held that “the retention of homestead rights, though the party live elsewhere temporarily, is possible. It is largely a matter of continuing intent, and i's a fact to be proved like any other fact.” In Kaeding v. Joachimsthal, 98 Mich. 78, it was held, in a case where the parties had been absent from the homestead six years, that, where there was a continuing intent to return to their home after the object of their temporary absence should have been attained, such intent protected the homestead. The cases are collated in the decision just quoted. See, also, the case of Myers v. Weaver, 101 Mich. 477. The circuit judge had the witnesses before him. While there were some things done by the complainant, in his effort to keep his creditors from reaching his property, that are open to criticism, we are not inclined to say that the conclusion of the circuit judge that the property was exempt from levy is erroneous. The decree is affirmed, with costs. The other Justices concurred.	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Grant, J. {after stating the facts). Four objections are raised by the attorney general to this claim: 1. That this provision of the city charter is in violation of section 20, art. 4, of the Constitution, in that no such object is expressed in its title. 2. That the general tax law of the State was passed subsequently to this charter, which act exempts all state property from taxation, and therefore repealed this provision of the charter. 3. That the act reincorporating the city of Lansing was not constitutionally enacted, because it was not read three times in each house of the legislature before its final passage, as required by section 19, art. 4, of the Constitution. 4. That the act is an appropriation of public money for local purposes, and is therefore void under section 45, art. 4, of the Constitution, in that two-thirds of the members of each house did not vote for the bill. It has been the policy of this State from the beginning to exempt its property from taxation, local and general. I am not aware of any act before passed by the legislature imposing the burden upon the State of assisting municipal corporations financially to support their local govern ments. This is taxation pure and simple, and confers the extraordinary power upon the local authorities to assess the state property at any sum they shall deem proper, and then to apportion a certain part of the city taxes to the State. The State has no part or lot in the matter. No provision is made by which any state officer is notified, and can appear to contest the assessed value of the state property or the amount of the taxes, or to protect the interests of the State. That such power is extraordinary is a very mild statement of the case. It is the sole instance ever found upon the statute books of Michigan where private or public property was assessed, and taxation imposed, without - giving the owner an opportunity to be heard. Such power is repugnant to every principle of just taxation. The title to the act gives no hint of an intention to confer such power. It is not a common incident to municipal corporations. No better case can be found to illustrate the necessity and wisdom of the constitutional requirement. There is nothing in the title to this act to indicate to the taxpayers of this State or to their representatives in the legislature that the state property is to be taxed, or that its funds are to be appropriated to maintain the local government of the city of Lansing. No one would be bold enough to assert that, if such appeared in the title, it would not have met with opposition. We think this provision of the act is clearly unconstitutional, because the object is not expressed in the title. Davies v. Board of Sup’rs, 89 Mich. 295. It is unimportant, in this view of the case, to discuss the other questions. The writ is denied. Long, C. J., and Moore, J., concurred with Grant, J.	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Per Curiam. This case is ruled by Van Houten v. Insurance Co., 110 Mich. 682, in which an opinion was filed November 17, 1896. The judgment is affirmed.	[ -42, 1, 62, 15, -20, 3, 40, -37, 55, -29, -11, 5, -4, 61, 9, -34, -35, -41, -44, 21, -30, 10, -25, 16, -65, -36, 29, 3, 53, 32, -35, -8, 8, -2, -22, -30, -13, 57, 11, -61, 3, -26, 40, -40, -5, -26, 31, -4, -3, 5, 55, 50, -29, -12, -18, 0, -12, -1, 18, 32, -15, -37, 64, 55, 5, -14, -6, 16, 40, 51, 6, 39, -1, -9, 45, 3, -6, -2, -17, -12, -51, -51, 12, -9, -25, 7, -34, -4, -31, -10, -14, -20, -35, -65, -33, 70, 35, -20, -27, 30, 40, -9, 14, 72, -75, 13, 2, -15, -12, -35, 1, 29, 32, -12, -4, 54, -23, 23, 28, -12, -35, 14, 18, 31, -13, 27, -11, 3, -15, -9, -55, 35, -44, 41, 23, 10, 67, -12, 23, -55, 72, -8, 11, -24, -35, 17, 23, -29, -26, -44, 3, 77, -47, -3, -24, 26, -63, -48, 28, -42, -55, -20, 47, 33, -18, -5, 22, -32, -8, 32, -28, -11, -18, -35, 17, 27, -2, 1, -61, 28, -2, 8, -31, -18, -70, -27, -49, -5, -36, -49, -5, -31, -25, 10, -51, 36, 37, 56, 27, 24, -13, -12, 12, -20, -5, 22, -8, -3, 4, 2, 22, -19, -11, -60, 50, 43, -68, -17, 0, -32, -1, 1, 26, 12, -8, -46, -36, -36, -62, -49, -4, 16, 24, -12, 11, 53, -41, 3, -16, 11, 21, -3, -2, 10, 52, -13, 39, 25, 69, 55, -15, -13, 11, 22, 17, -31, -25, 44, 3, 35, -16, 32, -59, 3, 32, 28, 63, 10, 36, -8, 11, 44, -11, -57, 12, -3, 21, 1, 5, 4, -28, 33, -58, -43, -10, -29, 1, 4, -11, -7, 28, -15, -5, 33, 11, -13, 19, -14, -11, -36, 10, -8, -10, 26, 46, -29, -66, -52, 13, -24, -48, 54, 17, -69, -37, 28, -4, 6, 11, -6, -58, 37, 0, 45, -27, -35, 49, -60, -35, -2, -60, 36, 28, 47, -28, -36, -5, 54, 26, 2, 7, 18, -36, -8, -29, 46, 9, -14, 32, 10, -6, 16, 22, 11, -49, -24, 39, -34, -44, 38, 23, 40, 40, 65, 22, 40, -7, 6, -4, -7, -8, -8, -34, -11, -48, 19, 17, 49, -20, 39, 19, -28, 11, 44, -15, 33, -32, 19, -28, -27, -63, -59, 21, 32, -72, 34, -56, -19, 28, -8, 17, 6, -12, 24, -4, -5, 14, -8, 4, 65, -12, 26, -34, -67, 47, 34, 19, -4, 44, -29, 39, -6, -74, 34, -13, -3, 55, 19, 4, 1, 28, -5, -15, -21, -11, -58, -1, -65, 58, 50, 1, 8, 15, -3, -5, -15, -36, -15, 21, -72, 98, -2, 22, 12, -24, 28, -15, -49, -26, 64, 26, 1, -27, -11, -22, 39, 17, 31, 58, -45, -27, -33, -77, -5, -18, -9, -43, -3, -14, 34, 28, 5, 7, -10, 7, -36, 20, 37, -26, 2, -8, 12, -26, -54, -13, -17, -84, 5, -38, -40, -23, 13, 9, 11, -7, -29, 8, 3, -43, -6, 13, -35, 10, 41, 25, 13, 2, 17, 0, 39, -34, -3, -54, 13, 14, 58, 3, 6, 27, -4, 6, 25, -14, -16, 14, 28, 38, -4, -4, -12, -10, 36, 47, -17, 37, 3, -1, 12, -1, -29, -28, -12, -37, -4, 39, -9, 5, -6, 19, -26, -8, 20, 9, -8, -2, 1, 59, -3, 3, -59, -38, -52, 8, 15, -17, -9, -16, -5, -1, -20, 14, 38, -45, -34, -32, 1, 19, -22, -3, 30, 1, -1, 25, -2, -24, -2, -9, 14, 31, -3, -39, -11, -46, 5, -24, 20, -54, -8, 42, -3, -12, 2, -49, 8, -19, -7, 3, 62, 53, -55, 7, -9, 7, 22, 10, 6, -17, 13, 5, 100, 35, 23, -10, -24, 17, 38, 55, 66, -20, 20, -30, 3, 28, 18, 12, 39, -23, -13, 3, 29, 35, 58, -57, 26, -32, -7, 30, -47, 10, -28, -63, -4, -27, -11, -25, 30, -14, 33, -35, -8, 33, -19, 41, 19, 38, 26, 9, 56, 22, 14, 0, -10, 22, 53, -12, 18, 6, -7, 16, -50, -17, 75, -24, -32, 9, -93, 13, 42, 1, 2, -12, 23, -12, 9, 7, 21, -9, -10, -8, 13, -5, -25, -33, -15, 12, 83, 57, 12, 3, -37, 9, -57, 16, -1, -68, 29, -16, 10, -13, 16, -5, -22, 11, 15, -24, -12, -5, -8, -4, -57, -7, -6, 21, 78, -37, -6, -55, 63, 24, 53, -13, -10, -11, -18, -16, -30, -6, 40, 54, -2, -4, -38, -8, 37, 6, -10, 0, -3, -34, -78, -21, 11, 13, -7, -8, -51, 17, 18, 6, 13, -15, -28, 51, 6, 42, 16, 27, -29, -24, 11, 20, 22, 38, 15, -18, 8, 11, -46, 12, 0, 10, -12, 20, 0, -17, 49, 15, 42, 41, -29, 29, -32, -43, -19, 10, 76, -8, 1, 19, -23, -11, 12, 7, 1, 34, 18, 5, -45, -50, -6, 32, -10, -44, 38, -38, 0, 10, -22, -11, -9, -23, 44, 21, 48, 25, 25, -32, 44, 25, -48, -42, -45, -39, -31, 52, -68, -8, -58, 39, -36, 35, -54, -49, 19, 24, -21, -77, 20, 8, -8, -17, 56, 44, -94, -34, -43, -1, -27, 16, 20, -38, -13, 39, -1, 2, 19, 1, 22, -14, -9, 42, 2, -5, 28, 10, -24, 2, 6, 20, -10, -29, 2, 80, 52, -62, 22, 44, 5, -14, -12, -1, 12, 3, -14, 2, 79, -3, -13, -70, -4, 14, 30, 12, -31, -25, -19, 23, 10, 31, -5, -35, -8, 20, 14, -22, -44, 37, 5, -1, 65, -5, -13, 15, 28, -6, -26, 72, -36, 14, 12, 44, -30, -26, 7, -36, 5, -43, -4, -7, -23, -1, -34, 22, 13, 13, -31, -21, -24, -26, 43, -4, 13, 14, -48, -63, -99, -2, 31, 13, 21, -21, -2, -17, 34, -50, 16, -43, 18, -24, -63, 2, -2, 33, 0, -2, -33, -11, -7, 20, 48, -6, 12, 12, 7, -34, -26, 26, -19, -8, 1, 33, 75, 27, 45, 46, 18, -15, -29, 0, -43, 30, -4, -27, -59 ]
Grant, J. (after stating the facts). We are of the opinion that the case was properly submitted to the jury. The goods were shipped and invoices sent by mail to defendant, as was done in Heyn v. O’Hagen, 60 Mich. 150. There is evidence from which the jury might find that defendant received the invoices and made no objection. This, unexplained, would be evidénce of original authority, and, in connection with the testimony of Lamb, was important. Defendant does not testify what time elapsed between the date he saw the goods marked to him and the letter of December 30th denying the authority. We also think that the evidence of Lamb, if believed by the jury, is sufficient to sustain the verdict. If there were discrepancies in his testimony, it was the province of the jury to weigh them, and determine what the fact was, and how much credence they would give to his statement. The judgment is affirmed. The other Justices concurred.	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Hooker, J. The plaintiffs were in possession of certain lumber, claiming title, when it was taken by the defendants upon an attachment against the Mascotte Lumber Company. Plaintiffs brought replevin, and, after proof of the above facts and the value of the property, the court directed a verdict for the defendants, and the plaintiffs removed the cause to this court by writ of error. Plaintiffs’ proof of possession under a claim of purchase from the true owner, and the forcible taking of the lumber without consent, made out a prima facie case. Van Baalen v. Dean, 27 Mich. 104; Rose v. Eaton, 77 Mich. 255. Upham v. Caldwell, 100 Mich. 269, cited by counsel, is readily distinguishable. It then became necessary for the defendants to justify their taking by showing a right or authority superior to that of the plaintiffs. On the contrary, although prima facie wrong-doers, they offered no testimony, but chose to rely on -the claim that the transfer by assignment to the plaintiffs was defective, and induced the court to exclude it. But, if they were wrong-doers, they had no interest in this question. It was necessary to show that, by a valid writ or otherwise, they stood in the shoes of the true owner, or other person having an interest in the property, and had the right to question the plaintiffs’ title. It was, therefore, error to instruct the jury that the plaintiffs could not recover. It is contended that the assignment of error, i. e., “that the court erred in directing a verdict for the defendants,” is not special under Sup. Ct. Rule No. 12. Upon this record this assignment was equivalent to saying that there were facts in the case upon which a jury might find plaintiffs entitled to recover,—a radically different case from one where the court is said to have committed error in directing a verdict for the plaintiffs, or in refusing to direct one for the defendants. In those cases there may be uncertainty as to what the error relied on or point raised is. See Alberts v. Village of Vernon, 96 Mich. 549; Johnson v. Ballou, 25 Mich. 460. It is claimed that the judgment should be affirmed for the reason that the bill of exceptions does not include the assignments of error, as required by Rule 12 as recently amended. Under the circumstances of this case we are not disposed to subject the plaintiffs to a final judgment in the face of manifest error, and the record is such that nothing would be gained by remanding it for correction at plaintiffs’ expense. The rule is a new one, and we are disposed to enforce it with leniency at the present term. Hostetter v. Elevator Co., 4 N. Dak. 357. The judgment is reversed, and a new trial ordered. The other Justices concurred.	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Hooker, J. The defendant has appealed from a decree granting to the complainant divorce from the bonds of matrimony upon the ground of extreme cruelty, alleged to consist of refusal of cohabitation. No legal question of interest or importance is involved, and it is unnecessary to discuss the testimony or facts sought to be established. The testimony was taken in open court, and we find nothing to indicate that the circuit judge’s conclusions were not fully warranted, and his decree a just one. It is therefore affirmed, and, in addition to the sum heretofore allowed for costs and solicitor’s fee, it is decreed that defendant be allowed the further sum of $300 for her support and maintenance pending proceedings. The other Justices concurred.	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North, J. In this suit plaintiff seeks to recover damages alleged to have been sustained by her in consequence of injuries received by her minor son in an automobile accident for which she charges defendants are responsible. The facts and circumstances surrounding the accident appear in Essenberg v. Achterhof, 255 Mich. 55. Prior to the accident the father of the minor had died. The mother here seeks to recover expenses incurred by her incident to her minor son’s injuries and also the loss of his earnings during his minority which the mother has or will sustain. Plaintiff had judgment for $2,100; and the defendants have appealed. Appellants ’ first contention is that the question of the emancipation of the minor son should have been submitted to the jury as an issue of fact. The trial court held as a matter of law that the son had not been emancipated. The testimony disclosed that until the week prior to his injury the minor’s earnings had been limited to substantially 75 cents a week for assistance rendered on Saturdays to his stepfather, who operated a milk route, and that the son had been allowed to retain these small earnings for his individual spending money. The testimony also disclosed that other minor sons of plaintiff living in the family were permitted to retain their earnings after paying an agreed amount to plaintiff for board. However, it further appears from the record that this minor son was not only living in the home of his mother, but that he was clothed, boarded, sent to school by her, and had plans for continuing his school work until graduation. In the former suit by the minor son, no attempt was made on his part to recover for impaired earning power during his minority. The evidence of the injured minor having been permitted to retain his small earnings for spending money of of the relationship between the mother and her other sons, in -the face of the positive facts disclosed by the record and refuting emancipation, is not sufficient to icreate an issue for the jury. Allowing a minor to retain small earnings as spending money is not in and of itself proof of emancipation. It is only an ordinary incident in the development, education, and home life of most minors; being merely the equivalent of a parent giving the minor such amounts for his own use. The trial judge was correct in refusing to submit the question to the jury. Appellants also assert the trial judge in his instructions to the jury adopted a wrong rule of damages. They contend that the measure of the mother’s recovery for damages resulting from the impaired earning power of her injured son is the amount by which his earning capacity during minority is diminished less the cost of rearing him. They cite numerous cases in their brief, but, with the exception of one, to which attention will later be called, each of the Michigan decisions involved the death of a minor rather than his injury and impairment of earning power. Obviously, in case of death the proper rule of damage would be to deduct the cost of rearing, because by death of the minor the parent is relieved of that expense. But this is not true where the minor survives. The Michigan decision on which appellants largely rely is Pratt v. Detroit Taxicab & Transfer Co., 225 Mich. 147, wherein it is said: “It was and is insisted that the trial judge was not authorized in submitting to the jury the question of plaintiff’s pecuniary loss for the services of his minor son by reason of the fact that such loss must be limited to the probable earnings of the minor less the expense of his living until he reached the age of 21, and that the case being barren of any evidence of the probable expense of his living, the verdict * * * is without evidential support.” The' decision in the circuit court was affirmed in this court; and is construed by appellants as upholding the rule of damages for which they contend. A careful reading of the Pratt Case, together with an investigation of the record and briefs therein filed, discloses that the question now before us was not at all involved. There the trial judge, in accordance with the defendant’s request, charged the jury that the damages “as counsel have both indicated * * * (are) the loss of the wages that the father would sustain, * * * less the expense of his (the minor’s) care and keep from the time of the accident to the time that he is 21 years old.” The defendant was the appellant, and therefore could not and did not assign error upon a charge given in exact accordance with its request. Further, as noted from the above-quoted portion of the charge, counsel on both sides of the Pratt Case seem to have agreed that the-rule of damages given by the court to the jury was the proper rule. The only complaint made by appellant on this phase of the record was that the ultimate result could not be determined by the jury because there was no testimony tending to establish the cost of maintaining the minor. This contention was overruled on the authority of Black v. Railroad Co., 146 Mich. 568. The Pratt Case is not an authority in support of appellants’ contention as to the proper rule on the measure of damages in the instant case. Decisions may be found in other jurisdictions sustaining the rule for which appellants now contend; but they concede in their brief that it is the minority rule. We think it is not the proper rule. In Houston & T. C. R. Co. v. Lawrence (Tex. Civ. App.), 197 S. W. 1020, the correct rule of damage is thus indicated : “The damages recoverable by a parent for injuries to a minor child, not resulting in death, are not restricted to the value of the services of the child during his minority, less the expense of feeding and clothing; this is so for the reason that the expenses of feeding, clothing and educating the minor during his minority devolve upon the parent anyway, and such expenses in the present case were not shown to have been diminished, but rather increased, by the injury. Texas & P. R. Co. v. Morin, 66 Tex. 133 (18 S. W. 345).” See, also, Thomas v. Railway Co. (Mo. App.), 180 S. W. 1030, 1031. It is further contended by appellants that the verdict is excessive. At the time of injury the son was not quite 16 years of age, and was attending high school. He had just been employed by his stepfather to work during the vacation period at ,$6 per week. His earnings for the one week he worked were paid to and retained by the plaintiff. One of plaintiff’s other minor sons was employed in this same manner at $17 per week. As a result of his injuries, plaintiff’s son has a permanently stiffened knee; and obviously is handicapped, if not wholly incapacitated, for doing the work for which he was employed. A reasonable inference is that as he grew older his earning capacity would have normally increased. Plaintiff’s testimony was that she had incurred and partially paid hospital and physicians’ bills incident to her son’s injury amounting to $1,063. Thus it is fair to assume that the jury awarded plaintiff less than $1,000 as damages resulting from the impaired earning capacity of her minor son. Under this record the amount so awarded is not excessive. Appellants’ claim that the verdict is excessive is in part, at least, based upon their contention that the court failed to instruct the jury as to the proper measure of damages. Our holding above is not in harmony with appellants ’ contention in this regard. The judgment of the circuit court is affirmed, with costs to appellee. Clark, C. J., and McDonald, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred.	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Butzel, J. Effie M. Sharpe, plaintiff, filed a bill for divorce against Lewis Sharpe. The parties were married on January 11, 1928, at Detroit. Plaintiff was 48 years of age and had never been married before. Defendant was almost 10 years older. Previous to her marriage, plaintiff was a buyer for a department of a very large mercantile establishment. She gave up her position and cannot get it back. Defendant had three children by two previous marriages, both wives having died. They were sisters whom plaintiff had known and through whom she had met defendant over 20 years prior to her marriage to him. Plaintiff knew that defendant ran a saloon where intoxicating liquor was sold. He gave up the business when he married. The parties had spent many evenings together previous to their marriage and frequently at roadhouses where intoxicating liquors were partaken of at their meals. Liquor was used during their honeymoon trip, and although plaintiff very vehemently declared in the course of her testimony that she hated liquor, she admitted’ that she herself had indulged in its use. She must have known that the running of a saloon was illegitimate. The parties had many quarrels during the short period of four months during which they lived together, but excepting one or two instances they were not of a serious nature. We do not believe there is any reason why, with an effort on the part of each of them, there cannot be a reconciliation and a restoration of domestic peace. According to plaintiff’s own testimony, after the return from the wedding trip, she found that defendant was drinking to excess and she asked him to again engage in the liquor business. He acted in accordance with her suggestion and they took up their residence in a flat over the saloon he conducted. The charges made by her were not, in the opinion of the trial judge, supported by the requisite preponderance of testimony reaching the dignity of evidence. He was not at all in sympathy with plaintiff’s asking for legal redress when she admitted that she asked defendant to engage in an illegal business which may have been indirectly the contributing cause of defendant’s alleged misconduct. We believe the court reached the correct conclusion in dismissing the bill of complaint. The decree is affirmed, with costs to defendant. Clark, C. J., and McDonald, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred.	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North, J. Fred G. Dewey, as attorney for the plaintiff in the above-entitled cause, by order of the circuit court, was given an attorney’s lien in the amount of $1,460.66 upon the judgment of $3,350 obtained against the principal defendant. See Shank v. Lippman, 253 Mich. 451. Thereafter Mr. Dewey garnisheed the account of the defendant at the Peoples Wayne County Bank, which disclosed an indebtedness to the principal defendant in the amount of $4.74. Upon motion of the principal defendant the circuit judge dismissed the garnishment proceeding upon the ground that “the said lien claimant did have no just cause to be apprehensive of the loss of such claim.” See 3 Comp. Laws 1929, § 14857. Without obtaining leave of this court, an appeal has been taken from the order dismissing the garnishment proceeding. Appellee moved to dismiss the appeal on the ground that it appears from the record the amount involved is not in excess of $500, and under both the rule (Court Rule No. 60) and the statute (3 Comp. Laws, 1929, § 15491) permission to appeal was necessary. Clearly the motion is well founded. See Hermesmeyer v. Northwestern Investment Co., 254 Mich. 384. In the matter now before the court, the right to appeal without leave is not controlled by the amount involved in the principal suit, but rather by the amount of the liability of the garnishee defendant to the principal defendant. There is no showing that this is in excess of $500. The appeal is dismissed, with costs. Clark, C. J., and McDonald, Potter, Sharpe, Pead, Wiest, and Btjtzel, JJ., concurred.	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Butzel, J. The following statement of facts and controlling questions of law have been certified to this court pursuant to the provisions of Rule No. 78 of Michigan Court Rules: On July 22,1923, and prior thereto, William Doyle was a police officer of the city of Saginaw duly qualified and acting as such. On that day, while engaged in the performance of his official duties as a police officer, he suffered a sunstroke and thereafter died on May 15, 1925. Following the sunstroke, William Doyle became ill and was treated by a physician until the time of his death, and, for the purposes of this record, the sunstroke is considered the proximate cause of his sickness and death. Neither William Doyle, in his lifetime, nor his widow, or any person claiming to be his dependent, made any claim for or received workmen’s compensation under the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.). On October 20, 1925, Margaret Doyle, the widow of William Doyle, made application to the council of the city of Saginaw for a pension under the provisions of the charter of the. city of Saginaw providing for pensions to the widows and dependents of firemen and policemen dying as the result of injuries received while in the perform anee of their official duties. Hearing was had upon this petition by the council November 24, 1925. On October 14, 1930, the council formally denied the application for pension. On October 21, 1930, suit was commenced in the circuit court for the county of Saginaw for the recovery of moneys claimed to be due on account of accrued pension. The plaintiff filed a declaration and the defendant thereupon moved to dismiss. The relevant provisions of the charter of the city of Saginaw are as follows: “Sec. 154. Any person 'who has been a fireman or a policeman and a member of the fire or police department of the city of Saginaw for a period of twenty-five years, may, by written application, be placed on the list of retired firemen and policemen of this city., In computing the period of service of any fireman or policeman, the length of time served by him as a member of the fire or police department of either the city of Saginaw or East Saginaw as they formerly existed before consolidation as the city of Saginaw, shall be added to the time he has served in the city of Saginaw as now constituted. “Sec. 155. Any person who’ is a fireman' or policeman and has been a member' of the fire or police department of the city of Saginaw, Michigan, for a period of ten years, who may hereafter become incapacitated, while in the actual performance of his official duty, through any cause other than by accident, shall be placed on the list of retired firemen and policemen of this city by resolution of the council of the city of Saginaw, whenever there may be furnished to said council sufficient proof of such incapacity. The said council to prescribe the form and character and sufficiency- of the proof required. “Sec. 156. All firemen and policemen who may be placed on' the retired list and remain thereon, shall receive a sum equal to one-half of their annual salary paid to them at the time of their retirement, not to exceed six hundred dollars per year, to be paid to them, in equal weekly payments during the remainder of their lives. ‘ ‘ Sec. 161. When the widow, children or dependent parent, or either of them shall be entitled to a pension, as in this charter provided, such widow, children or dependent parent shall make application for a pension to the said council, on a form to be provided by said controller, and shall furnish such proof with reference to marriage, birth and age of children, and dependency of parents, and other essential particulars, as said council, aforesaid, shall determine or require. All applications and proof shall be retained in the office of the controller of said city. When applications for pensions are allowed, due notice of such action, with the names of all pensioners, shall be given to the controller, who shall cause such record to be made as in this charter provided. “Sec. 162. In case of incapacity of any fireman or policeman at any time from injury or accident received by him in the performance of his official duty, or in case of death resulting from injury received by him in the performance of his official duty, there shall be paid to him or his widow, children or dependent parents, as the case may be, the sum provided for in section 156 of this charter, provided, however, that this sum or sums shall not be paid until after said person or his widow, children or dependent parents shall have ceased to receive compensation under and by virtue of the ‘Michigan workingman’s compensation and employers’ liability acts, ’ approved March 20, 1912, the provision of this charter being supplemental to said act; and provided, further, that in case said ‘workingman’s compensation and employers’ liability act’ shall be held unconstitutional or void for any reason by the Supreme Court of the State of Michigan, or the Supreme Court of the United States, then the pro visions of this charter shall obtain as to firemen and policemen injured, or killed while in the performance of their official duty, the same as though incapacitated from any other cause.” Questions. First: Was sunstroke an injury within the meaning of the pension provisions of the charter of the city of Saginaw? Second: Was an application for and an award and payment of workmen’s compensation a condition precedent to the payment of the pension provided for in the charter of the city of Saginaw? Third: Under the terms of the charter of the city, is a pension payable for an injury which is not within the provisions of the workmen’s compensation act and of a character for which workmen’s compensation could not be recovered? Fourth: Has the plaintiff, widow of the deceased police officer, an election to take the pension provided in the charter or workmen’s compensation? Fifth: Are the provisions of the charter for pension and provisions for workmen’s compensation alternative or cumulative rights? It is unnecessary to discuss at length the nature of a sunstroke, about which there is not a unanimity of opinion among the medical authorities. Heatstroke and sunstroke are so similar that the terms are frequently used interchangeably. According to 14 Oxford Medicine, pt. 2, p. 664 (2): “There is abundant proof based on clinical observations and experimental investigations which support the view that heatstroke results from a disturbance of the heat balance of the body due to an environment that is unfavorable for heat elimination # * *. The theory that sunstroke is due to •'the actinic rays of the sun rather than to heat is no longer tenable.” We are surfeited with so many serious questions in jurisprudence that we dare not venture, even were we able, to pass judgment upon controversies in fields foreign to our own. We are able to say, however, that sunstroke is not a compensable accident in the meaning of the workmen’s compensation act of Michigan. At most it may be regarded in the same light as an occupational disease and not within the purview of the act. Decisions from other States where the act differs from our own are not pertinent. It is true that in LaVeck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916D, 1277), in the case of a workman who was overcome while in a very hot room where he was obliged to perform an abnormally large amount of work during the week, the court held that the unusual hours of work and the unusual conditions were the cause of a cerebral hemorrhage and resulting paralysis, and that he was entitled to compensation. This case was distinguished in Roach v. Kelsey Wheel Co., 200 Mich. 299, where plaintiff’s decedent was working with others in rebuilding brickwork around a boiler which caused the temperature of a very hot day to rise to about 136 degrees, and decedent was overcome while working and later died from prostration. It was held that this was not a compensable injury. A dissenting opinion conceded by implication that had death been due to the natural heat of a summer’s day, there could be no recovery. In Adams v. Acme White Lead & Color Works, 182 Mich. 157 (L. R. A. 1916A, 283, 6 N. C. C. A. 482, Ann. Cas. 1916D, 689), it was held that lead poisoning was not an accidental injury compensable under the Michigan statute, but it was such a disease as might be expected from the nature of the work. In Landers v. City of Muskegon, 196 Mich. 750 (L. R. A. 1918A, 218), a fireman died of pneumonia contracted as a result of becoming drenched while fighting a fire. The court, in holding that it was not an accidental injury, stated: “The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.” In Sherman v. Flint Spring Water Ice Co., 229 Mich. 648: “Wearing a wet mitten on a zero day and freezing his hand is not an accident within the meaning of the compensation act. Getting one’s hands wet and cold, and one’s mittens wet, while engaged in handling ice are natural, if not necessary, incidents of the work.” To like effect: Andrejwski v. Wolverine Coal Co., 182 Mich. 298 (6 N. C. C. A. 807, Ann. Cas. 1916 D, 724); Kutschmar v. Briggs Manfg. Co., 197 Mich. 146 (L. R. A. 1918B, 1133); Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445; Wilcox v. Clarage Foundry & Manfg. Co., 199 Mich. 79; Perkins v. Jackson Cushion Spring Co., 206 Mich. 98; Savage v. City of Pontiac, 214 Mich. 626; Hagrove v. Arnold Construction Co., 229 Mich. 678 (40 A. L. R. 398); Mauch v. Bennett & Brown Lumber Co., 235 Mich. 496; Sinkiewicz v. Lee & Cady, 254 Mich. 218. Many municipalities have provided for pensions in case of death or disability of policemen on account of the unusual risk they run in encountering lawlessness or acting in dangerous situations. The quoted provisions of the charter, however, do not state the reason for their adoption. Counsel do not question but that the workmen’s compensation act applies to policemen under 2 Comp. Laws 1929, §§ 8411, 8413. The fact that neither Doyle nor his dependents made application for compensation does not help us in construing the charter, for sunstroke is not a compensable accident or injury under the act. The main question is whether the right to pension exists when the right to compensation- does not exist. The provisions of the charter, if read without reference to the workmen’s compensation act, might lead us to other difficulties in determining for what length of time compensation should run to the children of a deceased policeman who survived their mother. We are led to the conclusion that additional compensation is provided for only after the payment of the weekly awards under the act, and that as the charter provisions are only supplemental to the act, they apply only to such accidental injuries as are compensable under the act. Slater v. City of Grand Rapids, 248 Mich. 480, and Ford v. Kuehne, 242 Mich. 428, are not pertinent, for the charter provisions therein referred to contained no such conditions or limitations as those now in question. The provisions of the charter that the sums specified therein should not be payable until “after said person or his widow, children, or dependent parents, shall have ceased to receive compensation under” the act, and the further statement that the provisions of the charter are “supplemental” to the act, cannot be overlooked. These words show that the receiving of compensation is a condition precedent to receiving a pension. A supplemental act is one designed to improve an existing statute, by adding something thereto without changing the original text. McCleary v. Babcock, 169 Ind. 228 (82 N. E. 453); Loomis v. Runge, 14 C. C. A. 148 (66 Fed. 856). Supplemental statutes include every species of amendatory legislation which goes to complete a legislative scheme. Rahway Sav. Institution v. Common Council of Rahway, 53 N. J. Law, 48 (20 Atl. 756); First State Bank of Shelby v. Bottineau County Bank, 56 Mont. 363 (185 Pac. 162, 8 A. L. R. 631). The charter provision in the case at bar being ‘ ‘ supplemental ” it is clear that it creates no original and independent rights, but only something in addition to the compensation act. It is necessary to tie it up with the compensation act, and to limit recovery under it to situations where the injured party can and does receive compensation. Since sunstroke is not compensable under the act, it is not compensable under the charter. Questions 1, 3, 4, should be answered: No. Question 2 should be answered: Yes. Question 5 should be answered: The provisions are cumulative rights. The questions being of a .public nature, no costs will be allowed. Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.	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North, J. In September, 1927, the common council of the city of Detroit enacted an ordinance permitting the Detroit & Canada Tunnel Company (for merly the Detroit-Ontario Subways, Inc., and hereinafter called the Tunnel Company) to construct, maintain, and operate an international tunnel and approaches thereto for vehicular travel between Detroit, Michigan, and Windsor, Ontario. The portion of the tunnel with which we.are concerned was constructed in Randolph street in the city of Detroit. Plaintiffs were lessees of the St. Lawrence Hotel located at the Corner of Atwater and Randolph streets, under a lease expiring June 19,1931. In this building, which was four stories high, plaintiffs operated a hotel, a restaurant and lunch room, and subrented two portions in which stores were conducted. The excavating and tunneling of defendants in Randolph street extended in front of plaintiffs’ property; and they allege that defendants’ failure to provide the hotel property with sufficient lateral and subjacent support resulted in damaging the building and rendering it unsafe for occupancy, that the means of ingress and egress to plaintiffs’ property were greatly impaired by defendants, and plaintiffs in consequence suffered loss of trade and income. In this suit they seek to recover loss of profits and for losses incurred incident to operating expenses prior to May, 1930, at which time the building was found to be in such a dangerous condition that it was ordered demolished by the Detroit department of buildings. Plaintiffs’ declaration contains two counts: the first based upon Act No. 314, Pub. Acts 1921 (3 Comp. Laws 1929, §§ 13500-13503), and the second alleges the withdrawal of lateral support and negligence in the method of excavating and underpinning resulting in damage to plaintiffs’ leasehold, for which recovery is sought on the theory of common-law liability. The trial judge in determining plain tiffs were not entitled to recover on the second count said: “Before he can recover, the plaintiff must prove by a preponderate of the evidence that careless excavating was done which resulted in his damage. The court is unable to find from the proofs that such was the case.” Act No. 314, Pub. Acts 1921 (3 Comp. Laws 1929, §§ 13500-13503), relied upon in the first count of plaintiffs ’ declaration, in part reads: ‘ ‘ Section 1. It shall be the duty of every person, partnership or corporation who excavate upon land owned or occupied by them to a depth exceeding twelve feet below the established grade of a street or highway upon which such land abuts or, if there be no such established grade, below the surface of the adjoining land, to furnish sufficient lateral and subjacent support to the adjoining land to protect said land and all structures thereon from injury due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation. “Sec. 2. Such owner or occupants shall be liable to the proper person entitled to sue therefor, for the actual damage to land and structures and any other resulting damages, arising from failure to fulfil the duty created by this act. They shall also be liable to occupants or tenants of such land or structures for damage to their property or business proximately resulting from injury to such land or structures caused by their failure to fulfil said duty. ’ ’ Upon trial before the circuit judge without a jury, plaintiffs had judgment for $9,506. The Tunnel Company and the other defendants who were contractors or subcontractors have appealed. Among the defenses urged in the trial court and also urged in this court are: (1) The statute above quoted is unconstitutional; and (2) even if the act is valid, it does not apply to excavations made by the city or its licensees in a public street. If the second contention is well founded it becomes unimportant, for the purposes of this case, to pass upon the constitutionality of the act. "While statutes or ordinances of similar purport will be found in the many States, as might be expected, they vary in terms; and therefore an adjudication of the exact question before us cannot be found. But courts of other States have passed upon the question as to whether statutes couched in somewhat similar terms are applicable only to private owners of adjoining parcels of land, and therefore inapplicable to operations carried on by municipalities or licensees in a public street. In arriving at a proper construction of this statute, it must be borne in mind that it is in derogation of the common law under which one excavating on his own land is bound as to lateral support to protect the soil on the neighboring lot in its natural state, but he is not required to provide support for the added weight of buildings erected thereon. Hemsworth v. Cushing, 115 Mich. 92; Bissell v. Ford, 176 Mich. 64; Horowitz v. Blay, 193 Mich. 493; Collias v. Detroit, etc., Loan Association, 220 Mich. 207. Legislation of this type has been characterized as a radical departure from the common law. Hirschberg v. Flusser, 91 N. J. Law, 66 (102 Atl. 353). Being in derogation of the common law the statute should be strictly construed. It is urged by appellants that the phraseology of the statute itself precludes the idea of its being applicable to excavations in streets. It applies only to excavations the depth of which exceed 12 feet “below the established grade of a street or highway upon which such land abuts. ’ ’ From the wording of the statute and the obvious purpose of its enactment the conclusion is almost inescapable that the legislature had in mind only such excavations as were on land abutting a street, and therefore not land included within the street itself. The contention is thus stated in one of appellants’ briefs: “The intention was undoubtedly to extend the common-law rule as between private owners of city lots, so that one owner who makes a deep excavation must protect his neighbor’s building as well as his soil. * * * There is nothing in the statute which plainly and expressly shows an intention to change the existing law so far as public streets are concerned, and nothing can be added to the statute by implication.” Citing Speck v. County of Wayne, 237 Mich. 202. It is further urged by appellants that, unless the terms of the statute clearly include municipalities and impose the statutory liability on them and their licensees incident to street excavations, it should be held that such municipalities and their licensees are not included within its provisions. “It is the prerogative of the State to be exempt from coercion by suit except by its own consent. * * * The remedy, therefore, for consequential injury resulting from the State’s actions through its agents, if there be any, must be that and that only which the legislature shall give. It does not exist at common law.” Citing Northern Transportation Co. v. Chicago, 99 U. S. 635. In passing upon somewhat similar statutory provisions, it has been held in both New York and Ohio that they are not applicable to excavations made in public streets. The New York statute reads: “Section 474. Whenever excavations for building or other purposes, on any lot or piece of land in the city of New York, shall be intended to be carried to the depth of more than ten feet below the curb, at a place where there is any party or other wall wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced, whether said adjoining wall is down more or less than ten feet below the curb.” Laws of New York, 1887, chap. 566. In Jencks v. Kenny, 19 N. Y. Supp. 243 (quoting syllabus), it is held: “The New York consolidation act (quoted above), requiring an owner excavating below 10 feet to protect his neighbor’s wall, does not apply to one excavating in a street of New York city under a contract with the municipal authorities.” Again, in New York Steam Co. v. Foundation Co., 195 N. Y. 43 (87 N. E. 765, 21 L. R. A. [N. S.] 470), it is said: “Nor is the defendant liable because it violated any duty imposed on it by statute or ordinance, such as the building code, which * * * applies to adjacent property under private ownership, and has no application to excavations in a public street. ’ ’ In the above case each of the parties was exercising proprietary rights in a public street; and following the above-quoted portion of the opinion the court added: “The rights of the parties are not controlled by the common-law doctrine of lateral support, as thus far applied by the courts. That doctrine is limited to adjacent lands under private ownership, except that, while it requires the adjacent landowner to preserve the .lateral support to a public highway, it does not require the municipality owning the highway to preserve the lateral support to the adjacent land. Village of Haverstraw v. Eckerson, 192 N. Y. 54 (84 N. E. 578, 20 L. R. A. [N. S.] 287); Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195 (53 Am. Dec. 357).” In a later New York decision it was again held, quoting syllabus: “Section 22 of the building code of the city of New York, as then in force, requiring a person causing an excavation to be made on a lot in said city, to a depth of more than ten feet, to protect buildings on an adjacent lot, and the like statutory provisions on which it is based relate only to excavations on lots and do not apply to excavations in a public street.” Susswein v. Bradley Contracting Co., 184 App. Div. 852 (172 N. Y. Supp. 652). In Brinkmeier v. City of Cincinnati, 20 Ohio N. P. 346, the court said: “On the part of the plaintiff it is contended that apart from negligence, in the absence of any proof of negligence, the plaintiff is entitled to recover by virtue of General Code, § 3782, which provides that if ‘the owner or possessor of any lot of (or) land in any municipality digs * * * to a greater depth than nine feet below the grade of the street or streets on which said lot or land abuts or * * * below the established grade of the street * * * and by said excavation causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner or possessor shall be liable in a civil action to the party injured to the full amount of such damage.’ It is the contention that the city is the owner of its streets and that as sneh is liable to an abutting owner for damage arising from an excavation deeper than nine feet. “However, a careful reading of the entire statute convinces me that the legislative intent was not to include a municipal corporation as to its ownership of the streets themselves. Reference is clearly had to a lot abutting on a street, and it seems to me to require a very forced construction to include in the foregoing phrase the street itself.” We think it is equally plain that a careful reading of the Michigan statute forces the conclusion that the legislature intended it to apply only to privately-owned land abutting on a street and not to the street itself; and to sustain plaintiffs’ contention that it also includes land within the street necessitates resorting to a forced and strained construction. The only remedy open to plaintiffs was their common-law right of action to recover for damages, if any, to their property proximately caused by defendants’ negligence. The trial judge found no negligence established; and plaintiffs have not appealed from this determination. It is not revi'ewable on a record, which like that before us, does not contain the testimony taken in the circuit court. The judgment is reversed, and the cause remanded, with direction to enter judgment for defendants. Costs to appellants. Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.	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McDonald, J. This bill was filed to secure the reformation of a deed on the ground of mutual mis take. On the hearing, a decree was granted to the plaintiff. The defendant has appealed. The testi- ■ many tends to establish the following facts: • In 1914, the village (now city) of Highland Park was constructing a water supply main from Lake St. Clair. It desired to run the main through a small strip of land belonging to the plaintiff and her husband, Joseph Droste, now deceased. The Drostes refused to grant a right of way. The Gratiot Highlands Company owned a subdivision on the other side of Gratiot avenue across from the Droste property. Mr. Hesse was an officer of that company and a friend of Mr. Droste. So he was employed by Mr. Patterson, superintendent of water works of the village, to secure the right of way. He was not successful, but, in subsequent negotiations, he secured an agreement from them to sell the property to the village for $550. The agreement was in writing in the form of a receipt. It reads as follows: “June 20, 1914. “Received of Gratiot Highlands Company, sum of twenty-five dollars, same being first payment on a strip of land 20 feet wide as shown by plan hereto attached and is a part of the s. e. corner of Taylor road and Gratiot avenue. “The price is to be $550 for which sum Joseph Droste and wife agree to sell and Gratiot Highlands Company agree to purchase and the balance of the purchase price of $525 to be paid upon delivery of the warranty deed and a survey of the property and Mr. Droste and wife are to have a tap on each side of the property to take care of the two divided parts. “It is understood that this land is to be used for the right of way for the Highland Park water main. “(Signed) Joseph Droste. “Accepted: “Gratiot Highlands Company. “By H. J. Hesse.” Subsequently, a warranty deed was executed by tbe Drostes to the village. The restriction as to the use of the property by the grantee was not carried into the deed. It was an unconditional conveyance of the fee. This bill was filed to reform the deed in accordance with the agreement. It is well understood that an instrument will not be reformed on the ground of mistake unless the mistake was mutual. In this case, the agreement which the plaintiff says was omitted from the deed by mistake was made by Mr. Hesse, acting, it is claimed, for the village. Conceding, for the purpose of discussion, that Mr. Hesse was agent in negotiating for the right of way or the purchase of the property, his agreement to place a restriction on its use was not binding on the village unless his action was authorized or subsequently ratified. It is not claimed that it was authorized. The claim is that his agreement was ratified by the council. There is no merit in this claim. The village charter provided that no real estate or interest therein could be purchased or private property taken for public use except by concurrent vote of four-fifths of all members of the council (Highland Park Village Charter, chap. 4, § 6). The agreement in question was not presented to the council. The deed was presented and accepted and payment of the purchase price ordered. But there is nothing in the record tending to show that the council or any other of the city authorities ever heard of the agreement. The deed which they accepted contained no restriction or reservation whatever. It was an absolute conveyance of the fee. There was no mistake on the part of the grantee. The agent who drafted the deed may have made a mistake in omitting therefrom some of his agreements with the vendors, but his omission was not the act of the village. He made promises to the plaintiffs which he omitted from the deed, bnt they were not promises of the village, because they were made without authority and were not ratified. The mistake was not mutual to the parties named in the deed. In Adams v. Iowa Gas & Electric Co., 200 Iowa, 782 (203 N. W. 229), which was an action for a reformation of a contract so as to include representations of an agent, it was said: “Unless it may'be said that the representation of the agent was binding upon this defendant, the alleged mistake cannot be said to be mutual. It is elementary, that if one party is acting through an agent, it is necessary that he have authority to make the stipulations alleged to have been omitted from the contract.” . . In the instant case, reformation of the deed decreed by the trial court compels the defendant to ■ accept a deed with conditions it never agreed to or approved. It was not a party to the mistake. The decree of the trial court is reversed, and a decree will be entered here dismissing the plaintiff’s bill. The defendant will have costs. Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.	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Clark, C. J. Counsel are agreed that the question has not been decided by this court. It is on a paragraph of the will of May Walker, giving to trustee a sum of money “to pay the entire net income of said trust fund to Mrs. Predericka McMillan Crouse during the term of her natural life,” and it is: “Is income payable on the trust involved from date of death of testatrix to the date of turning over the fund to the trustee 1 ’ ’ The trial court answered in the affirmative. The plaintiff executor has appealed. The estate was productive of income from the death of testatrix and the amount and rate thereof were found in fact by the trial court and the finding is not questioned. It is not contended that the fund is residuary nor that testatrix stood in loco parentis to the beneficiary. The legacy is of income, not a part of the corpus of the estate. And this is true although the will further provides that trustee may, in its sole discretion, use any part of the trust fund for support and maintenance of beneficiary. The gift, as regards the beneficiary alone, is of income.. Interest upon a legacy is not here sought. The attempt is to secure the legacy itself, the income of the fund from the death of the testatrix. The beneficiary is entitled to the income whenever it accrues, and, as there has been such net income from the death of the testatrix over the period in question, beneficiary should have it. Authorities on the question are divided. See 40 Cyc. p. 1881. The better rule, accepted by the trial judge, is stated in a leading case, Matter of Stanfield, 135 N. Y. 292 (31 N. E. 1013), quoting: “Where the income of an estate, or of a designated portion, is given to a legatee for life, we think it is clear that he becomes entitled to it whenever it accrues, and if the estate is productive of income from the death of the testator, he can require the executor to account to him for the income from that time. The rule that general legacies shall not bear interest until the expiration of one year from the grant of letters testamentary, or of administration (Matter of McGowan, 124 N. Y. 526 [26 N. E. 1098]), has no application in such a case. It is, by its terms, limited to general legacies payable out of the corpus of the decedent’s estate. In the present case the bequest is not a part of the principal of the estate, or of any property possessed by the testator in his lifetime; but of that which is to arise or accrue after his death from a specified fund to be set apart for that purpose. It is the income which constitutes the respondent’s legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself and his effort, therefore, involves no infringement of the rule regulating the payment of interest upon general legacies. ’ ’ The case was cited and approved in Matter of Bird, 241 N. Y. 184 (149 N. E. 827). Some other cases supporting this view are: Martha Catron’s Estate, 82 Mo. App. 416; Webb v. Lines, 77 Conn. 51 (58 Atl. 227); Flickwir’s Estate, 136 Pa. 374 (20 Atl. 518); Mulcahy v. Johnson, 80 Colo. 499 (252 Pac. 816); Doherty v. Grady, 105 Me. 36 (72 Atl. 869); Ayer v. Ayer, 128 Mass. 575. Affirmed. Costs to appellee. McDonald, Potter, Sharpe, North, Fead, Wiest, and Bijtzel, JJ., concurred.	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McDonald, J. The plaintiff, Grand Rapids Trust Company, as receiver of the Peninsular Fire Insurance Company, obtained a judgment in the Wayne circuit court against defendant Gleason V. Lutes, and caused execution to issue which was returned unsatisfied. This bill was then filed against Lutes and others for discovery, appointment of receiver, and for general judgment creditor relief. Hattie Besser and the Alpena County Savings Bank, also judgment creditors of Lutes, were permitted to intervene as parties plaintiff. The bill charges that defendant Lutes is the owner of an interest in a partnership known as the Gen eral Association; that he is the owner of 311,500 shares of stock in the Gill & Fortune Lumber Company, Ltd., a Canadian corporation; that the defendants Lange, Eoss, and Kinsler have conspired with Lutes to conceal hi's interest in that company; that they were claiming an assignment from Lutes of the certificate for 185,600 shares of the stock which the plaintiff charges was made to hinder and defraud his other creditors. Eoss, Kinsler, and Lange were the only defendants represented at the hearing, and the contested issue was whether the assignment was fraudulent as to creditors. The trial court held that it was and entered a decree impounding the stock for their benefit. Eoss and Kinsler assigned their interests to Lange and he alone is prosecuting this appeal. In the history of the stock certificate in question, it appears that in June, 1923, one William Fitzpatrick sold to the defendant Gleason Y. Lutes 285,600 shares of stock in the Gill & Fortune Lumber Company, Ltd., and received in part payment of the purchase price certain promissory notes, three of which of $5,000 each are involved in this controversy. The agreement for the sale was in writing, in which it was provided that 100,000 shares of the stock were to be delivered to Lutes and the remaining 185,600 shares held in escrow by the Great Lakes Finance Corporation for delivery when the notes were paid or satisfactorily indorsed. Some time in July, 1923, Fitzpatrick, who had been associated with the defendants Eoss, Kinsler, and Lange in the operation of a stone quarry in Cheboygan county, Michigan, purchased the quarry from them and gave in payment therefor the three Lutes notes indorsed in blank by himself. Both Fitzpatrick and Lutes represented to the defendants that the notes were secured by the certificate of the 185,600 shares of stock held in escrow by the Great Lakes Finance Corporation. After verifying this representation by telephoning the Great Lakes Finance Corporation, defendant Ross, in the presence of Lutes and Fitzpatrick, made the following notation on the back of the notes: “This note is secured by 185,600 shares of Gill & Fortune Lumber Company, Ltd., stock which is held in escrow for the guarantee of this payment.” The defendant Ross was president of the Conductors Protective Assurance Company of Detroit. His company had made a loan of $3,500 to the defendants and held a mortgage for that amount on the 100 acres of land included in the stone quarry property. This mortgage had been foreclosed at the time of the sale to Fitzpatrick. The deed to Fitzpatrick was given by the company. The notes given by Fitzpatrick in payment were taken by the defendants, who had an oral agreement with the company by which they were to collect the notes, pay the company $3,500, and retain the balance. The notes were not paid when due. They were given to defendants’ attorney, Mr. Wynn, for collection. He was unable to sue Lutes because,he could not get service' on him. Negotiations with Mr. Foster, attorney for Lutes, resulted in getting the certificate of stock from the Great Lakes Finance Corporation and placing it in the custody of Mr. Wynn as escrow agent to be held by him as security for the payment of the notes. Subsequently, as no payment had been made by Lutes, an agreement was made with him by which the certificate of stock was assigned and delivered to the defendants in full payment of two of the notes which at that time, with accumulated interest, amounted to approximately $13,000. The notes were delivered to Mr. Foster. After considerable delay the certificate was sent to the home office of the Gill & Fortune Lumber Company, Ltd., in Ontario, Canada, for registration, which was refused because a levy had been made on the stock by the Fidelity & Deposit Company of Maryland. Defendants began mandamus proceedings to compel the transfer. When the suit at bar was commenced, further prosecution of the mandamus proceedings was enjoined. It is this assignment that is involved in this suit. The trial court held it was made to hinder, delay, and defraud creditors, and therefore was void. In reaching this conclusion, he found that the defendants were not creditors of Lutes; that they were not bona fide holders of the notes and had no interest in them. The evidence does not sustain the court’s findings. The notes were received by the defendants from Fitzpatrick in payment of the purchase price of the stone quarry, the title to which was in the Conductors Protective Assurance Company by virtue of the foreclosure of a mortgage securing a loan of $3,500. The defendants had invested a large amount of money for personal property and equipment not covered by the mortgage but included in the sale. The company recognized their interest and was wilb ing to take the amount of its mortgage from the proceeds of the sale and allow them to retain the balance. The defendants made the sale with that understanding’, and the agreement then made gave them a larger interest in the notes than the company had. That agreement has never been questioned, and, as far as appears by the record, is valid and binding on the parties. The defendants had a real and substantial interest in the notes. But in any event, when the assignment of the certificate was made, the defendants were holders of the three negotiable instruments on which they could sue in their own names and which they could discharge on payment. Negotiable instruments law (2 Comp. Laws 1929, §§ 9258, 9300). They obtained the notes in good faith and for value. They were bona- fide creditors of Lutes. In the transaction with Lutes wherein defendants accepted an assignment of the certificate of stock in payment of two of the notes, we can discover no fraud. They had a lien on the stock long before they took the assignment. The notes had become due in 1925 and 1926. They took the assignment in 1930. They were crowding Lutes for payment. He gave them the certificate of stock as security,' and later, when further pressed, made an absolute assignment in payment of two of the notes. They had a right to demand security and the right to take the assignment providing there was no collusion with Lutes to hinder, delay, or defraud other creditors. Though he was financially in failing circumstances, he had a right to pay them in preference to his other creditors. It matters not that the effect was to hinder or defeat other creditors in the collection of their debts. If the transaction was honest and without intent to injure them, it cannot be held to be fraudulent. In respect to such transactions the law is well settled. “In general, when there is no fraud, and when the law does not forbid, a man may dispose of his own property according to his own ideas of propriety. If he is indebted by note to different parties, he may apply his property to the payment of one, and refuse to apply it to the payment of another, and he may lawfully discriminate in this way though in doing so he ignores the stronger moral claim resting upon Mm. This results from the supreme dominion which is involved in the absolute ownership of property.” Northrup v. McGill, 27 Mich. 234. The following cases are also in point: Scripps v. Crawford, 123 Mich. 173; Harnau v. Haight, 209 Mich. 604; Hartford Accident & Indemnity Co. v. Jirasek, 254 Mich. 131. In the instant case there is no evidence tending to show that the defendants were trying to aid Lutes in putting his property beyond the reach of creditors. They held an honest debt against him. They gave a fair consideration for the assignment. It did not render him insolvent. It was not fraudulent. The decree of the trial court is reversed, with costs to the defendants. Clark, C. 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Btjtzel, J. Mary A. Stofflet owned a homestead and a tract of vácant land to the west thereof, all fronting on the south side of Lawrence street, Ann Arbor, Michigan. On December 31, 1911, she conveyed 35 feet of the vacant property to Richard and Anna B. Kearns, designated herein as the defendants. We shall not refer to others, who also are joined as defendants, but took no part in the transactions herein set forth. In the deed to defendants, the northerly line of the property thus sold was described as beginning at a point on Lawrence street 193.98 east of the east liné of North Division street, and then extending east 35 feet, etc. The parties believed that 3 feet intervened between the westerly wall of the bay window of Mrs. Stofflet’s home and the easterly line of the 35 feet of vacant land sold to defendants. As a matter of fact, the bay window bordered on the easterly line of the 35 feet sold to defendants. The deed provided for a mutual driveway 6 feet in width, 3 feet to be taken from the east side of the 35 feet sold, and 3 feet from the west side of the property retained by Mrs. Stofflet. When defendants staked out their lot for the purpose of erecting a home, they first discovered that part of Mrs. Stofflet’s home stood 'on the westerly 3 feet of the property retained by her. Upon her attention being called to this discrepancy, she negotiated to purchase 3 feet west of the 35 feet in order to give it to defendants and in turn take back from them the more easterly 3 feet of the 35 feet, ahd thus contribute her share of land for the mutual driveway. The purchase was not made, but in consideration of her paying one-half of the cost of paving the driveway 6 feet in width and wholly on the defendants’ property, she was given the right to use the driveway. This use was permissive and in no way adverse. No written agreement was executed, nor was the permission given for any length of time. The Kearns erected their home west of the driveway thus built. In 1920, Mrs. Stofflet deeded the homestead to Harry Gr. Martin, plaintiff herein, and his wife, now deceased. The deed included the right to use the driveway. In 1924, a dispute arose, and, without plaintiff’s knowledge, his tenant for a time paid rent to defendants for the use of the driveway. A few years later, dissension arose and plaintiff filed this bill to quiet title to the easement he claimed in the driveway wholly on defendants’ property. Many questions are raiséd, but a decision of one of them is controlling. Plaintiff bases his claim on adverse user over a period of 15 years and upwards. We think it clear from the record that the use from 1911 until 1920 was permissive and not adverse. There could not be adverse user for the prescriptive period since then. The trial judge held in his opinion that the driveway was wholly on defendants’ property; that only the easterly 3 feet thereof was covered by the reservation in the deed; that plaintiff might use the easterly 3 feet of the driveway, but had no rights whatsoever in the westerly 3 feet. Defendants filed no cross-bill and made no claim to any rights in the westerly 3 feet of plaintiff’s property on which part of the house has stood since prior to 1911. The trial judge also expressed .his regret that a dispute over such a small matter should cause litigation between neighbors, and urged that it be settled out of court. We concur in his views, as well as in his decree dismissing the bill of complaint, with costs to defendants. Clark, C. J., and McDonald, Potter, Sharpe, Pead, and Wiest, JJ., concurred. Nor,th, J., did not sit.	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Wiest, J. This is an appeal by defendant from a summary judgment against him as an indorser of the following note: “Mason, Michigan, October 24, 1930. “On or before sixty days after date, I promise to pay to August Musolff or bearer, for value received, eleven hundred fifty dollars at the office of Dart National Bank, Mason, Michigan, with interest at. the rate of seven per cent, per annum. This note is given on the sale and purchase of one pair of horses dapple gray 4 & 5 years old; five head of registered Holstein cows and also all increase and it is expressly agreed that the title thereto shall remain in the said payee or any holder hereof until this note, or any renewal thereof, is fully paid, whereupon said title shall vest in the undersigned. In case default is made in such payment or said payee or any holder hereof shall deem himself insecure, or said property is removed from the premises now occupied by me without written consent of the said payee or any holder hereof this note shall become immediately due and payable and the said payee or any holder hereof is authorized to take possession of said property at once, wherever the same may be found. And after five days’ written notice mailed to me at the post office named below, sell and dispose of same at public or private sale, and after deducting all expenses connected therewith apply proceeds of such sale to the payment thereof, and the balance, if any, I agree to pay without interest as aforesaid. All parties to this instrument do hereby expressly waive presentation, demand, protest and notice of protest and consent that time may be extended without notice. We, each hereby certify that no undue influence or constraint has been exerted against the undersigned Mrs. Ulch in the execution hereof. “(Sgd.) George H. Ulch. “(Sgd.) Leontine Ulch.” This note was a renewal of a previous note of like wording, also indorsed by defendant, and which had been purchased by plaintiff before maturity, and of which plaintiff was holder in good faith. By answer defendant admitted execution of the note and his indorsement but asserted it was nonnegotiable and alleged usury in the original note by way of a $50 bonus, and alteration by substitution of one animal for another and consequent impairment of the security without his consent. Defendant presents four questions: “(1) Was the note sued upon by plaintiff as a matter of law negotiable ? “(2) Were the affidavits in opposition to motion for summary, judgment as a matter of law sufficient? “(3) Did the lower court err in refusing to consider the defenses set up in the affidavits in opposition to motion for summary judgment? “(4) Did the lower court err in refusing to take the interrogatories requested by appellant as provided for by section 6 of Court Rule No. 30, upon the filing of the affidavit according to rule? ” The note was in the nature of a chattel mortgage for, on its face, it evidenced retention of title as security only. Retention of title, by way of security only, does not destroy negotiability. As stated in Hersch on Michigan Conditional and Instalment Sales, § 32: “However, a transaction may be put through by promissory notes * * * reserving title by way of security only, not constituting a pure conditional sale. (Choate v. Stevens, 116 Mich. 28 [43 L. R. A. 277]; Van Den Bosch v. Bouwman, 138 Mich. 624 [110 Am. St. Rep. 336]; Tropical Paint & Oil Co. v. Hall, 225 Mich. 293.) And vendor can sue upon the notes without losing his security and may also take possession of the property. (Holcomb & Hoke Manfg. Co. v. Cataldo, 199 Mich. 265; Atkinson v. Japink, 186 Mich. 335.) Such notes are negotiable. (First State Savings Bank v. Russell, 244 Mich. 298; Schmidt v. Pegg, 172 Mich. 159; Wilson v. Campbell, 110 Mich. 580 [35 L. R. A. 544]; Choate v. Stevens, 116 Mich. 28 [43 L. R. A. 277]; Brooke v. Struthers, 110 Mich. 562 [35 L. R. A. 536]; Littlefield v. Hodge, 6 Mich. 326.)” Defendant claims that the acceleration provision in the note destroyed negotiability. We said in First State Savings Bank v. Russell, supra, of quite a similar note: “The clauses for acceleration of time of payment- and for inclusion of ‘accessories, parts or repairs’ in the security, stamp the instrument as a note and chattel mortgage. Heyman Co. v. Buck, 221 Mich. 225; Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15.” Also: “A note may be negotiable although secured by a mortgage. Littlefield v. Hodge, 6 Mich. 326; Choate v. Stevens, 116 Mich. 28 (43 L. R. A. 277); Schmidt v. Pegg, 172 Mich. 159.” The affidavits in opposition to the motion for summary judgment established no defense against plaintiff bank, a bona fide holder, the note being negotiable and purchased in due course by plaintiff before maturity. The defense of usury cannot be urged. It is also claimed that negotiability of the note was destroyed by material alteration, in that one cow was exchanged with the payee for another. A material alteration, to fall within the negotiable instruments act (2 Comp. Laws 1929, §§ 9373, 9374), must be of the writing itself. The substitution of one cow for another by agreement of the maker and payee did not constitute alteration of the instrument releasing the indorser. Defendant was not a guarantor but an indorser, and, as such, cannot urge an alteration in the security arising out of the exchange of one cow for another. The alleged defenses set up in the affidavits in opposition to the motion for summary judgment were not available against a good-faith holder of the note. One of the attorneys for defendant made affidavit: “That certain material facts which ought to appear in the affidavits of Charles W. Burton and Leontine Ulch are known to C. C. Dart and Albert Musolff, whose affidavits affiant is unable to secure by reason of their hostility and that they have personal knowledge of the fact that the cow was removed from the farm of Mrs. Ulch and removed from the security of the title-retaining note without the knowledge or consent of said Charles W. Bnrton and that if at the time Albert Musolff removed the cow the plaintiff was the holder of said note and the title to said cow, that the said Albert Musolff acted as the agent of said plaintiff, and this deponent believes that if placed under oath and sworn they would be required to testify to said material fact. “"Wherefore, your deponent believes that by the issuing of interrogatories that such facts could be presented to the court in opposition to the motion for summary judgment, and that a continuation should be had for the purpose of submitting said interrogatories to said parties, as allowed by section 6, Court Rule No. 30.” Mr. Dart was a witness at the hearing of the motion for summary judgment, and testified that he first learned of the substitution of one cow for another from the affidavit of defendant. There was no error in not permitting the requested interrogatories, for the matters sought constituted no defense against a bona fide holder. The judgment is affirmed, with costs to plaintiff. Clark, C. J., and McDonald, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred.	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Sharpe, J. On August 7,1931, an election was held pursuant to the provisions of Act No. 278, Pub. Acts 1909, as amended by Act No. 395, Pub. Acts 1919, to determine whether certain territory in the township of Breitnng should be annexed to the village of Kingsford. The proceedings incident to the taking of a vote on the question are not attacked. Section 4 of the act (1 Comp. Laws 1929, § 1766) provides that the question “shall be submitted to the qualified electors of the district to be affected” by the change of boundaries. Section 5, as amendéd in 1929 (1 Comp. Laws 1929, § 1767), reads as follows: “The district to be affected by every such proposed incorporation, consolidation or change of boundaries, shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed: Provided, however, That proposed incorporations, consolidations or changes of boundaries shall be submitted to the qualified electors residing within the territory proposed to be incorporated or residing within the village to which territory is to be annexed as the case may be, and also to the qualified electors of the city, village or township from which the territory to be taken is located and at the election, when the said question is voted upon, the city, village or township shall conduct the election in such manner as to keep the votes of the qualified electors in the territory proposed to be incorporated or annexed or detached in a separate box from the one containing the votes from the remaining portions of such city, village, or township, and if the returns of said election shall show a majority of the votes cast in the district proposed to be incorporated or annexed, voting separately, to be in favor of the proposed incorporation or change of boundary as the case may be, and if a majority of the electors voting in the remainder of the district to be. affected as herein defined, voting collectively, are in favor of the proposed incorporation or changé of boundary as the case may be, then such territory shall become incorporated as a village or shall become a part of the corporate territory of the village or shall be detached therefrom, as the case may be: Provided further, That in case there are no qualified electors residing within the territory proposed to be detached, or annexed, if a majority of electors voting in the remainder of the district to be affected, as herein defined, are in favor of the proposed change of boundary, then such territory shall become a part of the corporate territory of the village or shall be detached therefrom, as the case may be: Provided further, That the question of incorporating a new village from territory located in a township or townships shall be determined by a majority of the votes cast at an election at which only the electors residing within the territory proposed to be incorporated shall vote.” The count disclosed that in the territory to be annexed 193 votes were cast in favor of annexation and 4 against; in the village of Kingsford 517 for and 683 against, and in the township, not including the territory to be annexed, 302 for and 24 against. It thus carried in the territory to be annexed, and “in the remainder of the district to be affected,” as defined in the statute, there were 819 votes cast for and 707 against annexation. The returns of the election were made to the county clerk, and, pending the canvass thereof by the board of county canvassers, the plaintiff village and some of its taxpayers filed the bill of complaint herein, praying for an injunction restraining the consolidating of the vote of the village with that of the territory in the township not included in the territory to be annexed and its certification to the defendant county clerk by said board. The defendants answered, admitting the material facts alleged in the bill, and prayed for its dismissal. The case was submitted on bill and answer. Plaintiffs had decree, from which defendants have appealed. It is plaintiffs’ claim that section 5, above quoted, is unconstitutional in that it violates the provisions of sections 20 and 21 of article 8 of our State Constitution. These sections read as follows: “Sec. 20. The legislature shall provicle by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts. “Seo. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.” The purpose of these and other provisions which follow undoubtedly was to secure to cities and villages a greater degree of home rule than they formerly possessed. The provision for a general law for their incorporation was intended to confer upon them almost exclusive rights in the conduct of their affairs, not in conflict with the Constitution or general laws applicable thereto. The power vested in the legislature to provide for their incorporation is in no way limited. The authorities are united as to its extent. “Unless restricted by the constitution, the legislature may not only establish the original limits of the municipal corporations, but may alter or change the boundaries at any time by directly annexing or' detaching territory contiguous or otherwise, dividing or consolidating corporations, or, it may authorize such changes to be made by general or special law unless forbidden by the constitution, and this, may be done without the consent and even against the protest of the corporation, the local authorities or the inhabitants of the communities affected. This is regarded as a purely discretionary legislative prerogative, and unless the obligations of contracts or vested rights of third persons are impaired by such action, in accordance with the well established rule, the judiciary cannot interfere.” 1 McQuillin Municipal Corporations (2d Ed.), § 284. ■ “The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion, and substitute those which are different.” 1 Cooley’s Constitutional Limitations (8th Ed.), p. 393. See, also, 1 Dillon on Municipal Corporations (5th Ed.), § 355; 43 C. J. p. 106; 19 E. C. L. p. 732; Laramie Co. v. Albany Co., 92 U. S. 307. The legislature in 1889, by Local Act No. 455, consolidated the cities of East Saginaw and Saginaw into one municipality. While litigation ensued (Smith v. City of Saginaw, 81 Mich. 123), the power of thé legislature to so enact was not questioned. Act No. 279, Pub. Acts 1909' (1 Comp. Laws 1929, § 2228 et seq.), provided for the incorporation of cities. The provision therein for the annexation of territory, and the vote to be taken thereon, is similar to that in the village act. In Cook v. Kent Board of Canvassers, 190 Mich. 149, the result of an election held for that purpose was attacked. The section of the statute was quoted in full, and no suggestion made by the court that the legislature exceeded its power in defining “the district to be affected” by the change of boundaries. The trial court was apparently influenced in his decision by what was said by this court in Bray v. Stewart, 239 Mich. 340, 344: “The territory taken into the village when incorporated is in no way separated from the township. It still remains a part thereof, is subject to taxation therein, and its residents are electors thereof. ’ ’ It was, however, further said: “For some reason, however, the legislature in 1919 amended section 5 to read as above set forth. The change made might have some application where a consolidation or change of boundaries is desired, as was the case in Oakman v. Board of Sup’rs of Wayne Co., 185 Mich. 359, but the necessity of securing the assent of any but those who are electors in the territory to be incorporated where such incorporation is sought is not apparent.” In the Bray Case, a new village was sought to be incorporated, and the amendment to section 5 was held to be controlling of the electors who had the right to vote thereon. In Oakman v. Board of Sup’rs of Wayne Co., supra, the annexation of territory to the city of Detroit under Act No. 279 was involved. It was there said: “In Act No. 279 it will be noted that provision is made for an election in not only the municipality from which the territory is proposed to be detached but also in the municipality to which the annexation is proposed to be made. If the act stopped there, counsel’s argument would have much force, but it goes further and provides that the votes of those residing in the particular territory to be annexed shall be kept separate, and that, if a majority of those residing therein shall consent thereto, the annexation shall be made. In other words, the act not only requires a majority vote of all those residing in both municipalities, but requires a majority vote of those residing in the particular territory.” The wisdom of permitting the votes of those residing in the township outside of the territory sought to be annexed to be counted collectively with the vote in the village is not apparent, but in our opinion it must be held that the legislature under the constitutional provision had the power to so provide. ‘ ‘ Courts are not to tamper with the clear and unequivocal meaning of words used in a statute. There can be no departure from the plain meaning of a statute on grounds of its unwisdom or of public policy.” Handy v. Township of Meridian, 114 Mich. 454, 457. The act as passed in 1909 (Act No. 278) was entitled, “An Act to provide for the incorporation of villages and for changing their boundaries.” By an amendment thereto in 1913 (Act No. 95) the title was amended to read: “An act to provide for the incorporation of villages and for revising and amending their charters,” and that title has been since retained. Act No. 279, relating to cities, had a similar title when enacted in 1909, but the title was amended by Act No. 5, Pub. Acts 1913. It also omitted the provision for changing boundaries. Both of these acts have been many times before this court, and, so far as we have been able to dis cover, this is the first time the sufficiency of the present titles has been assailed. Both the legislature and the courts have treated these titles as sufficient to sustain the provisions for change of boundaries. The necessity of such changes from time to time is apparent, and in our opinion the power conferred upon the legislature by the Constitution “to provide by a general law for the incorporation” may fairly be said to include the change of boundaries when needed. The decree entered is reversed and set aside, and one may be here entered dismissing the bill of complaint. As a public qustion is involved, no costs will be allowed. Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred.	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Clark, C. J. Bill for accounting was filed March 6, 1930, answer on May 16th, and praecipe on May 22d following. Nothing further appears until May 1, 1931, when the cause was listed as' case number 7 on the chancery call for assignment. On that day plaintiffs filed a petition to produce boohs and records and obtained ex parte from Hon. Adolph F. Marschner, presiding judge, an order to produce. The cause continued on call on May 4th as number 7, and on May 5th as number 3, and was assigned on that day to Hon. Gruy E. Smith, circuit judge. The cause came on for hearing, defendants appearing, plaintiffs not appearing. The bill was dismissed for want of prosecution. Plaintiffs moved to reinstate before the trial judge and were refused. They brought on for hearing a like motion before Judge Marschner and it was denied. The motion was renewed again and denied. Plaintiffs appeal and contend that under section 6, Court Rule No. 40, the ex parte order to produce operated to stay proceedings, to take the case off the call, and to continue. It is apparent that Judge Marschner’s refusal to sustain his order to produce and that the other orders declining to reinstate are due to the fact that plaintiffs’ petition for order to produce was dilatory and for purpose of delay. We find no abuse of discretion in declining to reinstate the cause. Affirmed. Costs to defendants. McDonald, Potter, Sharpe, North, Fead, Wiest,' and Butzel, JJ., concurred.	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Potter, J. Plaintiffs filed a bill to set aside, on the ground of mental incompetency, fraud, and undue influence, deeds by Ellen E. Shipley of real estate in Wayne county, assignments by her of vendor’s interests in land contracts, and an agreement given by defendant to deceased Ellen E. Shipley in consideration therefor, ah accounting, and other relief. From a decree for plaintiffs, defendant appeals. . Plaintiffs Eichard P. Connor and Frank Connor are brothers of the deceased, Ellen E. Shipley. Adele Connor is the wife of Eichard P. Connor: Marguerite Connor and Edwin Connor are daughter and son of Frank Connor. William Shipley was the husband of Ellen E. Shipley, deceased; and defendant, Mary L. PIarris, is a sister of deceased, Ellen E. Shipley. Before her last illness Ellen E. Shipley was a woman of good business ability, possessed of a substantial amount of property which she successfully controlled and managed. At the time of her death, and for some time prior thereto, she had lived in California. In 1929 Ellen E. Shipley sold to Mary L. Harris real estate in Macomb county for $30,000 and other real estate therein for $50,000. Defendant, Mary L. Harris, gave five promissory notes in payment of the $50,000 piece of land; one to pay toward a mortgage held by Smith-Burns Mortgage Company on property in Breitmeyers Subdivision, E., Belleview avenue, until the sum of $1,706 was paid in full and discharged; another to pay toward a mortgage of $2,625 held by the Grrosse Pointe Sav ings Bank on property transferred by Ellen R. Shipley to Mary L. Harris; another to pay the balance of $17,055 on a land contract on real estate in the Dudley B. Woodbridge Subdivision; another to pay a mortgage of $18,000 held by the Wayne County Home Savings Bank on property in the city of Detroit. All these transactions are summarized in a statement signed by Mrs. Shipley and Mrs. Harris as follows: “Property purchased for Cash payment down $1,000 $50,000 Taxes due on property 1,400 Grosse Pointe Bank 2,625 Harry J. Phillips, Curtis Apts. 17,055 Mtg. Wayne County Bank 18,000 Smith Burns 1,706 41,786 “Balance due $8,214 “Ellen R. Bishop Shipley. “Mary L. Harris.” On account of deflation of prices, Mrs. Harris, the defendant, was hard pressed for money, and on February 2, 1930, wrote her sister Mrs. Shipley she could go no further in meeting her payments. Mrs. Shipley had not been well. In the latter part of 1929 she had a uterine cancer and entered the Hollywood hospital, was treated at different times, and finally entered the hospital, in the early part of 1930, on what proved to be her last illness. She grew progressively worse. She suffered from gastric disturbances, inability to eat, to retain food, loss of weight, emaciation, auto-intoxication, self-poisoning from the absorption of decaying tissues, lost strength, and was sometimes delirious. The cancer could not be removed; fistulas of the bladder developed; she was given codein, morphine, and the Coffee-Humber treatment. On account of her toxic condition, she lay with her eyes shut, in a stupor; was not responsive to questions, and realized, as did defendant, it was only a short time before she would die. Defendant knew her sister had a substantial amount of property; Mrs. Shipley did not want defendant to have her papers; but that was a thing of great interest to defendant, who had not been in California long before she got an order on Mr. Shipley to deliver to her the papers belonging to Mrs. Shipley. She had possession of these papers and knew the contents thereof, and Mr. Downing, the attorney who prepared the papers in dispute here, had prepared the will of Mrs. Shipley. Up to the time defendant came to California, Mrs. Shipley was on excellent and affectionate terms with her husband, as well as with the other plaintiffs herein. This is shown not only by her conduct, but by her letters and by her last will and testament. Defendant had assumed heavy obligations. She owed Ellen R. Shipley considerable money. She was hard pressed for cash. She started operations immediately upon reaching California to get the property of deceased into her own hands. Ellen R. Shipley evidently had some suspicions of defendant’s strength of character. Before defendant came there, Mrs. Shipley had her papers secreted in the garage where .she lived. Soon after defendant reached California, she obtained an order on Mr. Shipley from deceased to deliver to her the papers belonging to deceased. At that time she obtained from Mr. Shipley a copy of the last will and testament of his wife. The defendant poisoned the mind of the deceased against her husband by telling her he was selling her personal furniture, until deceased was, in the language of the nurse, “terribly upset,” and complained that her husband was selling her personal furniture- while she was on her deathbed. This was not true, but it indicates either Ellen R. Shipley labored under an hallucination or had been deceived or misled by some one telling her what was manifestly untrue. The defendant sought to prejudice Mrs. Shipley against the other plaintiffs. She told William Shipley, the husband of deceased, that Ellen had no business to give her property to her brother Frank because he had a bad wife. She complained that her sister Ellen had given some of her property to her brothers, claiming they could not take care of what they already had. When her brothers came to California prior to the death of Mrs. Shipley, Mrs. Harris was in apparent control of the situación in the hospital. She refused to let the husband, Mr. Shipley, visit his wife, and refused to let Mrs. Shipley’s brother visit her except for short intervals and in her presence. When plaintiff Adele Connor and Mrs. Shipley were alone at one time for a short time and were attempting to talk, the defendant came in and told plaintiff Adele and her sister Ellen to “shut up,” and in other ways she exercised a dominating influence and supervisory control over this weakened, helpless, and dying woman. Though defendant denies that as early as February 26, 1930, she knew her sister was dying, or that she talked with the attending physician about her sister’s condition, her letter of that date to plaintiffs Richard P. Connor and Adele Connor shows she knew her sister was dying, that she had talked with the doctor, he held out no hopes of recovery, and it was just a matter of a few days when her sister would die. After they came to California some of plaintiffs learned some papers had been procured, and asked defendant about them. She promised to show them the papers, but failed to do so, stating to the attending .nurse she did not know what to tell them. The scrivener who drew the papers in question testifies, and he is corroborated by the subscribing witnesses in some particulars, that by arrangement with the attending physician no opiates were administered to Mrs. Shipley the day the papers in question were procured. He pictures Mrs. Shipley as bright, intelligent, acute, free from pain, cheerful, and unusually brilliant, while from the nurse, attending physician, and hospital records comes the proof which disputes these claims. The doctor denies the story of Downing that no opiates were to be administered or that he talked with him. The hospital records for the day show that Mrs. Shipley suffered from vomiting spells, and the doctor, instead of saying that she was bright and mentally competent, quick and intelligent, denies he even talked with Downing, and testifies Ellen R. Shipley was not on that day mentally competent to transact business. As pictured by all the testimony, Mrs. Shipley was in extreme pain, which was controlled and deadened by powerful opiates. Defendant knew she was dying, she had so written to the plaintiffs above mentioned. She had procured the administration of the last sacrament to her sister by a priest of the Catholic church. The attending physician says she was at that time growing progressively worse. When we consider the relationship between the parties, the condition of helplessness of Mrs. Shipley, and her dependence upon her sister, her weakened and dying condition, the anxiety of Mrs. Harris to get her property, the disposition that had been made of it by will prior to the arrival of Mrs. Harris in California, her dec larations she would have it fixed so Mr. Shipley would not get it, the necessitous circumstances of defendant, her avariciousness and desire to get control of the property of Mrs. Shipley, her constant surveillance of her in the hospital, the change wrought in the disposition of Mrs. Shipley’s property, her statements to Mrs. Shipley that her husband, William, was selling her personal furniture while deceased was on her deathbed, her prejudicial statements to Mrs. Shipley against the plaintiffs, her exclusion of them from contact with Mrs. Shipley except in her presence, her position just outside the door when these conveyances were being procured by Downing, the execution of the papers in question in the absence of the attending physician, her refusal to state the contents of the papers to plaintiffs or to disclose their character, the terms of the papers themselves by which Mrs. Harris stripped her dying sister of all her property without consideration, in violation of the terms and conditions of her last will and testament, upon an agreement to pay her $300 a month for property concededly worth $100,000 and upwards, which $300 a month she did not pay and was morally sure she would never be called upon to pay because of her sister’s dying condition, and the payment of $100 á, month to Mr. Shipley, who on account of old age could not live long and who has since died, we agree with the trial court the transactions were so shocking to the sense of justice and fair dealing that the conveyances in question ought not to stand. Persons mentally competent so to do, may, when free from fraud and undue influence, dispose of their property as they desire. Undue influence, to warrant setting aside a conveyance, must be sufficient to overcome the free agency of the grantor and substitute the will and in tention of some one else in place of that of the grantor. Fraud and undue influence are seldom capable of direct proof. They are generally proven and established as an inference from the facts and circumstances of the case. In cases of fraud and undue influence, which is generally discussed as a branch of constructive fraud (Black on Rescission and Cancellation [2d Ed.] chap. 10), the court is not so much concerned with grantor’s intention as with how that intention was produced. Huguenin v. Baseley, 14 Ves. Jr. 273, 300 (33 Eng. Repr. 526); Duncombe v. Richards, 46 Mich. 166, 171. That Mr. Downing suspected nothing wrong is not conclusive. Duncombe v. Richards, supra; White v. White, 89 Ill. 461; Kastell v. Hillman, 53 N. J. Eq. 49 (30 Atl. 535). The grantor was peculiarly under the care, control, and domination of defendant, who stood in a fiduciary relation to her, and obtained, without consideration, a large amount of property from grantor. Under such circumstances the burden of proof is upon defendant, to show the fairness and good faith of the transaction. Seeley v. Price, 14 Mich. 541; Witbeck v. Witbeck, 25 Mich. 439; Barnes v. Brown, 32 Mich. 146; Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547); Gates v. Cornett, 72 Mich. 420, 434; Sponable v. Hanson, 87 Mich. 204; Hemphill v. Holford, 88 Mich. 293; Smith v. Cuddy, 96 Mich. 562; Whiteley v. Whiteley, 120 Mich. 30; Noban v. Shoup, 171 Mich. 191; In re Sadler’s Estate, 201 Mich. 281; Wagbo v. Smiseth, 227 Mich. 313; Bilman v. Kolarik, 234 Mich. 689; Cole v. Henning, 237 Mich. 108; Coy v. Doney, 241 Mich. 308. “In all the variety of the relations of life in which confidence is reposed and accepted, and dominion may be exercised by one person over an other, the court will interfere and relieve against contracts or conveyances when they would abstain from granting relief if no particular relation existed between the parties in which trust and confidence was reposed and accepted and there was not an opportunity for an abuse of the confidence and the exercise of undue influence.” Waddell, Admr., v. Lanier, 62 Ala. 347. “Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted; where there is no such fiduciary relation, the confidence and influence must be proved by satisfactory extrinsic evidence; the rules of equity and the remedies which it bestows are exactly the same in each of these two cases. The doctrine of equity concerning undue influence is very broad, and is based upon principles of the highest morality. It reaches every case, and grants relief ‘where influence is acquired and abused, or where confidence is reposed and betrayed.’ ” 2 Pomeroy’s Equity Jurisprudence (4th Ed.), § 951, p. 2026. “Transactions of this nature are regarded by courts of equity with suspicion, and scrutinized with vigilance. The presumption is against the propriety of the transaction, and, as has been frequently said in our own cases, the duty of courts is to refuse judicial sanction to such an instrument until fully satisfied of the fairness of the transaction, and that the instrument is the intelligent act of the person executing it.” Smith v. Cuddy, supra, 569. In fact, “The equitable rule is of universal application that where a person is not equal to protecting himself in the particular case, the court will protect him.” Connelly v. Fisher, 3 Tenn. Ch. 382. The statement of the general rule in Allore v. Jewell, 94 U. S. 506, was quoted with approval in Bilman v. Kolarik, supra. “It may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.” Allore v. Jewell, supra, 511. The trial court, we think, arrived at a correct conclusion. Decree affirmed, with costs. Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Buteel, JJ., concurred.	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Butzel, J. Postal Telegraph Cable Company brought suit against Edgar P. Carpenter, defendant, to recover the amount of workmen’s compensation, medical and hospital expenses it paid to and on behalf of Joe Carowitz, a 16-year old messenger boy, on account of injuries he sustained through being struck while on his bicycle by an automobile owned and driven by defendant. The accident occurred on July 13, 1928, on Front street near Shaw mut avenue, in the city of Grand Bapids. The boy left plaintiff’s office on the north side of Pearl street in order to deliver a message. He rode along Pearl street in a westerly direction and crossed the railroad tracks. Pearl street comes to an end at Front street, which runs north and south. In order to proceed in a westerly direction from Pearl street, it is necessary to turn south on Front street hut a short distance, and then proceed along Shawmut avenue, which begins at Pearl street. The south line of Pearl street, if extended westerly and straight across Front street, would run into the north line of Shawmut avenue. There is a direct conflict in the testimony as to which side of Front street the hoy was on when struck by defendant’s automobile. According to the boy’s testimony, the wheel of his bicycle began to wobble just after he crossed the railroad tracks, and, when he had partly crossed Front street, it shook to such an extent that he looked down: He held the bars with one hand, with which he also held an orange he was eating.' He was riding 13 or 14 feet from the curb line on the northwest corner of Shawmut avenue and Front street. He was looking down and not ahead of him when defendant’s car coming in an easterly direction drove into him. The car was not being driven at a rapid rate of speed and came to an immediate stop. The hoy did not see the car until immediately prior to the accident. Had he driven with care and looked up instead of towards the ground, or if, while looking down, he had remained.closer to the curb, he would have avoided the accident. See Smith v. Ormiston, 242 Mich. 600, 602. The trial court held that defendant was-guilty of negligence, but also that the hoy was guilty of contributory negligence. As the findings of the court are not against the clear weight of the evidence, the judgment in favor of defendant will not be disturbed. Fendt v. Tarabusi, 246 Mich. 538; Osmalowski v. Deyman, 249 Mich. 586; Ketcheson v. Spragg, 250 Mich. 662; Rice v. Katz, 255 Mich. 1. Judgment affirmed, with costs to defendant. Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.	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Butzel, J. Plaintiffs and appellants, describing themselves, both in the original declaration, and also in the writ, and affidavit for the writ of garnishment, as George D. Grant, Walter William Grant, and Charles A. Grant, doing business as Grant Brass Works, a Michigan corporation, brought suit against defendant National Manufacturer & Plating Company. The pleadings do not disclose where plaintiffs carried on their business. Defendant filed a plea of general issue, and the garnishment was released by the filing of a bond in accordance with stipulation between plaintiffs and principal defendant. At the trial of the case, almost five years later, it was shown that defendant had been adjudicated a bankrupt in 1928, and insufficient was realized from its assets to pay any dividend to general creditors. It further developed that Grant Brass Works was not a corporation as stated in some of the pleadings previously filed, but that it was a copartnership composed of George D. Grant, Charles A. Grant, and Walter W. Grant. It was admitted that it had never filed a certificate of co-partnership, as required by 2 Comp. Laws 1929, § 9934, which prohibits the bringing of any action or proceeding in any of the courts of this State until after full compliance with the provisions of the act. Defendant’s attorneys thereupon moved to amend the plea by giving notice that plaintiffs had failed to comply with the act and therefore could not recover in the present suit. The trial judge granted a continuance in order to enable plaintiffs’ counsel to meet the new defense, and, on the ad journed day, after granting the motion to amend, rendered a judgment in favor of defendant. Plaintiffs, in contending that the amendment should not have been permitted, claim that defendant waived its right to amend and to make the objection that the trial court found fatal, because defendant had stipulated to release the garnishment on the filing of the bond, and also on account of defendant’s long delay, claimed to be laches, in giving notice of the special defense. The trial judge in his opinion stated that the suit was brought in such form that it was uncertain whether plaintiff was a corporation or not; that if it was a copartnership it was not shown where it did business and it was not incumbent upon defendant to make inquiry in the many counties of this State to ascertain whether a certificate of copartnership had been filed or not. He further granted a continuance to plaintiffs so that they could meet the defense, if possible. As a rule, the permission to amend rests wholly within the discretion of the trial court, and unless this discretion is abused, we will not interfere. This is true irrespective of whether the court refuses or permits the amendment. In the case of People, for use of National Regulator Co., v. Rosewarne, 247 Mich. 22, relied upon by plaintiffs, we refused to interfere with the order of the trial court denying the right to amend a plea by giving notice of failure of a corporation to qualify in this State. In that case, the amendment was not sought until the trial of the case, which was also several years after the case had been begun; defendant could have obtained the information by inquiry at the secretary of State’s office, and, as'' the opinion stated, the record did not show whether the defendant deliberately waited, or whether the failure to ascer tain plaintiff’s status was due to negligence. In the instant case, the uncertain manner in which plaintiffs described themselves, and the further fact that they did not show where they did business, fully justified the judge in permitting the amendment when the actual facts developed at the trial of the case. As was stated by Mr. Justice Cooley, in Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262), where the court refused to give defendants permission to add to their plea a notice of the statute of limitations: “The application * * * was one addressed to the discretion of the court below, and its denial cannot be reviewed by this court. * * * The practice has wisely vested such court with a power of final disposition with which we have no inclination to interfere.” It is within the discretion of the trial court to permit defendant to amend its pleadings by adding a notice under the plea of general issue. Ruddock v. Detroit Life Ins. Co., 209 Mich. 638, 655. The judgment is affirmed, with costs to defendant. • Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.	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Carr, J. Plaintiff in this case, on February 7, 1950, instituted suit against defendant for an absolute divorce. The summons was personally served and the appearance of defendant was filed on February 16th thereafter. She failed to answer, and by order entered April 17, 1950, as appears from the calendar entries, her default was taken. On the 3d of May following, a decree of divorce was signed by the trial judge and was filed and entered. It was duly enrolled on May 26th. By the terms of the decree plaintiff was granted the relief sought. The custody of a minor child of the parties was granted to defendant, and plaintiff was ordered to pay $10 per week for the support of such child. In accordance with the statute and rule (CL 1948, § 552.9 [Stat Ann 1949 Cum Supp § 25.89]; Court Rule No 51, § 6, adopted October 13, 1947) said decree was declared to be interlocutory and to become final 6 months from and after date ■of entry unless otherwise ordered by the court during such period. On October 24, 1950, defendant filed a motion to set aside her default and to vacate the interlocutory decree. In connection therewith she proffered her answer to the plaintiff’s bill of complaint, together with a cross bill, and asked leave of court to file the same. The motion was accompanied by defendant’s affidavit setting forth that on October 13th preceding she had given birth to a child of which the plaintiff was the father. It was further stated that she was not aware of her condition until informed by a physician that she was about 6 months pregnant. The affidavit failed to state specifically when she was so advised. It also set forth defendant’s claim that the failure of the decree to make provision for the support of the child in question would constitute a hardship, and that she was unable to support and maintain such child. The motion was noticed for hearing on October 30,1950. An order staying the finality of the decree was not sought, nor was such an order entered. The parties stipulated that hearing on the motion might be adjourned to December 5, 1950, and the trial court entered an order accordingly. Plaintiff filed objections to the granting of the relief sought, but the trial judge concluded that the defendant should be granted the relief asked-in her motion, and an order was entered on December 5th setting aside the default and the decree, and granting to defendant permission to file her answer and cross bill. These pleadings were combined and alleged in substance that plaintiff was not entitled to a divorce, that he had been guilty of extreme and repeated cruelty towards defendant, and that she was entitled to affirmative relief. From the order entered by the trial court plaintiff has appealed. It is his claim, in substance, that the court lacked jurisdiction to set aside the default on the basis of the showing made by defendant. Reliance is placed on Michigan Court Rule No 28, § 4 (1945), which provides in part as follows: “In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within 4 months after such default is regularly filed or entered.” Subject to exceptions, the rule, as stated by this Court in Gombasy v. Gombasy, 318 Mich 139, 144, is mandatory. The existence of fraud, if properly established, is ground for relief. See Denby v. Ellis, 245 Mich 124; Curtis v. Curtis, 250 Mich 105. In the case at bar, however, defendant does not claim fraud on the part of plaintiff nor does she assert any irregularity in the proceedings. There is no showing that brings the case within any exception to the rule stated in Gombasy v. Gombasy, supra. Defendant’s affidavit filed in support of her motion indicates that she sought relief solely because of the birth of the child on October 13th. It did not affirmatively appear from her statements that she was not advised of her condition within the 4-months period following the filing of the default. She failed to make a sufficient showing and was, in consequence, not entitled to have the default set aside and the decree vacated. Domzalski v. Gusynski, 281 Mich 175; Bartnik v. Samonek, 313 Mich 464; Kutiej v. Kutiej, 317 Mich 269. It does not follow, however, from what is said above that defendant’s motion should have been dismissed. Obviously its purpose was to call the attention of the court to matters occurring subsequent to the signing and entering of the interlocutory decree and prior to the filing of the motion. Specifically, as her affidavit clearly shows, defendant sought to have the trial court so modify the interlocutory decree, on proofs, as to make provision for the custody and support of the child born October 13, 1950. "We think that the trial court should have regarded the motion as a petition for modification, and have acted accordingly. That he had jurisdiction to do so is scarcely open to question, and his right to act was not lost by the adjournment of the hearing to a date subsequent to November 3, 1950, when the decree became final. If the matter is handled in this way defendant will receive the hearing to which her showing entitles her, and an adjudication by the court, in accordance with the rights of the parties and the public interest as well, will result. Counsel for defendant argues in his brief that plaintiff was not entitled to take a general appeal, as the record indicates was done. It is insisted that the matter should come before this Court, if at all, on appeal in the nature of mandamus for the prosecution of which leave of this Court is required. The claim is not without merit. Quail v. Cole, 260 Mich 642. However, no motion has been made to dismiss the appeal, and in view of the nature of the controversy we do not feel that this Court should take such action on its own initiative. To the end that the matters in dispute between the parties may be properly determined, the course above suggested is not only proper but perhaps necessary. An order will enter setting aside the order of the trial court from which plaintiff has appealed and remanding the case with directions to the trial court to consider defendant’s motion as a petition for the modification of the decree by including therein such provisions as may be found proper, after hearing, •with reference to the custody and suppo'rt of the child referred to in such petition. No costs are allowed. Reid, C. J., and North, Dethmers, Bushnell, and Sharpe, JJ., concurred. Boyles, J., concurred in the result. Butzel, J., did not sit.	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Reid, C. J. Floyd Brooks is being detained in the Lapeer State home and training school as a feeble-minded person by virtue of a commitment by the probate court for Ionia county, dated May 22, 1947. Howard Brooks, father of Floyd Brooks, filed the petition in this matter for writ of habeas corpus to relieve Floyd Brooks from such detention. Petitioner claims that the petition to the probate court for said commitment was defective by reason of failing to state the facts on which a conclusion of feeble-mindedness of Floyd Brooks was predicated; that 2 physicians did not file sworn certificates of the alleged feeble-mindedness; that the probate court conducted an improper inquest; and that the probate court failed to make a record of some of its proceedings required by the statute to be made and could not by certificate supply the showing so required to be of record. The petition for commitment signed by the county welfare agent alleged as grounds for considering Floyd Brooks (then of the age of 16 years) a feeble-minded person: “Examination by P. C. Robertson, medical superintendent, Ionia State Hospital. Mental age of 8 yrs., I. Q. 50, extremely dull, no concept of right or wrong, does not show any active psychosis, but is mentally deficient. Should be committed to Lapeér State Home and Training school.” The quoted statements, although hearsay, can be considered as statements of fact by the petitioner for the purposes of conferring jurisdiction upon the probate court. The statute then in effect, PA 1923, No 151, § 11, as amended by PA 1941, No 299 (Stat Ann 1946 Cum Supp § 14.811), is in part as follows: “Such petition to contain a statement giving the facts and not the conclusions upon which the allegation of such mental disease is based and because of which the application for the order is made.” An inquest was directed by the statute, PA 1923, No 151, § 11, as amended by PA 1941, No 299, * to he instituted by the probate court. The records of the probate court in this case do not show an inquest. The holding of an inquest or at least, the taking of testimony before the probate court, is certified to by the probate judge. Such certificate is not competent to supply the deficiency of the records in view of the requirement of the statute, CL 1948, § 701.28 (Stat Ann 1943 Rev § 27.3178 [28]): “The judge of probate shall have possession of the seal, records, books, files and papers belonging to said court, and shall keep a true and correct record of each order, sentence and decree of the court, and of all other official acts made or done by him, and of all wills proved therein with the probate thereof, of all letters testamentary, and of administration, and of all other things proper to be recorded in said court. Such records, except as otherwise provided by law, may be inspected without charge by all persons interested.” A recital in the record, “After a full investigation of said matter,” does not show that witnesses .testified competently to facts showing feeble-mindedness of Floyd Brooks, and necessity for his commitment. “Records must be complete and not leave important statutory steps to bare inference.” In re Payette, 315 Mich 700, 703, 704. Only 1 doctor was sworn to his certificate. ' The statute requires the certificates of 2 doctors to be sworn to. CL 1948, § 330.20 (Stat Ann 1947 Cum Supp § 14.810). For want of compliance with the statute in the particulars above recited as to inquest and the record of it, and as to 1 doctor’s certificate not being sworn to, the commitment is void. Floyd Brooks is ordered to be released but without prejudice to further proceedings in accordance with the statute. ■ The writ of habeas corpus prayed for will issue and shall operate as an order for the release of Floyd Brooks pending further proceedings. No- costs, a matter of importance to the public being involved. Boyles, North, and Butzel, JJ., concurred with Reid, C. J. Dbthmers, J. For reasons stated in controlling opinion in Be Fidrych, ante, 485, I concur in the result. Carr, Bitsiinell, and Sharpe, JJ., concurred with Dethmers, J. See CL 1948, § 330.21. — Reporter.	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Boyles, J. Plaintiff sued the defendant insurance company to recover $628 claimed to he due plaintiff for hospital expenditures, under a policy issued hy the company to indemnify plaintiff for such expensé. The company defended on the ground (set up as affirmative matter in its answer) as follows: “That the plaintiff herein had within about 2 years prior to the application for a policy, * * * a coronary thrombosis; * * * that the said answers made by plaintiff in his application for a policy failed to state that he had suffered a coronary thrombosis, * * * that such failure to make such disclosure by the plaintiff materially affected the acceptance of the risk * * * that had the plaintiff made a true disclosure of his prior treatment for coronary thrombosis, the defendant would never have insured him.” The case was tried by the court without a jury and the court held that the defendant had failed to establish that plaintiff .had an earlier attack of coronary thrombosis. From' the judgment entered for plaintiff, the defendant appeals. At the time plaintiff signed the application for the policy in March, 1948, plaintiff was 77 years of age. In February, 1946, plaintiff had been hospitalized, for 23 days. The crucial issue of fact submitted to the trial court was, and still is, whether at that time he had a coronary thrombosis. The company’s defense is based on a claim that plaintiff’s answers to the following questions in the application were not true: “8. (á) Are you in a sound and healthy condition, mentally and physically, and are your habits of life temperate? — (A) Yes. “9. Have you had .medical or surgical advice or treatment or any departure from good health within the past several years; if so, state when, cause and duration? — (A) Dr. Fred Smith of Lake City, Mich., treated for overexertioh. Hospitalized about 3 weeks 1946.” The plaintiff, testifying in regard to his answer to the first question (8 [a]), said: “I answered that question ‘Yes,’ and when I say ‘it is,’ I mean I was in sound health.” The defendant claims that plaintiff was not in sound health when the • application was signed in March, 1948, due to the fact that plaintiff had been hospitalized for a coronary thrombosis 2 years before. There seems to be no claim that plaintiff was not in sound health in March, 1948, due to any other causes or on account of any other reason than that; and there is no proof to that effect. Consequently, defendant’s claim centers ■ mainly around question 9. Plaintiff was hospitalized for 23 days in February, 1946. He testified: “Q. What type of overexertion were you hospitalized for ? “A. The question means how did it act on me or what happenedto me ? “Q. What did you do that was over exertion? “A. I shoveled snow; I was working around the Ford garage. “Q. Here in Cadillac? “A. In Lake City. “Q. After that snow shoveling incident you went to the hospital the day after, is that correct? “A. That’s right. (Witness continues) “I say in this application I was ‘treated for overexertion.’ I knew that I was treated for overexertion — worked hard, and that I fainted, and that’s what the doctor told me. The doctor told me it was caused from overexertion. He told me that, I don’t know just when. Í asked him. I didn’t know what was the matter with me, so I asked him. Only I knew I was sick. Mr. Heazlit (defendant’s agent who took the application) didn’t ask me any more questions about that? I told him what caused the overexertion. He didn’t ask me any medical terms about it. He didn’t ask me anything I didn’t tell him, no. I answered all of his questions. No, I didn’t make any statement in this application that is not true. They’re all the truth. I don’t aim to do that.” The hospital records were received in evidence, and Dr. Fred Smith, who attended the plaintiff during his hospitalization, testified at length. During hospitalization, 2 electrocardiograms (EKGf’s) were taken. They are the best evidence as to plaintiff’s cardiac condition at that time, and state: “Conclusion: (Taken February 7) * * * This is an abnormal electrocardiogram suggesting coronary insufficiency, probably on an arteriosclerotic basis. To rule out a possible recent coronary occlusion with myocardial infarction, a follow-up EKGr should be taken in a few days.” , “Conclusion: (TakenFebruary23) * * * This is an abnormal electrocardiogram suggesting coronary insufficiency, probably on an arteriosclerotic basis. Comparison of the EKGr with the report on a previous one, taken 2-7-1946, shows no significant changes. The auricular and ventricular extrasystoles seen in the earlier gram have disappeared. A recent coronary occlusion with myocardial infarction is unlikely.” The hospital record of that hospitalization, signed by Dr. Smith, shows: “Final Diagnosis “Result Cause of Episode Undetermined EKG report shows no coronary. * * * “Fred R. Smith, MD” It would be of little benefit to the profession to recite in detail the testimony of Dr. Smith, on differ ent parts of which counsel for each of the parties rely. The trial court found that the defendant had failed to establish that plaintiff hád a coronary thrombosis in 1946. The testimony does not clearly preponderate in the opposite direction. In Angust, 1948, 5 months after the policy was issued, plaintiff was again hospitalized. There is no proof of any repetition of the cardiac “episode” of February, 1946, during the interim between that date and August, 1948, at which time Dr. Smith again attended the plaintiff. The hospital record of plaintiff’s hospitalization in August, 1948, states: “Final Diagnosis “Result (1) Cerebral Arteriosclerosis (2) Cerebral Hemorrhage (3) Bed Se-res Decubitus Ulcers “Fred R. Smith, MD” Appellant relies much on a statement furnished it by the hospital before suit was started, giving plaintiff’s past history: “Had a coronary thrombosis about 2 years ago.” However, this was changed later by Dr. Smith to conform to the hospital records and his diagnosis when plaintiff was then in the hospital, as follows: “Had a possible coronary thrombosis about 2 years ago — although EKG at that time was negative.” The final diagnosis shown by the hospital records on each occasion, signed by Dr. Smith, negatives the conclusion that the plaintiff at either time had a coronary thrombosis. From a review of the entire record we are in accord with the conclusion of the trial judge, who found that it had not been established that plaintiff had a coronary thrombosis in 1946. The testimony does not preponderate in the opposite direction. Appellant relies for reversal on North American Life Assurance Co. v. Jones, 287 Mich 298. In that case the Court affirmed a decree cancelling an insurance policy on the ground of fraud in making representations in the application. The facts justified the conclusion and the case is not at all similar, in that regard, to the instant case. After the trial court had concluded the taking of testimony in the case .at bar, the court announced that the only question of fact to be determined was whether the plaintiff had had a coronary thrombosis in 1946, the only affirmative defense pleaded by the defendant. Counsel for defendant then moved orally for permission to amend the answer, “to permit the allegation that there was a serious illness to void the policy whether it was coronary thrombosis or whether it was, as Dr. Smith I believe stated, ‘cause undetermined.’ ” The court ruled that the case had been tried on the theory presented by the defendant and covered by defendant’s counsel in his opening statement, that the motion would make a different case, and denied the motion. The granting or denial of the motion, rested in the sound discretion of the court, and it was not abused. Affirmed. Reid, C. J., and North, Dethmers, Butzel, Carr, Btjshnell, and Sharpe, JJ., concurred.	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Boyles, J. Tbe principal question in this case is whether the defendants are lessees of a place of business on Trumbull avenue in Detroit for a 5-year term. The facts are not in dispute. On July 6, 1944, the plaintiff herein leased said premises to Ben Weitzman and Jack Klein for a 5-year term ending July 5, 1949. The written lease provided: “In case any rent shall be due and unpaid or default, be made in any of the covenants herein contained, then it shall be lawful for the landlord, his certain attorney, heirs, representatives and assigns, to re-enter into, repossess the said premises and the tenant and each, and every occupant to remove and put out.” Defendants claim that Jack Klein assigned.a half interest in said lease to David Grossman, although the record before us does not have such an assignment. It is claimed that sometime prior to. June 15, 1946 (the record does not disclose the date), Ben Weitzman assigned his interest in the lease.to the other lessee, Jack Klein, that he in turn assigned a 1 interest to one Murray Joseph and the other \ interest to David Grossman. On June 15, 1946, Murray Joseph assigned “an undivided J interest” in said lease to Rose Grossman, one of the defendants herein. On May 23, 1949, an attorney wrote the plaintiff as follows: “Please be advised that David Grossman, .the present lessee under lease covering store premises at 2900 Trumbull avenue, desires to give you formal notice that he intends to exercise, and does hereby exercise, his option to renew said lease for an additional 5 years from and after July 5th, 1949.” The sixth paragraph of the lease, which is the center of dispute in the present controversy, and on which the defendants rely in claiming that they are now the lessees, is as follows: “That in event he (the lessees) shall hold over after the expiration of the term demised for a sufficient period of time to create a renewal of this lease by operation of law, that any renewal or future right of possession not evidenced by any instrument in writing, executed and delivered by the landlord, shall be a tenancy from calendar month to calendar month and for .no longer term. Tenant shall have the option of renewing the lease for an additional 5 years at a rental not to exceed $85 per month by notifying the landlord of his intention to do so in writing 30 days prior to the expiration of this lease.” For a month or 2 after the expiration of the original 5-year term of the lease defendant David Gross-man paid the rent but thereafter was in default. No further rent was paid. From October, 1949, to February, 1950, David Grossman sent the plaintiff 5 checks for the rent for October to February, inclusive, all of which were returned unpaid for “not' sufficient funds.” On March 9,1950, plaintiff served on the defendants the following notice to terminate tenancy: “Notice to Terminate Tenancy “To: David Grossman and Rose Grossman “Please Take Notice, That you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described which you now hold of me as my tenant for the reason that I intend to terminate tenancy and to repossess myself of said premises. “Said premises are described as follows to-wit: 2900 Trumbull avenue, consisting of ground floor and basement in the city of Detroit, county of Wayne, State of Michigan. “Reason for Eviction: Nonpayment of rent— [CL 1948, §§ 554.134, 630.12] Stat Ann §§ 26.1104, 27.1986. “Possession of these premises is demanded on or before April 11,1950.” Defendants claim that this was a demand for possession or payment of rent, under CL 1948, § 630.12 (Stat Ann §27.1986), rather than a notice to terminate tenancy. For the reasons hereinafter stated, we are not in accord with that claim. Immediately after serving on the defendants the above notice to terminate tenancy, plaintiff filed a complaint, in summary proceedings, with the circuit court commissioners for Wayne county. The matter was heard and a commissioner found in favor of the defendants, from which judgment the plaintiff promptly perfected an appeal to the "Wayne circuit court. On the appeal, the circuit judge, after hearing, reversed the judgment of the commissioner and entered a judgment finding the defendants guilty of unlawfully withholding possession of the premises, and adjudging that the plaintiff recover the possession thereof. From that judgment and the denial of a motion for new trial, the defendants appeal. The crucial question in the case is whether the defendants have any right to possession of the premises, under an extension of the original term of the lease, which expired July 5, 1949. There had been no instrument in writing executed and delivered by the landlord creating a renewal of the lease for an extension of the term. Although the defendants continued in possession after the expiration of the original term, paragraph 6 of the lease expressly provides that such tenancy “shall be a tenancy from calendar month to calendar month and for no longer term.” However, the defendants rely upon the provisions of the concluding sentence in said paragraph 6, hereinbefore quoted, claim that they had the option of renewing the lease for an additional 5 years, and that they exercised the option by the notice given to the plaintiff on May 23, 1949, also herein-before quoted. We do not consider said notice to be a sufficient exercise of the option for a renewal of the lease. Passing the question whether the attempt to exercise defendants’ option for an extension 43 days, instead of 30 days, prior to the expiration of the lease might be sufficient, there is no showing of any attempt by defendant Rose Grossman to exercise her right to a renewal, although she apparently had the right to a interest in' the lease as lessee. There is no claim that David Grossman acted for or in behalf of Bose Grossman, or that he had any right to do so. His purported exercise of the option, in express terms, merely gave notice that he “intends to exercise, and does hereby exercise, Ms option to renew said lease.” “Several lessees. A covenant to renew a lease made to more than 1 lessee may not he enforced by one of them for himself, nor can he hind his colessee by his election to renew, unless authority had been vested in him to do so.” 51 CJS,'§ 58, p 601. See, also, Howell v. Behler, 41 W Va 610 (24 SE 646); Dible v. Davis, 52 Pa Super 18. An option is a mere offer, and acceptance thereof must be made within the time allowed, and in minute compliance with its terms, or the optionee’s rights thereunder will he lost, substantial compliance being insufficient to constitute an acceptance. LeBaron Romes, Inc., v. Pontiac Housing Fund, Inc., 319 Mich 310, and cases cited therein. The defendants claim, however, that the proceedings taken by plaintiff before the circuit court commissioner were to recover possession or pay the rent. They claim that instead of being dispossessed they should have the right to continue in possession by paying up the rent. Apparently they base this claim upon the fact that plaintiff, in giving notice of termination of tenancy, cited 2 statutes, under one of which the defendants claim the right to continue in possession by paying the rent. We find such claim without merit. Plaintiff gave the defendants notice to terminate tenancy; that defendants were required to surrender and deliver up possession, “for the reason that I intend to terminate tenancy.” The statement that the reason for terminating tenancy was nonpayment of rent does not change it into a demand for possession or payment of rent. Appellants claim that there is no provision in the lease for a forfeiture. On the contrary, the second paragraph in the lease expressly so provides. “The notice and demand of possession operated as an assertion of the intention to forfeit, as well as a notice to quit.” Hogsett v. Ellis (syllabus), 17 Mich 351. By the terms of the lease, defendants were tenants from month to month for an indefinite period, a tenancy at will subject to termination by 1 month’s notice. • “A letting for an indefinite period by the month creates a tenancy at will, and the tenant is entitled to 1 month’s notice to quit in order to terminate such tenancy.” Haines v. Beach (syllabus), 90 Mich 563. In the instant case — neglect or refusal to pay rent on a tenancy at will — the notice served March 9th, to terminate tenancy, was sufficient to terminate the tenancy upon the failure to pay the rent due within the time fixed by the notice (on or before April 11th). Smith v. Detroit Loan & Building Association, 115 Mich 340 (39 LRA 410, 69 Am St Rep 575). “The tenancy created by the parol agreement, with the rent payable monthly, could have been terminated by defendant at any time by giving plaintiff a month’s notice to quit, expiring on the day of the month the rent became due. CL 1915, § 11812 ;† Haines v. Beach, 90 Mich 563.” Ludwigsen v. Larsen, 227 Mich 528. “Letters by lessor’s attorney demanding that lessee then in default vacate the premises held, sufficient to constitute notice to quit and termination of the lease pursuant to statute (CL 1929, § 13492, as-amended by PA 1935, No 145). * * * “A lessee cannot have specific performance of provisions relative to option to purchase property leased after the lessor had terminated the lease while lessee was in default in payment of rent. * * * “Lessee under lease of land from which gravel was taken, containing option to purchase, was not entitled to specific performance thereof after termination of lease by lessor notwithstanding tender of amount which he claimed was then due under the lease.” MacGlashan v. Harper (syllabi), 299 Mich 662. Judgment affirmed, costs to appellee. Reid, C. J., and North, Dethmers, Butzel, Carr, Bushnbll, and Sharpe, JJ., concurred. CL 1948, § 554.134 (Stat Ann § 26.1104).	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Carr, J. Defendants were tried before a jury in circuit court on an information containing 2 counts, the first charging the crime of murder and the second robbery not being armed with a dangerous weapon. A verdict of 'guilty of manslaughter was returned.Defendants made a motion for a new trial, which was denied. They have appealed, claiming that because of errors occurring during the course of the trial the verdict and the sentences imposed should be set aside. On the trial of the canse testimony was introduced by the prosecution establishing that for some time prior to April 26,1949, Frank Cline, the alleged victim of the offenses charged in the information, operated a store in the.city of Brighton. Shortly before noon on the date mentioned Mr. Cline was discovered in his place of business with his hands and feet tied, and suffering from severe wounds. Statements made by him at the time indicated that he had been assaulted and badly beaten. He was removed to a hospital where he died about 1:30 a.m. on April 28th following. Subsequently the defendants were arrested on the basis of information indicating that they were connected with the attack.- Also taken into custody were "William Glenn English and Elmer Chevalier. On the trial of defendants, English and Chevalier were called as witnesses on behalf of the people. At the time in question William Andrus operated a gasoline filling station near Brighton, and the other defendant was connected in some way with a garagé in Detroit. English testified that he worked for Donald Andrus in said garage, that the 2 came to Brighton during the evening of April 25th, and that they discussed with William Andrus and Chevalier the feasibility of robbing the Cline store. Mr. Cline was a man advanced in years, and the tenor of the conversation was that it would be easy to get his money and that he was in the habit of keeping a large sum in the store. On the following day, as English claimed, the 2' defendants went with him to the vicinity of said store. He was given a $20 bill with instructions to make a purchase so that he might discover where the cash register was located. In accordance with the understanding of the par-^ ties, as it is claimed by the people, English entered the store, purchased 2 polo shirts, and was given his change from a cash drawer on the counter. The men then retened to the filling station operated by "William Andrus, where English changed his clothing and obtained about 15 feet of clothesline which he secreted beneath his jacket. English and the 2 defendants thereupon returned to Brighton, English riding with William Andrus in the latter’s car. English entered the Cline store and engaged Mr. Cline in conversation. Donald Andrus also entered, came up behind Mr. Cline and, placing an arm around his neck, pulled him over backward. The 2 men then proceeded to tie the victim of the attack, took the cash drawer, and left the store. The money therein was subsequently removed from the drawer, which was hidden behind some brush near a road. The people’s proofs indicate that on a subsequent day English informed the officers in whose custody he was the location of the money drawer, and it was discovered on the spot that he pointed out. English and Donald Andrus left the vicinity of the attack in an automobile belonging to Chevalier, which was parked beside the Cline store. They then went to the filling station of William Andrus and put the money that they had stolen in a cigar box, which was taken by Donald Andrus. Shortly thereafter William Andrus returned to the station. Other testimony was introduced bearing on the conduct of the defendants and their presence in the vicinity of the alleged offense. Defendants denied their guilt, claiming that they had nothing to do with the attack on Mr. Cline or with the alleged robbery. They pleaded an alibi, with reference to which the jury was instructed carefully and at some length by the trial judge in his charge. The issues on the trial quite largely involved the credibility of the witnesses in the case, particularly of William Glenn English. As indicated by the verdict returned, the members of the jury believed, in large part at least, the testimony of the people’s witnesses. The record does not indicate that any objection to the joinder of the counts in the information was made on behalf of defendants. At the conclusion of the proofs, however, motion was made by counsel to require the prosecutor to elect on which count he would rely for conviction. The motion was denied. On behalf of defendants it is now contended that the denial was erroneous and was prejudicial to them. Their argument rests on the theory that the information set forth separate and distinct offenses. Such argument overlooks the fact that the people necessarily relied on proof of identical facts and circumstances in support of each count. In People v. Sweeney, 55 Mich 586, the defendant was prosecuted under an information the first count of which charged assault with intent to murder and the second assault with intent to do great bodily harm less than murder. It was held that defendant was not prejudiced by the joinder, and it was further said: “Neither does the information present a case in which the people could be required to elect between the counts. When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be eonfounded in making his defense, and the people ought not to be compelled to elect.” In People v. Warner, 201 Mich 547, the information charged, in separate counts, assault with intent to do great bodily harm less than the crime of murder and assault with a dangerous weapon without intent to commit the crime of murder and without intent to inflict great bodily harm less than murder. A motion was made at the outset of the trial to require the prosecutor to elect on which count he would proceed. The motion was denied. In holding that the ruling was correct this Court cited and quoted from People v. Sweeney, supra. Of like import is People v. Rose, 268 Mich 529, where it was held that the trial court was not in error in refusing to quash the information or to compel an election between counts. In People v. Bommarito, 309 Mich 139, defendants, before the jury was sworn, moved to quash all counts in the information except one, on grounds of duplicity and misjoinder. The motion was denied. On appeal it was claimed that the denial was erroneous and prejudicial. This Court held otherwise, saying in part (p 143): “In support of the claim of misjoinder in the information, appellants cite authorities which have to do generally with joinder of distinct and separate offenses where the elements of proof are not the same. There is no question but that the doctrine is well settled that a person should not be subjected to trial for 2 separate and distinct offenses at 1 time. People v. Rohrer, 100 Mich 126. But it is also well settled that the people cannot be required to elect between counts where the offenses charged arose out of the same acts at the same time and the same testimony must be relied upon for conviction. People v. Warner, 201 Mich 547. See, also, People v. Marks, 255 Mich 271.” The foregoing decisions clearly indicate the rule of law obtaining in this State with reference to the matter in question. See, also, People v. Ninehouse, 227 Mich 480; People v. Cabassa, 249 Mich 543; People v. Sachse, 252 Mich 275. In the case at bar the attack on Prank Cline which resulted in his death, and the alleged robbery, involved the same facts and circumstances. The proofs tending to support the charge in the first count in the information also tended to sustain the charge of robbery not being armed with a dangerous weapon. Defendants were not prejudiced by the denial of the motion to require an election between counts. . . In submitting the case to the jury the trial judge charged that it might return any one of 5 verdicts, namely, guilty of murder in the first degree; guilty of murder in the second degree; guilty of manslaughter ; guilty of robbery unarmed; or, not guilty. Error is assigned on such charge. On behalf of defendants it is contended that the court erred in permitting the jury to return a verdict of guilty of manslaughter, on the theory that the proofs indicated that the homicide w;as, under the statute, murder in the first degree because committed in the perpetration or attempt to perpetrate a robbery. It is argued, in substance, that the jury should have been instructed to return a verdict of either murder in the first degree or not guilty, and in support of the contention counsel for defendants call attention to prior decisions of this Court in which the factual situation was such as to justify a- charge of the character suggested. See People v. Netzel, 295 Mich 353, and prior decisions there cited. It may be noted that in the Netzel Case, which was affirmed by a divided Court, the defendant was^ charged with assault with a deadly weapon without intending to commit murder and without intending to inflict great bodily harm less than murder. The trial judge charged the jury that under the proofs there were 2 possible verdicts, either guilty as charged or not guilty. No charge was given with reference to included offenses. It appears, however, that the defendant in the case was a witness in his own behalf and admitted that on the occasion of the commission of the alleged offense he was armed with a rifle. In view of such situation it was held that the. failure to instruct the jury with reference to included offenses was not reversible error. The facts in the case at bar are not analogous. In People v. Treichel, 229 Mich 303, 3 young men were convicted of manslaughter under an information charging murder. The testimony in the case indicated that the defendants, in company with another boy then 12 years of age, entered the home of an elderly man'who lived alone, tied his hands and feet with wire to a bedstead, and then ransacked the house in the attempt to find money. The death of the victim resulted from the assault made on him. As in the ease at'bar, the trial judge instructed the jury that a conviction might be had for murder in the first or second degree, or for manslaughter. On appeal it was urged that the jury should have been directed to either convict of murder in the first degree or acquit. In affirming the convictions, it was said in part: “Counsel for defendants strenuously insist this was error, claiming the information charged murder in the first degree, and it whs the duty of the trial judge, under the evidence and their written request, to instruct the jury to confine their deliberations to such degree and, if unable to convict of murder in the first degree, they must find defendants not guilty. Counsel claim they are supported in taking this position by many decisions of this Court. In this they are in error. The information charged murder without specifying method, or means, or circumstances, and, under the information, .murder in either degree, or manslaughter, might be found. This Court has repeatedly held, where the charge as laid includes murder in the first degree, and the proofs establish such degree, and no lesser degree, it is not error for the court to instruct the jury that, in order to convict, murder in the first degree must be found. But this Court has not held, under a charge like here laid, the court must instruct the jury to find murder in the first degree or acquit. Whether such an instruction may be given or not depends upon the evidence. While the statute constitutes murder committed in the perpetration of burglary as in the first degree, it does not exclude all lesser degrees if the evidence warrants. “In many cases such a holding as here asked would make it extremely hazardous for the people in laying the charge. Suppose the charge is murder in the second degree, and the proofs show murder in the first degree, must there be an acquittal? This information charged murder in the first and second degrees, and this was inclusive of manslaughter. The evidence left it open for the jury to find defendants guilty of manslaughter.” Conceding that the verdict might have been guilty of murder in the first degree because committed in the perpetration of a burglary, the Court declined to hold that such verdict was the only one permissible. Attention was directed to testimony indicating that defendants did not make their attack on their victim with the intention of killing him, and did not anticipate that such result would follow. As in the case at bar, the proofs indicated a purpose to prevent interference with the contemplated search for money. Clearly, had defendants intended to kill Prank Cline they would not have resorted to tying his hands and feet with the clothesline which English had taken into the store. The record indicates that in charging the jury as stated the trial judge followed the decision in the Treichel Case. In view of the analogous situation presented there, he was justified in doing so. A somewhat similar question was raised in People v. Miller, 96 Mich 119. There defendant was prosecuted for the crime of rape, and was convicted of the included offense of assault with intent to commit rape. The proofs on behalf of the people clearly indicated that the offense, if there was such, was rape. On the appeal to this Court it was contended that the trial judge was in error in charging the jury- that they might find the defendant guilty of assault with intent to commit rape or of simple assault. Affirming the conviction, it was said: “Under such proof it cannot be denied that a verdict of assault with intent to rape is illogical. But an' assault with intent to commit rape is necessarily included in every rape. The defendant’s counsel are alleging, not an injurious error, but one which, if it could be called an error, has resulted to defendant’s advantage. In the case of Hall v. People, 47 Mich 636, this question was passed upon, and the omission to charge the jury that the defendant might be found guilty of the lesser offense was held to be error, in just such a case as this.” The Miller Case was cited and followed in People v. Murphy, 145 Mich 524. See, also, People v. Jones, 273 Mich 430. The decision in People v. Austin, 221 Mich 635, is also of interest. There the defendants were convicted of murder in the first degree. The proofs indicated that they gave a drink of whiskey to which carbolic acid had been added to one with whom they were having some difficulty. The victim died as a result of the poison. The trial court instructed the jury that the defendants should either be convicted of murder in the first degree or acquitted. On appeal it was claimed that the instruction was erroneous, and that the court should have submitted to the jury the included offense of manslaughter. In reversing the case on the ground that the charge was erroneous, it was said: “Homicide is the killing of a human being by a human being. It may, or may not, be felonious. If felonious, it is either murder or manslaughter, dependent upon the facts and circumstances surrounding the killing. To constitute murder, the killing must have been perpetrated with malice aforethought, either express or implied. The intent to kill will be implied when death results from poison intentionally administered. If it appears that the poison. was not administered with intent to take life, but to aid in the perpetration of another crime, or in order to accomplish an unlawful act, it is no less murder. But where it is not so administered, and where death as a result is so remote a contingency that no reasonable person could have taken it into consideration when administering the poison and could not have contemplated that death -would result therefrom, the homicide is manslaughter only. The statute classifies all murders perpetrated ‘by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing’ as murder in the first degree. Murder by poison is so included because it results from a wilful, deliberate and premeditated act. Administering poison with intent to kill is necessarily so. That the intent with which the poisonous substance is administered is material to the issue presented on such a charge was clearly recognized in People v. Thacker, 108 Mich 652, and People v. MacGregor, 178 Mich 436. In each of these cases this Court held that the prosecution might show that the defendant, about the same time, was giving poison to another inmate of the household, as bearing upon the intent with which it was administered to the deceased person. The reasoning in Wellar v. People, 30 Mich 16, and in People v. Droste, 160 Mich 66, is instructive on the general rule that where there is testimony from which the jury might find the absence of such .a felonious intent as is necessary to constitute murder, an instruction that they might convict of manslaughter should be given. On the record here presented, the jury should have been so instructed.” Under the prior decisions above cited, we think the trial court in the case at bar -was not in error in submitting to the jury the included offenses of second degree murder and manslaughter. As in People v. Treichel, supra, the proofs were sufficient to support a verdict of guilty of the offense charged, ■but such fact does not require that the verdict returned by the jury be set aside and defendants discharged. We need not.consider whether the trial judge would have erred had he instructed the jury to return a verdict of guilty of murder in the first degree or of not guilty. On the factual situation presented it cannot be said that the verdict of the jury was rendered without a proper basis therefor. See People v. Droste, 160 Mich 66. Appellants’ claim that the verdict and sentences -should be vacated for such reason is without merit. Among the witnesses for the people on the trial were Richard English and Juanita English, the -brother and sister-in-law, respectively, of William Glenn English. On cross-examination Mrs. English was questioned by counsel for defendants with reference to the contents of certain letters written by William Glenn English, while he was in jail, to her husband. Counsel inquired specifically with reference to statements indicating that the writer had been promised leniency by the prosecutor for testifying on behalf of the people. Later in the course of the trial a sister of defendants, testifying in their behalf, claimed that she read such a letter that was in the possession of Juanita English. While on the stand the latter was requested to produce in court all letters written by her brother-in-law to her husband. This she indicated an unwillingness to do. It is now claimed that the trial court erred, to the prejudice of the defendants, in not requiring Mrs. English to produce said letters, particularly the specific letter referred to in the testimony of the defendants’ witness at a subsequent stage of the trial. No request was made to the .court to require the witness to produce any letter or letters. Rather, the claim is that the trial judge should have acted on his own initiative. However, William Glenn English denied making, in any letter to his brother or sister-in-law, statements of the character referred to by counsel in his questions, and Juanita English denied seeing any such letter. No claim is made that defendants had caused a subpoena duces tecum to be served on either Richard or Juanita English. In view of the situation presented, there was no error on the part of the trial judge in connection with the matter. He was not required to assume that the witnesses for the people had testified falsely. In his closing argument to the jury counsel for defendants, as disclosed by the record, undertook to discuss at some length his claim as to the law applicable, to the case. It appears that he insisted on his right to read to the jury statements setting forth the law as he claimed it to be, including requests to charge that he had prepared for submission to the court. Objection was made by the prosecutor, and counsel’s right to pursue the course that he was obviously following was challenged. The trial judge indicated specifically that counsel was entitled to state his theory of the law in his argument, but questioned the right to read to the jury as he was attempting to do. It is now contended that counsel was unduly limited in his argument, although it does not appear that he was not permitted to state, as fully as he desired, his theory and claim as to applicable legal principles. The record fails to disclose error in this respect of which appellants are entitled to complain. After the death of Frank Cline there was found in his store an account book in which he had apparently kept a record of sales made by him in the course of business. On behalf of the people, testimony was offered, including that of a handwriting-expert, that all the entries in the book were in the handwriting of Mr. Cline. The last entry, ostensibly made on April 26, 1949, covered the sale of 2 polo shirts. The witness who first discovered Mr. Cline following the attack made on him testified that the latter made some statement to the effect that he had sold a polo shirt to a man who had subsequently returned to assault him. It is contended that such statement, notwithstanding the condition of Mr. Cline at the time he made it, must be accepted as conclusive proof that he had sold but a single polo shirt to English, and that, in consequence, the entry in the book was a forgery. Counsel advanced such claim in his final argument. Objection thereto was made, and the trial judge remarked that there was no testimony tending to show that the particular entry in question was forged. However, counsel was assured that he might make the claim if he so desired, and the record indicates that he persisted therein. It is now urged that the court’s remark constituted prejudicial error. Obviously, however, the members of the jury were aware of the proofs that had been introduced before them. We do not think that any juror could possibly have been misled by either the objection of the prosecutor or the remark of the court. Mr. Cline might have made an erroneous entry in his sales book, but the record fully supports the remark of the trial court as to the absence of any proof of forgery. Defendants submitted to the trial judge a number of requests to charge, many of which were given and others of which were substantially covered. One of the stated reasons for appeal enumerates 18 requests and avers that the trial court was in error in refusing to give them in the form submitted. A similar claim of error was made in People v. Sweeney, supra, with reference to which it was said: “If it is intended this assignment of error is to be taken distributively, the language used is insufficient for that purpose. The substance of several of the requests was given in the charge, which disposes of this error as assigned.” In the case at bar the record indicates that several of the enumerated requests were waived. Others were covered in substance in the general charge, or were given in a modified form. The rights of the defendants were fully protected, and any claim that they were prejudiced because of the court’s failure to give all of the requests in the form submitted is not tenable. Further claims on behalf of appellants, that the motion for a new trial was improperly denied, that the trial court was in error in not granting a new trial on his own motion, and that appellants have been deprived of their liberty without due process of law, do not require specific consideration. Our examination of the record brings us to the conclusion that defendants had a fair trial in which their rights were fully and carefully safeguarded, that they were represented by able and experienced counsel, and that the proofs in the case fully justified and supported the verdict returned by the jury. We find no reversible error, and the verdict and sentences are affirmed. ■ Reid, O. J., and Boyles, North, Dethmers, Butzel, Bushnell, and Sharpe, JJ., concurred. See CL 1948, § 750.316 et seq. (Stat Ann § 28.548 et seq.); and CL 1948, § 750.530 (Stat Ann § 28.798).	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Dethmers, J. Plaintiff and Herman Fontecchio, hereinafter called defendant, entered into a partnership agreement for the operation of an automobile repair and paint shop for an indefinite period of time. Plaintiff had money but no experience in such business. Defendant, a mechanic, had the necessary experience but no money. Accordingly, plaintiff pur chased a going business of that character for $6,000. Under the partnership agreement his $6,000 investment was to be returned to him out of first profits, after which the partners were to share profits equally. Conformable with plaintiff’s insistence that his interest in the business remain undisclosed, it was agreed that the business should be conducted under defendant’s name only and a certificate of persons conducting business under an assumed name was-filed with the county clerk representing defendant to be the sole owner. In furtherance of the scheme, after the partnership had been in operation for a number of months and plaintiff had already recovered out of first profits all but $1,204.17 of his investment, he transferred the business and its assets by bill of sale to defendant and, in accord with the partnership agreement, took back from defendant a chattel mortgage thereon in an amount equal to about half the value thereof. Plaintiff contributed no services to the partnership. As agreed, defendant contributed his services, managed, operated and kept the books of the partnership, for which, at the outset, he received an agreed salary of $45 per week. "When plaintiff purchased the business it was located in a building upon which a 3-ye"ar lease was then obtained, running to defendant as lessee, which provided for a monthly rental of $60, Wo 3-year renewals upon the same terms, and an option to purchase, for an amount not specified, in the event the lessor desired to and should have an opportunity to sell the premises to another. .Defendant immediately assigned a half interest in the lease to plaintiff.. Later the lessor advised the parties that he desired to sell the building for $7,500 and would sell it to-another if they • did not buy. Plaintiff thereupon stated that he was not interested in buying, that he' considered the property a poor investment at that price, that the parties could look into the matter of buying it later when tbe lease expired, that he had no objection to “the business” purchasing it if defendant so desired, but that, as an individual, he was not interested. Thereafter, at a time when the lease was about to expire and when the time for exercising the option for a renewal had already passed without its having been exercised, defendant and wife bought the building for $7,500. When plaintiff learned of this he objected, contending that defendant could not purchase the building, and insisted that title be placed in the name of the partnership or, in the alternative, that defendants might retain title, collect a rental therefor of $75 per month and that defendant might receive an increase in salary from $45 to $65 per week on condition that defendants lease the premises to the partnership for 10 years. It would appear that the latter was agreed upon but the lease was never executed although defendant did from that time on take the increase in salary and rent. Plaintiff claims that it was defendants’ failure to execute such lease that occasioned the bringing of this suit for dissolution of the partnership. When this suit was brought the original lease had long since expired and there is no showing of any attempt by the partners or either'of them to exercise the renewal option. The partnership agreement contained the following provision: “13. That if either of the partners shall be desirous of terminating the partnership at any time, the continuing partner shall have the privilege of taking the whole partnershp business, at the rate at which the same shall be appraised and valued, on paying this value to the retiring partner.” The trial court ordered dissolution under the quoted section 13 of the agreement and decreed defendant to be the owner of the business and all its assets upon payment to plaintiff of $8,709.53 com prising a $292.02 adjustment in plaintiff’s favor of accounts between tbe parties and the partnership, a balance of $1,204.17 still due plaintiff on his original investment, $625 due plaintiff from the partnership on promissory notes, and a sum of $6,588.34 representing one-half the value of the partnership business and assets as found by the court without regard to the value of rights of the partners or partnership under the lease which the court found to be nonexistent. Plaintiff appeals, claiming that the court erred (1) in dissolving the partnership under section 13 of the agreement instead of ordering a sale of the business and assets at public sale; (2) in failing to decree that the partnership owned the building or, in the alternative, to include the value of the proposed new 10-year lease in computing the total value of partnership assets; (3) in determining the amount due plaintiff-on promissory notes; and (4) in failing to require defendant to account for and reimburse the partnership for the increased salary and rental drawn by him and profits derived by him from the purchase and sale of used cars which he repaired in the partnership place of business. (1) Plaintiff contends that the provisions of section 13 of the agreement were intended to apply only to a friendly termination of the partnership and not where plaintiff has brought suit for dissolution alleging misconduct in the handling of partnership affairs by the defendant. In this connection plaintiff cites Steckroth v. Ferguson, 281 Mich 279, quoting from the syllabus the following: “Provisions of partnership agreement for purchase of interest of partner by surviving or remaining partner held, to refer to situation where one partner voluntarily or involuntarily has ceased to be a participant- in the 'firm business and not to -permit one by his misconduct to ihake the other dissatisfied, practically force him to sell out and let the guilty partner thereby obtain the benefit of the good will of the business.” In the instant case, however, the trial court did not find, nor does an examination of the record disclose, that plaintiff established misconduct by defendant in the handling of partnership affairs to .such an extent as to make plaintiff justifiably dissatisfied or to practically force him to sell out, as in the Stechroth Case. While section 13 of the agreement was undoubtedly intended to provide a means for termination of the partnership without recourse to judicial proceedings, plaintiff, in desiring termination of the partnership, should not be permitted, in the absence of substantial misconduct on defendant’s part, to defeat the latter’s rights under that section of the agreement by the simple expedient of bringing a suit. No reason appears for holding the provisions of section 13, expressly agreed upon by the partners, to be inapplicable to the dissolution here desired and sought by plaintiff. He raises the point that Section 13 does not provide for a method of appraisal. Determination of values, on the basis of competent proofs, is a judicial function constantly exercised by the courts and properly so in the absence of an express agreement for a different method of determination. In the instant case the determination of value of the partnership business and assets was made by the court on the basis of testimony given by an appraiser for plaintiff and an appraiser for defendant. It was fairly within the range of the proofs. (2) Property acquired with partnership funds or by the partners individually for the use of the partnership does not necessarily constitute a partnership asset. In the absence of supervening rights of creditors, such property may, as between the partners, at leást, be owned by them individually as tenants in common or otherwise, as distinguished from the partnership, if such was their intention in the acquisition and holding thereof. In this connection see CL 1948, §449.8 (Stat Ann §20.8), and Block v. Schmidt, 296 Mich 610. In the instant case there is no proof that the lease belonged to the partnership. Defendant denied it, testifying that he took the lease in his own name, at plaintiff’s direction, and assigned a half interest therein to the latter individually. Plaintiff offered no proof to the contrary. The entire arrangement, calculated to conceal plaintiff’s interest in the business, and all the relevant proofs indicate an intention on the part of the parties that the leasehold rights should belong to them individually rather than to the partnership. That this was still plaintiff’s view of the matter when he filed suit appears from the prayer contained in his bill of complaint “that the plaintiff herein be' decreed to be the owner of one-half of the business premises hereinbefore described and which are held in trust for the plaintiff by the defendant,” with no alternative prayer that the partnership be decreed to be the owner of the premises or lease. On such state of the record we hold, in the absence of rights of creditors, that, as between the partners, the lease and option rights thereunder, belonged to them individually as tenants in common and not to the partnership. When the situation developed which gave rise to the lessees’ right to exercise the option to purchase and to the necessity for doing so if they wished to buy, plaintiff declined to exercise it individually and made no suggestion that the parties do so as tenants-in common. He contented himself with the suggestion that they might look into the matter of a purchase later, when the lease expired, and with the mere indication of a willingness that the option be exercised in behalf of the partnership and that the building be purchased by and for it if defendant so desired. Plaintiff had no right to insist upon the latter because the lease and option did not belong to the partnership. His individual rights under the lease and option he abandoned by failing and declining to exercise them when it was time to do so. Under such circumstances no bar remained to purchase of the building by defendants for their own benefit, subject only to such leasehold rights as still existed in the lessees. Those leasehold rights expired shortly thereafter. The right to exercise the option for a 3-year renewal had already expired when the premises were conveyed to defendants. Plaintiff never sought to exercise nor did he ever complain of defendant’s failure to. exercise, in behalf of them both, the renewal option. Rather, plaintiff, after objecting to defendant’s purchase, suggested a new lease from them to the partnership on terms in nowise connected with nor determined by the original lease. Plaintiff’s bill of complaint does not set up or allege an agreement by defendants to give him or the partnership a 10-year lease on the premises nor does it contain a prayer for specific performance thereof or for inclusion of the value of such proposed lease in the assets of the partnership. The case was not tried on that theory. On the contrary, plaintiff claimed to be half owner, individually, of the premises and sought to be so decreed. Prom all this it follows that neither plaintiff nor the partnership is entitled to be decreed to be the owner or part owner of the premises or of any rights under the original lease nor to have the value of the old lease or renewal thereof or of the proposed new lease included as part of the partnership assets. As for the value of any such lease, it may be noted that the record is barren of proofs as to what it might be. (3 and 4) Determination of the amount due plaintiff on promissory notes and of the question of defendant’s rights to increased salary and rents and to profits from the sale of used cars all depends upon the prior determination of disputed questions of fact resolved by the trial court in favor of the defendant. We are not convinced that we must have concluded otherwise had we occupied the position of the trial court. See Stratmann v. Stratmann, 287 Mich 94, and cases therein cited. No question relating to division of profits is raised by either party but, in that regard, see Vanderplow v. Fredricks, 321 Mich 483. Affirmed, with costs to defendants. Reid, C. J., and Boyles, North, Btjtzel, Carr, Bhshnell, and Sharpe, JJ., concurred.	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North, J. While assisting in loading some lumber, 60 2x4’s, 8 feet long, which plaintiff had purchased at defendant’s lumber yard, plaintiff was accidentally injured by falling lumber. He brought this suit against defendant, a Michigan corporation, on the theory that his personal injuries were caused by defendant’s negligence. At the close of plaintiff’s testimony at the trial by jury, on motion of defendant the court directed a verdict in its favor. Judgment was entered accordingly, and plaintiff has appealed. Plaintiff was the sole witness in his behalf. As stated in his brief and in his testimony the facts areas follows: An employee of defendant told plaintiff to drive his truck to a designated pile of lumber, to-get on top of the pile, hand down the pieces of lumber and he would send a couple of men over to help-him (plaintiff) load his truck. Plaintiff did as directed and began to lower pieces of lumber from the-top of the pile to the ground so that when the men. came they could put them on the truck which was-alongside the pile. The pile was approximately 12' feet in height and consisted of 2x4’s 8 feet in length. Next to the pile on which plaintiff was standing and separated from it by a space of about 18 inches was another pile, the top of which was above plaintiff’s-head. Plaintiff testified there was nothing to indicate that the adjoining pile was in a dangerous condition and he was not warned by defendant’s employees to be on his guard. As plaintiff pushed lumber down from the pile he was on, the adjoining-pile was. behind him. The 2 men defendant’s yard foreman promised to send arrived and began loading the truck with lumber plaintiff had handed down from the top of the pile. None of the lumber plaintiff was handling came in contact with the adjoining pile and plaintiff did not touch any of the lumber on the latter pile. Plaintiff testified that there is no-danger of properly piled lumber falling and that only improper stacking or bumping the pile with something heavy would cause lumber to fall. There is no claim that the pile was bumped by anything. While plaintiff was handing 'down lumber, he was. hit on the back of the head and knocked off the pile to the ground where he landed on his back and was-, struck in the face across the upper lip, nose and mouth by falling lumber which fell all around him. Plaintiff testified that the 2x4’s came down length wise and that he was struck in the face by the ends of . the lumber. Negligence on the part of defendant and plaintiff’s freedom from contributory negligence are alleged in plaintiff’s amended declaration, as follows: “That at the time and place aforesaid it became and was the duty of defendant to provide a safe place for plaintiff to work in handing down said lumber as directed by defendant and to keep and maintain its premises and merchandise in a safe manner and condition so as not to cause injuries to its patrons, particularly plaintiff; that contrary to and in disregard of its duties as aforesaid defendant carelessly and negligently erected and stacked lumber on said adjoining pile and maintained said pile in an unsafe and dangerous condition so that the lumber thereon was loose and insecure and became unfastened therefrom and fell upon and struck plaintiff inflicting injuries upon him as aforesaid. “That at the time and place aforesaid plaintiff exercised reasonable care and caution and was entirely free from any contributory negligence on his part.” The question of whether plaintiff was furnished a safe place to work is not involved in the instant case. Nor is the defense of assumed risk. This is true since the relation of employer and employee or master and servant, to which these phases of the law are pertinent, did not exist and were not alleged in the instant case. See Bauer v. American Car & Foundry Co., 132 Mich 537; Swick v. Ætna Portland Cement Co., 147 Mich 454; Kaukola v. Oliver Iron Mining Co., 159 Mich 689; Parker v. Grand Trunk Railway Co., 261 Mich 293. The record conclusively shows that pláintiff was an invitee upon the premises which were under defendant’s control. While so on defendant’s premises plaintiff suffered personal injuries by the falling of lumber stored there. But plaintiff wás not entitled to go to a jury as to his right to recover damages from defendant unless he produced competent testimony that the falling of the lumber resulted from or was proximately caused by some negligent act or ■omission for which defendant was responsible. We are mindful that plaintiff in his amended declaration alleged that defendant failed to keep its lumber yard in “a safe manner and condition,” since “defendant carelessly and negligently erected and stacked lumber on said adjoining pile and maintained said pile in an unsafe and dangerous condition so that the lumber thereon was loose and insecure and became unfastened therefrom and fell upon and struck plaintiff.” But the foregoing allegation is denied in defendant’s answer. The burden of proof tending to establish defendant’s alleged negligence was on plaintiff. Proof of the accident alone was not sufficient. The rule of res ipsa loquitur is not followed in this jurisdiction. “The mere fact that an accident happened does not establish negligence on the part of defendants, as the doctrine of res ipsa loquitur is not followed in this State. (Citing cases.)” Mitchell v. Stroh Brewery Co., 309 Mich 231. See, also, Moore v. Traverse City Masonic Building Ass’n, 324 Mich 507; Facer v. Lewis, 326 Mich 702. We quote the following from plaintiff’s brief: “Plaintiff stated that he did not know the cause of the lumber falling.” While plaintiff testified that lumber will not fall from a properly stacked pile, this was only an attempt to take advantage of the doctrine of res ipsa loquitur. «It was not competent testimony tending to prove that the falling of the lumber in the instant case was proximately caused by negligence of defendant. The burden was on plaintiff to produce competent testimony tending to prove in wliat respect did “defendant carelessly and negligently” erect and stack the lumber on the adjoining pile, or maintain the same “in an unsafe and dangerous condition.” The record contains no such testimony. Nor is there any admission in any of the pleadings which would tend to disclose or prove what negligence, or whose negligence, if any, caused the lumber to fall from the pile which was adjacent to the pile from which plaintiff fell. As we understand plaintiff’s position he does not claim that there was any testimony of that character. At least he has not pointed to it. But plaintiff does argue that defendant made the essential admission in its answer. The record does not justify such contention. Under such a record the trial court correctly directed a verdict for defendant at the close of plaintiff’s proof. In so holding, we are mindful of appellant’s claim that prejudicial error resulted on redirect examination of plaintiff by the court’s ruling sustaining defendant’s objection to the following question: “Where did that lumber come from ?” Plaintiff had just testified that after he fell and was on the ground, “I saw a lot of lumber coming down.” Defendant’s counsel objected to the above question on the ground that it had “been thoroughly covered and answered, * * * thoroughly covered in direct examination.” On plaintiff’s direct examination he had replied affirmatively to the question: “Now, the next pile of lumber, that is the one that hit you?” Under the instant record the court’s ruling sustaining defendant’s objection was not prejudicially erroneous nor an abusee of discretion, as asserted by appellant. The judgment entered in tbe circuit court in favor of defendant is affirmed, with costs. Reid, C. J., and Boyles, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.	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Reid, C. J. The petition in this matter was filed to institute condemnation proceedings to take private property for the public use or benefit, for the purpose of eliminating housing conditions detrimental to the public peace, health, safety, morals and welfare, and to aid in replanning and reconstruction of the area involved, in accordance with PA 1937, No 293, as amended (CL 1948, § 125.601 et seq. [Stat Ann 1949 Rev •§ 5.3057(1) et seq.), PA 1933 (Ex Sess), No 18, as amended (CL 1948, § 125.651 et seq. [Stat Ann 1949 Rev § 5.3011 et seq.]), with the provisions of ordinance 262-C, and title 8, chapter 1, of the charter of the city of Detroit. Prom judgment on a verdict determining the necessity for the taking of their property and award of damages, several owners of property- involved, .appeal. A ground of appeal common to all appellants (defendants), is the order and decision of the court allowing defendants 6 peremptory challenges collectively and not 5 peremptory challenges to each defendant property owner, separately. The proceeding was brought under the provisions of the Detroit city charter and the trial court (recorders court for the city of Detroit) followed the provisions of said charter in allowing 6 peremptory challenges to defendants collectively. The provisions of the charter in that regard are stated in title 8, ch 1, § 6, as follows: “The city on one side and the respondents and taxpayers on the other, shall have the right to challenge peremptorily 3 persons called to serve as jurors in each such proceedings; in the discretion of the judge of said court the number of peremptory challenges may be increased to not exceeding 6 on each side.” Defendants claim that such charter provision is void as contravening the State statute, CL 1948, § 618.40 (Stat Ann § 27.1020), which is in part as follows : “In all civil cases each party may challenge peremptorily 5 jurors.” Defendants cite People v. Welmer, 110 Mich 248, which, however, was a criminal case governed by a statute differing from the statute and charter provision involved in this case. CL 1948, § 213.88 (Stat Ann § 8.60) and CL 1948, § 213.94 (Stat Ann § 8.66) are sections of PA 1883, No 124, as amended, which is an act to provide for the condemnation by cities, villages and counties of private property for the use or benefit of the public,, et cetera. “The practice and proceedings of the recorder’s court of the city of Detroit under this act, relating to the summoning and excusing of jurors and tales-men and to imposing penalties upon them for nonattendance, shall be the same as the practice and proceedings of said court relative to petit jurors for the trial of criminal cases, but no peremptory challenges shall be allowed.” CL 1948, § 213.88 (Stat Ann § 8.60). “Cities and villages now authorized under existing-acts of incorporation, or other special acts, to take private property for public uses, may severally proceed, under the provisions of their respective local charters, or other special acts, or under the provisions of this act; and this act shall not be construed as in any way affecting or impairing the provisions of such local charters or special acts on the subject of taking privaté property for public use.” CL 1948, § 213.94 (Stat Ann § 8.66). CL 1948, ’§ 213.76 (Stat Ann § 8.48), a section of the above-cited act, does not allow any peremptory challenges in condemnation proceedings brought under that act. The court was not in error in limiting the defendants to 6 peremptory challenges collectively, under the charter provision. Defendants are incorrect in relying on provisions - for challenges in statutes which are not applicable in the instant proceeding. Defendants further claim that the slum clearance condemnation proceeding is unconstitutional because the real estate, while taken for a public use, is, after objectionable buildings are razed, to be sold for redevelopment by private persons and that, considering the purposes of the condemnation as a whole, the proposed action is improper and unconstitutional, as condemning the lands of one private person to be devoted to the uses and purposes of another private person. Defendants cite Board of Health of Township of Portage v. Van Hoesen, 87 Mich 533 (14 LRA 114). In that case we held irrelevant, incongruous and void, an amendment to an act (How Stat §§ 4763-4777) which as it originally stood was an act to encourage formation of. private cemetery corporations, but the' later amendment undertook to confer on boards of health, public corporations, the power of condemnation of lands for public purposes. However, in that ease we did not say that a properly drawn, suitably entitled act, could • not be upheld which would confer on the public corporations the right to maintain condemnation of lands for the public purposes involved. The provisions of the Detroit city charter involved in the case at bar are not subject to the objections raised in the Board of Health Case, above cited. In Berrien Springs Water-Power Co. v. Berrien Circuit Judge, 133 Mich 48 (103 Am St Rep 438), we held, page 52, that the water power sought to be developed by condemnation, was private in its character and land cannot be condemned for the purpose of creating it. The question to he submitted-to the-condemnation authority in that case is stated on page 55 as, “Does .public necessity require that the land specified in relator’s petition shall be taken to so improve the navigability of St. Joseph river that relator can operate thereon a transportation business and can obtain thereby the water power it desires?” The question of necessity in that case embraced at one and the same time, navigability (a public use) and water power (a private use). The act authorizing a determination that public necessity ■requires a taking for private purposes, was held unconstitutional, in that (Water-Power Co.) case. In General Development Corp. v. City of Detroit, 1322 Mich 495, a suit instituted by a taxpayer, we held slum clearance to be a public purpose, and held to have been properly dismissed a taxpayer’s bill which failed to show how the taxpayer would be-prejudiced by a subsequent sale of the lands (after clearance). But in contradistinction to a case involving interests of a taxpayer, who shall pay less taxes because of the subsequent sqle of the land and deduction from the general fund necessary to be raised for the slum clearance, in the case at bar, on the objection of owners of lands sought to be condemned, we are called upon to decide whether the provision authorizing a sale subsequent to clearance-is a commingling- and combination of a private purpose with a public purpose. It seems to us that the public purpose of slum clearance is in any event the one controlling purpose of the condemnation. The jury were not asked to decide any necessity to condemn the parcels involved for any purpose of resale, but only for slum clearance. The one purpose of the instant proceeding (a public purpose) then is different from the 2 purposes in the Water-Power Case, supra, in which the 2 purposes were concurrent; the height of the water to be attained and consequent area and extent of lands to be condemned was decisive of both the amount of power, a private purpose and navigability, a public purpose. In the instant case, the resale [abating part of the cost of clearance] is not a primary purpose and is incidental and ancillary to the primary and real purpose of clearance. Reconstruction was asked for in the petition and resale is necessary for such purpose, but the resale is not for the purpose of enabling the city nor any private owner to make a profit. The supreme court of Tennessee in Nashville Housing Authority v. City of Nashville, 192 Tenn 103 (237 SW2d 946), say on page 948: “To remove health, crime and fire hazards by slum clearance, is clearly a proper and reasonable exercise of the police power. This removal is effected by slum clearance simpliciter and the.fact that under the subsequent rehabilitation or restoration, the cleared area under a project planned and supervised by the housing authority passes into private hands to private property is an incident which does not change the nature of the slum clearance as being a public improvement in the public interest.” Slum clearance with incidental resale is approved (1) by the Alabama supreme court, Opinion of the Justices, 254 Ala 343 (48 So2d 757), opinion of the justices on questions propounded by the governor; (2) by the supreme court of Illinois in Zurn v. City of Chicago, 389 Ill 114 (59 NE2d 18), and in People, ex rel. States Attorney, v. City of Chicago, 394 Ill 477 (68 NE2d 761); (3) and by the Pennsylvania supreme court in Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa 329 (54 A2d 277, 172 ALR 953). In Dyer v. Township of Burns, 228 Mich 513, in a suit by private individuals to enjoin issuance of bonds authorized by the electors. for the purpose of erecting, furnishing and improving the town hall, the plaintiffs alleged that the township officials did not intend to build a town hall but a building to be used as a place for public entertainment. The trial court found the officers had proceeded in good faith to erect a town hall for township purposes. While the building might incidentally be used for other purposes, under such finding we affirmed the trial court’s decree dismissing the bill. In Cleveland v. City of Detroit, 322 Mich 172, we say (syllabus 9): “Condemnation proceedings for the acquisition of so much and no more property than is necessary for a permissible public use will not be defeated by the mere fact that an incidental private benefit or use ■of some portion of such property will result.” We find in the instant case as claimed by appellee city.: “It was not the purpose of this condemnation proceeding to acquire property for resale. It was to remove slums for reasons of the health, morals, safety and welfare of the whole community.” We consider that the weight of authority is in favor of the appellee city’s contention that the taking of private property for the uses and purposes as disclosed hereinbefore in this opinion is constitutional, notwithstanding the fact that the property taken is later to be resold to diminish the cost, involved in the condemnation and for the purpose of reconstruction. By the foregoing rulings as to permissible challenges and as to constitutionality of the proceeding, we dispose of and dismiss appeals of all appellants, so far as based on those grounds. Appellants American Pipe & Supply Company, of which the Brant Brothers, hereinafter referred to as Brants, are the owners,'have claimed additional error on the part of the trial court in denying “conse-. quential” damages in the taking of parcel 280, part of which is a warehouse used by Brants as a part and parcel of Brants’ business. They had offered testimony tending to show that the warehouse, being part of parcel 280 in question, was part of and necessary to the running of their plumbing supply business conducted at Gratiot and Orleans, 3 blocks away, which business, however, is not located on a parcel being condemned. Brants claim that parcel 280 consists of adjoining buildings 40 to 50 years old on land approximately 150 feet by 105 feet. Two buildings are of garage type and were used for warehouse purposes; the third building consists of 2 stores and a flat above. The entire property, after having been on the market for some time, was purchased in 1946 for $27,500 plus a $2,500 commission. Brants claim they installed fixtures of the value of $6,240.67. The jury could be justified in concluding that there had been no enhancement in value of the parcel during Brants’ ownership, except for the fixtures. The value placed on parcel 280 by petitioner’s appraiser was $38,000 and by appellants’ appraiser, $55,000. The jury’s award was $40,000. The fixtures and equipment put in by Brants (bins and storage racks, conveyor, hoist and a sign), all of which are removable, are not to-be taken by the city in the condemnation, but remain the property of appellants. Parcel 280 with the 3 buildings adjoining each other, is situated at the southwest corner of Chestnut and Riopelle streets in the city of Detroit. The easterly building is 2 stories in height, 40 feet in width and 105 feet in depth. The front portion of both stories is rented out for stores and rooms, and the rear portion of both stories is used for storage space. The middle section and the westerly section are both single-story buildings, having a depth of 105 feet, the former being 50 feet wide, and the latter 40 feet. Both of these buildings were unheated and used for storage purposes. The west building had been leased to a third party who moved from the premises about the time the instant proceedings were begun because the tenancy was uncertain. It will thus be seen that Brants were using only the narrower building in the center and only a portion of the east building for their own storage purposes. Brants have their place of business in a building 100 feet by 140 feet having 3 floors and situated 3 blocks away from parcel 280. They are in the plumbing supply business and utilize the warehouse space they occupy in parcel 280, as hereinbefore designated, for storage of soil pipes, water pipes, bath, tubs and other plumber’s supplies in connection with their business. Parcel 280 was purchased by the appellants on March 1, 1946. The instant proceedings for condemnation were begun slightly less than 1 year later. Previous to that time, the appellants had a warehouse opposite their place of business. They claim that during the short period of slightly less than 1 year, during which they occupied part of parcel 280, it became such an integral part of their business that they are entitled to consequential or severance damages in addition to the compensation found by the jury for parcel 280. On the trial the following occurred: “Mr. Shapero [attorney for Brants]: There’s another question that you have to pass on, a garage on Chestnut and Riopelle which is run in connection with the store on Gratiot avenue which isn’t being taken by condemnation and we expect to show consequential damages by reason of separation of the 2 parcels. “The Court: I won’t allow you to show that.” In considering the court’s ruling, we note that Mr. Shapero had xtreviously elicited from his witness, Mr. Sexauer, testimony as to his opinion of the fair market value of parcel 280 as a whole, comparable with other buildings in the market, with the consequence that there was testimony that parcel 280 could be replaced, so far as concerns the portion of Brants’ business which was there conducted, by other comparable buildings. There was no ground left for consequential damages. After Brants’ witness Sexauer had given the testimony, above referred to, Mr. Albert Brant testified that he couldn’t get any property to use instead of parcel 280, thus in effect contradicting his own witness Sexauer. The court could be considered as justified if he disregarded such contradictory testimony by Brant. Because capable of being replaced for integrated use, the lands of Brants differ from the parcels in an integrated use described in Baetjer v. United States (CCA), 143 F2d 391 (cert denied 323 US 772; 65 S Ct 131, 89 L ed 618), upon which case Brants, appellants in this case, rely. Brants had been permitted to show the various features of parcel 280, and the goods handled therein, cost of installation of bins, racks, hoist and other fixtures necessary to Brants’ use of the parcel, some of which fixtures were movable. The jury award of $40,000 can be considered just compensation in view of the whole situation. Under all the circumstances shown in the record, Brants were justly considered by the court as being without right to make further showing as to consequential (severance) damages. The judgment confirming the award by the jury is affirmed. Costs to appellee city against all appellants. Boyles, North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.	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North, J. The primary question on this appeal is this: Were sections 7 and 8, art 5, of the general statute (PA 1873, No 198 [CL 1948, §§ 467.7, 467.8 (Stat Ann §§ 22.288, 22.289)]) providing for the incorporation and regulation of railroad companies repealed by implication by the so-called death act (PA 1848, No 38, as amended by PA 1939, No 297 [CL 1948, § 691.581 et seq. (Stat Ann 1949 Cum Supp §27.711 et seg.)])? The trial court in effect held that said sections of PA 1873, No 198, as contended by defendant, were repealed by implication. Plaintiff has appealed, permission having been granted. In the instant case plaintiff, as administrator of his adult son’s estate, brought suit against the defendant railroad company to recover for the instant death of plaintiff’s son which was caused by defendant’s train striking, at a highway crossing, an automobile in which plaintiff’s decedent was an occupant. It is specifically alleged in the declaration that plaintiff “is duly authorized to bring this action for and in behalf of said estate under the laws of the State of Michigan, and especially under PA 1873, No 198 * . (and) to recover all damages and pecuniary injuries resulting from the death of David A. Southward, for the benefit of his father, Clarence A. Southward and his mother, Margaret M. Southward, who, under the law, would be entitled to inherit the property and estate of their deceased son if he had died intestate.” And the declaration further contains the following: “Prior to the death of his son, plaintiff received a severe injury to his back and spine from which he never fully recovered, and, as a result, was unable to perform hard physical labor necessary to operate his small farm near the village of Milan, Michigan, and to properly support Ms family. In recognition of Ms duty to assist and support Ms parents, deceased quit Ms employment at the General Motors Company plant at Pontiac, Michigan, and agreed to return to plaintiff’s home for the purpose of helping his parents and rendering assistance in the farm work. At the time of his death deceased was living at his parents’ home as a member of the family, contributing $10 per week towards the family expenses, .and assisting plaintiff in the operation of the farm during his spare time, without which assistance plaintiff would have been unable to continue to properly work the same. The services so performed by deceased were of the value of $100 per month and upward. * * * As the direct result of the negligent acts of defendant’s employees which resulted in the death of said. David A. Southward, his said father and mother, who would have been entitled under the law to inherit his personal property if he had died intestate, and, in whose behalf this action 'is brought, sustained pecuniary damages in the amount of $50,000, in that they were deprived of the weekly contributions made by deceased, and, lost the aid and assistance which he rendered on the farm, which contributions and assistance would have continued during the joint lifetime of deceased and his parents, or, until he married and established a home for himself, for the recovery of which this suit is brought.” Defendant moved to strike from the declaration the above italicized, words on the ground that the 1873 act by implication was repealed by PA 1848, No 38, as amended by PA 1939, No 297. The trial court granted defendant’s motion to strike. The court’s order to strike covered other allegations in the declaration, but we deem it unnecessary to detail them herein. The issue presented on this appeal is important because it controls the measure of recovery in the event plaintiff prevails. The following :is stated in appellant’s brief: “If the action of the trial court is sustained, it is defendant’s contention that under the amended death act * * * damages which may be recovered are limited to expenses of funeral and burial. On the other hand it is plaintiff’s contention that he is entitled to maintain the action under the railroad act, and, under the following decisions, among others, construing that statute (citing cases wherein the Court passed upon recoverable items of damage).” The pertinent portion of the railroad act (PA 1873, No 198) reads: “Sec. 7. Whenever the death of a person shall be caused by wrongful act, neglect, or default, of any railroad company, or its agents, and the act, neglect, or default is such as would (if death had not ensued) entitle the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the railroad corporation which would have been liable if death had not ensued shall be liable to an action on the case for damages, notwithstanding the death of the person so injured, and although the death shall have been caused under such circumstances as amount in law to felony. “Sec. 8. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in any such action, shall be distributed to the persons, and in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such amount of damages as they shall deem fair and just, to the persons who may be entitled to such damages when recovered: Provided, Nothing herein contained shall affect any suit or proceedings heretofore commenced and now pending in any of the courts of this State.” CL 1948, §§ 467-7, 467.8 (Stat Ann §§22.288, 22.289). The title and provisions in the more recent death act (PA 1939, No 297 ) are in part as follows: “An act requiring compensation for causing death and injuries resulting in death by wrongful act, neglect or default; to prescribe the measure of damages recoverable and the distribution thereof; and to repeal inconsistent acts. “Sec. 1. Be it enacted by the senate and house of representatives of the State of Michigan, whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only .under this act.” CL 1948, § 691.581 (Stat Ann 1949 Cum Supp § 27.711). Section 2 of the act (CL 1948, § 691.582 [Stat Ann 1949 Cum Supp § 27.712]) specifies the elements of damage for which recovery may be had and for distribution of the amount recovered. Section 3 reads: “Insofar as the provisions thereof are inconsistent with the provisions of Act No 38 of the Public Acts of 1848 as amended by this act, section 32 of chapter 12 of Act No 314 of the Public Acts of 1915, being section 14040 of the Compiled Laws of 1929 is hereby repealed.” CL 1948, § 691.583 (Stat Ann 1949 Cum Supp § 27.713). In appellant’s brief several ingenious reasons are assigned in support of the contention that sections 7 and 8 of the railroad act, above quoted, were not impliedly repealed by the more recent death act from which we have just above quoted; but such reasons fall in the face of the very definite provisions in PA 1939, No 297. †Among such reasons urged by appellant are the following: (1) “No language indicating intention to repeal appears in the 1939 act.” In our judgment this reason is not justified by the record. Instead there are provisions in the former act which are inconsistent with those in the 1939 act. Further, the title to the 1939 act expressly discloses the legislature’s intent “to repeal inconsistent acts]” and section 1 provides: “All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.” (2) Nor are we in accord with appellant’s reasoning that since the amendatory act of 1939 in the matter of repeal or amendment refers only to the former death act (PA 1848, No 38) and the former survival act (PA 1915, No 314, ch 12, § 32 [CL 1948, § 612.32 (Stat Ann § 27.684)]), therefore it must be concluded that it was not intended by the 1939 act to amend or by implication repeal the pertinent portions of the railroad act (PA 1873, No 198, particularly article 5, §§ 7, 8 [CL 1948, §§ 467.7, 467.8 (Stat Ann §§ 22.288, 22.289)]). (3) In support of appellant’s contention it is also-urged that notwithstanding this Court on 3 occasions since the 1939 amendment has rendered decisions wherein the 1939 amendment has been considered, and construed, but in none of such cases have we in any way intimated that any other acts were amended or repealed with the exception of the former death act and the survival act. We are not persuaded that because of tbat circumstance it should be inferred, as plaintiff asserts, that by the 1939 amendment the pertinent portions of the railroad act were not amended or repealed by implication. Also, it may be noted that the issue involved in the instant case was not raised in any way in any of those 3 cases; and further since the passage of the 1939 amendment there has not been recovery under the railroad act for a negligently caused death, so far as we are advised, in any case reviewed by this Court. (4) In support of appellant’s contention that the' 1939 act did not by implication repeal the pertinent provisions of the railroad act, it is asserted that since in the compilation of Michigan Statutes Annotated and the Compiled Laws of 1948, published subsequent to 1939, the compilers have not deleted the pertinent portions of the railroad act, it is fair to presume that such portions of the railroad act were not repealed either expressly or by necessary implication. We are not impressed with this suggestion. It might be considered somewhat presumptuous for the compilers to have omitted from the more recent compilations of Michigan statutes the provisions of a previously enacted statute which had not been expressly repealed by the legislature or been adjudicated by this Court to have been repealed by necessary implication. And embodying in subsequent compilations of the statutes the earlier acts is not without precedent or pertinent judicial comment. In Spillman v. Weimaster, 275 Mich 93, 98, clearly irreconcilable statutes were involved, and it was stated in the Court’s opinion: “Their terms are, therefore, repugnant, and we can find no reasonable hypothesis whereby effect might be given to both. We are therefore constrained to follow the well-settled rule, that a later statute covering the same ground as a former supersedes the former.” In City of Gladstone v. Throop (CCA), 71 P 341, separate and irreconcilable acts concerning towns and villages were incorporated in Howell’s Annotated Statutes. Relative to that circumstance the court said: “We must not be confused, then, by the fact that ■chapter 82 and chapter 81 are printed in the compilation as though both are in force; for if they contain inconsistent provisions concerning the same subject-matter, the earlier must be deemed pro tanto repealed.” In addition to the reasons hereinbefore suggested, in consequence of which we are not in accord with appellant’s contention that sections 7 and 8 of the railroad act were not impliedly repealed by PA 1939, No 297, we think the express provisions of the 1939 act necessitate the conclusion that there was repeal by implication. The title designates the act as one intended “to repeal inconsistent acts.” Section 1 provides: “All actions for such death, or injuries resulting in death, shall hereafter be brought only under this actand hence it appears plainly inconsistent with a conclusion that such suit might still be brought under the provisions of the railroad, act. In so holding we are mindful that in this jurisdiction repeals by implication are not favored; but in numerous cases we have held in accordance with the following: “Repeals by implication are not favored, but do happen, and, when clear, must be given effect.” C. N. Ray Corporation v. Secretary of State, 241 Mich 457, 462. “The rule as stated * * * that if the provisions of a later statute are so at variance with those of an earlier act, or a part thereof, that both cannot be given effect then the later enactment controls and there is a repeal by implication. In such a case it must be presumed that the legislature intended a repeal.” Jackson v. Michigan Corrections Commission, 313 Mich 352, 357. Appellant also makes the following contention r “PA 1939, No 297, if construed as repealing by implication any portion of the general railroad act is. unconstitutional, because no such object is expressed in its title.” And, further: “If any language can be found in the body of the.act which repeals the sections of the railroad act in question, then we submit the statute is unconstitutional because no such object is expressed in its title.” We have previously passed upon a like contention and held it was without merit. “It is unnecessary that title of an act express that an effect of the act is to repeal another act by implication.” Weco Products Co. v. Sam’s Cut Rate, Inc. (syllabus), 296 Mich 190. The ruling of the trial court striking from plaintiff’s declaration the allegations therein under which plaintiff asserts right to recovery in the instant case under the railroad act (PA 1873, No 198, §§ 7, 8 [CL 1948, §§ 467.7, 467.8 (Stat Ann §§ 22.288, 22.289)] ) is affirmed. Costs to appellee. The case is remanded to the circuit court for further proceedings. Reid, C. J., and Boyles, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. Amending PA 1848, No 38. — Reporter. See footnote, page 143. — Reporter. In re Olney’s Estate, 309 Mich 65; Grimes v. King, 311 Mich 399; Baker v. Slack, 319 Mich 703.	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Bushnell, J. Plaintiff Harvey Dutcher and Eugene Rees spent an entire evening together in various bars and taverns in Owosso, Michigan. During the course of the evening Eugene introduced Dutcher to his brother, defendant Orin Rees. Sometime during the evening Eugene, who was employed by the city of Owosso, borrowed Orin’s car in order to place- lights around some construction work. After midnight the 2 again met Orin in a restaurant and Eugene asked Orin to take him and Dutcher home to Corunna, because by that time the buses from Owosso to Corunna had stopped running. Orin replied: “I am busy now. I will a little later on.” Dutcher testified that after Eugene had told him that Orin would drive them home, he gave 50 cents to Eugene, saying, “give this to Orin to help him pay for the gas.” Eugene replied: “It is a good idea. I’ll pay a dollar for gasoline for me using the car.” About a half hour later, Orin said: “I am ready to go if you are ready to go, let’s get out of here.” Eugene testified that as they walked across the street to Orin’s car, he put a dollar bill into Orin’s coat pocket, but said nothing to him about it. The accident out of which Dutcher’s injuries arose occurred just inside the westerly city limits of Corunna, about 3 miles from Owosso. At the trial when plaintiff concluded his proofs, defendant moved for a directed verdict on the grounds of absence of any proof that plaintiff was a passenger for hire, and his failure to show gross negligence. The trial judge reserved decision saying, in effect, that the existence of a guest-passenger relationship in this case was a question of fact for the jury. Defendant made an opening statement and then rested. The court then ruled that defendant was not guilty of gross negligence as a matter of law and removed that question from the consideration of the jury. After the trial judge charged the jury, he submitted the following special question at the request of the defendant: “Do you find from the evidence that the plaintiff was a passenger for hire as the result of an express contract between himself and the defendant whereby the defendant agreed to transport the plaintiff from Owosso to Corunna in consideration of. the payment of money by the plaintiff to the defendant?” The record does not show the jury’s answer to the question, hut merely states: “The jury returned a verdict in favor of the plaintiff in the amount of $2,938.10.” The judgment as entered in the journal recites that the jury found “that the said defendant was guilty in manner and form as the plaintiff - has in his declaration in this cause alleged.” Defendant’s brief is confined to the single question of whether plaintiff was a “guest passenger as a matter of law.” Plaintiff says the real question involved is: . “Were there sufficient facts and circumstances to justify a determination by a jury of whether plaintiff and appellee was a guest passenger or a passenger for hire ?” The record discloses merely a social relationship comparable to that in Bushouse v. Brom, 297 Mich 616. Although that case was decided under the law of Virginia, this Court pointed out that the law of that State is the same as that in Michigan. There, as here — “it was clearly the friendship and social relation of these parties which resulted in plaintiff going on the trip with defendant. It was not a commercial arrangement or one in which the owner or driver of the automobile was induced to transport a passenger for an agreed consideration.” The applicable rule is well stated in 10 ALR2d, at page 1354: “The courts generally concur in holding that a mere incidental benefit resulting to the driver from the transportation is not sufficient to enlarge his liability, but that the benefit must have been given as consideration for the transportation and, in some degree at least, have induced the defendant to extend the offer. So, benefits which may be regarded as merely gratuitous gestures of reciprocal hospitality, or social amenities extended without thought of bargaining, have been held not to be payment or compensation.” See, also, In re Harper’s Estate, 294 Mich 453, 456; Brody v. Harris, 308 Mich 234 (155 ALR 573); and Herman v. Metal Office Furniture Co., 317 Mich 185. The fact that Duteher and Orin Rees had not met each other until the evening in question does not in itself make the tender of a ride a commercial transaction. There is no testimony to indicate that Orin knew that Dutcher was paying him for the short ride home with his brother Eugene. Furthermore, Orin agreed to give Dutcher and Eugene a ride before any offer of compensation was made by Dutcher to Eugene. As a matter of law, Dutcher was clearly the guest of Orin Rees. The trial court, having held that Rees was not guilty of gross negligence as a matter of law, the judgment against him cannot stand. The judgment is vacated and the cause is remanded for the entry of a judgment of no cause of action in favor of defendant. Costs to appellant. Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Sharpe, JJ., concurred. See CL 1948, § 256.29 (Stat Ann § 9.1446). — Reporter.	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Boyles, J. Plaintiffs, as owners of a store building in Detroit, filed the bill of complaint in this case to enjoin the defendants from- removing a furnace and stoker and other property from said building, on the ground that said property was a part of the real estate. Defendants Anna and Paul Sago filed an answer, and defendant Anna Sago, the lessee of said premises, filed a cross bill in which she claimed that she bad been induced to install the furnace and other property mentioned in plaintiffs’ bill of complaint on the promise and representations of plaintiffs that her lease would be renewed or that otherwise she would be allowed to remove the property from the building; that it would be a .great fraud to allow plaintiffs to terminate her tenancy and evict her from the premises before determination whether said property was personal propperty or whether she might remove it. Notice to terminate her tenancy bad been given Anna Sago that her lease would not be renewed. The defendants were temporarily enjoined from removing the property from the building, and the plaintiffs were also temporarily enjoined from dispossessing the lessee or evicting the defendants from the premises until' adjudication was made by the court as to defendant-cross-plaintiff Anna Sago’s right to remove said property from the building. Subsequently, on motion of the plaintiffs, the court entered an order dismissing the cross bill but in said order reserved for the defendants Anna and Paul Sago the right to an adjudication by the court as to their claim to the property. The order recited: “It Is Further Ordered that the defendants shall reserve the right to their claim to the items mentioned in plaintiffs’ bill of complaint at the time of the trial without prejudice because of removal prior to the time of trial.” By concessions made at the trial, the only item in the bill of complaint left for consideration by the court was the boiler which cross-plaintiff Anna Sago-had installed in the heating unit in the building. The circuit judge, after the taking of testimony, entered a decree holding that said boiler was part of the realty and enjoined the defendants from removing it. The court further decreed that the plaintiffs were indebted to cross-plaintiff Anna Sago in the sum of $663.75 by reason of the installation of said boiler. From the latter provision of the decree the plaintiffs appeal. The only question for. .our determination is whether the trial court under the pleadings and the circumstances of the case had-the right to grant the defendant and cross-plaintiff Anna Sago $663.75 by reason of her having installed .the boiler. The first floor of the building was used by the lessee as a beer garden. Defendants Sago lived in the upstairs apartment. Anna Sago, lessee, had been in possession of the premises for nearly 4 years, under written lease, jin which she was required “to keep the premises, including the equipment and fixtures of every kind and nature, during the term, in as good repair and at the expiration thereof yield and deliver up the same in like condition as when taken, reasonable wear thereof and damage by the elements excepted. * * * The tenants agree that during the life of this lease they will make, at their own cost and expense, all such necessary repairs, interior and exterior, which is necessary to keep this building in a good, tenantable condition.” On December 26, 1948, about 5 months before the end of the 2-year term of the lease, the boiler, which was a necessary component of the heating system, cracked and the heating system went out of commission. That had happened once before and the boiler had been welded and repaired. There were conferences between the parties. The boiler could be repaired and put into commission again for around $400 or $500. The lease would expire in about 5 months and defendants proposed to have the repairs made, while the plaintiffs wanted a new boiler installed. The record supports the conclusion of the trial court that the plaintiffs promised to renew the lease if the defendants would install a new boiler. The court properly found: “The issue finally centered in the matter of agreement and understanding of the parties relative to repairing the old boiler or installing a new one. The upshot of it was, that Mr. Sago claimed he would put in a new boiler at his own expense if plaintiffs would renew his lease, and that plaintiff Mr. Kachman told him that he would so renew the lease and that he, the plaintiff, wanted a new boiler.” No question is raised but that Paul Sago was acting for his wife Anna Sago, the lessee. The new boiler was installed, and finally paid for by defendants Sago at an expense of $1,327.50. Appellants claim that tbe court had no right to grant affirmative relief to cross-plaintiff Anna Sago. That claim obviously ignores the fact that the right of said cross-plaintiff to claim the boiler was expressly left in the case for adjudication in the court’s order dismissing her cross bill, without prejudice of removal prior to trial. Defendant Andrew Gabor, the contractor who installed the boiler, had not been paid. He claimed the right of removal unless he was paid. The cross-plaintiff paid him in full and thus took him out of the case as a party defendant. Under the circumstances, cases cited by appellants holding that affirmative relief will not be granted defendants in the absence of a cross bill are not controlling. The chancery • court had jurisdiction to decide all the essential elements in dispute in the case. Controlling of decision is our conclusion in Lau v. Stack, 269 Mich 396, stated as follows (syllabus) : “General rule that defendant in equity suit is not entitled to affirmative relief unless he files a cross bill is subject to exception that plaintiff may be required to do equity as a condition precedent to obtaining all or part of the relief he seeks regardless of the pleadings in the case.” Plaintiffs seek the aid of the equity court, to allow them to retain the new boiler as a part of the realty, notwithstanding their promise to renew the lease if the lessee would install a new boiler instead of repairing the old one. They expect equity to ignore their promise, and to reap the benefit of having a new boiler. The defendants could have fulfilled their obligations under the lease by repairing the old boiler at an expense of less than $500. Relying on plaintiffs’ promise to extend the term of the lease, the defendants expended more than twice that sum by installing a new boiler. It would plainly be contrary to equity and good conscience to decree to plaintiffs the entire benefit of such expenditure while the defendants Sago are deprived of any further use of the building or the boiler. He who seeks equity must do equity. We see no substantial merit in appellants’ claim that the court was without power to decree a lien on the property to secure payment to defendant Anna Sago. “Equity from the relations of the parties may declare an equitable lien out of considerations of right and justice based upon the fundamental principles of equity jurisprudence.” Cheff v. Haan, 269 Mich 593. Affirmed. • Costs to appellees. Reid, C. J., and North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. Butzel, J., did not sit. The reason for the difference between this cost and the decree allowing cross-plaintiff only half of it is not an. issue before us on the appeal.	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Grant, J. (after stating the facts). The learned counsel for complainant state the theory of their case as follows: 1. Defendants secured complainant’s stock, and all the other stock, by fraud in misrepresenting material facts, and in concealing the secret agreement. 3. Defendants acted as trustees of the complainant and other stockholders, i. e., a fiduciary relation existed between them; and, when such relation exists, the trustee cannot retain a secret profit from the execution of the trust. 3. Defendants, being directors, could not profit by the sale, when such sale was brought about or influenced by their official action. 4. A trustee or agent cannot make a secret profit for himself as a result of his agency or trusteeship. 5. The agent cannot be a purchaser. The principles of law stated in the above propositions are not disputed. Although the sale of the stock was a very advantageous one for the stockholders, yet, if the defendants were che mere conduits through which these stockholders were to transfer their stock to Lynn and Baxter, and there had existed a secret agreement between them and defendants that the former were to pay the latter a consideration for procuring the sale of the stock, they would undoubtedly not be permitted to profit by such a transaction. The question, therefore, has become one entirely of fact; and the two questions are, Did the defendants make false representations as to material facts ? and, Was there a secret agreement by which they were to profit at the expense of other stockholders ? We find no evidence whatever of any misrepresentation of facts, material or immaterial. The stockholders were fully informed as to the situation. They knew the condition of their own company, had met and voted to dispose of the property at $2 for $1 for their stock, and had, by the agreement of November 18th, either made Mr. Beal their agent to carry out the sale, or had modified their resolution of sale by agreeing to sell their stock to him at the same rate. The defendants possessed no information which complainant and the other stockholders did not also possess. If Lynn and Baxter had failed to take the property, it is difficult to see what legal objection the stockholders could make to transferring their stock to Mr. Beal upon payment under their contract with him, regardless of the parties to whom he was to convey. All prior oral and written negotiations and agreements were merged in this written contract. It did not mention any other vendee than Mr. Beal. Had the complainant desired to limit the right to sell to Lynn and Baxter, and to make Beal his agent to effect the transfer, appropriate language should have been used for that purpose. What possible difference did it make to complainant to whom Mr. Beal sold, provided he got the price agreed upon ? Assuming, however, that the defendants stood in the position of agents to carry out the wishes of the stockholders^ the question remains, Was there an agreement, at the time the sale was agreed upon, by which Lynn and Baxter, or the corporation to be formed by them, were to give the defendants bonds and stock in the new corporation ? There is no testimony whatever to even indicate that such an arrangement existed or was contemplated, either at the time of the execution of the contract to sell or the extension of that contract. There is no testimony that any such arrangement was even thought of, much less spoken of, until after the arrangements were made for the transfer of the stock, and about 10 days before it was actually transferred to the new corporation. He who charges fraud is bound to prove it, and that by substantial evidence. In order to sustain a decree against defendants, it must be found that they deliberately testified falsely, or else that the transaction is a fraud in law, no matter when the stock and bonds were given to them, or what the consideration, if any, was. Their testimony stands uncontradicted by any witness or any circumstances. The circumstances under which the bonds and stock were given to defendants are thus stated by Mr. Beal: “Mr. Lynn, within a week or 10 days of the final closing of the sale, met me, and said : “ ‘We want you to stay in the company, sure, and I have got these bonds to sell. I want you to sell some of the bonds in Ann Arbor for us; and then I have got some other projects, too, — other gas companies, — I want you to be interested with me. You can control capital of your own and others in Ann Arbor, and I want to go in with you.. I want to have you go in with this company.’ “And I have heard Mr. Goulden and Mr. Bennett, several times (and had agreed with them, too), express their determination when they sold the stock to get right out. They didn’t want anything more to do with it. We saw there was a big storm coming here when the price of gas was_raised, and a fight before the council, probably, for a charter, so that they just wanted to get out. They had expressed themselves that way. “ Q. In your presence ? “A. In my presence several times, and I had agreed with them. ‘ ‘ Q. Agreed with whom ? “A. With Mr. Bennett and Mr. Goulden. “ Q. That you would get out ? “A. Yes; that we would close right out. And then Mr. Lynn came to me and said that Goulden and Bennett would stay in if I would; if I would stay in, why, they would give us five thousand of the bonds apiece. They had, of course, a lot more bonds — Mr. Lynn — than was actually paid for the plants, and those bonds were theirs; and they were very anxious to sell the bonds, and were selling them at a discount, at times, and also with a stock bonus of 25 per cent. Anybody that would take $1,000 of bonds would have $250 of stock. “ Q. The stock bonus went with the bonds ? “A. Yes; that went with the bonds. And Mr. Lynn said: “ ‘ Mr. Goulden and Mr. Bennett will stay in if you do, and I want to have you. We need you three. You understand the business up there, and have a knowledge of the situation; and, in this fight that is going to come on us, we want your hearty support and help and assistance, and, if you will do that, we will give you the bonds and the accompanying stock.’ “ Q. He would give you how much of the bonds ? “A. Five thousand of bonds and 25 per cent, of stock. * * * “ Q. After having this conversation with Lynn, did you then see Mr. Bennett and Mr. Goulden, to see whether or not they had agreed to accept this offer if you did ? Did you talk that over with them ? “A. Yes. “ Q. Before you finally consummated it ? “A. Yes. “ Q. Now, let me see if I understand you. The contract was finally closed that day ? “A. Yes. “ Q. Did that five thousand that was paid you, or paid to either of these men, have anything to do with the price of the plant, according to the actual terms of your agreement ? “A. Nothing whatever. That had been settled long before.” Mr. Bennett’s version of the transaction is the same. This is all the evidence on the subject. Under’ this record, complainant received every cent he contracted for. He was not deceived. The terms of the sale had been agreed upon, and a contract made, not only between the complainant, the other stockholders, and Mr. Beal, but also between Mr. Beal and Lynn and Baxter, by which he agreed to transfer the stock to them upon the payment of §80,000. When about to execute the papers to carry out the contract between Beal and Lynn and Baxter, they wanted defendants to remain as stockholders in the new corporation, and defendants Bennett and Goulden as directors. They at first strenuously objected, and for reasons which to them seemed good. They were finally persuaded to enter the new company, — all as stockholders, and the two as directors, — upon receipt of $5,00.0 of bonds, and the bonus stock which accompanied the same. There was nothing bad, in morals or in law, about this transaction. Lynn and Baxter owned the stock and bonds, and had the legal right to give it away or to sell it upon any consideration they chose. The defendants, had the moral as well as legal right to purchase the bonds and to become stockholders upon any terms they chose to make with those who had the stock and bonds to sell. Their full duty to the stockholders of the old company was performed. We agree with the circuit judge that there is nothing in the transaction which indicates fraud, or reflects upon the honor and integrity of the defendants. Counsel’s statement that an agent cannot be a purchaser states the rule too broadly. An agent may purchase from his principal, so long as he acts in good faith, and his principal is informed of the situation. If the defendants or Mr. Beal had at one time been the agents for complainant to sell his stock, and afterwards complainant made a contract, with full knowledge of all the facts, to sell his stock to Mr. Beal, that contract would be binding. Directors, of course, stand in a fiduciary relation to the corporation itself. They do not stand in that relation, however, when dealing with other stockholders for the purchase or sale of stock. In the purchase and sale of stock between stockholders there must be some actual misrepresentation in order to constitute fraud. Mere silence is not sufficient. The books of the corporation are open to all stockholders alike, and' each may inform himself of the condition of the company. 1 Cook, Corp. § 320; Rose v. Barclay, 191 Pa. St. 594 (43 Atl. 385, 45 L. R. A. 392); Carpenter v. Danforth, 52 Barb. 581; Grant v. Attrill, 11 Fed. 469. Other cases of the like import are cited in the defendants’ brief. Decree is affirmed, with costs. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. Viz.: Tippecanoe Co. Com’rs v. Reynolds, 44 Ind. 509 (15 Am. Rep. 245); Deaderick v. Wilson, 8 Baxt. 108; Alexander v. Rollins, 84 Mo. 657; Crowell v. Jackson, 53 N. J. Law, 656 (23 Atl. 426); Gillett v. Bowen, 23 Fed. 625; Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690); Spering’s Appeal, 71 Pa. St. 11 (10 Am. Rep. 684); Allen v. Curtis, 26 Conn. 456; Bloom v. Loan Co., 152 N. Y. 114 (46 N. E. 166).	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Moore, J. The following statement taken from the brief of the counsel for the appellant shows the question involved in this case: “On the 10th day of February, 1902, the City Savings Bank, a Michigan corporation, located in the city of Detroit, was insolvent; and on that day George L. Maltz, commissioner of the banking department of the State of Michigan, closed and took possession of said bank. On that day there were in the possession of said bank two notes made by Frank M. Thompson, the petitioner, — one for $3,021, dated August 12, 1901, due six months after date, and one for $910, dated January 17, 1902, due four months after date. At the time of the failure, Frank M. Thompson had to his credit upon the books of the said bank, on deposit, the sum of $2,458.43, subject to check. On February 19, 1902, the said Frank M. Thompson demanded from the receiver, appellant herein, that said receiver apply upon the above-described notes the deposit due the said Frank M. Thompson, and, upon payment by him of the balance due upon said notes after the deposit had been deducted, surrender to him the notes. This the receiver refused to do, and, from the order directing such set-off, brings this appeal to this court. The legal question can be stated very simply: May petitioner set off the deposit standing to his credit when the bank closed its doors against his notes not then due ? ” Counsel for appellant contend that these deposits are not subject to set-off, because not mutual credits; that they are not mutual because, at the time the bank suspended, the debt owing from petitioner to the insolvent bank was not due; that such set-off would affect the rights of other creditors, and would give petitioner a preference over them. They are unable to find any Michigan cases directly in point, but cite several which they think in principle support their position, which will be referred to later. It is conceded the deposit of Mr. Thompson became due, without demand, when the bank became insolvent. Colton v. Building & Loan Ass’n, 90 Md. 85 (45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431); Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148). It is also conceded that the receiver stands in the place of the bank, subject to all equities against the bank, and does not sustain the relation of a purchaser of the notes for value, without notice. See Louis Snyder’s Sons Co. v. Armstrong, 37 Fed. 18; Van Wagoner v. Gaslight Co., 23 N. J. Law, 283; Sherwood v. Bank, 103 Mich. 109 (61 N. W. 352). It is urged that, if this bank were solvent, — a “going bank,” — it could not compel Mr. Thompson to pay the notes until maturity, and, on the other hand, he could not compel the bank to accept payment of the notes until they came due; and as the claim of the bank had not matured when the receiver was appointed, though Mr. Thompson’s claim did mature when the bank became insolvent, and before the receiver was appointed, it cannot be said the two claims are in any sense mutual credits, and the sub ject of set-off. Counsel cite, in support of this proposition, Gibbons v. Hecox, 105 Mich. 509 (63 N. W. 519, 55 Am. St. Rep. 463); Mechanics’ Bank v. Stone, 115 Mich. 648, (74 N. W. 204); and Koegel v. Trust Co., 117 Mich. 542 (76 N. W. 74). An inspection of these cases will show they are distinguishable from the one at bar. In Gibbons v. Hecox neither debt was due at the time of the insolvency. In Mechanics’ Bank v. Stone the debt to the bank was due at the time of its insolvency, while the debt from the bank was not due, and was a contingent liability. It was held the rights of other creditors had intervened, and their equities were superior to those of debtors seeking to set off claims not due. In Koegel v. Trust Co. one of the debts did not come into existence until after the appointment of the receiver. In Stone v. Dodge, 96 Mich. 514 (56 N. W. 75, 21 L. R. A. 280), Justice McGrath, speaking for the court, said: “There can be no doubt that the certificate of deposit in this case would, in a proper case, be a proper subject of set-off. It is well settled that, in a suit by a receiver of an insolvent bank upon a note or obligation due the bank, the defendant will be allowed to set off his deposit or a certificate of deposit held by him at the time of the suspension of the bank. Dickson v. Evans, 6 Term R. 57; Pedder v. Mayor, etc., of Preston, 9 Jur. (N. S.) 496; Niagara Bank v. Rosevelt, 9 Cow. 409; Ogden v. Cowley, 2 Johns. 274; McLaren v. Pennington, 1 Paige, 112; Miller v. Receiver of Franklin Bank, Id. 444; In re Receiver of Middle Dist. Bank, Id. 585 (19 Am. Dec. 452); Smith v. Fox, 48 N. Y. 674; New Amsterdam Sav. Bank v. Tartter, 4 Abb. N. C. 215; Berry v. Brett, 6 Bosw. 627; Jordan v. Sharlock, 84 Pa. St. 366 (24 Am. Rep. 198); Farmers’ Deposit Nat. Bank v. Penn Bank, 123 Pa. St. 283 (16 Atl. 761, 2 L. R. A. 273); Kentucky Flour Co.’s Assignee v. Merchants’ Nat. Bank, 90 Ky. 225 (9 L. R. A. 108, 13 S. W. 910); Van Wagoner v. Gaslight Co., 23 N. J. Law, 283; Platt v. Bentley, 11 Am. Law Reg. (N. S.) 171; Clarke v. Hawkins, 5 R. I. 219.” The case of Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148), is in point. This was an action by the receiver of the Fidelity Bank against the maker and indorsers of a promissory note which did not mature until after the insolvency of the bank. One of the defendants sought to offset its deposit with the Fidelity Bank at the time of the failure. This set-off was not allowed in the United States circuit court for the southern district of Ohio. An appeal was taken to the circuit court of appeals, who certified the questions involved to the Supreme Court. Mr. Chief Justice Fuller delivered the opinion of the court, in which the lower court is reversed and the set-off allowed. We quote from the opinion, as follows: * ‘ The note in controversy did not mature until September 7, 1887, but the deposit to the credit of the Farmers’ Bank was due, for the purposes of suit, upon the closing of the Fidelity Bank, as under such circumstances no demand was necessary. The receiver took the assets of the Fidelity Bank as a mere trustee for creditors, and not for value and without notice, and, in the-absence of statute to the contrary, subject to all claims and defenses that might have been interposed as against the insolvent corporation before the liens of the United States and of the general creditors attached. “The right to assert set-off at law is of statutory creation, but courts of equity, from a very early day, were accustomed to grant relief in that regard independently, as well as in aid of statutes upon the subject. * * * Courts of equity frequently deviate from-the strict rule of mutuality when the justice of the particular case requires it, and the ordinary rule is that, where the mutual obligations have grown out of the same transaction, insolvency on-the one hand justifies the set-off of the debt due upon the other. * * * “In the case at bar the credits between the banks were reciprocal, and were parts of the same transaction, in which each gave credit to the other on the faith of the simultaneous credit, and the principle applicable to mutual credits applied. It was, therefore, the balance upon an adjustment of accounts which was the debt; and the Farmers’ Bank had the right, as against the receiver of the Fidelity Bank, although the note matured after the suspension of that bank, to set off the balance due upon its deposit account, unless the provisions of the national banking law were to the contrary.” After quoting the act, it continues: “The provisions of the act are not directed against all liens, securities, pledges, or equities whereby one creditor may obtain a greater payment than another, but against those given or arising after, or in contemplation of, insolvency. Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference; and it is clear that it is only the balance, if any, after the set-off is deducted, which can justly be held to form part of the assets of the insolvent.” Jones v. Piening, 85 Wis. 264 (55 N. W. 413), quotes the case of Oatman v. Bank, 77 Wis. 505 (46 N. W. 881, 20 Am. St. Rep. 136), which is cited ,by this court in Mechanics’ Bank v. Stone, 115 Mich. 651 (74 N. W. 204), and which is a case similar to the latter, and says: “The case at bar differs widely from that class of cases, and turns upon a different principle. Here it was not the indebtedness of the insolvent debtor that was not due when the assignment was made, but a portion of the indebtedness from the plaintiffs to the assignee of the insolvent debtor. An assignee of such an insolvent debtor has no authority to waive the time of credit secured for the sole benefit of his assignor, and pay a debt not due with credits, or the avails of credits,' which are due to the assignor at the time of making the assignment, for to do so would tend to prejudice the creditors of the insolvent’s estate; but a debtor to such estate, whose debt was not due at the time of the making of such assignment, has the authority to waive the time of credit which was secured for his own benefit, and pay the same at once in money, or by way of set-off of the amount due him from such estate. This rule is firmly settled in other States.” To the same effect are Smith v. Fox, 48 N. Y. 674; Rothschild v. Mack, 115 N. Y. 1 (21 N. E. 726); Smith v. Felton, 43 N. Y. 419; Lindsay v. Jackson, 2 Paige, 581; Colton v. Building & Loan Ass’n, 90 Md. 85 (45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431); Jordan v. Sharlock, 84 Pa. St. 366 (24 Am. Rep. 198); Second Nat. Bank v. Hemingray, 34 Ohio St. 390; Keightley v. Walls, 27 Ind. 387; Smith v. Spengler, 83 Mo. 408; Jones v. Robinson, 26 Barb. 310; In re Van Allen, 37 Barb. 229; Stewart v. Anderson, 1 Cranch, 586; Davis v. Manufacturing Co., 114 N. C. 321 (19 S. E. 371, 23 L. R. A. 322); Adams v. Drug Co., 57 Fed. 888 (23 L. R. A. 334); Martin v. De Loge, 15 Mont. 343 (39 Pac. 312); Yardley v. Clothier, 2 C. C. A. 349 (51 Fed. 506, 17 L. R. A. 462); Ex parte Prescot, 1 Atk. 230; 1 Morse, Banks, § 338. As the precise question involved here is a new one in this State, but has been, as we have shown, directly passed upon in the Federal courts and many of the State courts, we feel bound to follow those decisions. Judgment is affirmed. Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.	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Per Curiam. This case is ruled by McKeller v. Township of Monitor, 78 Mich. 485 (44 N. W. 412). Judgment affirmed.	[ -69, -31, 23, 25, -57, 2, 42, 10, -16, -11, -48, -6, 18, 46, -1, -35, -10, -23, 6, 32, -22, 16, -47, 41, -14, 17, 18, 71, 9, 60, -8, 19, 13, 24, -22, -4, 13, 31, 16, -38, -6, 7, -6, -32, -8, -58, 55, -12, 29, -7, 3, 16, -17, 15, -21, 7, -19, -11, 0, 44, -18, 31, 31, 18, 54, -34, 17, -5, 48, 21, 20, 20, -21, 3, 32, 30, -27, 24, -17, 28, -36, -90, 16, 48, -24, -35, -32, -6, 3, -1, -15, -80, -29, -52, -6, 75, 38, -72, -16, -16, 3, -61, 13, 16, 26, -61, -25, 2, -11, -41, -48, 4, 26, -63, -2, 49, -29, 65, 29, -4, 19, 51, 3, -16, 1, -13, 17, 35, -10, 12, -9, 38, -42, -46, 42, 37, 15, 7, 33, -45, 23, -28, 20, -33, 2, -38, -44, -7, -8, -42, 16, 9, 3, 21, -20, 38, -18, -36, 69, 9, 4, -25, 11, 45, 1, -6, -3, -43, -17, 33, -13, -10, 27, 0, 16, -51, -51, 17, -23, 16, -12, 18, -5, -2, -69, -12, -51, -4, -84, -34, -21, -17, -10, -12, 12, 43, 27, 31, -51, -13, 21, 57, 37, -3, -13, -43, 8, -45, -78, 9, -9, -6, -23, -14, 32, 14, -5, 30, -45, 2, 11, -21, 47, 7, 11, -64, -10, 10, -10, -42, 43, 29, 33, 26, -43, 24, -31, -39, -1, -47, -46, -8, 2, -3, 39, 4, 21, 19, 62, 27, -1, -43, 19, -1, 15, -55, -26, 95, 45, -1, 17, 56, -8, 41, -18, 43, 22, 30, -39, -43, 10, 53, 23, -23, -29, -41, -1, -44, 3, 7, 18, 38, -64, -21, -59, 11, -26, 13, -14, -15, 15, -3, 9, 25, 51, 1, -55, -67, -11, -38, 33, 18, 32, 33, 47, -17, -32, 6, 51, -26, -45, 48, 3, -3, -40, 7, -59, -1, 16, -13, -59, -23, -8, -21, -17, -54, 44, -9, -6, 5, -12, 29, 16, 45, 44, 14, 36, -7, 8, -9, 9, 17, -24, 3, -12, -4, -58, 15, 18, -32, -5, 50, 41, 48, -20, -26, 41, -9, 1, -14, 2, 12, 15, 31, 11, -44, -9, -13, -12, -24, 15, 11, 27, 27, -12, 10, 36, 5, 0, 67, 18, -47, -4, 44, 6, -15, -32, 9, -17, -72, -65, -84, -50, 22, -33, 7, 36, -7, 38, -56, -24, 6, -13, 3, -2, -20, -15, 22, 2, 50, -28, 67, -16, -44, 28, 18, 18, 15, 45, -17, 24, 32, -3, 25, -20, -24, 24, 28, 17, -9, -10, -15, 5, -52, -15, -25, 2, -32, 31, 30, -32, 11, -17, -13, -6, -24, -28, 13, 1, -84, 68, -36, -23, -19, -63, -3, -12, -49, 2, 46, 14, -29, -17, -31, -21, 16, -6, -29, 30, -21, -9, -19, -37, 34, -26, -7, -25, 28, 12, 31, 61, -26, -57, -29, -40, -40, 0, 37, 0, 19, 30, 7, -13, -35, 10, 9, -10, 22, 0, 28, 54, 9, 4, 57, 42, -3, -17, -17, -17, -15, 58, -28, 28, 38, -11, 13, 43, 0, 28, 60, 5, -5, -77, 17, 20, 50, -7, -18, -10, 38, -62, -8, -6, 11, 22, -5, 23, -19, -14, -26, 18, 20, 27, -18, 31, 18, -10, 26, -5, 13, -34, -18, 1, 1, -23, -23, -2, 6, 25, -2, -71, -10, 27, 0, 25, 0, -27, 2, -2, -6, 18, -9, 13, -25, 33, -24, 22, 3, -15, 0, -4, 52, -4, 13, -13, 38, 19, -18, 7, 26, -7, -17, 34, 7, -28, 1, -24, 22, 29, 9, -22, 28, -10, -16, -7, -12, -59, -30, 14, 2, 2, 58, 0, -24, -4, 10, -36, 0, -11, -8, -10, 26, -5, 17, -3, 29, -51, -20, -61, 46, 20, -28, -32, -21, -15, 0, 25, 4, -3, 30, -46, -14, -10, -17, 72, -8, -50, 64, 2, 56, 9, 42, -29, 24, -40, -4, -40, -39, 50, -2, 11, -2, -45, -4, -20, 38, -42, 29, 21, 24, 41, -3, -23, 18, 25, 8, 64, 32, -1, -37, -21, 2, -14, 41, 42, -3, -24, 20, 15, -34, -8, 22, 21, -73, -41, -99, -20, 46, -18, 36, -1, 85, -53, 5, -59, 16, -29, -12, -43, 6, -58, -32, 17, 25, -24, 46, 44, -14, -31, -12, 32, -22, 7, -24, -19, -20, -5, -5, -15, 50, -20, 34, -12, 2, 21, 40, -33, -7, -24, -39, 3, -17, -34, 41, -54, 13, 31, 33, 10, 72, 29, 27, -20, -9, 11, -30, 34, 101, 5, 10, -12, -32, -19, 59, 15, -34, -31, -14, -41, -12, 30, 7, -15, -28, -6, -4, -27, 12, 4, -12, 13, 3, 44, -5, 32, -3, -14, -32, -5, 52, -1, -17, 62, 7, -23, 27, 29, -17, 12, 5, 4, 18, 24, -18, -18, 46, -38, 34, 15, -8, 41, -11, -36, 12, 25, 69, 28, 15, -24, -43, 33, 21, 8, -5, 8, 13, 22, -5, -5, -10, 37, 22, -74, 35, -17, -35, 5, -43, -1, 25, -7, 14, -26, -3, -28, 45, -41, 30, -4, 18, -19, -19, -4, -6, 5, 12, -16, -53, 5, 65, 34, 2, -24, -5, 29, 23, 5, -17, 44, 17, 7, 29, 25, -21, -19, -4, -25, 0, -47, 12, 2, 14, 27, -49, 70, 28, -5, -17, 37, -4, 22, -23, -35, 33, -24, 13, -30, 15, 8, -16, -16, 34, 14, 33, 30, 37, 54, 34, -7, 14, -21, -6, -20, 36, -19, -15, -37, -11, -16, -37, 24, 52, -26, 1, -39, 34, 25, -60, -26, -3, -7, -45, 16, -16, 9, 13, 41, -2, 33, 25, -16, -38, -23, 43, 11, -11, -21, -22, 26, -53, 32, -4, 13, -14, -101, 7, -27, -9, -28, -27, -34, 31, 32, -25, -37, -27, -1, -23, 36, 24, -4, 26, 12, 10, 22, -56, -17, 47, -5, 9, 11, -30, -9, -16, -72, 7, -46, -48, -30, -83, 43, -13, 22, -37, 16, -55, 41, -20, 50, 18, 5, -15, -7, -62, -32, 9, 25, -45, -36, 10, 3, 18, 53, -7, 75, 1, 36, 31, -16, 0, -16, 10, -35, -42 ]
Grant, J. Plaintiffs and defendant executed a land contract, dated November 17, 1897, by which the defendant agreed to sell certain land to the plaintiffs for the purpose of erecting a store or shop and a dwelling house thereon. Defendant loaned plaintiffs the money with which to erect the building. One Smith was the contractor to build it. Whether that contract was made with plaintiffs or with defendant we are unable to determine from the record. The record is very unsatisfactory, and it is difficult from either the record or the briefs to make a connected statement of the transaction. Neither the land contract nor the contract to build appears in the record. Two hundred dollars is involved, and the dispute ‘ is whether that was a commisssion, agreed upon by Mr. Vogt with plaintiffs for loaning them the money, or whether plaintiff John did work upon this building to the amount of $200, which defendant agreed to pay. The testimony was in direct conflict, and was properly submitted to the jury. We find no error upon the record, and no questions of sufficient importance to merit discussion. The judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.	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Montgomery, J. This is an action of trespass. The declaration contains two counts, — one for breaking and entering the dwelling house of plaintiff, the other .for breaking and entering a store building occupied by plaintiff. The defendant j ustified his breaking by a plea setting up that he entered the two buildings in question while acting as a constable in the city of Detroit, and for the purpose of serving a writ of replevin. The testimony offered by defendant tended to show that he visited the plaintiff at his store on Third avenue, and said to him that he had a writ of replevin for his shop fixtures and for his household goods, and desired him to open the doors and let him in; that the plaintiff replied, “No, I will go over to my folks;” that defendant did not give him any assurance that he would wait for him, but did wait 10 or 15 minutes, and then opened the store, and seized part of the goods; that he then went to plaintiff’s house, on Sixth street, about three blocks distant, but found nobody in the house when he got there; that he tried the front door at the foot of the stairs, and found it locked; that he inquired of a bystander, Mr. Hollands, where plaintiff was, and was told that he was there a little while ago; that he told Hollands that he had a writ of replevin for plaintiff’s furniture; that he then again rapped at the door, got no answer, and, after waiting a little while, no one appearing, he unlocked the door with a skeleton key, went up to the head of the stairs, again rapped, received no answer, unlocked the door, went into the house, and removed the furniture. The plaintiff gave a different version of the transaction, and the circuit judge instructed the jury that, if they found plaintiff’s version of the transaction to be correct, the plaintiff was entitled to recover, but that, if they found the facts as testified to by defendant, and above recited, the verdict should be, “No cause of action.” The jury found in favor of the defendant, and plaintiff brings error. The sole question presented which we deem worthy of discussion is whether, under the facts sworn to by defendant, the breaking"and entering was unlawful. 3 Comp. Laws, § 10655, provides as to the manner of service of a writ of replevin, and that the officer, for that purpose, may break open any house, stable, outhouse, or other building in which such property may be concealed, having first demanded the deliverance thereof at the building or place where the same is concealed. By section 752 this chapter of the Compiled Laws is made applicable to pro ceedings in justice’s court. We think the charge of the circuit judge correctly stated the law. See Howe v. Oyer, 50 Hun, 559 (3 N. Y. Supp. 726); Clark v. Wilson, 14 R. I. 11. The judgment will be affirmed. Hooker, C. J.,, Moore and Grant, JJ., concurred. Long, J., did not sit.	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Hooker, C. J. The complainant, a railroad corporation, built a side track upon the premises now owned by the defendant, under a contract made with his grantors, who were then in possession, operating a mill and elevator thereon. The contract is as follows: “Memorandum of agreement made this 1st day of August, 188?, between the Pontiac, Oxford & Port Austin Railroad Company, of Michigan, hereinafter designated the ‘ Railroad Company,’ and the Craig Wheat-Cleaner Company, of Oxford, Michigan, its assigns or successors, hereinafter designated the ‘Cleaner Company,’ witnesseth, that whereas the cleaner company wishes to secure a side or spur track to their elevator and mill at Oxford for the purpose of shipping grain and mill products by rail to and from Detroit and elsewhere, the railroad company, for one dollar and other considerations hereinafter named, agrees to construct a siding or spur track, in length not less than three hundred feet, from its main track at Oxford, adjacent to said elevator, to facilitate the handling and moving of grain and mill products for the cleaner company, and to bear all of the expenses of the same, except as hereinafter provided. “The cleaner company agrees to furnish free the right of way for said spur or side track over their grounds at place to be agreed upon between the respective parties; the right of ownership of the rails, ties, etc., to remain with the railroad, company, with the further right to remove the same at its option any time after three years from date hereof, should it at any time thereafter desire so to do, by giving the cleaner company thirty days’ notice of its intention. In consideration of said facilities furnished or to be furnished, the cleaner company hereby covenants and agrees that it will use said spur or side track for the purpose of loading and unloading cars with grain or mill products to be shipped over the road of the railroad company, and further agrees that -the shipment of freight in car-load lots shall within two years, computed at the rate of two cents per hundred pounds, aggregate two hundred and fifty dollars; and on failure on the part of the cleaner company to make shipments of such freight aggregating the amount stated, of one hundred and twenty-five dollars for each of the two years co'mmencing with and after the date hereof, they shall pay to the said railroad company in cash, on or before the expiration of the two years, the difference between the amount of freight shipped, computed at two cents per hundred pounds, and the said two hundred and fifty dollars, which is represented in a guaranty note of like amount, of even date herewith. “It is further mutually agreed and understood between the parties hereunto that the guaranty of the cleaner company is made with the understanding that the freight rates to be made by the railroad company to Detroit and other points beyond where the cleaner company may wish to ship their grain or mill products shall not exceed, at the time the shipments are offered and made, the freight rates made to the same points from Oxford for the cleaner company by the Michigan Central Railroad Company. It is further agreed that, should the railroad company at any time or for any reason be unwilling or unable to make the samé rate from Oxford to any point reached by it and its connecting or affiliating roads on any grain or mill-product traffic offered to it by the cleaner company as is made by the Michigan Central Railroad Company, the cleaner company shall be credited upon its obligation at the rate of. one cent per hundred pounds upon all such traffic offered to the railroad company and refused by it for the reasons above stated. “ The railroad company reserves the right to use said spur or side track for other purposes than that of the cleaner company whenever it desires to do so, provided that its use thereof shall not in any manner interfere with or discommode the cleaner company. ‘ ‘ Should the cleaner company make shipment of grain and mill products in car lots from Oxford over the road of the railroad company within two years from the date hereof in amounts, computed at the rate of two cents per hundred pounds, that shall aggregate, together with the credits hereinbefore mentioned, two hundred and fifty dollars, the guaranty note shall become null and void, and be returned to the cleaner company, duly canceled. “In witness whereof, we have hereunto affixed our respective names the day and date first above given, at Oxford, Michigan. “The Pontiac, Oxford & Port Austin R. R. Co., “By James Houston, Gen. Supt. “The Craig Wheat-Cleaner Co., “By A. M. Varney.” ■ The business conducted by the Craig Wheat-Cleaner Company did not prove profitable, and after some years resulted iri failure and discontinuance of business. Subsequently the defendant purchased the property from the Craig Wheat-Cleaner Company, and for a year or more past has operated the same. During the time that the premises were vacant, the railroad company used the track according to its own convenience, but after defendant acquired the premises he objected to the storage of the cars upon the same, and finally obstructed the track. Thereupon the complainant filed its bill to restrain his interference with the use of the track. The defendant answered, claiming affirmative relief. The railroad company contends that it has acquired the permanent right to use this side track according to its own convenience, while the defendant claims that he may revoke its right to use it at all at any time, if such a right has not been already revoked by a conveyance of the premises to him. He contends that the contract amounts to a license. The decree made by the learned circuit judge restrains the complainant from such use of the track as will interfere with the convenience of the defendant, but denies the claim of the defendant, and has the effect of adjudicating' the question of title. Both parties have appealed. This contract should be construed in the light of the surrounding circumstances. The premises in question consisted of several lots fronting upon a street. The side track crosses those lots but a few feet from the street line, practically cutting off their frontage, and making it impossible to construct any building upon the street line so long as the track remains. The contract shows upon its face that it was made for the convenience of the cleaner company. It was accompanied by a guaranty made by the defendant’s grantors, securing to the complainant a rev-' enue from said premises of not less than $125 a year for two years. It reserved to the complainant the title to the rails and ties of which the track was constructed, and the right to remove the track at any time after the expiration of three years. It contains nothing in the nature of a grant of title to the land upon which the track was built, the only provision in that respect being that the cleaner company should furnish free the right of way for said side track. Nothing in the contract expressly provides that the railroad company shall have the right to maintain the side track beyond the time when it should be desired by the cleaner company. -We may safely take judicial notice that manufacturing concerns all over the country enjoy the facilities of side tracks by agreement with railroad companies, and we think it would be a surprise to the business public to learn that, by arranging for such facilities, they yield to the railroad companies who furnish them a right to maintain and use such tracks for their own purposes in perpetuity, after they have ceased to be required for the convenience of those for whose use they were built. If the complainant’s contention is correct, it could maintain its track on these premises, though the cleaning mill should be destroyed by fire, or the owner decide to use his premises for other purposes, which would have no use for a railroad, and which would require the erection of buildings to the street line. It is unnecessary to discuss at length the question of license. If it be admitted that this is a license, and that a consideration was paid for it, and that money was expended by the complainant to accomplish the object of the contract, the fact remains that a reasonable construction of the contract negatives the conclusion that either party supposed that the complainant was obtaining, or that defendant’s grantors were granting, a right of way in perpetuity. The more consistent view is that both parties understood that the railroad company built a side track for the convenience of the occupant, to be maintained as long as he should desire, and no longer, subject, however, to the right of the company to remove after the expiration of three years. We do not discover that the prayer of the defendant’s cross-bill asks a decree for the removal of the track, and we think that while it rémains there the railroad company is entitled to use it in accordance with the decree of the circuit judge. The decree is therefore affirmed, subject to the right of the railroad company to remove said track upon the notice prescribed in the contract, and the right of the defendant to require its removal at any time. The defendant will recover costs of this court. Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.	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PER CURIAM. Petitioners Samuel Spann and Janet Spann, the grandparents of the minor child ASF, sought to adopt ASF after the parental rights of ASF’s biological parents were terminated. The superintendent of the Michigan Children’s Institute (MCI) withheld consent to adopt. Petitioners challenged the superintendent’s decision in circuit court. After conducting a hearing pursuant to MCL 710.45(2) (§ 45 hearing), the circuit court found that the superintendent’s decision was not arbitrary and capricious, and accordingly, the circuit court upheld that decision. The lawyer-guardian ad litem (LGAL) for the minor child appeals the circuit court’s decision, and petitioners have filed a cross-appeal also challenging the circuit court’s decision. Because the trial court did not clearly err by concluding that petitioners failed to present clear and convincing evidence demonstrating that the superintendent’s decision was arbitrary and capricious, we affirm. In January 2011, ASF and her biological sister, SF, were removed from their mother’s care for a variety of reasons and they were placed with petitioners, who became licensed foster parents. Samuel is ASF’s maternal grandfather and Janet is his wife, but she is not a blood relative of ASF or SF. ASF was 9 months old at the time of her placement with petitioners, and SF was 11 years old. Although reunification services were provided, ASF’s biological parents made no progress in their treatment plans, and their parental rights were terminated in April 2013. By all accounts, petitioners took excellent care of SF and ASF for a number of years, and once termination of parental rights occurred, the adoption agency began to plan for petitioners’ adoption of ASF. In July 2013, however, Samuel contacted the adoption worker and suggested his son, Damon, and daughter-in-law, Julie, as alternate potential adoptive parents, citing his age and his uncertainty about his own ability to provide long-term care for ASF. Damon, who was in his mid-40s, and his wife, Julie, had a young son who was six months older than ASF. At a family team meeting held a short time later, Samuel reversed his position and indicated that he now wanted to proceed with the adoption of ASF. But in light of the offer of Damon and Julie as adoptive parents for ASF, and their expression of interest, the agency treated the case as a competing-party adoption. Unfortunately, as a result of this conflict, the relationship between petitioners and Damon and Julie became strained. After conducting an adoption assessment, the adoption worker, Samantha Slack, recommended that petitioners’ request for consent to adopt be denied. A case conference was held, but the adoption agency, Bethany Christian Services (BCS), again recommended that consent to adopt be denied. BCS recommended that consent to adopt be given to Damon and Julie. The BCS recommendation was sent to the MCI superintendent, and he denied petitioners’ request for consent to adopt ASF. When considering the request for consent to adopt, the superintendent weighed, among many factors, the following: (1) petitioners’ ages, particularly the significant age difference between petitioners and ASF, (2) petitioners’ minor health issues, (3) Samuel’s vacillation regarding the adoption and his recommendation of Damon and Julie as adoptive parents, (4) ASF’s sibling relationship with SF, (5) the potential for a companion relationship between ASF and Damon’s son, (6) the psychological ties between ASF and petitioners, and (7) the potential for each petitioner to continue his or her relationship with ASF by assuming the role of a grandparent. After the superintendent denied consent to the adoption, petitioners filed a motion in circuit court challenging the superintendent’s decision. See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify. The LGAL was permitted to participate in the proceedings by cross-examining witnesses and participating in arguments. After petitioners rested their case, the LGAL was also able to call Slack, the adoption worker, to testify. The MCI moved for involuntary dismissal pursuant to MCR 2.504(B), and the circuit court granted the motion over the LGAL’s objection. The court concluded that petitioners failed to demonstrate by clear and convincing evidence that the MCI superintendent’s decision to withhold consent to adopt was arbitrary and capricious. From this decision, the LGAL and petitioners now appeal. On appeal, the LGAL and petitioners argue that the trial court clearly erred under MCR 2.504(B)(2) by granting the MCI’s motion for involuntary dismissal. Petitioners first contend that the trial court’s decision must be reversed because the trial court failed to make specific findings of fact and conclusions of law as required by MCR 2.517(A)(1). See MCR 2.504(B)(2). Petitioners further argue that the superintendent’s decision to deny consent was arbitrary and capricious because there were no “good reasons” to withhold consent, the superintendent failed to consider ASF’s individual circumstances, and the denial amounted to discrimination against petitioners based solely on their ages. In addition, the LGAL similarly asserts that the superintendent’s decision was arbitrary and capricious because he failed to consider, or to adequately consider, ASF’s unique circumstances, including, for example, her attachment to petitioners and to SF, as well as the tension between petitioners and Damon. The LGAL also maintains that granting the MCI’s motion for involuntary dismissal was premature because the LGAL was not given a full opportunity to present her own evidence regarding the purportedly arbitrary and capricious nature of the superintendent’s decision. According to the LGAL, denying her a full opportunity to participate in the proceedings also denied ASF her rights to due process and the equal protection of the law. This Court reviews de novo questions of law, including the interpretation and application of court rules and statutes. Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 258; 739 NW2d 121 (2007). A trial court’s decision to dismiss an action under MCR 2.504 is reviewed for clear error. Rodenhiser v Duenas, 296 Mich App 268, 272; 818 NW2d 465 (2012). A trial court’s finding is clearly erroneous when, although there is evidence to support it, “the reviewing court. . . is left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks and citation omitted). Whether a trial court applied the correct standard to its review of the superintendent’s denial of consent to adopt poses a question of law that we review for clear legal error. In re Keast, 278 Mich App 415, 423; 750 NW2d 643 (2008). Under MCR 2.504(B)(2), involuntary dismissal of a hearing tried without a jury is appropriate when, after the presentation of the plaintiffs evidence, the court determines, based on the facts and the law, that the plaintiff has no right to relief. Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995). In full, MCR 2.504(B)(2) states: In an action, claim, or hearing tried without a jury, after the presentation of the plaintiffs evidence, the court, on its own initiative, may dismiss, or the defendant, without waiving the defendant’s right to offer evidence if the motion is not granted, may move for dismissal on the ground that, on the facts and the law, the plaintiff has no right to relief. The court may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in MCR 2.517. Under this rule, “a motion for involuntary dismissal calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inferences.” Marderosian v Stroh Brewery Co, 123 Mich App 719, 724; 333 NW2d 341 (1983). The plaintiff is not entitled to the most favorable interpretation of the evidence. Id. In the instant action, petitioners sought relief under MCL 710.45, which allows a petitioner to challenge the superintendent’s withholding of consent to an adoption. Accordingly, the MCI’s motion for involuntary dismissal under MCR 2.504(B)(2) was properly granted if, during their presentation of evidence, peti tioners failed to demonstrate their entitlement to relief under MCL 710.45. In relevant part, MCL 710.45 provides: (1) A court shall not allow the filing of a petition to adopt a child if the consent of a representative or court is required by [MCL 710.43(1)(b), (c), or (d)] unless the petition is accompanied by the required consent or a motion as provided in subsection (2). (2) If an adoption petitioner has been unable to obtain the consent required by [MCL 710.43(l)(b), (c), or (d)] of this chapter, the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious. A motion under this subsection shall contain information regarding both of the following: (a) The specific steps taken by the petitioner to obtain the consent required and the results, if any. (b) The specific reasons why the petitioner believes the decision to withhold consent was arbitrary and capricious. (7) Unless the petitioner establishes by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall deny the motion described in subsection (2) and dismiss the petition to adopt. (8) If the court finds by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall issue a written decision and may terminate the rights of the appropriate court, child placing agency, or department and may enter further orders in accordance with this chapter or [MCL 712A.18] as the court considers appropriate. In addition, the court may grant to the petitioner reimbursement for petitioner’s costs of preparing, filing, and arguing the motion alleging the withholding of consent was arbitrary and capricious, including a reasonable allowance for attorney fees. As these provisions make plain, to obtain relief under MCL 710.45 at a § 45 hearing, petitioners bore the burden of establishing, by clear and convincing evidence, that the superintendent’s denial of consent was arbitrary and capricious. MCL 710.45(7). In other words, the family court is not permitted to decide the issue of adoption de novo; rather, “a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear and convincing evidence that the MCI superintendent’s withholding of consent was arbitrary and capricious.” Keast, 278 Mich App at 423. The clear and convincing evidence standard is “the most demanding standard applied in civil cases . .. .” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Under this standard, evidence is clear and convincing when it producéis] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [Id. (quotation marks and citation omitted).] Whether action is arbitrary and capricious is evaluated as follows: The generally accepted meaning of “arbitrary” is “determined by whim or caprice,” or “arrived at through an exercise of will or caprice, without consideration or adjustment with reference to principles, circumstances, or significance, ... decisive but unreasoned.” The generally accepted meaning of “capricious” is “apt to change suddenly; freakish; whimsical; humorsome.” [Keast, 278 Mich App at 424-425 (quotation marks and citations omitted).] To decide whether a denial of consent to adopt was arbitrary and capricious, a trial court initially focuses on the reasons for withholding consent to the adoption. Id. at 425. “It is the absence of any good reason to withhold consent, rather than the presence of good reasons to grant it, that indicates that the decision maker has acted arbitrarily and capriciously.” Id. Thus, the focus is not whether the representative made the “correct” decision or whether the probate judge would have decided the issue differently than the representative, but whether the representative acted arbitrarily and capriciously in making the decision. Accordingly, the hearing under § 45 is not... an opportunity for a petitioner to make a case relative to why the consent should have been granted, but rather is an opportunity to show that the representative acted arbitrarily and capriciously in withholding that consent. It is only after the petitioner has sustained the burden of showing by clear and convincing evidence that the representative acted arbitrarily and capriciously that the proceedings may then proceed to convincing the probate court that it should go ahead and enter a final order of adoption. [In re Cotton, 208 Mich App 180, 184; 526 NW2d 601 (1994).] In the present case, among the superintendent’s reasons for denial of consent were the following; (1) the identification of Damon and Julie as “suitable” relatives who were “very appropriate” and willing to adopt ASF, (2) the ages of Samuel (age 71) and Janet (age 65) in relation to ASF (then age 4), particularly when Samuel had expressed doubts about petitioners’ ability to parent ASF into the future, (3) there remained the possibility that each petitioner could assume a grandparent role to ASF if she were to be adopted by Damon and Julie, (4) petitioners’ health conditions, including diabetes and hypertension, as well as SF’s health concerns that required “close monitoring,” and (5) Samuel’s lack of steady commitment to parenting ASF for the next 14 years as evinced by his vacillation on the adoption and his identification of Damon and Julie as a better alternative. When reviewing the reasons given by the superintendent, the trial court determined that there was not clear and convincing evidence that these reasons were arbitrary and capricious, and for this reason the trial court granted the MCI’s motion for involuntary dismissal. The trial court explained: The initial focus is whether the MCI superintendent acted arbitrarily and capriciously. I’m not supposed to focus on what reasons existed to authorize adoptions. I’m deeply impressed that Janet and Sam Spann are wonderful people. They did a wonderful job with the child. But what I have to decide is whether there’s the absence of any good reason to withhold consent. Well, motion [for involuntary dismissal] granted. [The superintendent] had reasons for doing what he did. I’ve held four or five now Section 45 hearings, and there are times when I wish he would have considered factors that he didn’t and factors that he considered that I didn’t think were that important but he did think they were that important. I believe that [the superintendent] acted within the law. He did have a focus on the ages of the parents [sic]. I don’t believe it’s unconstitutional for him to have considered it but he did. He was very worried that the abilities of Sam and Janet Spann would not be up to the needs of the child in ten years. He worries about the commitment that Mr. Spann had. And he did have the feeling that the relationship between Sam and Janet Spann would continue in some form. I cannot say there’s the absence of any good reason to withhold consent. In reviewing the trial court’s assessment of the superintendent’s decision, we initially note that, con trary to petitioners’ arguments on appeal, the trial court made findings of fact and conclusions of law as required by MCR 2.517. The trial court plainly applied the correct legal standard to its review of the superintendent’s decision, recognizing that the focus was on the reasons for denial and whether those reasons were arbitrary and capricious. See Keast, 278 Mich App at 425. Further, as a factual matter, the trial court clearly identified the superintendent’s primary reasons for denial: Samuel’s vacillation on the adoption, petitioners’ potential difficulty parenting ASF into the future, and the availability of another relative to adopt ASF that would allow ASF to continue a relationship with petitioners as her grandparents. While the trial court’s explanation was relatively concise, the trial court was plainly aware of the issues involved and its “[b]rief, definite, and pertinent findings and conclusions” regarding these issues were sufficient “without over-elaboration of detail or particularization of facts.” MCR 2.517(A)(2). See also Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 176; 530 NW2d 772 (1995). In short, the trial court applied the correct legal standard, and its findings were sufficient to satisfy MCR 2.517. On appeal, petitioners posit that the circuit court did not comply with MCR 2.517 because the court referred to reasons offered by the superintendent that petitioners believe were contrary to the evidence. For example, petitioners maintain that, contrary to the superintendent’s determinations, their relationship with ASF may not continue because their relationship with Damon and Julie is strained, there is no evidence that their age or health will affect their ability to parent ASF, and there is no evidence that Samuel lacked commitment to the adoption of ASF. While petitioners frame these arguments in relation to the trial court’s compliance with MCR 2.517, these arguments actually concern the factual and legal merit of the superintendent’s decision, not the adequacy of the trial court’s factual findings. That is, the fact that petitioners disagree with the trial court’s findings regarding the conflicting evidence does not render the trial court’s findings inadequate under MCR 2.517. In any event, it is clear that the superintendent’s opinion and the findings of the trial court were supported by the evidence. For example, evidence was presented that BCS and Slack were aware that Samuel and Damon had an amicable relationship until Damon and Julie were viewed as a prospective adoptive family in lieu of petitioners, at which time the relationship became strained. Given their past amicable relationship, it was not erroneous to conclude that the parties could set aside their differences for ASF’s best interests. Further, there was evidence that Samuel lacked commitment to the adoption because he expressed doubts regarding petitioners’ long-term ability to care for ASF, and he offered Damon and Julie as alternative adoptive parents. Further, both Damon and Samuel’s daughter, Deanna, reported that Samuel did not want to proceed with the adoption. Finally, neither the superintendent nor the trial court concluded that petitioners’ ages and health prevented them from caring for ASF. Rather, their age and health were considered as pertinent factors in long-term planning, particularly since Samuel had previously questioned petitioners’ ability to permanently plan for ASF in light of Samuel’s age. Any conflicts in the evidence were resolved by the superintendent and the trial court, and the trial court’s findings were thus supported by the evidence presented. Recognizing the underlying factual support for the superintendent’s determinations, contrary to argu ments by petitioners and the LGAL, we also conclude that the trial court did not clearly err when, at the close of petitioners’ case, it determined, based on the facts and law, that petitioners were not entitled to relief because they had not shown by clear and convincing evidence that the superintendent’s denial of consent was arbitrary and capricious. See MCL 710.45(7); MCR 2.504(B)(2). In particular, petitioners and the LGAL both argue that the superintendent’s decision was arbitrary and capricious. They further contend that the decision was discriminatory and a violation of law to the extent that consent to adopt was withheld because of petitioners’ ages. We disagree. Preliminarily, petitioners contend that the superintendent’s consideration of their ages violated MCL 722.957(1) and the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. The Foster Care and Adoption Services Act, MCL 722.951 et seq., addresses adoption facilitators and the refusal to provide services. MCL 722.957(1) states, in relevant part: Except as provided in subsection (2), an adoption facilitator shall not refuse to provide services to a potential adoptive parent based solely on age, race, religious affiliation, disability, or income level. A child placing agency shall not make placement decisions based, solely on age, race, religious affiliation, disability, or income level. [Emphasis added.] The CRA prohibits a person from “[d]eny[ing] an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.” MCL 37.2302(a) (emphasis added). In this case, the record clearly establishes that the MCI superintendent did not violate MCL 722.957(1), because he did not withhold consent to adopt solely on the basis of petitioners’ ages. The superintendent testified that petitioners’ ages were only one factor that he considered. He identified many other factors involved in his decision to withhold consent, including petitioners’ health, Samuel’s vacillation regarding the adoption and his recommendation of Damon and Julie as adoptive parents, and petitioners’ ability to maintain the role of grandparents in ASF’s life. Thus, there was no violation of MCL 722.957(1). Further, the superintendent’s consideration of petitioners’ ages did not violate the CRA. The purpose of the adoption code is to provide the adoptee with adoption services, to safeguard the adoptee’s best interests, and to achieve permanency for the adoptee. MCL 710.21a. The best interests of the adoptee are the overriding concern, and “[i]f conflicts arise between the rights of the adoptee and the rights of another, the rights of the adoptee shall be paramount.” MCL 710.21a(b). In this context, the superintendent did not deny petitioners the full and equal enjoyment of a public service because of their ages. See MCL 37.2302(a). Rather, consent for adoption was denied because the superintendent found that adoption by petitioners was not in ASF’s best interests in light of a number of factors, including petitioners’ ability and willingness to provide long-term care for a then four-year-old child. Indeed, petitioners were first to inject the issue of their ages as a factor to consider. In short, in assessing ASF’s best interests, it was not improper, or discriminatory, for the superintendent to consider petitioners’ ages relative to their ability to provide for ASF’s long-term care. As we have previously noted, the circuit court did not clearly err by concluding that petitioners did not present clear and convincing evidence to establish that the superintendent’s decision was arbitrary and capricious. In a close case such as this one, it is important that we remain mindful of the standard governing our review and that of the circuit court. That is, we are not insensitive to the fact that petitioners indisputably took excellent care of ASF for 3V2 years beginning when she was only nine months old, and the fact that ASF is closely bonded to petitioners as well as to her sister, SF. Given ASF’s close bond to petitioners and to her sister, who remains in petitioners’ care, reasonable minds might well question the wisdom of denying petitioners consent to adopt and of removing ASF from the continuity of a stable family setting. See MCL 710.22(g). But neither this Court nor the circuit court reviews the matter de novo, and it is not for us to say whether the superintendent made the “correct” decision. Keast, 278 Mich App at 424-425; Cotton, 208 Mich App at 184. Instead, considering the reasons given for withholding consent, we look at whether the trial court clearly erred by finding that petitioners failed to present clear and convincing evidence that the superintendent acted arbitrarily and capriciously. Keast, 278 Mich App at 423-425. “[I]f there exist good reasons why consent should be granted and good reasons why consent should be withheld, it cannot be said that the representative acted arbitrarily and capriciously in withholding that consent even though another individual . . . might have decided the matter in favor of the petitioner.” Cotton, 208 Mich App at 185. Such is clearly the case here. There may be good reasons why petitioners should have been permitted to adopt ASF. But our focus must be on the reasons given for denial, and considering those reasons — Samuel’s apparent vacillation in his commitment to adoption, petitioners’ ages and health in relation to their ability to parent ASF for the long term, as well as the suitability of adoption by Damon and Julie, which will allow for a continued relationship between ASF and petitioners — we cannot find clear error in the trial court’s conclusion that petitioners failed to present clear and convincing evidence that the superintendent acted arbitrarily and capriciously. Moreover, contrary to petitioners’ arguments, the superintendent and the trial court considered ASF’s individual circumstances, none of which invalidated the denial of consent. See In re CW, 488 Mich 935, 936 (2010). Most relevant to the arguments by petitioners and the LGAL, the superintendent acknowledged that petitioners had taken excellent care of ASF for 3½ years, since she was 9 months old. He also recognized that there was a bond between petitioners, SF, and ASF. Neither the superintendent nor the trial court ignored these important facts; rather, in light of other considerations, as previously detailed, the superintendent nonetheless determined that consent to adopt should be denied. While petitioners “may be able to marshal evidence” in opposition to these conclusions, they have not shown by clear and convincing evidence that the superintendent’s determinations were “frivolous or fanciful or without factual support.” Cf. Cotton, 208 Mich App at 186. Under these circumstances, petitioners and the LGAL have not shown that the superintendent acted arbitrarily and capriciously by withholding consent. When challenging the trial court’s grant of the MCI’s motion for involuntary dismissal under MCR 2.504(B)(2), the LGAL, in particular, maintains that the motion was prematurely granted because she was not allowed to present her own case in its entirety before the trial court determined that petitioners were not entitled to relief. Contrary to the LGAL’s arguments, a motion under MCR 2.504(B)(2) is properly granted “after the presentation of the plaintiffs evidence.” (Emphasis added.) The “plaintiff’ is the party who commences the action. MCR 2.201(A). A § 45 hearing is commenced by a petitioner who is unable to obtain consent to adopt. MCL 710.45(2). By statute, a “petitioner” is defined as “the individual or individuals who file an adoption petition with the court.” MCL 710.22(r). The petitioner initiates a § 45 proceeding by filing a motion alleging that the withholding of consent was arbitrary and capricious, and the petitioner bears the burden of proof during the hearing. MCL 710.45(2) and (7). Samuel and Janet are the petitioners in this case. In contrast, the LGAL is not a “petitioner,” and as such, she could not request a § 45 hearing. Further, neither ASF nor the LGAL is an “interested party” in the adoption proceedings. MCL 710.24a(l). The LGAL could not intervene as a party in the proceedings to challenge the withholding of consent. See In re Toth, 227 Mich App 548, 555; 577 NW2d 111 (1998); see also MCL 710.21a(e). Instead, petitioners requested the hearing, petitioners were the parties seeking relief, and petitioners bore the burden of proof during the hearing. Consequently, at the close of petitioners’ proofs, it was appropriate for the trial court to consider whether petitioners were entitled to relief given the facts and the law, without providing the LGAL an opportunity to present a case separate from petitioners. MCR 2.504(B)(2). Moreover, we note that in this case, the LGAL specifically complains that she was not allowed to present additional evidence regarding ASF’s attachment to petitioners and to SF, including expert testimony on attachment. However, although the LGAL objected to the MCI’s motion for involuntary dismissal, the LGAL failed to make an offer of proof in the trial court regarding this evidence. See MRE 103(a)(2); Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 291-292; 730 NW2d 523 (2006). Further, based on the minimal information we have regarding the LGAL’s proffered expert witness, additional evidence regarding ASF’s attachment to petitioners and to SF would not have altered the outcome; the superintendent testified that he was aware of ASF’s attachment to petitioners and to SF, and he acknowledged that because of those attachments, a change in placement would have to be very careful and monitored. Thus, the superintendent and the trial court were plainly aware of ASF’s circumstances, and the superintendent did, in fact, recognize that ASF’s attachment to petitioners favored granting consent to adopt, but he found that other factors provided good reasons to withhold consent. See CW, 488 Mich at 935. Given the good reasons for denying consent despite ASF’s attachment to petitioners, it was not sufficient for the LGAL to show that ASF’s attachment to petitioners provided a good reason to grant consent, and thus, even assuming that the LGAL’s evidence would have established good reasons to grant petitioners consent, such a showing does not establish that the superintendent acted arbitrarily and capriciously by withholding consent for other reasons. See Cotton, 208 Mich App at 183-185. Consequently, even if the LGAL should have been permitted to present additional evidence, the LGAL has not shown that ASF was prejudiced by this denial, and substantial justice does not require reversal of the trial court’s decision. See MCR 2.613(A); In re Utrera, 281 Mich App 1, 14; 761 NW2d 253 (2008). Finally, the LGAL maintains that the trial court violated ASF’s rights to due process and equal protection by refusing to permit the LGAL to present evidence and call witnesses at the § 45 hearing. This cursory argument, made without citation to relevant authority or application of the law to the facts, is insufficiently briefed, and we consider it to be abandoned. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Further, and without addressing these claims in detail, we note that the LGAL had notice of the hearing, and she participated in the proceedings on ASF’s behalf by presenting some evidence and calling a witness to testify. Under these circumstances, we fail to see how ASF’s due process rights were violated. See Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995). Regarding the claim that ASF was denied her right to equal protection, the LGAL failed to even identify a similarly situated group that was treated differently than ASF was treated. Thus, this claim must also fail. See Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010). Affirmed. HOEKSTRA, P.J., and JANSEN and METER, JJ., concurred. Petitioners pursued a guardianship of SF, and that guardianship is not at issue in this appeal. Another of ASF’s siblings was adopted at birth by ASF’s aunt and resides in Arizona. The superintendent “represent[s] the state as guardian of each child committed” to the MCI following termination of parental rights, MCL 400.203(1), and the superintendent “has the power to make decisions on behalf of a child committed to the [MCI].” MCL 400.203(2). The superintendent’s specific authority to consent to the adoption of a child is set forth in MCL 400.209(1). On appeal, the MCI challenges this Court’s jurisdiction over the case. As a general matter, this Court has subject-matter jurisdiction over appeals from a trial court’s decision on a motion under MCL 710.45. MCL 710.45(10). The MCI claims, however, that the LGAL is not an appropriate party to bring an appeal under MCL 710.45(10), and that because the LGAL lacks statutory standing, this Court lacks jurisdiction. See In re Beatrice Rottenberg Living Trust, 300 Mich App 339, 355; 833 NW2d 384 (2013). Although the appeal was initiated by the LGAL, petitioners timely filed a cross-appeal. MCR 7.207(A)(2) and (B)(1). A cross-appeal may be prosecuted to its conclusion even if this Court dismisses the initial appeal. MCR 7.207(D). Thus, at a minimum, even supposing the LGAL lacked standing to initiate the present appeal, petitioners’ cross-appeal is properly before this Court. See MCL 710.45(10). Moreover, although the LGAL for an adoptee under the age of 14 is not considered an “interested party” in adoption proceedings, MCL 710.24a(1), ASF was appointed an LGAL during child abuse and neglect proceedings, MCL 712A.17c(7), and an LGAL appointed in this manner continues to represent the child’s best interests provided that, as in this case, the child remains subject to the supervision of the MCL MCL 712A.17c(9). During this time, the LGAL must advocate for the child’s best interests, and the LGAL is “entitled to full and active participation in all aspects of the litigation . .. .” MCL 712A.17d(1)(b). There is no indication that the LGAL in this case was discharged. Consequently, in connection with petitioners’ appeal, we see nothing improper with the LGAL’s continued participation insofar as she represents the child’s best interests. Therefore, we will consider the LGAL’s arguments. See, generally, MCL 710.45(5); MCL 712A.17c(9); MCL 712A.17d. The Michigan Court Rules apply to adoption proceedings, except as modified by MCR 3.801 to MCR 3.807. MCR 3.800(A). Those rules do not contain a specific provision regarding involuntary dismissal. We do not suggest that an LGAL is entirely prohibited from participating in a § 45 hearing. There is support for the proposition that, when an LGAL has been appointed during child abuse and neglect proceedings, some participation by an LGAL is anticipated during ensuing adoption proceedings that occur during the LGAL’s continued representation of the child. See MCL 710.45(5); MCL 712A.17c(9); MCL 712A.17d. See also In re Row, unpublished opinion per curiam of the Court of Appeals, issued June 24, 2014 (Docket No. 319389); In re AEG, unpublished opinion per curiam of the Court of Appeals, issued November 7, 2013 (Docket No. 316599). This participation does not, however, make an LGAL for an adoptee under age 14 an “interested party” or a “petitioner.” See MCL 710.22(r); MCL 710.24a(l). Because the LGAL was not a petitioner or an interested party, the trial court could grant a motion for involuntary dismissal -under MCR 2.504(B)(2), before the LGAL completed her presentation of evidence.

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Moore, J. On or about March 2, 1895, appellant, as plaintiff, procured a writ of attachment to be issued out of the Muskegon circuit against the goods, chattels, and real estate of John H. Clark, who was then sued with one Zacheus C. Dyer as codefendant. This attachment was levied on certain lands in said county as the lands of said John H. Clark on or about March 22, 1895. On the 16th day of December, 1895, said attachment case came on for trial. The trial was ended on the 17th day of ¡December following, when plaintiff recovered judgment against said defendant. On the 16th day of December, John H. Clark presented his petition to a circuit court commissioner for the county of Muskegon, and procured a citation as commencement of proceedings to dissolve said attachment, which citation was returnable December 20, 1895. The citation was served upon appellant by delivering a triplicate original to both appellant and his attorney. It was not read to either of them. Appellant and his attorney were both nonresidents of the county of Muskegon, and only present at the time of service for the purpose of trying the attachment case before mentioned. The only allegation, in the petition for dissolution of attachment, that the said Clark had any interest in the property attached, is as follows: “Your petitioner further shows that the legal title to said described parcel of land is in one Isaac Manchester, but that your petitioner is entitled to the possession thereof under a contract for sale of land, and that the said described parcel of land, or a portion thereof, constitutes the homestead of your petitioner. * * * And your petitioner therefore prays that the said attachment may be dissolved, and that the lands and property so seized and taken under said attachment may be wholly released therefrom, and may be restored to this defendant, who is still entitled to the full and free possession and enjoyment thereof.” On the return day of the citation, appellant appeared for the purpose of making a motion to dismiss the proceedings for dissolution of attachment, for the reasons: 1. That there had been no service of the citation as required by law; consequently, the court had no jurisdiction. 2. That, as both the appellant, who was plaintiff in attachment, and his attorney, were nonresidents of the county in which the proceedings were begun, and as they were only present in that county for the purpose of attending upon the court then sitting, in the trial of the cause In which they were both interested, no service was made. 3. That the return of the officer on the citation did not show that any copy thereof was served. 4. That the petition nowhere alleged that the petitioner was, at the time of making the petition, the owner of the land attached. 5. That the petition did not allege that the petitioner was the owner of the land, or that he was entitled to the possession, at the time the attachment was levied. 6. That the petition did not allege sufficient facts to warrant a conclusion, as alleged, .that it was his homestead. Said motion was overruled by the commissioner, and the defendant had judgment that the attachment be dissolved, and for his costs. Plaintiff then removed said cause to the circuit court for the county of Muskegon by certiorari, where the judgmént of the said circuit court commissioner was affirmed. The case is brought here for review by certiorari. It is now the claim of the defendant that plaintiff has mistaken his remedy,—that since 1881 (2 How. Stat. § 8030) the remedy is by appeal, and not certiorari. No claim of that sort was made in the circuit court, and we think it too late to insist upon it here. The circuit judge returns that, in the hearing before him, it was not contended that the service upon the plaintiff was legal; so that the only question necessary to consider here, in relation to the service, is, was the service upon the attorney sufficient ? It is claimed by the plaintiff, and admitted by defendant, that there could be no service of the citation upon the plaintiff, for the reason that he was not a resident of the county. It is also his claim that there could be no service upon the attorney for the plaintiff, because he was. in the county solely for the purpose of attending court, and was privileged. We think it a complete answer to this contention to say that his attendance upon court was to try the same cause in which the interlocutory proceedings were instituted. We can see no reason for saying that service of papers in an interlocutory proceeding in the same case cannot be made. To so hold would be very unjust. j 2 How. Stat. § 8028, contemplates service upon the attorney under some circumstances. It is urged, in addition to the reason already assigned, that the service on the attorney was not good because, instead of serving a copy, a triplicate original was served, and the citation was not read to the attorney. We think the service on the attorney was insufficient. The service was by delivering a triplicate origing.1 of the citation, and the citation was not read to the attorney. The statute provides that the citation shall be served three days, at least, before the return day thereof, by reading it to plaintiff in attachment, if found within the county, and, if not, then the same may be served upon the agent or attorney of the plaintiff, by the sheriff, either of his deputies, or any constable, etc. We think it is clear that the service is to be made in the same manner, whether served upon the agent or attorney or the plaintiff himself. No other method of service is prescribed by the statute, and it must be held that, where the alternative of serving upon the agent or attorney is resorted to, the method prescribed for service governs. The order should be reversed. The other Justices concurred.

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Hooker, J. Fisher and Seligman owned certain city lots in common, adjoining other real estate owned by Fisher in the city of Detroit; and Fisher gave to the plaintiff, Nolan, an option to purchase his interest in both for $450,000, for the period of 30 days. This writing is alleged to have been made on December 8, 1891, and on January 9, 1892, it was extended in writing until February 1, 1892. There is nothing to show that it was extended longer, unless it be a letter from Gray, Fisher’s son-in-law, written by Fisher’s direction and dictation on February 5th. It is as follows: “February 5, 1892. “Jno. E. Nolan, “E. Saginaw. “Dear Sir: I am requested by Mr. A. C. Fisher to notify you that unless a sale of his entire interest or division is made with Mr. J. Seligman or others before Saturday night, 6th inst., all obligation on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease. “Chas. B. Gray.” On February 5th, being the same day that this letter was written, Nolan, who had been for several days endeavoring to persuade Seligman to agree on a division and purchase of the property, succeeded in obtaining a promise—presumably oral—from Seligman that he would take Fisher’s individual property and a portion of that held in common, giving to Fisher the remainder of the property held in common, and $100,000. Nolan thereupon went to Detroit, and on Monday following (being the 8th of February) Seligman followed, and had an interview with Mr. Gray, who is shown to have been the authorized representative of Fisher, in the presence of Nolan and others and one Doyle, who was present in the interest of Seligman. Mr. Gray then and there said the price was $125,000, instead of $100,000; and Doyle testified that Seligman said he would not pay it, and the deal ended then and there, and that the next day he (Doyle) went to the house of Fisher, who was sick, and, after working all-day with him, prevailed on him to accept $100,000, and the deal was closed upon the terms talked at Saginaw between Seligman and Nolan. This action is brought by Nolan to recover a commission of 2 per cent. on the amount involved in the transaction (that being the usual commission charged on sales of real estate in Detroit), and he received a judgment for the amount claimed. The case is before us on error assigned upon the chai-ge. Fisher died before the case was tried, and the plaintiff gave no testimony as to what occurred between them. In addition to the testimony stated, Gray testified that he knew, at the time he wrote the letter of February 5th, that there was an arrangement between Nolan and Fisher, and that what Nolan was doing he was doing for Fisher, and that he was negotiating with Seligman. The charge contained the following: “ Gentlemen of the jury, if the plaintiff was authorized by the defendants’ testator to procure a purchaser in Mr. Seligman, by dividing this land, and if, before that authority was revoked, he brought about a division satisfactory to Mr. Fisher, then he is entitled to be compen-, sated for what his services were reasonably worth. Now, we have no evidence of what the arrangement between Mr. Nolan and Mr. Fisher was. So far as the writings were concerned, that expired bn the 1st of February. They do not control this transaction. Was there an arrangement made between them which continued after the 1st of February, and was it in existence on the 9th day of February ? The only evidence that there existed any such arrangement is contained in this letter of February 5th, the terms of which are entirely familiar to you. I will read that letter to you, because it is the only evidence of the existence of any agreement between them after that date,—the 1st of February. It is dated February 5, 1892: “ ‘John E. Nolan, Esq., “ ‘East Saginaw. “ ‘Dear Sir: I am requested by A. G. Fisher to notify you that unless a sale of his entire interest or division is made with J. Seligman or others before Saturday night, the 6th inst., all obligation on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease. “ ‘Very truly yours, “ ‘Charles B. Gray/ “Now, I say to you that the only evidence in this case of any arrangement between these parties exists in that letter, because Mr. Nolan cannot testify, and does not assume to testify, to any arrangement, his mouth being stopped by the statute. Mr. Fisher cannot testify, because, of course, he is not here. Now, was there such an arrangement? That is for you to say. It is for you to say what inference is to be drawn from this letter. If there was no arrangement, or if that arrangement ended on the 6th of February, 1892, there could he no recovery. ' So that you must find, in order to render a verdict for the plaintiff, that there was an arrangement after the 1st of February, continuing up to the time this deal was consummated, which the testimony shows was the 9th of February. If there was such an arrangement, was it revoked? The testimony is undisputed that on the 5th of February this letter was written and mailed, but I charge you that a revocation would not be conclusive unless this letter, or knowledge of this letter, or knowledge of the revocation, in some way reached Mr. Nolan before this deal was made. The testimony of Mr. Nolan is that this letter did not reach him until Thursday after the deal was consummated, on Tuesday. The important question in this case for you to determine is whether, on Saturday night, Mr. Nolan was here in Detroit, and had this interview with Mr. Gray, and Mr. Gray told him the contents of this letter, and showed him the letter in the letter-book. Mr. Gray testifies he did do that, and Mr. Nolan testified that he did not do that. Now, if, on that occasion, Mr. Nolan was notified of the revocation of his authority, he cannot recover in this case, because, in my judgment, the arrangement which existed (assuming an arrangement to exist) was one which Mr. Fisher might have terminated at any time. I do not agree with counsel that it was an arrangement which could not be terminated except by a reasonable notice. I charge you, as a matter of law, that it was an arrangement which might be terminated at will. Either party might terminate it as he chose. If, therefore, on the morning of the 6th of February, Mr. Nolan was notified of the termination of his authority, he cannot recover in this case. That, really, as counsel have argued to you on both sides, is the vital question submitted to you. If you find, however, that Mr. Nolan had an authority to procure a purchaser, and that he never had any notice of the revocation of it until after the deal was made, on the 9th of February, then your verdict should be for him; but if, on the other hand, you find either that he had no authority, or that the authority was revoked by notice which he received on the morning of the 6th, then your verdictfmust be for the defendants.” The effect of this instruction was that Mr. Nolan might recover if the jury should find that an arrangement for Nolan’s services existed after February 1st, and up to and including the time when the deal was consummated, and that Nolan’s authority to act was not terminated by Gray’s letter, unless it was brought to his notice, and that the only evidence that there was any arrangement at ail was contained in the letter. Under this charge, we must conclude that the jury found that the writings did not warrant a verdict based upon the option, that plaintiff had no knowledge of the contents of the letter, and that some other arrangement than the option existed previous to and on February 5th,—presumably, an oral understanding that Nolan should continue his efforts to effectuate a trade or sale to Seligman; and, if the circumstances proved warrant the inference of such an understanding, the law will imply a promise to pay for such services their reasonable value. - In Beach on Contracts we find this subject discussed. The learned author says: “The term ‘implied contract’ is generally used to denote a promise which the law, from the existence of certain facts, presumes that a party has made. An implied contract is where the intention of the parties may be gathered from their acts and from surrounding circumstances, as distinguished from an express contract, where a party stipulates in direct terms, verbally or in writing. Implied contracts, it has been said, are such as reason and justice dictate, and which the law presumes that every man has contracted to perform, and, 'upon this presumption, makes him answerable to such persons as suffer by his nonperformance. But all true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, the contract is called an e express ’ one. When it' is not expressed, it may be inferred, implied, or presumed from circumstances as really existing, and then the contract thus ascertained is called an ‘ implied ’ one. Both express and implied contracts are founded upon the actual agreements of the parties, the only distinction being in the character of the evidence by which the contract is proved. An express contract is proved by an actual agreement; an implied contract, by circumstances and the general course of dealing between the parties. ‘A great mass of human transactions depends upon implied contracts,— upon contracts which are not written, but which grow out of the acts of the parties. In such cases the parties are supposed to have made those stipulations which, as honest, fair, and just men, they ought to have made.’ Marshall, C. J., in Ogden v. Saunders, 12 Wheat. 213, 341.” 1 Beach, Cont. § 639, and note 1. Again Mr. Beach states that— “Where one person renders services for another, which are known to and accepted by him, the law ordinarily implies a promise to pay therefor.” 1 Beach, Cont. § 642. Again, in section 650, the following language is used • “Where there is no relationship between the parties, and one accepts and retains the beneficial results of another’s services, which he had no reason to suppose were gratuitous, and which he could or not accept at his option, the law will imply *a previous request for the services, and a promise to pay what they were reasonably worth.” See authorities cited in note. In 1 Add. Cont. 22, the author says: “ The intention of the parties to any particular transaction may be gathered from their acts and deeds, in connection with the surrounding circumstances, as well as from their words; and the law therefore implies, from the silent language of men’s conduct and actions, contracts and promises as forcible and binding as those that are made by express words, or through the medium of written memorials.” While we must admit the correctness of the contention that, if the only evidence of the arrangement was‘to be found in the letter, the circuit judge should have construed it, this contention loses its force, because the judge was in error in so stating. The contract which the plaintiff was contending for was not one which, like the option, was to give him, or any one else, a right to purchase, and which, therefore, was void unless in writing. It was one which called for the plaintiff’s services in finding a purchaser on satisfactory terms, and, if made, was performed when such purchaser was found and the premises were conveyed. The option expired, according to its terms, on February 1st. Not only does the testimony fail to show that it was extended, but Mr. Gray testified that he knew of negotiations for a division subsequent to that time, under an arrangement between Fisher and Nolan. The letter is not limited to the option, but was evidently intended to cover all arrangements. Nolan brought Seligman to Detroit to effect the deal which was finally consummated, and Gray had an interview with him and Nolan about it, at which time he refused to accept the sum of $100,000 as a basis for a trade. He says he then and there declared the deal off; but the matter was followed up with Fisher, and the trade was consummated. These facts are uncontradicted, and were sufficient to warrant an instruction that Fisher and Nolan had an understanding that'Nolan should bring about a deal with Seligman, for which he should receive compensation, and therefore the instruction appears to have been harmless error. The fact that, after the termination of the written contract or option, Nolan was still trying to effect a deal with Seligman, is shown by the testimony of Gray, and by the letter dictated by Fisher, who was willing to extend the time until February 6th, or, as counsel would say, desired to place a limit upon or show that he wished to place the matter beyond controversy. Whether the contract is to be considered terminated by the letter might depend upon two things, viz.: (1) Whether it could be terminated without actual notice to Nolan. (2) Whether the conduct of the parties after the letter was written did not manifest an intention to recognize and accept the benefit of the labors of Nolan ■under it, notwithstanding the writing of the letter. The ■court instructed the jury that the contract could not be terminated without actual notice, and this is alleged to hiave been erroneous. We must bear in mind that this ■question does not involve the validity or invalidity, or, more accurately speaking, perhaps, the binding force upon the principal, of some act or conveyance done or made, in the representative capacity of agent, by Nolan. There is nothing to indicate that any one supposed that Nolan had made a contract with Seligman which bound Fisher. What,, is claimed is that he produced a purchaser satisfactory to Fisher, under a contract which could, at the most, be terminated by notice. We think there is a radical difference between the termination of an agency and a contract, and that a contract might be made that would not be terminated without notice, though an agency that might be involved therein might be. Clark, Cont. § 310. This being so, this record shows that the jury found (1) that a contract was made; (2) that it was not terminated by the letter; (3) that plaintiff produced a purchaser, which Fisher accepted. We think these facts justify the verdict, and the judgment is therefore affirmed. The other Justices concurred.

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Montgomery, J. This case was once before the'court, and is reported in 104 Mich. 606. A new trial has been had, and the plaintiff on the second trial recovered a verdict of $7,360. The record is voluminous, containing a large number of assignments of error. The defendant contends that the evidence on the second trial presented a different case from that passed upon in our former opinion, and strenuously argues that the verdict should have been directed for defendant. A careful examination of the record has convinced us that in no fact material to the questions of law involved does this record differ from the former to such an extent as to change the result. We think the charge of the court upon the subject of defendant’s liability was fair, and within the lines of the former decision. We are constrained to hold, however, that there was error in receiving evidence bearing upon the subject of damages, and in the charge of the court upon this subject. The widow of deceased testified, under objection and exception, as follows: “ Q. You may state what, if anything, your husband did towards assisting his children in the matter of their schooling. “A. He did all that was necessary for him to do. They would bring their arithmetic and slate home some nights. He would help them with them. “ Q. Now, have your children gone to school since their father’s death ? “A. The youngest one is all; just the youngest one. At the time of his father’s death, the oldest one was attending Lake Street School. The oldest child was in the seventh grade, I think, at the time of his father’s death. Barbara was also going to school at Laké street. She was in the seventh grade. “ Q. You state that they have not been sent to school since their father’s death. You may state why not. “A. Because they didn’t have any chance. “ Q. You state that they have had no chance. What do you mean by that, Mrs. Walker? “A. Because I was not keeping house so that they could go. The oldest one hasn’t been at all since that. ‘ ‘ Q. Why not ? “A. He did not have any home to stay to so he could go. I was working at housework. I went to keeping house about a year ago, and took in washings. “Q. What did the boy do ? “A. He worked for his grandfather a while, on the farm. Since then he has not done much of anything. He could get no work. The daughter worked out after a while. She worked in the card factory about a year. She was married last fall. I have tried to keep the youngest one at school most of the time.” In his charge to the jury, the circuit judge said: “In estimating the plaintiff’s damages, you would be at liberty to take into consideration the nurture, instruction, physical, moral, and intellectual training which you may be able to find by the testimony the children of John Walker would have received from their father had he lived during their minority; that is, until they attained the age of 21 years. ” And also: “And I desire, also, at this point, gentlemen, to withdraw from your consideration entirely one piece of the testimony which was offered in the case; and that is that after the death of J ohn Walker his family was broken up, and his widow and children went with his father to live. At the time that testimony was introduced the court had an idea that it might be of some value to you in determining this second proposition; that is, whether the family had been deprived of the value of Mr. Walker’s services in attention to, superintendence, and care of his family. On reflection, the court is satisfied that it would have no value in deciding that question, so that you will disregard that testimony entirely, for every purpose, in making up your verdict.” It is very doubtful indeed if the effect of the testimony which the court recognized as improper could be counteracted by withdrawing it from the jury at that stage of the case. But we need not determine whether, if the instructions were otherwise proper, we should say that the error in the receipt of this evidence was cured, as we are of the opinion that there was error in permitting the jury, under the testimony in this case, to award a sum as damages for loss of nurture, instruction, and moral and physical training. It has been frequently decided by this court that in an action for the recovery of damages for death by wrongful act, based upon our statute, the damages to be awarded must be limited to the pecuniary loss sustained by those in whose interest the case is prosecuted. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 214; Batch v. Railroad Co., 67 Mich. 394; Mynning v. Railroad Co., 59 Mich. 262; Van Brunt v. Railroad Co., 78 Mich. 530; Nelson v. Railway Co., 104 Mich. 582. In our former opinion in this case we said: “We are aware that some courts have held that the jury may take into account the loss sustained by the children of the deceased for loss of physical care and mental and moral training of the father or mother, and we are not prepared to say that cases may not arise in which there may be sufficient proof of damages suffered by reason' of the withdrawal of these ministrations as to justify a recovery upon that basis. But it is distinctly against the previous holdings of this court to say that such elements may be considered, and the jury left to roam at large, and draw upon their imagination as to the extent of the injury suffered through this cause.” On the second trial there was no evidence of the value of deceased’s instruction given to his children, nor of the value of any physical, moral, or intellectual training, nor could there well have been. It was not claimed that deceased was in any sense a tutor to his children. The most that can be inferred is that he rendered to them occasional assistance, such as a parent is supposed to render to his children, but which, in its very nature, is as incapable of measurement by a pecuniary standard as is the loss of love, affection, and sympathy. See Chicago, etc., R. Co. v. Austin, 69 Ill. 426; State v. Baltimore & Ohio R. Co., 24 Md. 106 (87 Am. Dec. 600). The rulings conflict with our former opinion, and cannot be sustained. The judgment will be reversed; but we think it would be a hardship to require the plaintiff, upon this appeal, to pay for the printing of the voluminous record and brief, in which have been presented, in the main, the same points passed upon in our former opinion. We think the questions left us for consideration by our former opinion could have been presented by a record of 60 pages, and that a brief of 20 pages would have been ample for their discussion, and the defendant will be allowed for printing of brief and record of 80 pages. The other Justices concurred.

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Grant, J. On December 4, 1894, plaintiffs made a ■written contract with the defendant by which they agreed to furnish him “one monument after design Henika, of gray granite [giving the dimensions and inscriptions]; also three granite markers; the said monument to be delivered and set up in the E. Martin Cemetery, on or before May 15, 1895, or as soon thereafter as possible, in a good and workmanlike manner.” The price was $175. The other terms of the agreement are immaterial. Defendant, soon after its execution, requested some changes, which were agreed upon. Plaintiffs claimed that they had delivered and completed the monument in accordance with the terms of the contract. Defendant claimed that they had not, and refused to accept or pay for it. Plaintiffs brought suit to recover. The parties gave testimony tending to support their respective claims. The jury, under the order of the court, went to the cemetery, and viewed the monument. Verdict and judgment were for the plaintiffs. . Three facts are settled by the verdict against the defendant : (1) That the monument was in compliance with the contract; (2) that it was constructed and delivered as soon as possible; (3) that the defendant waived a cap of a different design than the one called for by the contract. The first and principal question in the case is: Had the defendant the right to reject the monument after it was placed in the cemetery, but before it was erected, on the ground of certain defects ? To state the question conversely: Had the plaintiffs the right to remedy defects before tender and formal delivery ? Plaintiffs sublet the contract to one Fox, in Concord, N. H., who made the monument and shipped it. On its arrival, plaintiffs sent their agent to pht it in place. Before this was done, and on June 4th, defendant went to the cemetery, and, upon seeing the monument, stated to the agent that it was not what the contract called for. The agent admitted that there were defects in it, and that defendant was not obliged to accept it in its then condition, but informed him that -the defects could be remedied. June- 13th, defendant wrote plaintiffs as follows: “I have suffered all the vexations and unnecessary delay and blunders I am willing to bear in regard to that monument; so you may consider our contract void, and I wish you would remove the same at once from our lot.” July 14th, defendant, in response to a letter from plaintiffs, met their workman, a Mr. Walker, in the cemetery. They discussed the question of remedying the defects, but defendant testified that he declined to give any directions about it. On the next day, Mr. Eldred, plaintiffs’ agent, saw defendant, and said to him, “Mr. Walker tells me you would not let him fix the monument,” to which defendant replied, “I did not hinder him from fixing it, but I told him I would not direct him.” July 22d, Mr. Black, one of the plaintiffs, met defendant, by agreement, in the cemetery. Mr. Eldred also was present. Defendant objected to Mr. Eldred’s presence, and declined to stay there, and talk the matter over, unless Eldred went away. Black replied that he did not care whether he (defendant) stayed or not, but that he (Black) could measure it, and find what was wanted. No conversation after this occurred. Several letters passed between them, but we do not consider them material. We will assume that there was evidence to show that defendant, upon first seeing the monument, informed plaintiffs that he would not accept it. The markers were too short, were returned to Mr. Fox, and others of the agreed length furnished. Defendant stated that both he and his wife liked the cap as well as or better than the one specified by the contract; that' he found no fault with the cap as far as the design was concerned; and that the only question was as to the workmanship. Plaintiffs gave evidence tending to show that the defects in the monument could be, and were, remedied, by a few hours’ work. Defendant insists that this case is ruled by American White Bronze Co. v. Gillette, 88 Mich. 231. He insists that the delivery was made the moment that the monument was taken to the cemetery. Plaintiffs insist that the delivery was not made until the monument was in place, and that they had the right to remedy any defects before delivering and tendering it as complete. The Gillette Case is clearly distinguishable from this,' in that a material part of the inscription had in that case been omitted. It could not be changed except by making an entirely new monument. The first one had been delivered and tendered as complete. Mr. Gillette promptly notified the plaintiff that he refused to accept the monument, and that he rescinded and revoked its order, and declined to accept any other proposition. The company-removed the monument, cast and put in place a second, which also was defective. They removed this, and put up a third, for which they brought suit. Had the first monument been of granite, and that part of the inscription omitted could have been chisled in so as to comply with the contract, the case would have been like this. As the court said to the jury in this case, the monument could have been made anywhere, and rough blocks of granite could have been taken to the cemetery, and the monument there completed. It is not good law nor good sense that a party, under such circumstances, could not remedy a defect, and thus complete his contract. The plaintiffs did not make a formal tender and delivery until they had made the monument so as to comply with the contract. Had they delivered it without remedying the defects, and without producing markers of the length required, there could, of course, be no recovery. If, when the defendant saw the monument as the plaintiffs were putting it in place, he had absolutely refused to accept it when the defects were remedied, he would still be liable. The fact that the markers were not of the length required did not prevent the plaintiffs from supplying their place with others of the proper length. The monument was the principal thing. If A. contracts to build a house and fence for B. within a specified time, and the house is completed, but the fence posts are not of the length contracted for, can B. reject the entire contract if A. is willing to, and does, provide other posts and complete the fence? The difficulty with the defendant’s position is in assuming that there was a delivery when the monument was deposited upon the ground" in the cemetery, whereas, in fact, there was no delivery, and could not be, until the monument was set in place. Until this was done, it was under the control of the plaintiffs, and subject to any changes which could be made so as to complete it according to contract, Having determined that the monument was in compliance with the contract, the only other questions were whether the plaintiffs had completed it within the time prescribed, and whether there was a waiver of the particular cap. We think there was evidence to support all the points upon which the case was left to the jury, and that there was no error in the charge. The judgment is affirmed. The other Justices concurred.

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Moore, J. This is a proceeding brought to test the effect of a resolution adopted by a majority vote of the-supervisors to accept the bid of Henry George & Son to construct the stonework of the new county building about to be erected in Wayne county. This building is to cost a large amount of money. It is agreed by counsel representing all parties in interest that the only question necessary to be determined in this proceeding is whether a two-thirds vote of all the supervisors elected is necessary to authorize the letting of contracts for the construction of the building. The learned counsel have prepared very exhaustive briefs, containing all the legislative and constitutional provisions which have been adopted from the earliest history, of the State in relation to the powers conferred upon the board of supervisors. These briefs have been of great value in examining the questions at issue, but we do not deem it necessary, in this discussion, to go over all the ground covered by the briefs. Section 9 of article 10 of the Constitution provides that— “The board of supervisors of any county may borrow or raise by tax one thousand dollars for constructing or repairing public buildings, highways, or bridges; but no greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.” The question of raising money for the erection of the county building was voted upon by the people, and was authorized by them. It is urged by the counsel for the petitioner that the power conferred upon the board of supervisors by this section is exclusive, and that the legislature cannot place any limitation upon the power so conferred, and that, having been authorized by the electors to raise this money, the board can expend it in the erection of buildings, free from any limitations placed upon them by the legislature. Before accepting this view, I think we must consider this section in connection with the other constitutional provisions, and give them all such a construction, if possible, as will make them all operative. Section 6 of article 10 provides that— “A board of supervisors, consisting of one from each organized township, shall be established in each county, with such powers as shall be prescribed by law:” These two sections are to be construed together, and it was evidently contemplated that the legislature might confer upon the board of supervisors such powers, and surround them with such limitations, as were not inconsistent with the powers and limitations placed by the Constitution itself. Section 9 authorizes the board to raise money for certain purposes, but is entirely silent as to the method of its expenditure. Can it be doubted that section 6 was intended to authorize the legislature to place such safeguards around the expenditure of public funds by boards of supervisors as the public interest requires? Section 475,1 How. Stat., provides thata majority of the supervisors of any county shall constitute a quorum for the transaction of the ordinary business of the county. Subdivision 6, § 483, 1 How. Stat., authorizes the board of supervisors “to cause to be erected the necessary buildings for poor-houses, jails, clerks’ offices, and other county buildings, and to prescribe the time and manner of erecting the same.” Section 484 provides, “None of the powers mentioned in the sixth subdivision of the last preceding section shall be exercised without a vote of two-thirds of all the members elected to such board.” What effect is to be given to these provisions ? The unlimited power to raise and expend large sums of public money appeals to the cupidity of the weak and dishonest. Its tendency is to encourage the extravagant use of public funds. It was in recognition of this fact, and to prevent raising unnecessary sums of money, that section 9 of article 10 was placed in the Constitution. There is no provision of law requiring boards of supervisors to let contracts for the construction of county buildings to the lowest bidder. Was it not the legislative intent to guard the public interests by requiring that the action of the board of supervisors in spending the funds, when raised for the construction of public buildings, must command the approval of two-thirds of the members elect? It is urged that Act No. 295 of the Local Acts of 1895 makes an exception of Wayne county, and authorizes the construction of county buildings by a majority vote of the supervisors. _ A careful reading of this act discloses that its purpose was to enable a special meeting of the board of supervisors to be held to determine the necessity for the construction of the county buildings, and to provide a method of submitting to the electors of Wayne county the question of raising by loan the money required in the construction of the buildings. The legislature did not indicate, by any language used in the act, a purpose to remove the limitations upon the powers of the board of supervisors in relation to the construction of county buildings contained in the Constitution and the general laws. The act does not repeal, either expressly or by implication, subdivision 6 of section 483, or section 484, 1 How. Stat. Whatever power boards of supervisors have to construct county buildings, and to make contracts therefor, is derived from subdivision 6 of section 483, and section 484, 1 How. Stat. It becomes important, then, to determine what is the obvious and natural meaning of the words used in conferring this authority upon the board. Can it properly cause to be erected a county building at a cost of nearly a million of dollars, so as to guard the interests of the public, and prescribe the time and manner of its erection, where the construction is to be done by con tract, without knowing who the contractors are, when they are to commence their contract, and when to finish it? How much they are to be paid, and when? The kinds and qualities of the materials to be employed in the construction? Must not the board be put in possession of a knowledge of all the essential things to be contained in the contracts necessary to enable them to pass upon the contracts' intelligently? And must not these contracts secure the approval of two-thirds of all the members elect, if the provisions of the statute are to be given effect ? There is but one answer to these inquiries, and that is an affirmative one. The petition for the writ of mandamus is denied, with costs. The other Justices concurred.

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Montgomery, J. Defendants are trustees of the estate of William B. Wesson. Defendant Green also acts as agent for Mrs. Wesson, paying her bills, and taking receipts therefor, and accounting to her. Defendant Green employs one John Brinket, who was a former employé of Mr. Wesson in his lifetime, and who still continues to look after Mrs. Wesson’s affairs to some extent. In the spring of 1891, plaintiff was employed to work for Mrs. Wesson. Mr. Brinket did the business for Mrs. Wesson, and testifies that the hiring was under instructions from Mrs. Wesson, and that he did not confer with defendants at all about hiring plaintiff. Witness Brinket, who was called for the plaintiff, also testified that he had no general authority to employ workmen in behalf of the defendants, and that he never hired any men except under special instructions from Mr. Green. According to the plaintiff’s testimony, after he had been employed some time, he' was told by .Mr. Brinket to go up and watch a grove on Baldwin avenue. This grove belonged in part to the Wesson estate, and in part to Mrs. Wesson. Plaintiff proceeded to follow this instruction, and, as he testified, visited this grove four or five times a week from March, 1892, to September, 1894, and this action is brought to recover for these services; plaintiff claiming that the direction to go and look after this grove amounted to an independent hiring on behalf of the defendant estate. During all this time, at the end of each month, plaintiff was paid his $40 per month, and signed receipts, both before and after March, 1892, reading, in substance, as follows: “Received of Lacyra E. Wesson, forty dollars, in full for services to date.” These payments and receipts continued down to the time that plaintiff ceased work. Plaintiff’s own testimony as to the instructions given him to look after this grove is as follows: “ On the first day of March, 1892, Mr. Brinket gave me the order to see to that bush,—so much timber was cut up. “Q. How long did you work watching before you were ■ called to look to the grove ? “A. From the 14th of May, 1891, to the 1st of March, 1892. “Q. It was then you were ordered to look after the grove ? “A. Yes, sir. I looked after the grove two years and a half. There was no bargain made as to how much I was to receive for watching the grove. “Q. You said there was no bargain? “A. No bargain.” On cross-examination, witness testified:. “Mr. Brinket was my boss. That was my first experience with Mr. Brinket. I haven’t ever been in his employ there before. He hired me. Whenever there was an order he gave me the order. ctQ.„ You have stated how he hired you? “A. Yes, sir. “Q. He sent you to Mrs. Seyburn? “A. Yes, sir. “Q. And Mrs. Seyburn told you to go to work? “A. Yes, sir; and I continued to watch inside the fence. I had nothing to do outside the fence. Mr. Brinket gave me an order to see after'the bush. I didn’t have any orders to go outside of the fence. “Q. -Did you have any orders to do anything while you were there? “A. Yes, sir; Mr. Brinket gave me an order to sprinkle the street. * * * I knew Mr. Brinket was my boss; that he bossed me afterwards once. I was not acquainted with his business before that, except that I knew that he was employed at the Wessons’. That is all that I knew. * * % “Q. Why didn’t you demand pay for taking care of the grove before ? “A. I was keeping my family up with them $40 I have for night work. I thought I would let that stand. Whenever I wanted it, I would call for it. “ By a Juror: When you were asked by Brinket to do this extra work, was there anything said about your getting additional pay ? “A. No; not a word. “Q. Didn’t you say to him, at the time, that you expected to get additional pay ? “A. I expected it. “Q. Did you say that,to him? “A. I told him a couple of times. “Q. At the time you were engaged by him? “A. No.” On redirect examination, he was asked when he told Mr. Brinket that he expected pay for the additional work, and answered that he didn’t know the exact time. “Q. What did he say about it? “A. Oh, nothing.” The circuit judge left it to the jury to find—First, whether Brinket had authority to make the contract; and,' second, whether there was an agreement that the estate should pay plaintiff such amount as such work was reasonably worth. We think the circuit judge erred in submitting the case to the jury upon the evidence offered. It is clear that these orders were given upon the assumption that the work demanded of plaintiff fell within his employment, and there was not the slightest indication by the plaintiff, at the only time any contract is alleged to have been made, from which Brinket or the defendants could draw the inference that he had any other understanding. And when the fact is taken into account that for nearly two years thereafter he signed a receipt in full for his services at the end of each month, the rank injustice of permitting him to assert a secret intention to make an additional charge for his services is plainly manifest. The case falls directly within the principle of Bartlett v. Railway Co., 82 Mich. 658. The judgment will be reversed, with costs, and no new trial ordered. The other Justices concurred.

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MOORE, J. The bill was filed in August, 1889, by complainant, for the purpose of obtaining an accounting between Feige, Gates, and Babcock, doing business under the firm name of the Michigan Lumber Company. It alleges that on the 15th day of February, 188 8, they entered into articles of copartnership for the purpose of manufacturing, etc., under the name of the Michigan Lumber Company, and states that the partnership was to date from February 15, 1888, and continue for three years, unless sooner dissolved by mutual consent. The articles of copartnership are made a part of the bill. They show that Gates owns 13-24 of the property, Feige owns 8-24, and Babcock 3-24, subject to the contract with the Seminole Lumber Company. By the articles, Feige was to be the general manager of the business. Babcock was to be represented by her husband, John W. Babcock, as assistant manager, who was to receive $1,000 per year. An agreement between the Seminole Lumber Company and Samuel G. M. Gates, of date the 27th day of October, 1887, is made a part of the bill. This agreement recited that on the 4th day of October, 1887, the Seminole Lumber Company agreed to sell to Gates and Helen M. Babcock a large quantity of lands, situated in the county of Baldwin, State of Alabama, and county of Escambia, State of Florida, upon the terms named in the contract; that, after making this agreement, another agreement was made, by which the lands were to be purchased by Gates, and Helen M. Babcock’s interest protected by a contract between herself and Gates. A contract between Gates and Feige, of date February 15, 1888, is also made a part of the bill of complaint. This contract is for the purchase by Feige of one-third of all the benefits and advantages of the contract with the Seminole Lumber Company. Another contract is made a part of the bill of complaint, bearing date October 27, 1887, between Babcock, Gates, and Feige, by which Babcock releases Gates from her right to acquire one-fourth of the property, and reserves only the right to acquire one-eighth. It provides for the employment ■ of John W. Babcock for the term of three years, at an annual salary of $1,000. The bill alleges that Feige went to Millview, Fla., and assumed the management of the business; that, when he arrived there, he found that large lumber contracts had been let by Gates and Babcock; that he continued in charge of the business as manager, and they carried on the business of manufacturing, selling, and shipping lumber and timber, until the 30th day of March, 1889, when they closed down, for the reason that Gates and Babcock refused to furnish their share of the money necessary to carry on the business; that on the 30th day of March, 1889, with the knowledge and consent of Gates and Babcock, he sold out his interest in the copartnership property and assets to Bucki, Bucki assuming to pay the firm liabilities to the extent of $49,000; but that in stich sale he reserved all the rights which he had against his copartners for advances in excess of his share, and the right to call them to an accounting. He alleges that he advanced a large amount in excess of his share; that, by reason of Gates’ and Babcock’s failure to 'contribute their share to the business, they were obliged to borrow $15,000 from the Merchants’ Bank of Pensacola, and to secure the payment thereof by mortgage upon their personal property; that, to meet this mortgage indebtedness when it became due, they were obliged to sell their lumber at a sacrifice. The bill further alleges that the $13,572.99 which the complainant agreed to pay Gates for his interest in the property was based upon the producing by Gates of vouchers showing that the property up to that date had cost him three times this amount, and that the amount which he was really to pay for the interest was to be increased or diminished by so much as the vouchers should show a less or greater sum to have been so paid by Gates; and he charges that the sum paid by Gates up to that date for the property was much less than three times the $13,572.99, and much less than Gates then represented it to be. The bill contains a prayer for an accounting, and for general relief. The answer of defendant Gates to the original bill sets forth an admission of the execution of the written instru ments in the bill, but denies that the Gates-Feige purchase agreement sets forth the true agreement; admits the commencement of the business shortly after the 15th of February, 1888. and that it was carried on until the spring of 1889, under the name of the Michigan Lumber Company; admits a sale by Gates of his interest in the partnership property to Charles L. Bucki, subject to the rights of Helen M. Babcock; alleges that Feige sold his interest in the partnership property at the same time Gates did, and that the effect of such sales was to cut off the right of a further accounting between Gates and Feige; that it was a fact that complainant and Bucki making the agreement they did make was an inducement to Gates to sell to Bucki; that Gates did not know personally of any reservation in the sale of Feige to Bucki, and that, if such reservation was made, it was a fraud on Gates; denies that Feige furnished more than his share of the partnership money, and alleges that, on an accounting, the other parties will owe Gates; alleges.that, by agreement, Feige was the manager of the company, but did not manage it profitably, and abandoned it about April, 1888, by reason of which facts defendant has a claim, against Feige of $10,000; that, before the purchase by Feige, Gates had expended more than $34,000 in advances for the business and as purchase price of the property; that the agreement by which Feige purchased was that Feige was to pay $3,000 more than one-third of the cost of said property and advances thereon, and that an omission to set forth this provision in the contract was a mistake. The answer prays that the answer be treated as a cross-bill for reforming said Gates-Feige contract; that said contract be reformed so as to show Gates’ right to said additional $3,000, and that it be decreed that Feige shall pay it to Gates; that Feige pay Gates any balance found on accounting. Mrs. Babcock filed an answer to the original bill, and a cross-bill, which sets forth the filing of the. original bill, and the proceedings thereon, • up to and including the replications to the answers to the original bill, and alleges the pendency of the suit; that she is the wife of John W. Babcock; and describes his experience as a lumberman, and his discovery of the property in controversy; describes the same in general terms, the same being generally described as the property of the Seminole Lumber Company, Limited; that he gave his information respecting the property to the defendant Gates, who, it is alleged, was then a man of large means, notifying said Gates that it was the wish of Helen M. Babcock to pay for an interest in the property out of the proceeds thereof and of the business carried on in connection therewith, said John W. Babcock to be connected with the business; that Gates was desirous of entering into the arrangements as thus proposed; that pursuant to this arrangement, about October 4, 1887, Gates and Helen M. Babcock entered into an agreement for the purchase of this property, which was followed by a new agreement of purchase, dated October 27, 1887, this agreement being only between themselves, pursuant to which agreement Gates made a purchase of the property from the Seminole Lumber Company, dated October 27, 1887; and it is alleged that, in making the contract and purchase, it was understood that Helen M. Babcock had no means except they should be derived from the proceeds of the property and business, and that Gates agreed that he would make payments and advances for the purchase of the property, and allow Mrs. Babcock to repay Gates for her share of such advances out of her share of the property and business, and that John W. Babcock should be empolyed therein; that, after the purchase was made, Helen M. Babcock and Gates proceeded at once, as partners, to lumbering said property, and that in order to carry on the business, and with the intention and understanding that he would make advances to her, which would be repaid out of the business, Gates made the written agreement of November 12th with Mrs. Babcock, which is set out in the cross-bill; that Gates and Mrs. Babcock, as such pur chasers, and as partners, in the interest of three-fourths to said Gates and one-fourth to Mrs. Babcock, took possession of said property, and carried on such business pursuant to such intention; that John W. Babcock was employed in the business at $50 per month. The cross-bill further sets forth that said property was treated, and intended to be, and was in fact, the partnership property of Gates and Mrs. Babcock; that said business was a partnership business,'and was continued until about the 15th day of February, 1888, when George Feige sought to purchase from Gates an interest in said property and business; that Gates desired to introduce said Feige into the business, by selling a portion of his interest in the property to Feige; that Mrs. Babcock was unwilling to enter into this arrangement, lest it would interfere with her contract with Gates in respect to the property; that her unwillingness was explained to both Gates and Feige, and that she was assured by both of them that her interests would be promoted by the proposed sale from Gates to Feige; and that, relying upon such statements, she consented to reduce her interest in the property to one-eighth, instead of one-fourth, which was accomplished by a contract which was made on or about the 15th day of February, 1888; that said contract was signed by her relying upon said statements and agreements of Feige and Gates, and that no change of understanding or arrangements was made as to her right to pay for her interest out of the proceeds of the property and business; that thereupon Gates sold one-third of the property to Feige by a contract dated February 15, 1888, and that at the same time a copartnership agreement was made between Gates, Feige, and Mrs. Babcock, dated February 15, 1888, which was intended by the parties thereto as the means of lumbering said property, and enabling Mrs. Babcock to pay for her interests therein; that, by means of said contracts, all of the property and the business carried on therewith became the partnership property of Gates, Feige, and Mrs. Babcock, in the shares and interests of 8-24 thereof to Feige, 13-24 to Gates, and 3-24 to Mrs. Babcock; that it became the right of Mrs. Babcock to have the purchase contract with the Seminole Lumber Company, Limited, carried out, and to have said partnership continued, and said business carried on, and said property made use of in said business, for the full term provided by said contract; that neither Feige nor Gates had the right to terminate the same at an earlier date than provided by the contract, without her consent; that, pursuant to the contract agreement, the parties entered into and earned on business. It is further alleged that about June 22, 1888, Gates commenced negotiations with parties for the sale of two-thirds of said business and property, which negotiations resulted in a sale and transfer thereof by him to one Charles L. Bucki; that Feige also sold a third interest in said property and business to said Bucki; that, by such sales and transfers, the entire property and business was transferred to Bucki, the firm dissolved, its business terminated, and Mrs. Babcock was deprived of its advantages and all her opportunity to purchase under it; that Mrs. Babcock did not sell or transfer her said business; that, by the sale above set forth, the business was broken up, and her opportunity to realize out of said property, and pay for her part of the same, was destroyed; that, in respect to said business, her husband, John W. Babcock, acted for her, and represented her. in all respects as fully as she could herself in his place; that Feige and Gates made large profits in the sales they made to Bucki; that the conduct of Feige and Gates and their sale destroyed the business, and her power to proceed therein and save her interest therein, thereby causing her loss and damage to the amount of many thousand dollars; that she was ready to perform the contract on her part all of the time; that she made a tender in May, 1889, of the contract amount falling due in February, 1889; that such tender was made to Gates and the Southern States Land & Lumber Company; that, by the acts of Gates and Feige, she was wholly excluded from and deprived of all her rights in the property and business, the partnership, and its assets, and to the purchase of one-eighth of said property, which was worth many thousand dollars more than she had agreed to pay for it; and that no account of the business has been had. It was the prayer of the cross-bill, among other things, that a partnership accounting be had between the three parties; that a,n accounting be had as to the sale of the property and business, so that the interest of Mrs. Babcock in said partnership business, and in said property and business, be determined and decreed; that the loss or damage she has suffered through the acts and conduct of Feige and Gates be settled and determined, and that Feige and Gates be required to pay the amount due her on such accounting; and that they, one or both of them, be decreed to pay said amounts, and to pay to her an equitable share of the proceeds of the sale of said property; and a prayer for general relief. The answer of defendant Gates to the cross-bill admits the execution of the papers set forth in the cross-bill; admits that John W. Babcock brought to the notice of defendant the property in question; says that Mrs. Babcock was unable to carry out the purchase of October 4, 1887, and that, consequently, the agreements of October 27,1887, were made; that between the 27th day of October, 1887, and the loth day of February, 1888, no agreement as to advances by Gates to Helen M. Babcock other than the agreement of November 12, 1887, was made; that no specific amount was agreed upon to he advanced, and that the arrangement for the advance made by this agreement was a temporary one; that it was through the solicitation and consent of Helen M. Babcock that the negotiations and sale to Feige were made; that the business of the partnership was not profitable or satisfactory to any of the parties, and that its continuation would not have worked out a payment of the interest of Mrs. Bab cock therein; that it was with Mrs. Babcock’s consent that negotiations were carried on for the sale of the interest of Gates in the partnership; that, in making the sale, the parties who purchased the property purchased with notice of the rights of Mrs. Babcock therein, and without prejudice to her rights; that the papers setting forth the sale stated that the sale was made subject to the rights of Helen M. Babcock; that, as to the sale actually made to Charles L. Bucki, the same was made with the knowledge and consent of Mrs: Babcock. In February, 1893, the defendant Gates moved the court to be allowed to amend his answer to the cross-bill, so as to show that when the various contracts Were made, to which Mrs. Babcock was a party, she was then a married woman; that the contracts were made in Florida; that they related to real estate, and, according to the laws of Florida, were ■void. This motion was denied, with leave to renew it on the hearing of the cause. This was done, and it was again denied. The printed record contains more than 1,000 pages of testimony, and the record is not all printed. In February, 1896, a decree was made, in which it is found, in substance, that the said Samuel G. M. Gates and the Seminole Humber Company, Limited, executed the contract dated October 27, 1887, by which said Gates purchased of the Seminole Lumber Company, Limited, the lands and property mentioned in said contract, on the terms therein stated, consisting of pine lands and sawmill property, and ."that Gates and Helen M. Babcock contemporaneously executed the contract of date October 27, 1887, by which Gates agreed to sell to said Helen M. Babcock an undivided one-quarter of said lands and property, upon the terms stated in said contract; that, under said contract, Gates and Helen M. Babcock took steps for lumbering on said lands and operating the mill situated thereon, constituting a part of said property; that, with a view to such lumbering operations, Gates and Helen M. Babcock executed the contract dated November 12, 1887, by which Helen M. Babcock agreed to pay the said Gates interest at the rate of 10 per cent, per annum on all moneys advanced by Gates for the carrying on of said business; that, under the three contracts, said lumbering business was carried on by Gates and Helen M. Babcock until the 15th day of February, 1888; that Gates advanced moneys to carry on the business; that on February 15,1888, Gates and Feige executed a contract by which Gates sold to Feige an undivided one-third of said land and property, and that at the same time Helen M. Babcock and Gates and Feige executed a contract, by which Helen M. Babcock released to Gates the right to purchase the undivided one-quarter of said land and property, and reserved the right to acquire an undivided eighth of said land and property; that, at the same time, Gates, Feige, and Helen M. Babcock executed a contract, dated February 15,1888, by which Gates, Feige, and Helen M. Babcock made and entered into a copartnership under the firm name of the Michigan Lumber Company ; that said three last-mentioned contracts were executéd contemporaneously, and, upon their execution, Gates, Feige, and Helen M. Babcock proceeded to carry on a lumbering business with said land and property, which business was carried on in the name of the Michigan Lumber Company; that, in carrying on the business, Gates advanced certain moneys; that, by virtue of said contracts, Helen M. Babcock was entitled to acquire an undivided one-eighth of the lands and property, and was entitled to have the copartnership business carried on, and to have the share of the profits thereof, belonging to her, applied to the payment of the sum owing by her to Gates for advances made by him, and to the payment of the purchase price for said undivided one-eighth of said lands and property to be paid by her to Gates; that Gates and Feige sold to Bucki all the partnership property of the said Michigan Lumber Company, and it was transferred to Bucki, and, by said transfers, said partnership was terminated; that the sale and transfer made by Gates to Bucki was made by said Gafes without the consent, and against the protest, of said Helen M. Babcock; that, on the 15th day of February, 1889, the sum of $2,500 became due from Helen M. Babcock to Gates, upon the purchase price of an undivided one-eighth of said land and property, and afterwards, and on the 25th day of May, 1889, said Helen M. Babcock tendered payment to Gates, which tender was refused; that the rights of said Helen M. Babcock as purchaser of said one-eighth of said lands and property were preserved. The decree provided for an accounting, and the manner of it, and decreed that— “It will be referred to Hon. Chauncey H. Gage, special commissioner, of Saginaw, to take and state the account between Gates and Helen M. Babcock, and to report the same to this court. Such accounting is to be made upon the files and records of said cause, and the testimony heretofore taken therein. It is decreed that Mrs. Babcock is entitled to her costs upon the cross-bill, to be taxed. “It is also decreed that the $13,572.99 named in the contract of date February 15, 1888, includes the $3,000 which in these proceedings is termed a ‘ bonus ’ to be paid to Gates by Feige for the privilege of acquiring one-third interest in said property; that the balance of $10,572.99 was assumed to be one-third of the amount, with interest thereon, paid by Gates for and on account of the property conveyed to Feige under said contract, prior to such conveyance, but of this assumed amount only such part thereof is payable to Gates under said contract as the vouchers produced by Gates show payment for and on account of the property conveyed by said contract; and that said sum of $10,572.99 assumed to be payable to Gates shall be lessened or increased by so much as said vouchers show payments of a greater or less amount than that sum. ‘ ‘ Feige, under the contracts set out in this bill, paid money to Gates upon the purchase price of his interest in said property, and advanced money for the carrying on of the business; and he paid money to Gates on account of his purchase of the one-third interest in the property by paying it to the Michigan Lumber Company for Gates. It is decreed that Feige is entitled to an accounting against Gates for all the payments and transactions made and had by Gates in connection with the property prior to Feige’s purchase, and for moneys paid Gates after the purchase, and for money paid to the Michigan Lumber Company on - account of purchase.. And he is also entitled to an accounting against his copartners, Gates and Helen M. Babcock, of and for all business transactions and doings of the Michigan Lumber Company, and of and for all moneys and property which each of the copartners have paid to and for the Michigan Lumber Company, and of and for all moneys and property which each of the copartners have received from said company, and of and for all moneys and property at any time owned by said company. The basis upon which the accounting is to be had is that Gates is the owner of 13-24, Feige is the owner of 8-24, and Babcock is the owner of 3-24, of said property and interest in the co-partnership; and, Gates having agreed to furnish Babcock’s share of the contributions, advances, and payments to the company, he is chargeable, on an accounting, with the payment of the 3-24 which Babcock’s interest should make. “By the contracts of the parties, Gates and Feige were each to receive a salary of not less than $1,000 for the first year, 'and not less than $1,500 for subsequent years, and John W. Babcock was to receive a salary of $1,000 each year. These salaries will be allowed for the time in which the respective parties were acting for the benefit of the company, except as they are modified by the court upon the report of the commissioner, on testimony which may be taken before him concerning the connection of Gates with the McLennon mortgage, and further consideration of the testimony already taken upon Gates’ connection with the McLennon mortgage. The salary of J. W*. Babcock will be an allowance to Helen M. Babcock. The time which each of the copartners are entitled to receive the salary, and the amount of salary to which each would be entitled, without reference to the question of Gates’ connection with the McLennon mortgage, will be reported by the commissioner separately from the other items in his report. “It is further decreed that the whole matter in controversy between the parties be refereed to said circuit court commissioner, to take and state an account between Feige and Gates, and between Feige and Gates and Babcock, upon the basis herein indicated, and report the same to the court. In making and stating the account between Feige and Gates of the payments and disbursements claimed to have been made by Gates for and on account of the property purchased by Feige, and for and on account of the business carried on in connection with said property before the date of Feige’s purchase, the commissioner will not allow any payments or disbursements claimed to have been made by Gates for which there are no vouchers ; and’ checks, drafts, or orders payable to Gates or order, Gates or bearer, or payable to bearer, or payable to any party whose name Gates is authorized to sign, shall not, for the purpose of this accounting, be considered as vouchers. The commissioner, in such accounting, will give Gates credit for only such sums paid by him after he and Feige sold out as he has shown affirmatively exceed $50,000, and he shall give him credit for payments in such cases only when such payments have been made with Gates’ money, and have not since been repaid him. Gates is not entitled to receive credit in the accounting for any payments or disbursements made by him after the 15th day of June, 1888, while he acted as the agent for, Bucki. In the accounting, the commissioner shall take, state, and report an account agreeable to the practice of the court, between the parties: ‘ ‘ First. As to the true amount of moneys paid by Gates to the Seminole Lumber Company at the time of the purchase by Feige of his one-third interest in the property under the contract of February 15, 1888, as determined by the vouchers which the said Gates has submitted therefor. “ Second. As to the true amount of moneys before that time advanced and paid by Gates for the Michigan Lumber Company, or on account of the business of himself and Babcock, other than for the real estate, and which Gates claims enter into the $13,572.99, as shown by vouchers produced by him, entitled to be considered under the direction respecting vouchers hereinbefore contained. “ Third. To make, state, and report a true account of all the money received by the Michigan Lumber Company, and a like statement of all the moneys disbursed in the course of operations of said company: (a) From the date of the purchase by said Feige down to the 22d day of June, 1888, when Gates gave his option for the sale. (6) A like account from said date of February 15, 1888, to March 30, 1889, when Feige sold and dis- - posed of his interest therein, (c) A like statement of such account extending from February 15, 1888, to the time of the final delivery of possession to Bucki, or to his assignees, of all the property and assets of the Michigan Lumber Company, and conclusion of its business. (d) To make, state, and report the account, separately, of the said Gates with said Michigan Lumber Company, showing all moneys advanced by him to said Michigan Lumber Company in the course of its business, and all moneys received by him therefrom, exclusive of salary, and showing what, if any, sum he paid on account of the McLennon mortgage, and any sum repaid him from or through the action taken on the McLennon mortgage. (e) To make, state, and report a true account between the said Feige and said Michigan Lumber Company, showing all moneys advanced by him to said Michigan Lumber Company in the course of its business, and all moneys received by him, exclusive of salary, making in both cases rests at the date of the respective sales by Feige and by Gates, so as to indicate the state of the account at the date of such sales, as well as at the conclusion of the business. (/) Also to make and state an account, separately, showing the character and value, as near as may be, of all the assets, independent of land, owned by the Michigan Lumber Company at the time of the sale by Feige and Gates to Bucki, and also the indebtedness, in itemized form, owing by the company at the time of making of such respective sales, and also at the time of the final delivery of the property into the hands of said Bucki or his assignees. “And, for the purpose of such accounting, the said commissioner shall have access to and examine all the records of this case, and all the testimony heretofore taken therein, and no other, except that the commissioner shall take, consider, and return, as a part of his report, testimony of such witnesses as shall be produced, concerning Gates’ connection with the ‘McLennon Mortgage,’ so called. “It is further ordered, adjudged, and decreed that the said George Feige is entitled to receive his costs of this suit upon the oi’iginal bill, to be taxed.” Defendant Gates appeals from the decree, and in an original brief of nearly 100 pages, followed by a supplemental brief of nearly 50 pages, states his reasons for the appeal. They have all had careful consideration, but the interests of the parties and the public do not require a discussion of them all here. It is claimed by defendant Gates that, when Feige and Gates sold to Bucki the business and property, these sales conveyed to Bucki all the interest that both of them had, .and that neither of them after that could require the other to account for the contracts made between each other which resulted in the partnership, and for the business done during the existence of the partnership, and that, therefore, the original bill must be dismissed, and that the dismissal of the original bill would carry with it the cross-bill. The contention of the solicitors for Mr. Gates cannot be sustained, for the reason that the record shows very clearly that neither Mr. Feige nor Mr. Gates expected that the result of the sale to Bucki would relieve either from accounting to the other for the results of the business during the existence of the partnership, nor was it expected by either of them that Mr. Gates was to be released from the contract he made with Mr. Feige, when the latter entered into the partnership, that he would produce vouchers showing the cost of the plant and business up to that time, and that the amount paid for a third interest in the business by Mr. Feige should be adjusted upon the basis of the cost to Mr. Gates, up to that time, upon the terms of the contract, less the $3,000 bonus which Mr. Feige was to pay for being allowed to come into the business. We think the complainant was entitled- to a decree for an accounting.' In this connection we should determine whether the circuit judge erred in decreeing that the commissioner, in making an accounting as to the amount of the cost of the property to Gates at the time Feige became a member of the firm, and of the part thereof payable to Gates, should be limited, in determining the amount thereof payable by Feige to Gates, to the amount for which Gates produced vouchers. If the contract is to be literally construed, the decree is right; but we think the record clearly establishes that Feige was rrot only to pay a bonus of $3,000 for be coming a member of tbe firm, but that he was to pay to Mr. Gates one-third of what Mr. Gates had at that time invested in the business and property; and it would be inequitable in this equitable proceeding, commenced by Mr. Feige, to require Mr. Gates to lose what he had paid out on account of the property and business at the time Mr. Feige acquired an interest in the firm, one-third of which Mr. Feige agreed to pay, simply because Mr. Gates is not able to produce a written voucher showing the payment. We think the decree should be so modified as to allow the commissioner to consider any legal evidence in the case bearing upon that feature of it. The decree provides that the commissioner, in the accounting between Feige and Gates for the business done after Feige became a member of the firm, should not credit Gates for any disbursements made by him after the 15th day of June, 1888, while he acted as the agent for Bucki. We agree with the circuit judge that, in the accounting, the partnership ought not to be charged with any of the debts assumed by Bucki, and that Mr. Gates ought not to be credited with any payments of debts contracted after he had sold to Bucki; but we think, in the accounting, that he should be credited with any payments he may have made of the debts of the firm consisting of Feige, Gates, and Babcock, in excess of the 150,000 assumed by Bucki, even though some of those debts were paid by him after June 15, 1888, and the decree should be modified in that respect. Complaint is made of that portion of the decree giving costs to Feige against Gates. The decree gives Gates affirmative relief to the extent of reforming the contract made between Gates and Feige by finding that it was intended by the parties that Feige was to pay Gates a bonus of $3,000 for the right to purchase a one-third interest in the property. In view of that fact, the modifications made in the decree here as affecting Feige and Gates, and the uncertainty of what their respective interests are, until the commissioner has made his report, we think the matter of costs between Gates and Feige should await the result of the final decree, and the decree will be modified in that respect, and neither of them will be awarded costs in this court against the other. It is urged upon the part of defendant Gates that, in the accounting before Judge Gage, he should be allowed to put in further proof. More than six years have elapsed since this litigation commenced. The parties to it have had every opportunity to put in testimony bearing upon any phase of the case. The -record i« very voluminous. Not all of it appears in the printed record. The printed record contains more than 1,000 pages, and embraces testimony taken at great expense in several States. If there is anything omitted that is essential to the proper disposition of the case, it is the fault of the party omitting it. We think the case should proceed to a speedy determination, and we decline to direct further testimony to be taken except as provided for in the decree. It is claimed by Mr. Gates, among other reasons, that the cross-bill cannot be sustained, because it makes a defense which was equally available by way of answer to the original bill, and that, as Mrs. Babcock takes no decree against Feige, she does not need a decree against Gates to make perfect a decree against Feige. We understand that “ whenever it is necessary to bring all the equities of all the parties fully before the court, that even and complete equity may be done, as well in favor of the defendant as of the complainant, it becomes necessary to file a cross-bill; and this may be done by any or all the defendants, against any or all of the complainants, or by a defendant against his co-defendants, or a part of them, as the nature of the case may require.” Put. Mich. Ch. (2d Ed.) 322; Story, Eq. PI. § 392; Andrews v. Kibbee, 12 Mich. 94 (83 Am. Dec. 766); Farmers & Mechanics' Bank v. Bronson, 14 Mich. 372. We think this case comes clearly within the rule that a cross-bill is designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant' or against some co-defendant. It is difficult to see how the equities of this case could be worked out between the complainant and the two defendants, and between the defendant Babcock and her co-defendant, Gates,- and the complainant, Feige, so as to do justice to all of them, without the filing of the cross-bill. Cornwell Manfg. Co. v. Swift, 89 Mich. 503; Worrell v. Wade’s Heirs, 17 Iowa, 96; Wilkinson v. Roper, 74 Ala. 140. It is also urged that Mrs. Babcock cannot maintain her cross-bill, because, when she entered into the contracts with Mr. Gates, she was under coverture, and, by the laws of Florida, could not lawfully enter into such contracts. Three years and more after this action was commenced, Mr. Gates asked the court for permission to amend his pleadings, so as to enable him to interpose this defense. His application was denied. Mrs. Babcock and Mr. Gates made their contracts with each other, treating each other as residents of Michigan, and so describing each other in the contracts. The record shows the contract of October 4, 1887, was made in Michigan. This contract was changed by the two contracts made in Chicago, October 27, 1887. The contract of November 12, 1887, was made in Michigan, and was dated at Bay City, and Mrs. Babcock and Mr. Gates were both residents of Michigan; and the other contracts were made having in view that the parties were residents of Michigan, and competent to enter into contract relations. All the parties dealt with each other as though there were no disability. Their business relations were commenced, continued, and ended with the belief on the part of both of them that both were competent to make the contracts and engage in the business. In pursuance of her agreement with Mr. Gates, and because of it, Mrs. Babcock surrendered the interest she had in the Seminole Lumber Company contract, which was the right to purchase a one-fourth interest in 146,000 acres of land. Because of thp surrrender of this contract, a new contract was made out between the Seminole Lumber Company and Mr. Gates, it being expressly provided that Mrs. Babcock’s interest in the previous contract should be protected by a contract between her and Gates. A new contract was drawn, in which Mrs. Babcock’s interests were protected, if the contract was valid. Where one has contracted with a married woman, knowing her to be such, and the contract includes a contract of partnership, and the contract has been entered upon, and in part executed, „,and he has received substantial benefit therefrom by the surrender of a contract to which she was a party, and by conducting the partnership business for nearly two years, in an action brought by her to compel him to account for the results of the partnership, and for what he has received by virtue of the contract, is it not too late to plead coverture as a bar to her maintaining her action? Can it be'the law that one can appropriate the fruits of such a contract, and at the same time disavow the contract ? ■ The business relations between Mr. Gates and Mrs. Babcock were entered into, both supposing they had a right to enter into such relations. Business was conducted by virtue of these contracts, on a large scale, for upwards of a year and a half. These relations were terminated by Mr. Gates, both parties still supposing Mrs. Babcock was competent to make the contracts. This litigation was commenced, and Mr. Gates, by the pleadings, admitted the making of the contracts, but claimed that Mrs. Babcock’s acts were such as to release him from any liability to her; and the parties entered upon th¿ taking of the testimony, and a large amount of expense was incurred. The testimony was taken, and the case was ready to be heard, before any suggestion was made that the contracts were not valid. It was not until 1891 that Mr. Gates learned what the law of Florida was in relation to the disability of married women to make contracts in relation to real estate. When he did learn, did he act promptly? No application was made to the court to amend the pleadings until in 1893. It is true, an endeavor was made to excuse the delay. The trial judge had full knowledge of the situation. The case presented by Mr. Gates did not appeal very strongly to the sense of justice of the circuit judge, and, in the exercise of his discretion, he denied the motion to amend. In doing this, we do not think he abused his discretion, and we decline to interfere. Haines v. Haines, 35 Mich. 138; Bussey v. Bussey, 71 Mich. 504; Mills v. McLeod, 94 Mich. 627. It is the claim of Mr. Gates that he sold his interest to Mr. Bucki subject to Mrs. Babcock’s interest in the business. We do not think this claim is sustained by the evidence, but, if it were, Mrs. Babcock would not be bound by it. Her contract was with Mr. Gates, and she had a right to look to him for its performance. Atkinson v. Scott, 36 Mich. 18; Weaver v. Aitcheson, 65 Mich. 285; Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602). We note the claim of counsel that the cross-bill interposes new controversies between- defendants to the original bill, the decision of which is unnecessary to a determination of the controversy set up in the original bill between the complainant and defendants, and thereby becomes an original bill, and that, as there cannot be two original bills in one case, the cross-bill must be dismissed. We also note the claim that the case stated in the cross-bill is not sustained by the evidence, and the claim that Mrs. Babcock, by her husband, consented to the sale to Bucki; but we do not deem it necessary to discuss them. The facts disclosed by the record fully justify the decree, except as herein noted. The decree will be modified in the particulars suggested, and affirmed, with costs to Mrs. Babcock against defendant Gates. The other Justices concurred.

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Hooker, J. In May, 1893, relators, and others, who were doing business under the name of S. Simon & Co., were joint mortgagees in a mortgage given them by Kositchek & Bro., of Alpena. In June of the same year, the sheriff of Alpena county attached the mortgaged property in an action brought by other creditors against the Kositcheks. Simon & Co. and the relators brought separate actions of trover against the sheriff, and Simon & Co. recovered judgment for $3,267, and relators for $505. The jury in the latter case, which was the last case tried, found the value of the stock to be $3,772. Subsequently, Simon & Co. assigned to the relators such part of their judgment as would make the amount due each concern equal to that due the other, and each brought an,action in the Alpena circuit upon the sheriff’s official bond. While these actions were pending, the defendants in such actions paid to the relators and to Simon & Co. the amount of such judgments, interest, and costs, less $425, which was retained; notice having been given by I. S. Canfield that he claimed an attorney’s lien for such amount on said judgments. Thereupon relators and Simon & Co. assigned their respective judgments to one Comstock, one of the sheriff’s bondsmen, he being a defendant in such actions; and thereupon relators and said Simon & Co., through Sloman, Groesbeck & Robinson, their attorneys of record, stipulated with the defendants’ attorney for the discontinuance of said actions, and filed such stipulation. No order of discontinuance was entered. Canfield obtained an order striking said stipulation from the files, and relators ask a mandamus to vacate said order. It is claimed upon behalf of the relators that Canfield was not the attorney of record, but only counsel in each and every of said causes, and that, as such counsel, merely, he had no control over said causes, or lien upon the judgments. The circuit judge returns that Sloman, Groesbeck & Robinson appear upon the records as attorneys, and Canfield and Frank Emerick as counsel; that the evidence showed, and he found the fact to be, that Canfield commenced said actions, and at all times had control of them, and'was recognized as attorney of record by counsel for the adverse parties; that the names of Sloman, Groesbeck & Robinson were placed upon process and pleading by said Canfield out of courtesy; and that they did not appear or take part in any of the proceedings. Relators profess to be able and willing to pay to Canfield a reasonable sum for his services, but deny that he is entitled to the sum claimed by him. Upon this record, it appears that the court has found that the relators’ attorney, Canfield, had a lien upon the judgment rendered against the sheriff. This gave him an equitable interest in such judgment. An action was brought in the name of the plaintiffs against the sureties of the defendant, upon his official bond, Canfield being their attorney. Thereafter plaintiffs undertook to settle with such bondsmen, and, through their Detroit attorneys, stipulated to discontinue such proceeding, without the consent of Can-field, or in any way providing for his pay. Such action having been instituted with plaintiffs’ approval, we think the case is governed by Weeks v. Wayne Circuit Judges, 73 Mich. 256, and Carpenter v. Myers, 90 Mich. 210, and could not be discontinued to the injury of Canfield without his consent. The writ of mandamus is denied. The other Justices concurred.

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Grant, J. The claimant was the daughter-in-law of the deceased, whose wife died in September, 1886. After her death deceased lived with his son, John 0. Boughton, the husband of claimant. The deceased was possessed of some means, and he paid his son three dollars per week for board. John 0. Boughton died in May, 1894, and Darius died six weeks thereafter. The claim presented against the estate was as follows: Board of Darius Boughton from May 14, 1894, to June 26, 1894, 6 weeks,' at $3 per week___________________ §18 Washing for said Darius Boughton from Sept. 6, 1886, to June 26, 1894, 406 weeks, at 50 cents per week---- 203 Booms, extra lights, fuel, and attendance furnished said Darius Boughton from Sept. 6, 1886, to June 26, 1894, 406 weeks, at §3 per week____________________1,218 The case was submitted to the jury upon the theory that there was testimony from which a contract to pay might be implied, and verdict and judgment were rendered for the claimant. The item for board is conceded, but it is insisted that there is no testimony upon which to base an implied contract to pay for. the other items. The deceased lived with his son and daughter as a member of the family, and was .treated as such. There is nothing, aside from the payment of board, to indicate that there existed any other relation. The agreement to pay so much a week for ‘ ‘ board ” excluded any implication to pay for any other services which naturally come within that term.’ There is no testimony to indicate that a word was ever said to the deceased by his son or the claimant that he was expected to pay anything more than the stipulated weekly amount. No contract can be implied where the express contract, in substance, covers the same subject-matter. Schurr v. Savigny, 85 Mich. 144. In order to bind the estate of the deceased, it was incumbent upon the claimant to prove that the deceased knew that Mrs. Boughton intended to charge him for the items for which she now claims, and that he assented to the arrangement. Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201). Not only is there no testimony to show the existence of such an arrangement, but the claimant herself shows that any such intent was purposely kept from him. She testified that something was at one time said between herself and her husband about her making a claim against the estate. She said: “The care of the old gentleman was such that I often told my husband it was no compensation, and my husband said ‘No,’ but that after grandpa died he wanted a claim made. My husband did not want to hurt grandpa’s feelings. Grandpa did not realize that he was a care. * * * My husband said that he did not want to speak about it, because his father would feel hurt., The old gentleman did not realize that he was a care. I cannot recollect that anything else was said upon the subject.” The mere fact that a father, living with his son, contributed something out of his own means as a compensation for his support, is not sufficient to negative the existence of the family relation, and open the door to speculation as to whether there was an agreement to pay such further compensation for maintenance as a jury might think the equities of the case justified. The judgment is reversed, and, inasmuch as no different state of affairs can be shown to exist upon a new trial, none will be ordered. Judgment will be entered in this court for the amount of the board, $18, and interest. The estate will recover the costs of both courts. Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.

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Moore, J. Plaintiff sued defendant to recover for injuries sustained by her from a fall received on a defective sidewalk at about 7 o’clock in the evening of October 7, 1893, which, resulted in severe injuries to her. Mrs. Ottley had been ordered by the proper authorities to construct a new walk in front of her premises, upon a grade recently established. She built a cement walk, which was completed the daj7- before the injury occurred. The walk was not dry, and had not been thrown open to the public, at the time of the accident. The west end of the walk was about 6 inches higher than the walk on the adjoining property. At the east end of the new walk there was a drop of 18 or 20 inches. The city authorities had notice of the situation of the walk. It was at the east end of the new walk that the accident occurred. It is the claim of the defendant that the contractor who built the walk erected at each end of the new walk suitable and proper barriers to exclude the public from using the walk, and that these barriers were known to be in place as late as half past 5 o’clock upon the afternoon of .the accident, and that they had been removed by some evil-disposed person,—just how long before the accident, no one knows. It was also the claim of the defendant that suitable lights were kept on the barriers when it was dark; that upon the evening in question the lights were all prepared, but had not yet been put out, because it was not dark enough to require them. It was the claim of the plaintiff that proper barriers had not been erected by any one; that, when the accident occurred, it was so dark that she could not see the dangerous condition of the walk. It was also her claim that the city authorities, after knowledge of the condition of the walk, had not acted at all. After the testimony was all in, the trial judge was requested to direct a verdict for the plaintiff. This he declined to do, and charged the jury as follows: “The legislature of this State has made it the duty of a city to keep in reasonable repair, so they will be reasonably safe and convenient for public travel, all sidewalks within its jurisdiction. The law does not require that the sidewalks shall be kept absolutely safe, but only reasonably so, and fit for public travel. It is the duty of the defendant city to exercise, through its officers and its agents, a reasonable and supervisory care over its sidewalks, and, within reasonable limits, to be watchful of their condition and safety. The defendant is not bound to extraordinary diligence, but only to an ordinary and reasonable care and diligence. It is not an insurer of safety. It does not undertake to warrant against accidents and injuries. But it does undertake to exercise reasonable care and diligence in respect to the condition of its sidewalks. “The plaintiff in this case bases her claim to recover upon the allegations that the defendant city has been guilty of negligence in the care of its sidewalks, and that she met with her accident and injuries by reason of such negligence on the part of the city. * * * The particular negligence complained of by the plaintiff against the defendant is that this sidewalk, when completed, was left in a dangerous situation; that no danger lights or proper barriers were put there to warn and protect the public against accident. It is undisputed that the walk was ordered and laid upon a grade established by the city, and that the street commissioner was present at some time or times during its construction. “Now, you will determine from the evidence whether or not this walk, when completed, was dangerous, and whether or not, at the time this accident occurred, this sidewalk was in a dangerous situation or condition. If you find from the evidence that, at the time this accident occurred, this walk was in a dangerous condition, and unfit for travel, then it was the duty of the defendant to see that proper barriers were placed there during the-day, and suitable lights at night, to warn the public of this alleged danger,—that is, such barriers and such lights should be placed as would be sufficient to warn persons of reasonable and ordinary prudence of the presence of this alleged danger; and, if the city failed so to do, it would be liable to the plaintiff for any injury which she suffered, caused thereby, and to which she did not contribute. As far as the question of barriers for the daytime is concerned, if they were maintained until 5 o’clock of the day the accident occurred, and then removed by some unknown person, without the knowledge or authority of either the defendant or Mrs. Ottley, there could be n'o charge of negligence for want of these barriers; but if, at the time this accident occur red, the barriers, if there, would not have been a reasonable caution or protection, and if you find from the evidence that warning lights should have been there for the protection of the public, and that none were so placed, and if you further find that the city failed to take any measure or action to see that such lights were so maintained there, the defendant would be guilty of negligence, if you find that such lights were necessary to the reasonable protection of the public.” The jury returned a verdict in favor of the defendant. A motion was made for a new trial, upon several grounds; the only one necessary to notice here being that one of the jurymen, Mr. Taylor, was a member of the common council. The record discloses that the attorney for plaintiff at the time the jury was selected knew that Mr. Taylor was an alderman, and made no objection to him on that account. The motion for a new trial was overruled, and the case is brought here by the plaintiff. The motion for a new trial was properly overruled. Counsel cannot risk a verdict, and, when it is adverse to them, then move for a new trial, basing their application upon facts which were known to them when the verdict was received, which facts they failed to call to the attention of the trial judge. Bourke v. James, 4 Mich. 336; Sleight v. Henning, 12 Mich. 371; Johr v. People, 26 Mich. 427. It is urged in the brief filed on the part of the plaintiff that the city is liable for defects of construction, as well as for defects for want of repair (citing Carver v. Plank-Road Co., 61 Mich. 590; Sebert v. City of Alpena, 78 Mich. 165), and that the city is liable for a dangerous drop in the sidewalk, even when made by a private citizen (citing Shippy v. Village of Au Sable, 85 Mich. 295), and that the city must close the street or sidewalk to all travel, if necessary to protect the public (citing Southwell v. City of Detroit, 74 Mich. 438; Alexander v. City of Big Rapids, 76 Mich. 284). Undoubtedly, these positions are well taken, and, if we read the charge of the circuit judge correctly, they were accepted as true by him. No case can be found, however, that requires the closing of a street to travel because a new sidewalk is in process of construction. The most that is required is that the public shall be excluded from that portion of the walk that is not reasonably safe and fit for travel, while it is in that condition. An effort was made to do this by the contractors. If we understand the position of the counsel for the plaintiff, it is that inasmuch as the city, by its officers, placed no barriers or lights, and the accident occurred, the city is liable, even though the contractor and the property holder had erected barriers and placed lights. We do not think this position can be maintained. All that is required is that the city shall see that the sidewalk is reasonably safe and fit for travel. If the walk is kept in that condition, whether it be done by the contractor, the property owner, or the city, it is to be treated as done by the city, and there can be no liability. The charge of the court was a careful and full explanation of the law as applicable to the case. If the charge is open to any criticism, it is that it was even more favorable to the plaintiff than she was entitled to have it; for it may well be questioned whether there would be any liability, where barriers had been placed as was shown to have been done here, when they were removed by some wrong-doer, and there was no knowledge on the part of the city of the removal of the barriers. Klalt v. City of Milwaukee, 53 Wis. 196 (40 Am. Rep. 759); Mullen v. Town of Rutland, 55 Vt. 77; Raymond v. Keseberg, 91 Wis. 191; Weirs v. Jones Co., 80 Iowa, 351. We do not discover any error in the record. Judgment is affirmed. The other Justices concurred.

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Montgomery, J. ' The village of St. Louis became incorporated as a city by and under Act No. 211, Local Acts 1891. By this act the city was divided into four wards, and it was provided that the city should elect a city assessor, and that such assessor should constitute the representative of the city on the board of supervisors. The general act for the incorporation of cities, being Act No. 215, Pub. Acts 1895, provides for the reincorporation of all cities previously incorporated of a certain class, unless 50 or more of the qualified voters of an existing city shall petition for an election to determine whether the city shall remain incorporated under its previous special act. No such action was taken by the city of St. Louis, and Act No. 215 therefore became operative. In the spring of 1896 the city elected the several relators- as supervisors of the respective wards of said city. Relators appeared at the June session of the board of supervisors, and claimed the right to a seat upon the board. Their claim was rejected, and thereupon they instituted a proceeding by mandamus in the circuit court of Gratiot county to have their claims recognized. After a hearing, such mandamus was granted, and the respondent has sued out a writ of certiorari to this court to review the action of the circuit judge in granting the mandamus. The question turns upon the construction of three sections of Act No. 215, being section 26 of chapter 7, section 1 of chapter 31, and section 2 of chapter 5. Section 26 reads as follows: “The supervisors of the several wards are authorized to perform the same duties in relation to the assessment of property and levying taxes for all purposes in their respective wards as are imposed by law upon supervisors elected in townships, and they shall have the like powers and perform the like duties in all other respects as supervisors so elected, except as herein otherwise provided, so far as such powers and duties are required to be exercised and performed in their wards. They shall represent their several wards in the board of supervisors of the county in which the city is located, and shall have all rights, privileges, and powers of the several members of such board of supervisors: Provided, that any city now having a greater representation upon the board of supervisors of any county than is provided by this act shall continue to have such representation as it may have at the time of such reincorporation, and, if the office of any officer now representing any such city upon the board of supervisors is abolished by this act, the council of such city may annually appoint some suitable person, being a resident elector of such city, to represent the city upon the board of supervisors in the place of such officer whose office has been abolished.” The provisions of this section would seem to be clear and unambiguous, when construed in connection with section 2 of chapter 5, which provides that “in each ward a supervisor * * * shall be elected.” Section 26 defines the duties of such supervisors, and in terms provides that they shall represent their several wards on the board of supervisors of the county. The only proviso is that any city now having a greater representation upon the board of supervisors of any county than is provided by this act shall continue to have such representation. As this city had not previously a greater representation, it is clearly not within the terms of the proviso, unless the language of the proviso is to be controlled by other provisions of the act. It is contended that the proviso to section 1 of chapter 31 should be construed in connection with section 26 of chapter 7. That proviso is contained under the title, “Assessment and Collection of Taxes,” and follows a provision requiring supervisors to make a complete assessment, etc., and is as follows: “ Provided, that any city now incorporated, and which shall become reincorporated under this act,“now having an assessor for the assessment of property and the levying of taxes, such city may retain its present method of assessing property and levying taxes, and such assessor in office at the time this act shall take effect shall remain in office until the expiration of the term for which he was appointed or elected, and until his successor shall have been appointed and qualified.” We' think this latter provision is merely permissive, and that, notwithstanding this proviso, cities incorporated under Act No. 215 are entitled to elect supervisors in the various wards of the city, as authorized by said act, and that there is no fair construction of any provisions of the statute which leads to any other result. The order of the circuit judge will be affirmed. Long, 0. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit.

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Moore, J. The statement of facts prepared by coun-sel for defendant’ is so terse and clear that it is adopted here: “This is an action of assumpsit. Prior to March 14, 1892, plaintiff was the owner of a house and lot in the city of Grand Rapids, Mich., incumbered by a mortgage of $1,850, and some accrued interest and back taxes, which he had placed in the hands of Averill & Frary, real-estate agents, for exchange for property with less incumbrance. Defendant was the owner of a house and lot in Coopersville, Mich., incumbered by two mortgages,'—one of $200 and one of $300, each with some accrued interest. Through the efforts of the real-estate agents an exchange of these properties was effected, the deeds being executed and delivered March 14, 1892. 'The deed from defendant to plaintiff was an ordinary warranty deed, and the covenants in the deed read as follows: ‘And the said Emeri J. Savage and Eunice Savage, his .wife, parties of the first part, their heirs, executors, and their administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever, except two mortgages (one of three hundred dollars, and one of two hundred dollars) given to Isaac Manchester, of Coopersville, Michigan; and that they will, and their heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except two mortgages (one of three hundred dollars, and one of two hundred dollars) given to Isaac Manchester, of Coopersville, Ottawa county, Michigan.’ “Plaintiff’s claim was that defendant was to take his property subject to the mortgage of $1,850, the accrued interest, and back taxes, and give him in exchange therefor $200 and the Coopersville property, subject to the principal, only, of the mortgages of $200 and $300 mentioned in his deed, and that defendant was to pay, not only the interest accrued on them at the time of the trade, but as well what would accrue to the 9th day of April, 1892. Defendant admitted the bargain was as stated by plaintiff, except as to the interest on his mortgages. He paid plaintiff the $200, and deeded him his Coopersville property subject to the two mortgages, but did not pay any interest on them, claiming the bargain was that plaintiff was to take his place subject to the mortgages and accrued interest. March 30, 1892, _ the interest not having been paid, foreclosure proceedings were begun on these mortgages. July 5, 1892, plaintiff paid the mortgages, including the costs of foreclosure. He afterwards brought this suit, and was permitted to recover a judgment, against defendant, for the interest claimed to have accrued on these mortgages to the 9th day of April, 1892, being interest claimed to have accrued at the time of the exchange and for 26 days thereafter. This judgment defendant seeks to have set aside.” The jury, under the rulings and instructions of the court, found for the plaintiff; and it is those rulings and instructions of which defendant now complains, and which he asks this court to review. The first group of assignments of error relates to the opening statement of counsel. A great deal was said by the attorney for the plaintiff in his opening that it would have been well to leave unsaid, but we do not think what was stated was so prejudicial as to justify us in reversing the case for that reason alone. The assignments of error that next require discussion relate to the admission of oral testimony of the agreement of defendant to pay, not only the accrued interest on the two mortgages, but also the interest up to April 9, 1892. Counsel insist—First, that it is an attempt to vary the terms of a written agreement; second, that it is an agreement in regard to real estate, and, to be binding, must be in writing; and, third, that the deeds themselves were the final agreements about the exchange, in which all prior or contemporaneous agreements merged; citing Cook v. Bell, 18 Mich. 393; Abell v. Munson, 18 Mich. 306 (100 Am. Dec. 165); Vanderkarr v. Thompson, 19 Mich. 85; McEwan v. Ortman, 34 Mich. 327; Adams v. Watkins, 103 Mich. 431. It is undoubtedly the rule in this State that you cannot vary the terms of a deed by parol, and that a conveyance of an interest in real estate must be in writing to be of binding force; but we do not understand that this was the purpose of the testimony. It was sought to show by the testimony what was the actual consideration for the giving of the deed. Our understanding is that parol testimony is competent to show the consideration for a deed. See Doty v. Martin, 32 Mich. 462; Strohauer v. Voltz, 42 Mich. 444; Dean v. Adams, 44 Mich. 117; Hyler v. Nolan, 45 Mich. 357; Flynn v. Flynn, 68 Mich. 20. These cases are in point, and establish the correctness of the ruling of the trial judge. Upon the trial, Mr. Goodrich, who was the attorney in the foreclosure proceedings, was allowed to testify what defendant told him about paying the interest. We think this competent, as bearing upon the theory of plaintiff that defendant had agreed to pay the interest. Mr. Goodrich was also allowed to testify that he made a computation of the amounts due on the mortgages at the time they were discharged and paid, and made a memorandum thereof, which he produced, and from which he testified how mtích was due on the mortgages. It is said that the mortgages ought to have been produced, and that Mr. Goodrich had nothing present to base any figures upon, so that it could be told whether or not they were correct. Mr. Goodrich was cross-examined at length about his knowledge of the amount due on these mortgages, and, while it appeared that he was not present when the payments were made, and could not remember what indorsements were made on the mortgages, it was made to appear that the computation was made while the mortgages were in his possession and in process of foreclosure, and for the sole purpose of learning how much was due upon them. We think Mr. _ Goodrich was shown to have sufficient knowledge of the subject about which he was testifying to make him a competent witness. It might be suggested, in this connection, that Mr. Savage was a witness, and was examined about the two mortgages and his payments thereon. He did not contradict the testimony of Mr. Goodrich as to the amount due. The other assignments of error have had consideration, but we do not deem it necessary to discuss them here. The judgment is affirmed. The other Justices concurred.

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Long, C. J. December 12, 1891, George P. Booth and Randall T. Van Vaulkenburg, who were stockholders in the Belding Chemical Fire Engine Company, entered into a land contract and agreement with the Belding Land & Improvement Company of Belding for the purchase of certain lots. It was agreed: First. That Booth and Van Vaulkenburg should have immediate possession. Second. That Booth and Van Vaulkenburg should erect, within six months, upon the premises, a brick factory two stories high, 50 feet wide, and 150 feet long, for the purpose of manufacturing chemical engines, etc. Third. That the Belding Land & Improvement Company, upon the completion of the building, and upon the boiler and engine being set in the building, should pay Booth and Van Vaulkenburg $5,000 in cash. Fourth. That Booth and Van Vaulkenburg should cause to be employed a daily average of 35 men per year for four years next ensuing after said six months. Fifth. That, upon all these conditions being performed by Booth and Van Vaulkenburg, the Belding Land & Improvement Company should, at the expiration of five years, give to Booth and Van Vaulkenburg a warranty deed of the premises, but that, in case they failed to perform any of the conditions, the Belding Land & Improvement Company should have the option to declare the contract void, and should have the right to re-enter and repossess the premises, but upon the condition that, if it exercised such option, Booth and Van Vaulkenburg were to have the right to remove from the premises all machinery, boilers, engines, shafting, tools, etc., and that they were to have a reasonable time for that purpose. In August, 1892, the Belding Land & Improvement Company claimed that the work had not progressed as rapidly as agreed, and refused to pay over the $5,000 until the words “boilers” and “engines” were stricken out of the fifth paragraph of the contract, and it be given a bill of sale of the boiler and engine, to be used in the building, by Wiennett & Bauer, from whom Booth and Van Vaulkenburg had purchased them. The contract was so modified, and the bill of sale given. The building was completed, and the boiler and engine placed therein. Some time during the summer of 1892, the defendant had loaned to Wiennett & Bauer something over $2,000, and had taken a note therefor, and in the month of December she took as security from them a chattel mortgage upon certain personal property, including this boiler and engine. Thereafter she took two bills of sale of this property covered by the mortgage, but did not include the boiler and engine. A few days afterwards, and on January 9,1893, the defendant, who had not learned until then that the boiler and engine were left out of the bills of sale (said bills of sale having been taken for her by her son), was advised that the Belding Land & Improvement Company claimed them as a fixture, that company having gone into possession of the property at that time. The defendant thereupon purchased the whole of the plant from the Belding Land & Improvement Company, taking a warranty deed therefor, and went into immediate possession. Wiennett & Bauer had purchased this boiler and engine from the Lansing Iron & Engine Works, the plaintiff in this case, under a written contract, by the terms of which the title and right of possession were retained by the Lansing Iron & Engine Works until the property was fully paid for. Wiennett & Bauer having failed to make payments under the contract, the plaintiff made inquiry in reference to the boiler and engine, and for the first time learned that the defendant claimed title. Demand was made upon her for the property, which she refused to surrender, and this action was brought in trover to recover its value. In the contract between plaintiff and Wiennett & Bauer, it was provided that the boiler and engine and fixtures therewith should be used in Belding, Ionia county, and that the vendees were to retain the use so long as they took reasonable care of the machinery, and were not in default in payments; but in case of default or failure of payment of any part of the price, or interest thereon, at the time and in the manner specified in the contract, or if the vendees should attempt to sell, assign, or dispose of the same, or remove, or attempt to remove, the same from Belding, that the Lansing Iron & Engine Works might take the property into its possession, and retain it as its property, or sell it at private sale, and apply the proceeds on- the contract. The manner in which the boiler and engine were placed in the building at Belding is described by Mr. Barnes, the president of the plaintiff company, as follows: “We found the boiler and engine located in the large brick building at Belding. The boiler was bricked in, or arched in with brick. Could not say whether the arch formed a part of the side of the building against which the boiler set, or not; but the arch that covered the boiler was connected with the outside wall of the building. The boiler room in which this boiler was placed was all brick, and joined onto the main building. I think the boiler could have been taken out of the door without removing any of the outside walls, although the foundation and arches over the boiler would have to be torn down; also, the smokestack that goes through the roof would have to be removed. This boiler and engine were placed in the building as permanently and solidly as ever I saw a boiler and engine placed in a building.” On the trial, it was disputed whether or not the boiler could be taken out of the building without injuring the outside walls, some of the witnesses testifying that it could, and others that it could not. It appears, however, that the engine was placed upon a stone foundation, and fastened with rods and bolts which went down through the foundation and clinched at the bottom; that the boiler was arched over with bricks, with rods running through the boiler, and stayed by cleats on the outside of the building to the outside of the arch over the boiler on the inside of the building; also, that there was a smokestack that went up through the roof, which would -have to be taken down to take the boiler out. There were steam pipes running from the boiler, through the brick walls, connected with the engine, and connected also by belts, pulleys, and other machinery with the engine. It also appears from the testimony of Mr. Clark, who made the contract on behalf of the Lansing Iron & Engine Works with Wiennett & Bauer, that he had been told by them where the engine and boiler were to be placed, arid for what purpose; and the testimony of Mr. Barnes shows that the plaintiff furnished blue prints to purchasers, showing how engines and boilers should be set, and that these in question were set according to the prints, and that this boiler and engine were not portable. At the close of the testimony in the case, the court charged the jury as follows: “Now, gentlemen, a title can be surrendered upon notice of forfeiture, but this gave the improvement company no better title than Booth and Van Vaulkenburg obtained from Wiennett & Bauer. They had treated it as personal property. This lady, the defendant in this case, claims that she had a chattel mortgage upon this property, taken soon after it was put in this building. That, in the judgment of the court, was notice to her of the character of the property, and she could not come in here, and contend she was an innocent purchaser of the property, by reason of afterwards obtaining a deed of the real estate upon which this property stood. So, I say to you, gentlemen of the jury, that, under the undisputed evidence in this case, your verdict must be for the plaintiff.” The court further charged: “There is no question in this case but what the title to that property was reserved, and is now in the Lansing Iron & Engine Works.” Under this charge, verdict and judgment were entered in favor of the plaintiff. Defendant brings error. The only question in the case is whether, under the facts here stated, this boiler and engine are to be treated as personalty, or whether they became so affixed to the realty that they passed to the defendant under the deed taken by her from the Belding Land & Improvement Company. The controlling principle in determining the question of fixtures is the intention of the parties. It is well settled in this State that the vendor may retain title to personal property sold until paid for, and that the vendee cannot, before his title becomes absolute, pass a good title, and that the good faith of a purchaser from the vendee is immaterial. Nor is the question of notice of the vendor’s rights material. Lansing Iron & Engine Works v. Walker, 91 Mich. 409 (30 Am. St. Rep. 488); Gill v. De Armant, 90 Mich. 430; Thirlby v. Rainbow, 93 Mich. 164; Marquette Manufacturing Co. v. Jeffery, 49 Mich. 283; Pettyplace v. Manufacturing Co., 103 Mich. 155, and note. In the first case cited, the plaintiff sold to one Myers a boiler, engine, and fixtures under a similar contract to the one in controversy, retaining the title until the property was paid for. The property was to be removed to the township of Sandstone, and was taken there. The boiler was bricked in and arched up, and the engine was set upon brickwork, and bolted down to the foundation. Myers owned an undivided interest in the real property where the boiler and engine were placed. About a year after the boiler and engine were placed in this mill, Myers conveyed the real estate by quitclaim deed to the defendant. Payments became due under the contract. Thereafter demand was made for the boiler and engine. Defendant refused to surrender them, and trover was brought to recover the value of the property. The court directed verdict for the plaintiff for the balance due on the contract. The defendant contended that the case should have been submitted to the jury upon the question of fact raised by the testimony as to whether the purchase made by the defendant from Myers was in good faith, for a valuable consideration, and without notice of the claim of plaintiff against the property purchased. The court refused to give such request. It was said by this court: “ There was nothing done by plaintiff indicative of an intent to permit the machinery to be so annexed to the realty as to change its character. The state of the title to the realty, and the conduct of Myers regarding the machinery, negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged. The circumstances of the purchase by defendant clearly indicate that he took the entire interest in this machinery, while he took but an undivided interest in the realty.” The judgment was affirmed. It was held in that case that it was ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Mich. 777. In the first of these cases it was said by this court: “All the time, therefore, the parties have had title to the machinery distinct from their title to the land, and this fact of itself is conclusive that the former was personalty; for, to constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to another undivided interest be personalty. It must be the one thing or the other. And the position which is taken by Lee in this case involves this absurdity: That Kaufman, at the time when he and Kinney were severally the owners of an undivided half of the land, might have sold that, and, as a necessary consequence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be. the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an undivided interest in the land only.” In the present case, every person connected with the matter, at some time during the dealing, regarded and treated this machinery as personal property, and not as a fixture. At the time of the sale to Wiennett & Bauer, they had no interest in the realty. They placed the machinery in position in the mill, the title to the mill being in Booth and Van Vaulkenburg under their contract with the Belding Land & Improvement Company. Booth and Van Vaulkenburg forfeited their contract, and the company took possession of the land, not with the understanding that this machinery belonged to and was a part of the realty, but that the title to it was in Wiennett & Bauer, from whom it demanded that a bill of sale should be given. The defendant also regarded the machinery as personal property, as she took a chattel mortgage from Wiennett & Bauer on it as security for her debt from them, though afterwards, and without her knowledge, her son, in taking the bills of sale of the property, left out the boiler and engine. It is undoubtedly true that she presumed, in making the purchase of the realty from the Belding Land & Improvement Company, that she was acquiring title to the boiler and engine; but we think there is nothing in the' case which indicates that it was the intent of any of the parties that this machinery should be so annexed to the realty that it should become a part of it. As was held in Wheeler v. Bedell, 40 Mich. 693, there is no universal rule by which the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned. In Colemanm v. Manufacturing Co., 38 Mich. 30, the court, commenting upon the line of authorities which seems to regard the manner of attachment to the realty as the test, say: “This, however, is a very extreme view, and is hardly compatible with the tenor of our own previous decisions.” If the manner in which the boiler and engine were attached were to be treated as the sole" test, there might be some force in. defendant’s contention; but in view of the fact that there was never unity of title of the realty and the personalty in one and the same person or persons, and of the manner in which the property has been dealt.with, together with the respective interests, we are compelled to hold that the defendant did not acquire title under her deed from the Belding Land & Improvement Company. The court was therefore correct in directing verdict and judgment in favor of the plaintiff. The judgment must be affirmed. Grant, Montgomery, and Hooker, JJ., concurred. Moore, J., did not sit.

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Montgomery, J. Complainant, in January, 1895, became the purchaser from the State of the 78.89 acres of land in controversy, under a tax deed; the State having become the purchaser at the annual tax sale in December, 1893, the lands having been sold for the delinquent taxes of the year 1891. This bill is filed to quiet complainant’s. title under his tax deed. It is claimed that under the law of 1889, as amended by the law of 1891, lands assessed for taxes of that year, upon which the taxes were unpaid, must be returned delinquent to the county treasurer in March, 1892, and that section 51‘of the act provides that all lands returned delinquent shall become subject to sale one year from the 1st day of July next after their return, and that by section 62 these lands could be sold on the first Monday in May next following the date at which they became subject to sale, so that they could not have been sold under that act before the first Monday in May, 1894, and that by section 68 the owner can redeem at any time previous to one year from and after the 30th day of September next succeeding such sale; so that, if these lands had been sold under the act of 1891, they would have been subject to redemption until September 30, 1895, whereas under the amended law the sale was made in December, 1893, and complainant’s deed was executed in January, 1895. It is claimed that the amended law of 1893 does not apply to these lands at all, and that the act of 1891 is .yet in force as to them. It is conceded that some parts of the act of 1893 seem to contemplate that the provisions of that act -shall apply to the sales of certain lands returned delinquent for taxes of previous years. Section 60, Act No. 206, Pub. Acts 1893, is as follows: “All lands which have been or may hereafter be returned to the auditor general as delinquent for taxes, and upon which any taxes are now or shall hereafter remain unpaid, after their return to the auditor general under the provisions of this act, or to the several county treasurers of the State under the provisions of Act No. 200 of the Public Acts of 1891, for the period of one year or more, shall be subject to disposition, sale, and redemption for the enforcement and collection of such tax liens, in the method and manner as hereinafter provided.” These provisions would seem to be clear. But it is contended that the provisions of section 125, which reserves all rights which have accrued to any person under-the previous tax laws, and section 126, which, after repealing contravening acts, provides that such repeal shall not destroy or affect any rights which may have accrued or which may hereafter accrue under such acts or parts of acts while the same were in force, are inconsistent with the provisions of section 60, and indicate that it was not the intention that proceedings to enforce the collection'of the' tax assessed under the law of 1891 could be taken under the law of 1893. It is asked, “Is not the right to own and hold property one of the dearest vested rights known to the law?” The answer is, of course, obvious. But we think it clear that section 125 and section 126 were not directed to the reservation of these- rights, but to the protection of such rights as accrued tmder the -previous acts. The right of defendant or his grantors to own this property was not derived under the tax laws. It is next said that section 71 of the tax law of 1893 shows that the legislature did not intend to shorten the periods of sale and redemption of lands delinquent for the tax of 1891. This section gives the form of the certificate of sale, which contains the statement that the purchaser will be entitled to a deed of conveyance in one year from the 30th day of September next following. It is evident that, in copying this certificate into the law of 1893, a mistake occurred, as it was taken bodily from the certificate provided for by the law of 1891. But other sections of the statute of 1893 make the intention of the legislature clear as to the date of redemption. Section 70 provides that certificates shall be given to each purchaser of the lands and interests bid off by him, showing the year and the tax for which he has purchased, and also the amount thereof, and of all other taxes paid by him at the time of such purchase, stating that he will be entitled to a deed after the period of redemption provided for in section 74 has expired. Section 74 provides that “any person owning any of the lands sold as aforesaid, or any interest therein, may, at any time within one year from and after such sale, redeem any parcel of such lands, or any part or interest in such lands,” etc. These provisions make it clear that the period fixed by law for redemption was 'one year, and the original owner cannot be con-c'erned as to the form of the certificate given to the purchaser, nor would it be material if no certificate was given at all. The law fixes the time within which redemption can take place, and his rights are not affected by the evidence of purchase which the statute has provided shall be furnished to the purchaser. It is next contended that, if the law of 1893 be construed to apply to the taxes for the year 1891, it hastens the time of sale of lands delinquent for taxes, and cuts down the period of redemption provided by the previous law, and is to that extent unconstitutional, in that it violates section 10 of article 1 of the Constitution of the United States, prohibiting enactments by the State impairing the obligation of contracts, and article 6, § 32, of the Constitution of Michigan, in that it deprives persons of their property without due process of law. We think neither of these positions is tenable. A labored argument is made to show that the relation between the State and the owner of the land is a contract relation, for the reason that the taxes assessed become a debt to the township from the person to whom they are assessed. But the proceeding is essentially in invitum, and the proceeding on a sale of land is a remedy for the delinquency of the taxpayer. The law affecting the remedy is in such cases subject to amendment, even though the time fixed for the sale or redemption be shortened. 25 Am. & Eng. Enc. Law, 410; Black, Tax Titles, § 353; Baldwin v. Ely, 66 Wis. 171; Negus v. Yancey, 22 Iowa, 57. Defendant relies upon Cargill v. Power, 1 Mich. 369, which case proceeds upon the view that the period of redemption on a mortgage sale, as fixed by statute at the time the mortgage was executed, is to be deemed a part of the engagement of the parties. No such construction can be placed upon the statute here under consideration. There was no agreement between the State and the taxpayer as to the period of redemption. It is contended that under the law of 1893 there was no provision for any private sale of State bids until after the period of redemption had expired, and that it was the duty of the county treasurer to offer the land held on State bids for sale at the next annual sale. The distinction claimed is that, when lands are bid off to the'State for taxes, they remain State bids until offered for sale the second time, under section 78, and if again bid off to the State, and not redeemed, when redemption expires they become State tax lands, and that they may then be sold at private sale, under section 84. It is evident that the provision for the sale of State tax lands at private sale is not one for the benefit of the original owner, as the period of redemption fixed by the statute is precisely the same whether the State or an individual becomes the purchaser. Section 78 provides that'—• “All lands heretofore or that may be hereafter bid off to the State for taxes, which have not been redeemed or otherwise disposed of, shall be offered for sale by the county treasurer at the regular annual tax sales.” Section 84 provides that— “Any person may purchase any State tax lands by paying therefor the amount for which the same was bid off to the State, with interest on the same at the rate of 8 per cent, per annum from date of sale, together with the other taxes remaining a lien on such lands at the time of the purchase so made, with the interest thereon at the rate provided in this act. Upon making payment as above, such purchaser shall be entitled to and receive a certificate and a deed conveying all the right, title, and interest of the State to such tax lands acquired or accrued by virtue of the original salp or sales to the State.” The contention of defendant has some support in the fact that the legislature in 1895 apparently deemed it necessary, or at least wise, to amend section 84 by inserting “State bids” before the words “State tax lands.” This is, negatively, perhaps, a legislative construction of the previous act. On the other hand, it is evident that the auditor general’s department construed the words “State tax lands” to include all lands of which the State had become purchaser, either upon the original sale or upon a second sale to the State. Turning to section 70,' we find a use of the words ‘ ‘ State tax lands ” consistent with this construction, and which, we think, shows the sense in which the term “State tax lands” was used. This section provides, in substance, that, in case a sale of lands cannot be made at the annual sale, the county treasurer shall bid off the same in the name of the State, and in such case the county, township, school, and other taxes assessed on the lands so bid off to the State, and the interest and charges thereon, shall remain a lien upon said lands, and any person or persons who shall afterwards purchase such lands of the State, as State tax lands or otherwise, shall be liable for, and shall pay, all taxes then remaining unpaid. We think the sale was regular. It is claimed that the judgment is void for the reason that on the petition and published list the dollar mark does not appear. The figures were divided in such manner as to indicate a place for dollars and cents, and in the judgment they wei’e sufficiently designated. We held in the case of Millard v. Truax, 99 Mich. 159, that a judgment entry was insufficient if it failed to show any dollar mark, or anything in terms to indicate that money was intended. This rule is supported by Cooley, Tax’n, (2d Ed.), 529, but, we think, should not apply to other proceedings in the course of taxation. See Black, Tax Titles, § 117. It is claimed that there was no sufficient proof of the publication of the petition. The affidavit is sworn to by a Mr. Tinklepaugh, who swears that he is printer and publisher of the Kalkaska Leader, and who swears positively to the fact of publication. The statute (section 66) provides, “Any person familiar with the facts may make an affidavit as to the publication required.” It is claimed that, as the affidavit does not contain a statement that the person making it is familiar with the facts, it is insufficient. We think this contention is without force. The intention and purpose of the statute were to authorize any person who was able to swear to the facts to make the affidavit, and the fact that he swears to the facts is evidence of his ability to do so. It is contended that there was no decree entered in the case. The statute providing for the decree (section 67) provides that it shall have the usual caption of decrees, and shall be substantially in the following form: “In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for Taxes Assessed Thereon,” etc. In this case the decree was entitled, “State of Michigan. The Circuit Court for the County of Kalkaska, in Chancery. State of Michigan, Complainant, vs. C. P. Sweet and Certain Other Delinquent Taxpayers of Said County, Defendant.” Following this, the usual caption, and thereafter, “In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for the Taxes Assessed Thereon.” We think this was clearly enough to identify the proceedings, and that the previous entitling was not' misleading, and, although irregular, may be treated as surplusage. The other questions presented relate to the regularity of the proceedings prior to the decree. We must hold that these questions were all foreclosed by the decree. In Cole v. Shelp, 98 Mich. 58, we held that every owner of land is presumed to know the law, and that he knows that his land is subject to taxation. The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to the validity of the tax. The purpose of the statute is to give every person his day in court, in an equitable proceeding. We are cited to the case of Fowler v. Campbell, 100 Mich. 398, in which it was held that where lands were improperly assessed to the estate of R. M. Risdon many years after the estate had been closed, and where there was no personal service upon the resident heirs, the court was without jurisdiction to grant the decree. This case was put distinctly on the ground, however, that personal service was required by the statute then in force.' Under the law of 1893, no personal service is required. The notice by publication is notice to all landowners Avithin the county, and the question for adjudication as to the lands named in the published list is whether there is a tax due to the State from the owner. . This includes the question of whether it is properly assessed, and whether proper steps have been taken to charge the land after the assessment. If the owner permits the case to proceed to decree, all these questions become res adjudícala. The statute (section 70), in terms, provides that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation, and that in such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same' aside. There is no claim in this case either that the taxes had been paid or that the lands were exempt from taxation. This construction of the law may, in particular cases, work a hardship; but the law is the outgrowth of many years of investigation and experience, and was conceived by the lawmakers to be the best measure which could be adopted, having in view the purpose of compelling the owner to pay his taxes promptly, and it is not the province of the court to fritter away its plain provisions by forced construction. The decree of the court below will be affirmed. Long, 0. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit. The distinction sought to be drawn by counsel between “State bids” and “State tax lands” is not the precise distinction recognized by the auditor’s department. Lands bid to the State are there regarded as “State bids ” before, and “ State tax lands ” after, the expiration of the redemption period. In this connection it will be observed that the statute (section 78 et seq.) does not in terms provide for a second bidding off to the State, and, in practice,'lands once bid to it are merely carried upon the State books until purchased by individuals, either at the annual sales or at the office of the auditor. In the present case, the lands were bid off to the State in December, 1893, and complainant bought at private sale January 15, 1895, after the period for redemption had expired, and after one regular public sale had intervened.—Reporter.

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Moore, J. Mrs. Rhea presented a claim against decedent’s estate as follows: Wages from May SO to July 3, at $15, one and one-half months............................... $23 50 Wages for attending store nine months, extra.-- 45 00' Value of cottage and store building and ground promised claimant by deceased for services_____ 2,500 00 Work and labor done for deceased at his request, agreed to be paid for by his property known as the “Cottage”__________.................... 2,500 00 Interest at 6 per cent, after July 3, 1894________ Work and labor done for deceased at his request-. 2,500 00 Interest at 6 per cent, after July 3, 1894........ The commissioners allowed claimant $1,720. An appeal was taken to the circuit court, where a jury rendered a verdict in favor of claimant for $2,790. The estate appeals. Jacob Meyers died in June, 1894, at Grand Rapids, where he had lived many years. At the time of his death he left no children, but left an estate of upwards of $20,000. His wife died in June, 1889. ■ At this time Mrs. Rhea was a resident of Clyde, N. Y. It is the claim of Mrs. Rhea that Mrs. Meyers desired Mrs. Rhea to come on to act as housekeeper for Mr. Meyers; that Mr. Meyers telegraphed for her, and that she arrived three days before Mrs. Meyers’ death. The evidence discloses that for many years before his death Mr. Meyers had been a hard drinker, and that the habit was worse after his wife’s death. When he was under the influence of liquor, he was unfit to do business, and was given to squandering his money, and making foolish bargains. It is the claim of Mrs. Rhea that she acted as Mr. Meyers’ housekeeper and cook, and that when he was ill or drunk she acted as his nurse, and took charge of his money and business; that Mr. Meyers knew his failings, and instructed Mrs. Rhea, when he began a spree, to take charge of his money, watch, diamonds, and keys; that she did this, and, when he got sober, returned them to him; that when drunk Mr. Meyers had to be watched constantly, as he would fall and hurt himself, and would drink anything within reach, even though it was hurtful; that he would light matches and. cigars, and throw them down while on fire, imperiling his person and property; that when drunk his habits were filthy; and that she had to and did look after him. It is also claimed by her that she found the work so hard that she left Mr. Meyers, and went to work as a cook for Mr. Stevens, for $8 a week, and board for herself and daughter. It is her claim that Mr. Meyers came to her there, and urged her to return; that she at first declined, but that she finally consented to go, upon his promise that if she would go back he would give her $15 a month, and the cottage where he then lived, for her services, and that this was a renewal of a promise he had made to her before. It is her claim that under this agreement she went back, and performed services for him of the character already described until his death, a period of nearly four years; that at the time of Mr. Meyers’ death he had paid her in part, but had not deeded or willed her the cottage. On the hearing she introduced testimony tending to support her claim, and it is evident that the jury believed her claim to be established by the evidence. It is claimed for the estate that this contract, even if established, is not good, because it lacks definiteness, and because it cannot be ascertained what was meant by the parties when they spoke of the “Cottage.” It is said to be impossible to tell whether the parties intended to include simply the building in their agreement, or whether land was to be included, and, if land, how much. We do not think this contention can be sustained. The evidence discloses that a piece of land 49 feet front and 222¿ feet deep, with the cottage upon it, was bought by Mr. Meyers, eight years after he purchased the land adjoining it. Some of the testimony is that he always referred to this purchase as the “Cottage,” and the jury were justified in concluding that Mrs. Rhea and Mr. Meyers understood each other with reference to the real estate Mrs. Rhea was to have, if she performed her contract. It is also claimed on the part of the estate that the contract is void for all purposes, because: “First, it is founded upon a pretended verbal agreement to convey land, and is void under the statute of frauds; second, because there was no such part performance as would take it out of the statute; third, because plaintiff was never let into possession, and never made any improvements,”—and that the jury should not have been allowed to consider it in estimating the value of plaintiff’s services, or the amount she was entitled to recover from the estate. The questions thus presented by counsel were at issue in the case of In re Williams’ Estate, 106 Mich. 490'. We think this case must govern the case now under consideration. In that case, Justice McGrath entered into a full and detailed discussion of the issues involved. His opinion was so recently handed down that it is not necessary to review the authorities here. We do not think there was error in the trial of the cause. Judgment is affirmed. The other Justices concurred.

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Hooker, J. The defendants, on December 29, 1871, while residents of the State of New Jersey, executed a bond for $6,000, payable January 1, 1873, interest payable semi-annually, accompanied by a mortgage upon New Jersey land owned by defendant Catherine M. El well, the defendant John A. El well having signed the bond as surety. The defendants paid interest on the bond regularly up to January 1, 1877, the last payment made by them being on January 3, 1877. On January 10, 1877, they joined in a conveyance of the mortgaged premises to Christine H. Arkell, for $14,500, subject to said mortgage, the property being then worth $20,000. In July, 1877, the defendants l’emoved to Michigan, where they have since resided, giving plaintiff no notice of their removal, and paying no further attention to the matter of their indebtedness. Christine Arkell paid the interest upon the bond until December, 1891, when she sold the property to James W. Arkell, and he paid interest to July 1, 1892, since which time no interest has been paid. In 1893, foreclosure was commenced in the chancery court of New Jersey, and the premises were bid in by the plaintiff for the sum of $4,300, leaving a deficiency, including costs, of $2,401.15. The defendants were not made parties to the foreclosure proceedings, and were ignorant of them until after the sale had become absolute. This action was begun in the circuit coui't for the county of Gratiot, to recover the deficiency, upon the bond. The defense is the statute of limitations, and the court held that the plaintiff’s action was barred by the statute of Michigan, and that the statute of New Jersey had no application. It was further held that the plaintiff .should, have brought its action within 10 years after the defendants became domiciled in Michigan, to prevent the claim from being barred by the Michigan statute, and that the payments of interest by the Arkells were not such payments by defendants as to arrest the running of the statute. Counsel for the plaintiff contends: 1. That the court erred in finding that the statute of Michigan barred the claim, inasmuch as the plaintiff had no knowledge that the defendants resided in Michigan. 3. That the payments made by the Arkells were payments upon the debt, and for the benefit of the defendants, and had the effect of arresting the running of the statute, the same as though made by the defendants. It is a uniform rule that the law of the forum applies, and therefore it is the statute of limitation in force in Michigan, and not that of New Jersey, which must govern. See 1 Wood, Lim. § 8; Howard v. Coon, 93 Mich. 442. When the defendants came to Michigan, the statute had begun to run, the bond being due. No provision of our statute relieves a foreign plaintiff from the force of the statute because he is ignorant that the defendants have removed to Michigan; it is only when the defendants are absent from Michigan that the statute is arrested. These defendants were residents of the State continuously for over 10 years after the statute commenced to run, and we are not advised of any authority which suspended the statute by reason of plaintiff’s want of information concerning their whereabouts. There is nothing to show that the payments made by the Arkells were other than payments for their own benefit, to relieve the premises from the incumbrance. In Littlefield v. Dingwall, 71 Mich. 223, it was said that payment by a joint debtor does not arrest the running of the statute against his co-defendant. Rogers v. Anderson, 40 Mich. 290; Ottawa Probate Judge v. Stevenson, 55 Mich. 320; Holcomb v. Sloan, 39 Mich. 173; Howard v. Coon, 93 Mich. 442. This is contrary to the doctrine laid down in the case of Pears v. Laing, L. R. 12 Eq. 56, and possibly Barrett v. Prentiss, 57 Vt. 300, though that case is perhaps distinguishable. See, also, Emory v. Keighan, 88 Ill. 488, where it is sáid that grantees of a mortgagor may be affected by payments made by the mortgagor upon the debt secured by the mortgage after the statute has run. It is, however, the law here, whatever the rule may be elsewhere, and we think it accords with the weight of authority. The theory upon which part payment takes a case out of the provisions of the statute is that it may be supposed to imply a new promise to pay the debt; and the cases hold that this result will not follow where the payment is accompanied by circumstances which preclude such inference. See A’Court v. Cross, 3 Bing. 329; Tippetts v. Heane, 4 Tyrw. 772; Linsell v. Bonsor, 2 Bing. N. C. 241; Bateman v. Pinder, 3 Q. B. 574; Collyer v. Willock, 4 Bing. 313; Wakeman v. Sherman, 9 N. Y. 85; Chambers v. Garland, 3 G. Greene, 322. This is the rule in Michigan. Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508. And, where the payment is made by another, it has been held that such other must be one authorized to make a new promise on behalf of the debtor for the residue. Brown v. Latham, 58 N. H. 30 (42 Am. Rep. 568); Harper v. Fairley, 53 N. Y. 442; Littlefield v. Littlefield, 91 N. Y. 203 (43 Am. Rep. 663). And see 1 Wood, Lim. § 101 et seq. There is nothing in this record to show that any such authority was given to the Arkells. Presumably, the payments were made upon their own behalf, to save their estate; and we cannot say that an expectation on the part of the defendants that they would pay (if we may infer that) was tantamount to authorizing or directing them to bind defendants by a new promise. We are therefore of the opinion that the circuit court was not in error in his conclusion. The other Justices concurred.

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Long, C. J. In October, 1892, Charles H. Child, of Cleveland, Ohio, claiming to be the owner of valuable patents for the construction of vapor stoves, came to Grand Rapids, and interested with himself T. J. Lucas, one of the complainants. Together they interested other parties in the formation of what was called the Grand Rapids Vapor-Stove Company, Lucas claiming that he had investigated the proposed business, and representing it as very profitable. A prospectus of the business was shown, exhibiting large profits. The defendants, together with Lucas and Child and some other parties, became the stockholders in the company. Child transferred his patents to the company, and received therefor $5,000 of the capital stock. The company was capitalized at $25,000, but at that time only $18,500 was paid in by the stockholders. None of the stockholders had ever had any experience in the business, and they claim to have invested in it on the representations of Child and Lucas. Lucas was made manager of the company at a salary of $100 per month, because he was one of the promoters, and claimed to have posted himself in the business. He and Child proceeded to purchase machinery, tools, and stock suitable for manufacturing stoves under the Child patents, and Mr. Child was to get up the patterns for the stoves. The business was commenced in a rented building. It was represented to the stockholders that the business could be conducted on the capital paid in, and that several thousand stoves could be manufactured the first year. The stoves -which were to be made the first year were contracted to Leonard & Sons, of Grand Rapids. A large quantity were manufactured and delivered to this firm, and by it placed on the market; but the stoves failed to work, and were returned by the public to Leonard & Sons, and by it turned back to the company. Stoves commenced to come back early in the season, and continued to come back during the whole year. A large quantity of materials had been bought for the construction of the stoves, similar to those put. out, which became practically worthless, -so that the main business of the company after that time consisted in attempting to fix over the old stoves, and to devise some new stoves which would prove marketable. The money which had been paid in had been expended, and the company commenced borrowing at the bank to continue the business. In June, 1893, a meeting was called to arrange for the indebtedness. $7,500 had been borrowed at the National City Bank of Grand Rapids on Mr. Friant’s indorsement. At that meeting it was proposed to provide funds by which each stockholder should voluntarily advance to the company an amount equal to 10 or 20 per cent, of his stock in the company. In this way $1,295 was advanced by different stockholders. The complainant Thomas J. Lucas, though a stockholder, made no advances, and no money was paid in by Mr. Child. These moneys did not meet the obligations of the company, and on September 4, 1893, a regular meeting of the directors was held at the company’s office, át which were present Friant, Raniville, Lucas, Child, and Bundy,—a majority of the directors. A resolution was unanimously passed by them as follows: “The present affairs of the company being under consideration, and its obligations maturing, on motion of Mr. Bundy, seconded by Mr. Raniville, it was unanimously resolved as follows: That the Grand Rapids Vapor-Stove Company, by its president and secretary, execute to the holders of the company’s paper or the in dorser thereon a chattel mortgage on all the property of the company, including its patents, to secure such paper and such indorser; that such mortgage be given on the demand of either the holders of said paper or such indorser.” It was further resolved as follows: “On motion of Mr. Bundy, seconded by Mr. Lucas, it was resolved that a committee of three of the stockholders be appointed by the chair to formulate a plan for the future action of the company for submission to the stockholders.” In October following, the committee made a report to the company, proposing a scheme for the reorganization of the company, by increasing the capital stock from $25,000 to $50,000, and making the new stock preferred stock. This resolution and preamble had been prepared in advance, and stated the purpose of the proposed reorganization as follows: “It is understood that said company is now insolvent, and that this agreement is made to secure the continued operation of the company’s business, and the making valuable all stock thereof, if possible; that some of the present stockholders are willing to subscribe and pay for such new stock on the foregoing conditions, and some of such stockholders are not willing or able to so subscribe and pay for such new stock on any conditions; and that the agreements herein contained are made to indemnify the subscribers to such new stock against losses, so far as possible, and to compensate them for the risk which they take in order to make all the stock of said company valuable, which risk is not assumed by all the stockholders of the old stock.” This resolution was written out in the record of that meeting, and signed by all of those present,' including both complainants, as Mrs. Lucas at that time had become the owner of a part of the stock held by her husband, Thomas J. Lucas. An attempt was thereafter made to get all of the stockholders in the company to agree to this, as it involved the preferring of the new stock, and could be accomplished only by the consent of all the stockholders. This was found impossible.' Mrs. Child, in the meantime, had become the owner of stock held by her husband, Charles H. Child. The defendants Friant, White, and Bundy each consented to the arrangement, and subscribed for some of the new stock. The complainants consented to the arrangement, but did not subscribe for any new stock. During this time the condition of the affairs of the company’s business was growing worse, and it was understood that, unless this scheme for the reorganization could be accomplished, the business could not continue. In the latter part of October, 1893, the company had no funds, except about $30 in the bank, and there was nothing with which to pay the debts, except the property of the company. The creditors urged payment of their debts or security therefor. The mortgage, which had been provided for at the directors’ meeting of September previous, was then given as security for the payment of the debts. It was thereafter foreclosed, and the property bid in by Mr. Friant, who shortly afterwards conveyed equal interests in it to eight of the old stockholders, who had signed the indemnity agreement, and who joined with him in paying up the debts of the company. The complainants set out in their bill that, even up to the 31st of October, 1893, the corporation was in good credit, owing only about $7,500, with assets and business exceeding in value $25,000; that no. creditors were pressing the corporation; that the business of the company was increasing, and its affairs in every way promising; that, shortly prior to this suit, defendants Friant, White, and McCoy, with the pretense that defendant Friant must be relieved of his liability on the paper of the corporation, but in truth and fact to carry out a fraudulent scheme and plan on their part to get the title and control of the business of the corporation, and to divest the corporation and about one-third of its stockholders of all interest in such property and business, commenced to complain of the state of the company’s finances, and that such com plaints and agitation did not come from the company’s creditors; that in the latter part of October the defendants Friant, White, McCoy, and Bundy pretended to hold a meeting of the directors of such corporation; that said last-named defendants, or some of them-, caused a report of said meeting to be written up, representing Thomas J. Lucas as being present and seconding a motion to mortgage the property of the corporation, but that Thomas J. Lucas was not present at such directors’ meeting, if any was held in fact; that he never received notice of such directors’ meeting, and that he never seconded any motion to mortgage the property of the corporation; that he had no notice or information of the scheme of defendants Friant, White, McCoy, and Bundy to mortgage the propery until he saw a notice in one of the'newspapers published in the city of Grand Rapids. He therefore charges that the defendants Friant, White, and- McCoy willfully and fraudulently conspired to divest the corporation of its property and business, and to obtain title to the same for their own purposes, and to continue and carry on such business in their own names; that defendant Bundy has been under their control, and has been influenced by them, and they have shared with him the property and profits of the scheme, and by acquiescence, and by participating in the benefit of said fraudulent scheme, said Bundy has ratified the fraudulent acts of the other defendants; that by such fraudulent scheme all the defendants determined to put a chattel mortgage upon the property and effects of the corporation,- and that they did put a chattel mortgage thereon, reciting that the corporation was indebted to certain of its laborers and employés to the sum of $600, more or less, to the bank $6,500, and to the firm of Leonard & Sons the sum of $400, and appointed in said mortgage Charles Chandler as. trustee; that this mortgage was filed in the city clerk’s office, and thereafter foreclosed, and the property bid in by Friant, for the sum of $1,600, for the benefit of himself and defendants White, McCoy, and Bundy, and that they afterwards started, up the business of manufacturing vapor stoves with the same property; that the mortgage given as aforesaid was fraudulent and void as against complainants and other stockholders similarly situated. The prayer of the bill is that the resolution of the directors authorizing the giving of the mortgage be set aside and held void; that the chattel mortgage be set aside and decreed void, as well as the sale thereunder; and that the defendants Friant, White, McCoy, and Bundy account for the value of the property, together with all profits and income derived therefrom, and all additions thereto. This bill was sworn to by complainant Thomas J. Lucas. The defendants answered the bill, denying all the material allegations therein, but admitting the giving of the mortgage, and asserting that Thomas J. Lucas was present at the time the resolution was passed authorizing it; that it was given to secure the indebtedness of the company, and the foreclosure’was had for the purpose of paying such indebtedness; and that the sale was in all respects fair. The proofs were taken in open court, and the court made a decree reciting that—• “It appearing that the material allegations in the bill of complaint in said cause are not established by the evidence, and that the fraud and conspiracy alleged in said bill did not exist, but have been expressly disproved; and it further appearing that the mortgage therein mentioned was duly and legally authorized by said corporation, and that the giving and foreclosure thei’eof were, in all respects, regular and fair; and it further appearing that, at the time said mortgage was given and foreclosed, said Grand Rapids Yapor-Stove Company was insolvent, and that the value of its property and assets was less than the amount of its indebtedness and liabilities,—it is therefore ordered, adjudged, and decreed that the bill of complaint in said cause be dismissed, and that the defendants Thomas Friant, T. Stewart White, Daniel McCoy, and McGeorge Bundy do recover from said complainants their costs of this suit, to be taxed, and that they have execution therefor.” The charge of conspiracy in the bill is abandoned by complainants’ counsel, and in his brief he makes no claim that complainant Lucas was not present at the meeting when the mortgage was voted, or that the record of that meeting was a false record, and spread upon the books without the knowledge and consent of Lucas. We feel that these questions should not pass unnoticed here. The evidence is overwhelming to our minds that there was no ground for the charge of conspiracy against these defendants, and that, while complainant Lucas charges in his bill that he was not present at the time the resolution was passed authorizing the giving of the mortgage, he was present at that meeting, and took part in the proceedings thereof. We are also satisfied that the liabilities of the company exceeded its assets. Counsel for complainants contends in this court 1. That complainants’ error in regard to the manufacture of stoves, and in respect to the money required to carry on the business, is a defense without merit. 2. That the defendants held the relation of trustees to the stockholders of the corporation. 3. That the resolution to mortgage was not legally adopted. 4. That the resolution to mortgage was waived by the resolution and agreement to increase the stock of the corporation. 5. That the trustees could not purchase the property which they held in trust for others at public auction. 6. That the directors could not sell the company property, even though the corporation was insolvent, against the dissent of any stockholder! 7. That the complainants have not confirmed the foreclosure sale by not opposing it. 8. That the directors of a corporation actually insolvent cannot bring about a sale of its property to themselves for the purpose that they may continue the business of the corporation. 9. That the complainants are entitled to their proportionate value of the property of the corporation, with interest from the date of its conversion. We do not understand that the defendants attempted to make a defense to the complainants’ bill on the ground that the complainant Lucas erred in regard to the manufacture of stoves, or in respect to the money required to carry on the business. The defendants were charged by the bill of complaint with having committed a fraud upon the complainants in the sale of the corporate property, and in the manner of bringing about the sale, while the company had sufficient assets to meet its liabilities. In answer to this claim, the defendants sought to establish, and did establish by the record, the facts that it was through the representations of Lucas and Child that they were induced to go into the enterprise, and that Lucas, being the manager of the company, became greatly indebted, and for the purpose of securing these debts the mortgage was given, as well as the fact that the company was insolvent at the time the resc5ution was passed to place the mortgage upon the property. It is not contended but that the directors of the corporation were trustees of the stockholders and the creditors. The point; made by counsel for complainants, that the resolution to mortgage was not regularly adopted, is based upon the fact that Friant was a director of the company and its president, that he was also the indorser of its paper, and that Bundy and McCoy had in writing indemnified him as indorser, and that for these reasons neither Friant nor McCoy nor Bundy was competent to vote at the directors’ meeting when the resolution to mortgage was adopted. Counsel cites, in support of this proposition, Butts v. Wood, 37 N. Y. 317; Miner v. Ice Co., 93 Mich. 97. We think the case does not fall within the principle stated in those cases. In the last one, it appeared that Lorman was a director and president of the company, had a majority of the stock, and absolutely controlled the corporation in his own interest, without dissent from any of the directors or stockholders, except Miner, who filed the bill in that case. The other directors were simply figureheads on the board, and controlled absolutely by Lorman. Whatever he desired to have voted by the directors.was complied with by all except Miner. Lorman, in fact, by his control of the company, voted himself a salary of $4,000 per year, and kept no account of the company’s business, covered up the proceeds of the sale of ice, and in other ways hindered and prevented Miner from receiving any part of the profits. The bill was filed for an accounting, and the charge of fraud was made and shown against Lorman in the conduct of the business. In the present case no charges of fraud have been sustained. The corporation was insolvent, and the mortgage was given to secure a bona fide indebtedness. Another fact, also, appears in this case, making it very different from the cases cited by counsel. Complainant T. J. Lucas was present at the time the resolution was adopted to mortgage the property, took part in the proceedings of the board, and voted in favor of the passage of the resolution. We think, under such circumstances, that the complainants are not in a position to complain of the adoption of that resolution, though Friant and the other parties voted in favor of it. If the doctrine which is contended for by counsel for complainants could be applied to this case, then it would have been impossible for the corporation, by any action which it might take, to secure either the bank debt or the labor debts, because all the stockholders were liable for the labor debts, and all of them had signed the agreement to indemnify Mr. Friant, to the amount of the stock held by each of them, on his indorsement at the bank. The proposition that the resolution to mortgage was waived by the resolution to increase the capital stock of the corporation has no force whatever. These two resolutions were passed, one at the September meeting, and the other in October following, and it is apparent that the resolution to appoint a committee to formulate a plan for the future action of the company was an effort in the direction of raising funds to continue the business, and that, failing in that, the mortgage was to be placed upon the property. This is shown by the testimony in the case, and by the resolutions themselves. The proposition that Mr. Friant could not become a purchaser at the sale cannot be sustained. That question was settled in Bank of Montreal v. J. E. Potts Salt & Lumber Co., 90 Mich. 345. See, also, Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Saltmarsh v. Spaulding, 147 Mass. 224; Harts v. Brown, 77 Ill. 226. Th'e claim that the directors could not sell the corporate property, even though the company was insolvent, against the dissent of any stockholder, is not involved here. The directors authorized the mortgage to be made by and with the consent of the complainants, and certainly the trustee in the mortgage had the right to sell the property for the payment of the corporate debts. We think the other propositions need not be considered, as the sale seems to have been an open and fair one. The decree of the court below must be affirmed, with costs in favor of the defendants. Grant, Hooker, and Moore, JJ., concurred. Montgomery, J., did not sit.

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Montgomery, J. This is a proceeding for divorce. The complainant filed her bill of complaint, alleging that defendant neglected and refused to provide suitable food for the family, neglected to provide and furnish sufficient help in the house, and exacted of complainant that she perform more labor than she, in her delicate state of health, was able to perform; that for years he habitually used insolent and abusive language towards complainant; that he was habitually profane, and that he accused her of stealing from him. These charges were denied. The case proceeded to hearing upon testimony taken in open court. The circuit judge granted the relief prayed, and awarded alimony in the amount of $&,500 out of the per sonalty of defendant, and the further sum of $2,000, conditioned upon complainant’s releasing her right of dower in the lands of defendant. Defendant appeals. The case is not altogether clear, but, in view of the presumption favoring the conclusion of the circuit judge on a question of fact, where the testimony is so nearly balanced, and where he has had the opportunity of noting the appearance of witnesses on the stand, which-is denied us on appeal, we have, after some hesitancy, determined that we should treat the complainant’s case as made out by the proofs. Upon the question of alimony, we feel well satisfied that the circuit judge did not exceed a proper and reasonable allowance to the complainant, under the circumstances. There was awarded to the complainant the custody and education of the daughter, and the allowance was conditioned that the defendant should not be liable to the complainant for any support she may furnish to the daughter. The decree will be affirmed. The other Justices concurred.

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Long, C. J. At the quarter ending April 30, 1896, the respondent, as county treasurer, had in his hands the sum of $3,255.26 for delinquent real-estate taxes collected by him for the year 1895; and on May 6, 1896, he paid over to the city treasurer said amount, less $1,569.18. He claimed the right to retain this amount, for the reason that he had issued his warrant to the city treasurer to collect certain delinquent personal State taxes for the year 1895, amounting to $526.89, delinquent personal county taxes of 1895, of $785.15, delinquent personal county road taxes of 1895, of $257.14. He settled with the city treas urer on that basis, by deducting the sum of $1,569.18. The city thereafter made demand upon the county treasurer for the payment of the money so deducted. This being refused, the city made application to the circuit court of Muskegon county for a mandamus to compel the payment. The county treasurer made return to the order to show cause, and, after the hearing, the court directed the issuance of the writ to compel the payment. The case comes to this court by writ of certiorari. The contention of the respondent is that he had the right to set off the amount of the personal taxes against the amount which he owed as county treasurer to the city. It is not disputed but that he collected the amount of money charged, and that that amount belonged to the city, and was payable at the quarter ending April 30, 1896. Attached to the return of the county treasurer made in the coui’t below is the affidavit of his deputy, showing that the city treasurer admitted to him that he had collected a portion of these personal taxes, but what amount had been collected is not stated; but, however that may be, we think that fact cannot affect the rights of the parties in the present proceeding. The county treasurer having in his hands an amount of money which it is conceded belonged to the city treasurer on April 30, 189Ó, it was his duty to pay the same over to the city treasurer; and he had no right to set off against it these personal taxes for which he had issued his warrant to the city treasurer to collect. Section 87, Act No. 154, Pub. Acts 1895, among other things, provides: “The county treasurer of each county shall, on or before the first days of Februarsq May, August, and November in each year, make out a statement of the account between the county and the several townships, and render the same to the township treasurer, and pay all moneys shown by such statement so rendered to be due the township to the proper receiving officer of the. township, and notify the township clerk of the items and total amount, thereof. * * * The township clerks shall charge such amounts to the township treasurers on the books of their respective offices.” We think, therefore, that it was the duty of the county treasurer of Muskegon county to pay over to the city treasurer the total amount found due the city by such statement, and that he had no legal right or authority to deduct from it the amount 'which he claimed was due the county for delinquent personal taxes. It is true that the collection of these delinquent personal taxes rested with the city treasurer, but they were to be collected by him upon the warrant issued by the county treasurer. That warrant had been issued, and, so far as shown by this record, was still in the hands of the city treasurer. ■ The order made by the circuit judge will be affirmed. The other Justices concurred.

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Long, C. J. On September 29, 1894, plaintiff, then about 23 years of age, was employed by the defendant company in the capacity of a lineman, and was engaged with one Wilson in constructing a curve in the trolley wire of defendant’s street-railway equipment at the junction of Wells street and Forest avenue, in the city of Ann Arbor. In the performance of his work, plaintiff stood on a platform of the dimensions of 8 by 4 feet, erected upon a common lumber wagon. This platform was about 14 feet above the ground, the workmen being protected by a railing, 2 feet high, erected on three sides of the platform. Plaintiff was endeavoring to fasten a guy wire to the trolley wire, in order to produce the curve necessary. To do this he used a hand vise, to which was fastened a strap. The vise was screwed to the guy wire, the strap thrown over the trolley wire, and the trolley wire drawn into position. The plaintiff then attempted to fasten the slack of the guy wire into the goose necks attached to the trolley wire. To do this he passed under the trolley wire, and into the inside of the curve made •by that wire. He put one arm over the trolley wire. At this instant the vise failed to hold the guy wire, the trolley wire was violently released, and the plaintiff was hurled to the ground, sustaining injuries which nearly paralyzed both limbs, and from which he has never recovered. The trial in the lower court resulted in a verdict and judgment for plaintiff. . Defendant brings error. On the trial the plaintiff contended that the railing around the platform was too low to properly protect the workmen ; that the hand vise used was an improper and unsafe tool for the work required; that it was also defective; that plaintiff was not properly instructed in its use; that a device known as a “come along” should have been used; that plaintiff was not guilty of contributing to his own injury. The court submitted those questions to the jury. But defendant contends: 1. That the evidence is conclusive that the defendant supplied tools that were safe. 2. That it was not bound to furnish the plaintiff with tools of the latest device or pattern, but, if the tool furnished was such as was in common and general use by other companies doing like work, the defendant had discharged its duty to the plaintiff. 3. That the evidence is conclusive that the vise was in common use by other companies. But one question need be considered, as the evidence is conclusive that the vise was in no way defective, and that is whether the tool furnished was such as was in general use by other companies doing like business. Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or appliances which they provide for the use of their employés; nor are they bound to supply the best or newest of those appliances for the purpose of securing the safety of those who are thus employed. Washington, etc., R. Co. v. McDade, 135 U. S. 554. In Sisco v. Railway Co., 145 N. Y. 296, the court say: “The employer does not undertake with the employé that he will use the very best appliances, nor is he called upon to discard machinery adopted by him in his business reasonably suited therefor, although there may be other machinery that may be safer. He is bound to the exercise of reasonable care in providing machinery and appliances, in view of all the circumstances. Still less is the master to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on proof that another method or appliance is better or safer, when both methods or both kinds of appliances are in common use._ * * * Proof that it was dangerous is not enough,”—citing Frace v. Railroad Co., 143 N. Y. 182; Flinn v. Railroad Co., 142 N. Y. 11. See, also, Titus v. Railroad Co., 136 Pa. St. 618 (20 Am. St. Rep. 944); Kehler v. Schwenk, 144 Pa. St. 348 (27 Am. St. Rep. 633); Louisville, etc., R. Co. v. Allen’s Adm’r, 78 Ala. 494, 503 (28 Am. & Eng. R. Cas. 514). In the latter case, it was said: “We conceive the correct and just rule to be that a railroad company’s duty to its employés does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb, or property incident to its service. It is sufficient fulfillment of duty to adopt such as are ordinarily in use by prudently conducted roads engaged in like business and surrounded by like circumstances.” In Titus v. Railroad Co., supra, it was said: “Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery,, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same; and, however strongly they may he convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way, for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community.” This rule is laid down in Hosic v. Railway Co., 75 Iowa, 683 (9 Am. St. Rep. 518); Vinton v. Schwab, 32 Vt. 614; Michigan Central R. Co. v. Coleman, 28 Mich. 449; Hagan v. Railroad Co., 86 Mich. 615. There is no evidence in the present case that the vise was out of repair, and it is shown without contradiction that other street railways, as well as telephone and telegraph companies, used the same device. The court submitted to the jury the question as to whether other companies used this device as follows: “If the jury find that the vise complained of as causing the accident was one of a kind in general use throughout the country, in the same or similar lines of work, and was not itself broken or defective, the defendant cannot be found guilty of negligence in the selection or use of the vise.” We find no evidence in the case that the vise was not so used, and the court should not have submitted that question to the jury. The rule is well settled in this State that an employer cannot properly be held to be under so strict obligation to his servants as to be required, under all circumstances, to make use only of the safest known appliances and instruments, and to be held responsible for any failure to discard what is not such, and to supply its place with something better and safer. Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133. See, also, Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Richards v. Rough, 53 Mich. 212; Sjogren v. Hall, Id. 274; McGinnis v. Bridge Co., 49 Mich. 469; Smith v. Potter, 46 Mich. 259; Piquegno v. Railway Co., 52 Mich. 44 (50 Am. Rep. 243). We are of the opinion that the court below should have directed the verdict in favor of defendant, as requested by counsel. The judgment below will be reversed, and a new trial granted. Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.

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Hooker, J. The plaintiff was injured by falling into a cellar, and has recovered a judgment against the city for the injury sustained. The following is a description of the premises: At the corner of Ottawa and Grand streets, fronting north, is the Michigan Supply Company building. In front is a stone walk 12 feet wide. Next the building is a basement stairway, surrounded by an iron railing, which descends from the west. Immediately west of this building was the cellar in question. In front of this was a concrete walk, the south side of which was on a line with the stair rail mentioned. The plaintiff tes tified that he turned from Grand street, upon Ottawa, passed west upon the stone sidewalk in front of the building occupied by the Michigan Supply Company, and fell into the excavation. He testified that he saw no building material in the street, and no evidences of building there, before he went into the excavation, and that there was no barrier or guard around the excavation so far as he knew; that he met with none, but walked off the sidewalk without hindrance or notice; but that, after he got out, he noticed some barrels and a plank, the plank being up against the bank, and running down into the cellar towards the south. Mr. [Eicher, an alderman of the city, testified that at the west side of the cellar, that being the place where dirt was drawn in, he noticed that it was in bad shape, and he told some of the workmen about July 1st that it ought to be boarded up, so that people could not get by it at all,-—-that “they should be made to go clear around;” and that, on the night of July 4th, some boys, who had taken some whips from some buggies with which to have some sport, saw him and his hired man, and started to run, and were followed by them. They ran north to Ottawa street, and then west. Witness had followed them from the Chapman House, on Michigan avenue, a block south of Ottawa, and reached the corner of Grand and Ottawa in time to see them run into the cellar when he was about 10 feet behind them. He testified that there was no guard where they went in; that there was a barricade on the north side of the excavation, consisting of planks and barrels, sitting east and west on the tar walk, which left a space to walk between the barrels and iron railing; that was where the boys ran. He said that the barrels and plank could be seen plainly. He testified further that, ‘ ‘of course, the barricade was all down daytimes;” that the barrels would protect any one coming from the north; and that he asked the men to nail up the west end. Mrs. Wright testified that she was employed near by the day before the accident, and from 15 to 20 minutes past 6 there were no guards, and the men were all gone. The bank had been dug out near the walk. She did not remembei whether or not she noticed any guard there from July 4th to July 10th. She says that there was a time when it caved out to the middle of the walk, a very little in one place. She said they put up some boards to protect it, but could not tell just how. She did not go by very late, and it was not, protected when she went by until after the accident. She said on cross-examination that she quit work at 6 o’clock, and went right home after washing and getting ready. She worked two doors from the cellar, and usually left at 15 or 20 minutes past 6. She did not know whether or not anybody was left there after she quit work, to put up barricades for the night. Upon the part of the defendant it was shown that care was taken to surround the excavation by planks laid upon barrels, one of which extended from the barrel farthest east to the iron stair rail; that this was the uniform custom; and that it was so placed on the night of the accident, by men whose business it was to remain and see that the lime was covered up, the barricade put up, and everything straightened up. An attempt has been made to state the substance of all of the evidence given upon the trial. There is positive evidence of the erection of the barricade on the night in question, corroborated by the statement of the plaintiff that a plank extended towards the south from the bank into the cellar, which is consistent with the theory that it had been removed. Counsel for plaintiff say that they assume that this was a plank laid down to walk on, but we find nothing in the testimony justifying the assumption. No claim is made that a barricade consisting of plank laid upon barrels, completely fencing in a shallow excavation made for temporary purposes, is not a reasonable one, and, if there were, we should be inclined to say that it is sufficient, as matter of law, in a case like this, and that it should not be left to the jury to say that it was not, under ordinary circumstances. We are of the opinion that there is an absence of proof to support the claim of negligence upon the part of the city. The most natural inference from the testimony is, that the hoard was removed in some unexplained way, for which the city is not shown to be in any way responsible. The judgment is reversed, and a new trial ordered. Long, C. J., Grant and Moore, JJ., concurred with Hooker, J. Montgomery, J. I think there was evidence of negligence sufficient to justify the submission of the case to the jury.

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Long, C. J. The defendant the Detroit Cycle Company, Limited, is a partnership association, organized under chapter 79, 1 How. Stat., and doing-business in the city of Detroit. The complainant is a corporation of Cleveland, Ohio, engaged in the business of manufacturing and selling bicycles and bicycle sundries. On September 16, 1893, the Detroit Cycle Company was indebted to the complainant in the sum of $2,705, and on that day the complainant sent Frank R. Merchant, an attorney, to Detroit, to secure the debt, and such negotiations were had that it was agreed between Mr. Merchant, representing the complainant, and Mr. Matheson, Mr. Holmes,, and Mr. Robinson, representing the Detroit Cycle Company, that the latter should transfer to the complainant certain contracts as security for the complainant’s claim. It was the custom of the Detroit Cycle Company, in many cases, to sell bicycles on weekly and monthly payments, according to the terms of a contract entered into between the parties, by which the bicycle was turned over to the purchaser, but remained the property of the Detroit Cycle Company until the payments had been fully completed. Forty-two of these contracts were selected by Mr. Matheson, president of the company, in the presence of Mr. Holmes,' the treasurer and manager, and turned over to Mr. Merchant, and he left them with the bookkeeper of the Detroit Cycle Company with the understanding that defendant Robinson was to have charge of them, and make collections upon them, and turn the proceeds over to the complainant. A. list of these contracts was made, and is headed, ‘ ‘ List of Contracts Passed Over to E. B. Robinson on Behalf of the Peerless Manufacturing Company, Cleveland, Ohio, September 16, 1893.” Each contract was numbered, and the amount due on each stated in the' list, as well as the names of the parties from whom the amounts were due, amounting in all to $3,537.96. Complainant claims that by this arrangement defendant Robinson did collect certain amounts, and for a time remitted the proceeds, or a part thereof, but that in December, 1893, he refused and neglected to remit anything further. On October 6, 1893, the Detroit Cycle Company gave a chattel mortgage to the defendant the Gormully & Jeffery Manufacturing Company, an Illinois corporation, to whom the Detroit Cycle Company was indebted, and at the same time assigned all its contracts to that company as further security, including many of the contracts formerly turned over to the complainant, and which, the latter contends were in the hands of Robinson as its agent for collection; and it is asserted that the Gormully & Jeffery Manufacturing Company now claims to own those contracts, and has made collections thereon. The Gormully & Jeffery Manufacturing Company claims by its answer that it knew nothing of the arrangement by which Robinson received these contracts, and was to collect them for the complainant, but admits that the defendant Detroit Cycle Company gave a chattel mortgage and assigned these contracts to it, to secure certain indebtedness to it. It denies that it received from the Detroit Cycle Company any contracts belonging to the com- ■ plainant, or that it received any contracts from defendant Robinson, and avers that all the contracts assigned to it were at the date of the assignment in the possession and under the control of the Detroit Cycle Company, and that it had no notice that the complainant had any claim thereto. And it further alleges that, relying upon the apparent ownership of the contracts evidenced by the . possession of the same by the Detroit Cycle Company, and in consideration of the latter’s assignment to it, the Gormully & Jeffery Manufacturing Company advanced to the said Detroit Cycle Company a large sum of money to relieve said contracts from the lien of the Preston National Bank, where said contracts were held as collateral security to certain notes of the Detroit Cycle Company, and that, in addition to paying about $2,000, it extended the time of payment of the aipount due it by the Detroit Cycle Company, and took said chattel mortgage and assignment in good faith, and without notice of any right or interest the complainant had in any of them. It denies that it made any collections on contracts belonging to the complainant. It alleges that on account of its succeeding to the business of the Detroit Cycle Company, and transacting business at the same store, certain moneys have been paid into its hands by various parties, and also several bicycles have been left with it, which, it is informed, belonged to the complainant or to the Detroit Cycle Company, for all of which sums collected and machines left with it the defendant is ready to account to whomsoever it is proper. Defendant Robinson denies by his answer that he ever received these contracts, and alleges that he refused to have anything to do with the collection of them personally, and that, if a.ny amounts have been paid to the complainant upon its account, it was done at the request of the manager of the Detroit Cycle Company; and he denies that he ever made any agreement at any time to collect said contracts for the complainant, or that he is in any way indebted to the complainant. On the hearing the court below made a decree finding that there was due from the Detroit Cycle Company to the complainant the sum of $2,817.62, and that for such amount complainant had a lien upon all the contracts for the sale of bicycles set forth and enumerated in the schedule made and delivered by the officers of the company to the complainant on September 16, 1893, and that this was a first lien thereon, and not subject to any lien acquired by the Gormully & Jeffery Manufacturing Company; that that company should account to the complainant for the moneys received by it upon said contracts; that, as to the remainder of said contracts, Edwin B. Robinson should account for all sums collected thereon after the 16th day of September, 1893, that being the day when the contracts were accepted by him for collection on behalf of complainant, as found by the court. The court referred the matter of accounting to a circuit court commissioner of Wayne county to ascertain the true state of the account, what had been collected upon each contract, and by whom, and what bicycles had been returned, and what contracts had been settled and compromised, and by whom, and directed that the Gormully & Jeffery Manufacturing Company and Edwin B. Robinson should account for such contracts, and pay over to the complainant the amount found due from them, respectively, within 10 days after said accounting should be completed, and directed that, should any deficiency remain, the commissioner should sell bicycles returned to meet it, and report his doings thereon to the court. The court further found that the bicycle contracts for which the Gormully & Jeffery Manufacturing Company should account were the 16 which were included in the assignment to that company, and which had been theretofore turned over to Robinson for collection, and that it should also account for other contracts, enumerated in Schedule A, upon which its agents had received payments, and that, should any default be made in the sum found due to the complainant from either Edwin B. Robinson or the Gormully & Jeffery Manufacturing Company for 10 days after the coming in of the report, the complainant should have execution therefor. Prom this decree the defendants appeal. It would not be profitable to set forth or discuss the testimony given in the case. We are satisfied that the testimony fully sustains the decree made by the court below. It is contended, however, by counsel for defendants, that Mr. Matheson, Mr. Holmes, and Mr. Robinson had no power or authority to act for the company in turning over these contracts to the complainant’s agent on September 16, 1893. It appeared that Mr. Matheson was the president of the company, Mr. Holmes the treasurer, and Mr. Robinson its secretary; and we think there is sufficient testimony to show that they had such authority. It was not an act creating a debt'against the company, but the turning over of property for the purpose of securing a debt. It is admitted that the Detroit Cycle Company was indebted to the complainant. The decree below will be affirmed, and the record remanded for the purpose of an accounting. The complainant will recover its costs. The other Justices concurred.

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Grant, J. The respondent was convicted of keeping his saloon open upon Sunday, contrary to the provisions of section 17, Act No. 313, of the Public Acts of 1887 (3 How. Stat. § 2283e). The contention on behalf of the respondent is that section 17 is unconstitutional and void, and that no conviction can be sustained under it. This section, after providing that saloons and other places where intoxicating liquors are sold shall be closed upon Sunday and certain other days therein mentioned, provides that— “Any person found in the act of violating any of the provisions of this' section shall be deemed guilty of a breach of the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section.” It further authorizes officers to make arrests as for a breach of the peace. The other sections of the statute bearing upon the question are 7 and 18. Section 7 provides that— “A person convicted of the violation of any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than $200,” etc. Section 18 provides that— ‘ ‘ Any person who shall violate any of the provisions of the five preceding sections shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in section 7 of this act.” In Robison v. Miner, 68 Mich. 549, the penal provisions of this act were under consideration, and certain provisions held void. After striking out these provisions, the court held the other provisions valid, giving its reasons therefor on page 564. The court held the penal clause of section 17 void for reasons stated on page 559. We must therefore construe the statute with this penal clause of section 17 eliminated, and look to other provisions for the penalty. Sections 7 and 18 cleai’ly provide it. The conviction is affirmed. The other Justices concurred.

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Hooker, J. The plaintiff and defendant exchanged real estate. The bargain was oral, and the plaintiff alleges that, as a part of the consideration, the defendant promised to pay the excess over $2,000 upon a mortgage then upon the property conveyed by him to the plaintiff. A quitclaim deed was given to the plaintiff, but when she ascertained that the mortgage had not been reduced as promised, and was being foreclosed (which defendant had concealed), she refused to give possession of the property conveyed by her to said defendant until he should pay said sum, alleging that he had deceived her. She claims that he thereupon gave her a writing, wherein he promised to “pay” said mortgage “down to the $2,000,” and to put her in possession of the farm, when she should give him possession of the Stony Creek place. The following is a copy: “June 6, 30, ’8?. “I hereby agree to give Lucina Bennett possession of said property in Liberty when she gives possession of said property in Stony Point, and also to make the mortgage to two thousand dollars, as same as my deed. “E. S. Knowles.” This he failed to do, and the plaintiff brought this action to recover the amount of such excess, and damages for the use of the farm; in which she found others had possessory rights. The jury found a verdict for the plaintiff, and the defendant has appealed. It is claimed on behalf of the defendant that the original contract, being oral, was within the statute of frauds, and, not being in writing, was therefore void; that this agreement to reduce the mortgage was, in effect, agreeing to perfect title,—i. e., to enlarge the rights of Mrs. Bennett, the plaintiff, in the real estate conveyed by quitclaim deed; and that, moreover, it was a promise to pay the debt of another, inasmuch as Knowles did not give the mortgage, but only took the land subject to the mortgage theretofore existing. The writing was objected to because it did not contain the entire bargain, and because it was not signed by both parties, and for want of consideration. The answer to all this is that, if the oral contract made in the first instance was void under the statute of frauds, when both parties conveyed the land by deed, leaving nothing for the defendant to do but to pay the money agreed to be paid, and give the possession agreed in writing to be given, it became valid, and, if the money agreed to be paid had been payable to the plaintiff, she could have brought her action to recover it, but, inasmuch as the promise was to pay the sum to another, her remedy was an action for the breach of the contract. The fact that the effect of such payment was to lessen the amount of a lien upon the land was unimportant. See Holland v. Hoyt, 14 Mich. 238. The paper writing, if it was given, was valid. Each party performed the oral agreement in part. Plaintiff gave her deed, and defendant gave his. She declined to give possession until he bound himself in writing to pay the excess over $2,000 existing as an incumbrance, and to give her possession. This writing is no more without consideration than a promissory note for the money would be, and there was no more occasion for the plaintiff’s signature upon it. It was a conditional promise, the consideration for which he had already received. The proposition that this promise to pay was void because it was an undertaking to pay the debt of another is without merit. It is elementary that an original promise to pay the existing debt of a third party, where based upon a present consideration, is not within the statute of frauds. It has been so held repeatedly in this State, and there is probably no State in which it is not the rule. But, if it were otherwise, the promise is in writing, and therefore not within the statute. This covers the substance of the points involved, and we do not think it profitable to discuss the cases cited by counsel, as they are not applicable to the state of facts before us, the contract apparently being fully executed upon both sides, except in the particulars complained of, for which the jury seem to have found that the plaintiff held the defendant’s written obligation. The judgment is affirmed. Long, C. J., Grant and Montgomery, JJ., concur- • ' red. Moore, J., did not sit.

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Hooker, J. The defendant, being the owner of a certain messuage, sold the same upon contract to a Mrs. Stork. The plaintiffs, being desirous of purchasing the same, negotiated with the husband of Mrs. Stork, and finally purchased the property. They subsequently brought this action against the defendant to recover damages for alleged deceit in certain representations alleged to have been made by the defendant prior to their purchase, when interrogated in relation to the condition of the premises, at a time when and under circumstances showing that he knew of their contemplated purchase. Mr. Stork was called as a witness for the defendant, and testified to the negotiations between himself and the plaintiffs, and that an agreement was made by the plaintiffs to purchase; that five dollars was paid upon it, and a time was fixed to close the matter up, when he was to have the defendant there to give his assent to the transfer of Stork’s interest. He stated that he made no representations concerning the place, and that he did not hear Mr. Miller, the defendant, make any. On cross-examination the witness was asked: “Didn’t you tell Mr. Olf, shortly after this sale, at his place of business, that you had gotten rid of a mighty poor bargain, and that you were glad to get that house off your hands?” And he was also asked: “Did you, about the same time, at Mrs. Russell King’s house, say about the same thing, in substance ? ” To both questions he answered that he had no recollection of saying such a thing. Under proper objections and exceptions, counsel claim that this was error, especially as, upon the argument, counsel was permitted to argue that, inasmuch as the witness’ memory was so poor, and as the questions were answered in this way, he could not impeach him, which he might otherwise have done by the persons mentioned in the questions. There is nothing in the direct examination as printed that shows that these matters were in any way material, but the record is said not to contain all of the testimony, and it may be that the questions were pertinent as tending to controvert Stork’s denial of deceit, or qualifying testimony as to the value or condition of the premises. If it was material, counsel had the right to call impeaching witnesses if the questions were answered in the negative; and the answers as given, falling short of admitting the fact, if, they did not deny it, were sufficient to justify a contradiction by the witnesses named in the questions. The following cases cited by counsel support this proposition: Smith v. People, 2 Mich. 418; State v. Johnson, 47 La. Ann. 1225; Palmeri v. Railway Co., (Sup.) 14 N. Y. Supp. 468. As these questions were proper for the purpose mentioned, we cannot hold that the court erred in admitting the testimony, upon the claim that it was proving a cause of action against defendant, Miller, by admissions of Stork, who was not a party to the record, and whose admissions could not be used for such a purpose; and the charge of the court shows that they were admitted for the purpose of impeachment only. But it was improper for counsel to state to the jury what he could prove by certain witnesses had Stork answered the questions in the negative. Under the authorities cited, he might have called them had he chosen to do so. It is improper for counsel to state what witnesses would testify if called. In Carne v. Litchfield, 2 Mich. 340, it was said that 4 4 the only facts which counsel are properly permitted to comment upon before a jury are such as have been legally elicited upon the trial of the cause.” And in Donovan v. Richmond, 61 Mich. 467, it was said: 4 4 Counsel have no right to comment upon papers that have not been put in evidence, or on the conduct of the parties in connection with them.” It has been held that a trial judge must restrain counsel from commenting on testimony that has been excluded, if objection is made to such comments. Hollywood v. Reed,, 57 Mich. 234. See, also, Hitchcock v. Moore, 70 Mich. 112 (14 Am. St. Rep. 474.). In Amperse v. Fleckenstein, 67 Mich. 247, it was said: 44 Counsel have no right to put before the jury, by way of argument, what they know of the case, outside of the testimony.” And in Rutter v. Collins, 96 Mich. 510, Mr. Justice McGrath said: '“The jury must get the evidence from the lips of sworn witnesses, and not from the unsworn statements of the lawyers in the argument of the case.” It is not every unguarded remark of counsel that will justify the reversal of a case, where it is evident that no harm can result, but in this case the court did not caution the jury against the statements,. On the contrary, the record shows that they were made with his approval and sanction, against the express objection of counsel for the defendant; and we cannot, under these circumstances, call it harmless error. Error is assigned upon the testimony of one Mr. England, who testified to the representations of Mr. Stork, in his first talk, in the absence of Miller, with the plaintiffs. If these statements were admissible at all, it was, as the judge charged the jury, merely by way of impeachment; and we cannot determine from this record that this testimony was not proper for that purpose. There was danger of its being treated as showing representations made on behalf of the defendant. We do not discover a foundation for the reception of this testimony for the purpose of impeachment, though it is possible that a proper foundation was laid; hence we cannot say that it was error. This discussion covers the modification of defendant’s eighth request. The judgment is reversed, and a new trial ordered. The other Justices concurred.

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Moore, J. The respondent was convicted in the recorder’s court, and appeals to this court. The information filed in this case reads as follows: “That Daniel M. Butler and William H. Bird, late of said city of Detroit, heretofore, to wit, on the 1st day of May, in A. D. 1895, at the said city of Detroit, in the county aforesaid, unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together, by divers false pretenses, subtle means, and devices, to attain and acquire unto themselves, of and from the county of Wayne, a sum of money, to wit, the sum of fifty dollars, of the value of fifty dollars, of the money of it, the said county of Wayne, and to cheat and defraud it, the said county of Wayne, thereof, to the great damage of it, the said county of Wayne.” It is the claim of the respondent that this information should have been quashed,—First, because it states no offense known to the law; second, because it contains no allegations of the means by which respondents conspired to cheat and defraud. The claim of the respondent cannot be sustained. The case is ruled by People v. Richards, 1 Mich. 216 (51 Am. Dec. 75); People v. Clark, 10 Mich. 310; People v. Winslow, 39 Mich. 505; People v. Petheram, 64 Mich. 252; People v. Watson, 75 Mich. 582; People v. Dyer, 79 Mich. 480. A number of witnesses were sworn, and records introduced, which tended to show that respondent was coroner of Wayne county in 1895, and that Bird was his clerk; that bills were made out in the name of Bird, against the county, which were certified to by Butler. The testimony disclosed that these bills were for inquests that were never held, and contained charges for services in serving sub pcenas for witnesses, for jurors, and for taking testimony on such alleged inquests. It was also shown that the fees for witnesses and jurors charged for in these bills were fictitious, and were never paid to witnesses and jurors. Something like 15 of these fictitious bills, made out in the name of Bird and certified to by Butler, were introduced in evidence. During the examination in the police court,- Bird offered himself as a witness, and was sworn. His testimony was taken down, and in the trial of the •case in the recorder’s court his testimony was offered and received in evidence. Counsel for the respondents, who were jointly on trial, objected, on the ground that the testimony was incompetent, immaterial, and irrelevant, and also because said witness was in court, and ready to testify. The admission of this testimony is assigned as error. It is claimed that this was a violation of article 6, § 28, of the Constitution, which provides that the accused shall be confronted with the witnesses against- him; and counsel cite Hill v. People, 16 Mich. 351; Ward v. People, 30 Mich. 116; People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49); People v. Jones, 24 Mich. 215. We do not think these cases apply to the condition disclosed by the record. One of the respondents on trial, Mr. Bird, had seen fit to become voluntarily a witness, and give his version in the police court of the offense for which he was arrested. This testimony was certainly competent against him. People v. Eaton, 59 Mich. 559; People v. Arnold, 43 Mich. 303 (38 Am. Rep. 182); People v. Prague, 72 Mich. 178; People v. Gastro, 75 Mich. 127; People v. Swetland, 77 Mich. 53; People v. Taylor, 93 Mich. 638; People v. Kennedy, 105 Mich. 434; People v. Seaman, 107 Mich. 348. No objection was made, so far as disclosed by the record, to the testimony, upon the ground that the admissions of the respondent Bird could not be used against the respondent Butler. Nor was the court requested to caution the jury against using the testimony as incriminating Butler. In the case of People v. Arnold, 46 Mich. 277, which was a conspiracy case, it was stated: 4 ‘ It is further urged that the court erred in receiving in evidence the admissions of John Snediker. These were admissions of a joint offense, made after its commission, and from their nature, it is said, could not be received against Snediker alone. But the fact that the offense is joint cannot exclude admissions. They are admissible against the party making them, and the court must protect the other respondent by cautioning the jury not to permit the confession of his alleged associate to prejudice him. If the participation of the other is not made out by independent evidence, there can be no conviction; but the existence of a conspiracy must commonly be made out by the detached acts and statements of the individual conspirators.” In People v. Saunders, 25 Mich. 119, it was held to be competent, in trials for conspiracy, to connect the several parties charged by evidence of their separate acts and statements. See, also, Beebe v. Knapp, 28 Mich. 67. Bird was swprn as a witness in the case. The i'ecord does not purport to contain all of the proceedings had in the recorder’s court. There is no suggestion in it that any claim was made by counsel that Bird’s testimony could not be used against Butler, nor does it suggest that the trial judge did not caution the jury as suggested in People v. Saunders, supra, and People v. Arnold, supra, and we do not feel called upon to assume that it was not done. Error is assigned because of a portion of the argument of the prosecuting attorney. It is evident that what Mr. Hunt said, was in reply to a suggestion by Mr. Navin, counsel for respondent; and, while it would have been well to avoid some of the remarks made by him, some allowance must be made for the excitement and heat engendered by a trial, and we do not think what was said constitutes reversible error. It is also claimed that the charge of the trial judge was objectionable. We cannot agree with the counsel for the respondent. The charge, taken as a whole, was a fair and careful statement of the law applicable to the case. Judgment is affirmed. The other Justices concurred.

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Grant, J. (after stating the facts). The instruction was correct. Plaintiffs failed to show any negligence on the part of the defendant, or any violation of the contract of carriage. There is no showing that Mr. Cavanagh instructed the defendant to ship by any particular route. It therefore fully performed its contract by shipping the goods in the usual manner.- It was not, therefore, its fault that the cars were separated at Buffalo. There is no showing that the waybill of the Lake Shore & Michigan Southern Railway Company was made by the defendant, or under its instruction. If there were directions to place upon the waybill, “Notify M. F. Hope & Co.,” there is no testimony that this was not upon the waybill made out by the defendant over its own road. What testimony there is upon the point indicates that it was there, and that the omission occurred at Buffalo. The agent of the Lake Shore & Michigan Southern Railway Company—a witness for plaintiffs—testified that he got notice from Buffalo to notify plaintiffs. Each carrier made out its own waybill, and the defendant cannot be held liable under its contract with Cavanagh for any failure on the part of any succeeding carrier to make out a proper one. If, however, there were such testimony, this would not render the defendant liable for the value of the goods. There was a delay of three weeks after their arrival in notifying the plaintiffs. In any event, the defendant could be liable only for the damages caused by this delay, which plaintiffs claim was $14,—the storage charges. The reply to this claim is that plaintiffs have not paid it, and have made no such claim in their declaration. It is clear that the defendant is not responsible for what occurred after the arrival of the goods at their destination and notice thereof to plaintiffs. Somebody’s stupidity or unjustifiable conduct is responsible, but whether it be the fault of plaintiffs, or of either or both of the railway companies, we need not determine. It is only essential for the determination of this suit to say that no blame rests upon defendant. Judgment affirmed. Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.

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Hooker, J. On September 9, 1896, John H:' Powell, for and on behalf of a client, Annie Oorbett, filed a petition for a writ of assistance in a foreclosure case, wherein Frank B. Leland and others were defendants, upon a decree duly enrolled in said court, and sale of the premises to said Annie Oorbett. Said petition shows that the sale was confirmed, and that the petitioner called upon the tenants in the houses upon the premises, viz., Stoddard and Spring, and showed to each of them, and to said Leland, who' is alleged to have owned the fee of said premises prior to the confirmation of said sale, the commissioner’s deed, and a certified copy of the order of confirmation. It also shows that said Leland assured petitioner that he had no other or further interest in said houses, and that Aldrich was then in possession of the house occupied by Spring, and had been for some months, and had been in possession of the Stoddard house for some days; that Spring and Stoddard, tenants in said houses, came into possession thereof after the commencement of the foreclosure suit, and are unwilling to attorn to the complainant; that Aldrich is the solicitor of record for Leland in said cause; and that Leland refuses to give complainant possession of said houses. The circuit court ordered the writ to issue as prayed, and Aldrich, who was not named in the proceeding for writ of assistance, has filed his petition in this court for a mandamus to require the vacation of said order, alleging that on May‘15, 1896, he received from the city of Detroit leases of said premises for 99 years, upon tax sales, and has certificates of sale entitling him to other leases, and that on May 18, 1896, he entered into possession, and rented one of said houses to Spring, and has held possession and received rent of said house, and has been continuously in possession of said house since, and that on July 15, 1896, he entered into possession of another of said houses, which has been continuously occupied since July' 15, 1896, by said Stoddard, and that his possession has been open and notorious, and that he has claimed the absolute right of possession of said premises. His peti-. tion alleges, further, that, upon the hearing of the application for the writ of assistance, he appeared and stated that he was not a party to said foreclosure suit, and not interested in the result thereof, and that he objected to the issue of a writ that should run against his tenants, and, further, that Spring had vacated the house occupied by him, and that he (Aldrich) had rented it to N. E. Moore, who entered and then occupied the same. In response to the order to show cause, the circuit judge returns that, on the hearing of the application, “said Aldrich appeared, as solicitor for Leland, to oppose the motion, and interposed some verbal objections to the granting of the writ of assistance, but that respondent decided that the issue as to tax leases owned or claimed t® be owned by the solicitor for the defendant, who was the owner of the premises in fee, must be tried in some other way than by a verbal argument opposing the enforcement of the decree.” The order complained of authorizes a writ to run against the persons named in the petition. None of them, except Leland, appear to have contested the application, by pleading of any sort, or by evidence in opposition. There is nothing in the record showing that this was not a proper order to make, except the oral statement of the solicitor for Leland that he claimed to be in possession: If the order made was an improper one, in view of the evidence, the parties to the record aggrieved by it should have appealed, which is the usual course in such cases. Baker v. Pierson, 5 Mich. 456; Howard v. Bond, 42 Mich. 133. If Aldrich was actually in possession, or wished to assert that Stoddard and Spring were his tenants in possession, the claim, to be of any avail, should have been shown to the circuit court in chancery in some more formal manner than by the oral statement of a claim. The writ is denied. The other Justices concurred.

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Moore, J. This is an action for slander. There are several counts in the declaration. Omitting the legal verbiage, the allegations are as follows : First count: ‘ ‘ She (plaintiff meaning) is a thief. ” ‘ ‘She stole five dollars from my hired man.” “She stole money from my children.” “She stole money from my wife.” “She stole sugar and soap.” “Ida Hewitt (plaintiff meaning) took five dollars from my hired man, two dollars from my wife, and some money from my children, —(meaning and intending thereby to charge the plaintiff with the crime of larceny).” The second count charged the defamatory words to be: ‘ ‘ I have good proof of Ida Hewitt taking small articles, such as sugar and soap.” The third count stated the defamatory words to be: ‘ ‘ I am satisfied that Ida Hewitt took five dollars belonging to Allie Sober out of my house. I am also satisfied that she took money belonging to our children.” Another count charged the defamatory words to be: “I am satisfied in my own mind that Ida Hewitt stole five dollars from my hired man, and took money belonging to my little girl.” In another count the defamatory words were: “You had better keep quite close watch of Ida Hewitt, for, while she was working at our place, I am satisfied she took five dollars belonging to Allie Sober, two dollars from my wife, and some money belonging to our children.” In the declaration the necessary words of innuendo and colloquium were inserted to make the declaration good pleading. The defendant pleaded the general issue. The jury rendered a verdict for $300 in favor of the plaintiff, and defendant appeals. Upwards of 4=0 errors are assigned, but it will not be necessary to discuss all of them. It is claimed that there is a variance between the pleadings and the proofs, and such a failure of the proofs to establish a case that a verdict should have been directed for the defendant. The record shows this conversation between defendant and Mrs. Markham: “ He came into the store one afternoon, and wanted to know if I was aware that the girl we had was light-fingered. I told him I was not, and he said that they liad missed five dollars belonging to the hired man, and two dollars from his wife’s pocketbook, and some change belonging to the children, and some pocket handkerchiefs, and they felt confident Ida had taken them.” Miss Hewitt was at this time in the employ of the witness. Dr. Sober testified: “He came into my field where I was at work, and told me he was satisfied in his own mind that Miss Hewitt took the five dollars from his hired man, and some nickels from his little girl.” In reply to a question, the witness stated: “He might have said she stole the five dollars, or he might have said she took the five dollars. It all appeared to me the same, right then and there.” Miss Hewitt was not in the employ of Dr. Sober, but the witness was an uncle of the hired man. In the same conversation defendant stated that he did not wish to injure Miss Hewitt, and that he wanted to find evidence of her having taken the things. He told Miss Kempton he thought Miss Hewitt had taken things from the house, —handkerchiefs, and small change from the children. He said he had good proof that she had taken them. He told Mr. Markham, in whose employ Miss Hewitt was at the time, that his hired man had lost five dollars; that five dollars had been taken from him, and he suspected Ida Hewitt of taking it, as she was working for him at that time; also some money belonging to the children,— that he had reason to believe she had taken it. He said to Mr. Markham that he told him as a friend, to put him upon his guard, knowing that she was in his employ, and that he left her in the store, and asked him not to repeat it. Other evidence of a like character was introduced, which it will not be necessary to insert here. The defendant testified that he told her father: “ ‘ Mr. Hewitt, I have said nothing about Ida but what I will say to her or will say to you; nothing but what I believe to be true. We have lost these things from our house. I believe Ida is the guilty person. I have reasons to believe so. I have reasons that justify me in this belief, and I think I would be justified before any jury in Berrien county, if the facts are found.’ Then he says, ‘ If you thought Ida took the money, why didn’t you get a search warrant, and come and see if you couldn’t find it ? ’ I said, ‘ That would be .a nice way to ascertain,—to search for a five-dollar bill! ’ ” During the progress of the cross-examination of the defendant, he said to the court that he intended to convey the idea that Miss Hewitt stole the articles. Any one reading this testimony would have the right to infer that Mr. Morley intended to charge Miss Hewitt with the larceny of the things mentioned by him. That would be a fair conclusion from the language used. There was no such variance between the pleadings and proofs, and no such failure of proof, as would justify the court in directing a verdict for the defendant. Wiest v. Luyendyk, 73 Mich. 665; 5 Wait, Act. & Def. 731. It is the claim of the defendant that what he said was privileged; that it was his duty to say it; and that what he said was either for the purpose of making an investigation he had a right to make, or to impart information to one who had a right to know. The trial judge allowed full latitude in the admission of testimony bearing upon this feature of the defense. The circuit judge charged the jury at the request of the defendant: ‘ ‘ Where a person is so situated that it becomes right, in the interests of society, that he should tell to a third person certain facts, then, if he, bona fide and without malice, does tell them, it is a privileged communication. ‘ ‘If the money or goods of the person to whom he [the defendant] speaks would be in great and obvious danger of being stolen or destroyed, he may volunteer information to those in danger, or to their master, though he be nót himself personally concerned. So, too, it appears that the defendant may, without being applied to for the information, acquaint a master with the misconduct of his servants, if instances have come under the especial notice of the defendant which have been concealed from the master’s eye. “It is necessary, further, that circumstances should be present to his [the defendant’s] mind which reasonably impose on him a duty to make such a statement. If such circumstances exist, the statement is privileged, although it may prove to be untrue. It is not necessary that, before making such a statement, the defendant should have thoroughly investigated the reports which have reached him. Hearsay is sufficient, reasonable, and probable cause, in the absence of malice, unless the defendant ought, for any reason, to have known that his informant was unreliable, and his story undeserving of belief. And, lastly, the defendant must make the statement under an honest sense of duty, desiring to serve the person most concerned, and not for any malicious or self-seeking motive. ‘ ‘ An important question in this case is this: Did the defendant honestly believe it to be his duty to make the communication complained of, and did he do so under a sense of duty ? * * * The jury must place themselves in the position of the defendant at the time these suspicious circumstances were brought to his knowlege,— when first the question arose in his mind, ‘ Ought I not to inform my neighbor ?’ It may well be that another man would have said, ‘It is no concern of mine,’ and would have done nothing, but that does not prove that the defendant was wrong in acting as he did. * * * But the jury should find for the defendant if they are satisfied that he both honestly felt, and had reasonable grounds for feeling, that he could not conscientiously allow the person to whom he made the communication to continue in secure ignorance, and honestly felt that he must communicate to such person that which he was much concerned to know. * * * “If you shall find that the defendant had no malice— that is, hatred or ill will—against the plaintiff, and that he had just cause or excuse for endeavoring to detect the plaintiff in the unlawful taking of his property, or that of his hired man, and that he made any particular charge or accusation simply to detect her, if guilty, then your verdict must be for the defendant, so far as anjr particular charge or accusation is concerned. * * * “If the jury find that any slanderous communication that the defendant made to any neighbor of his was made under the belief, justified by the circumstances that had come to his knowledge, that his duty to the person to whom he made the communication required him to make the same, because of confidential relations, then the communication was privileged, and the jury ought not, because thereof, to find the defendant guilty.” The defendant has no reason to complain of this statement of the law. Moore v. Thompson, 92 Mich. 504. It is urged in defendant’s supplementary brief that the verdict cannot stand because it does not comply with the provisions of section 2, Act No. 216, Pub. Acts 1895, which provides that— “In awarding damages to the plaintiff in any suit brought for the recovery of damages for libel or slander in' this State, the jury shall in all cases specify the amount awarded for damages to feelings separately from the amount awarded for other damages mentioned in the foregoing section.” This act did not take effect until after this suit was begun, but it is urged that the act is a procedure act, without any saving clause,1 and that pending litigation would be affected by it. The provisions of the act were not called to the attention of the trial court, and there is no reference made to it, nor any argument based upon it, in the original brief filed by counsel. There is everything to indicate that the provisions of the new act were unknown both to counsel and the court at the time of the trial, and when the original brief was prepared by defendant’s counsel, and we think it tóo late now to raise the question in a supplemental brief. Black v. Dawson, 83 Mich. 485; Shippy v. Village of Au Sable, 85 Mich. 380; Ashman v. Railroad Co., 90 Mich. 567; Lacas v. Railway Co., 93 Mich. 412. Judgment is affirmed. The other Justices concurred.

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Hooker, J. The facts of this case will be found stated in the report of the former hearing in this court in 101 Mich. 319. Counsel for the appellant states in his brief that the testimony was the same upon both trials. Upon the last trial, the court submitted the case to the jury, and a verdict for the defendant was returned. All assignments of error relate to the charge or refusal to give requests. After examination, we are satisfied that the cause was submitted to the jury in accordance with the views expressed in our former opinion. It is unnecessary to discuss the several assignments of error (of which there are many) to show wherein they are not meritorious. They raise no law questions of interest, and the subject is sufficiently covered by our former opinion. The judgment is affirmed. The other Justices concurred.

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Moore, J. The plaintiff, as assignee, sued the defendant to recover deposits, amounting to $270, deposited with it by Beasley & Co. Defendant claimed by way of defense: 1. That plaintiff was not legally the assignee of Beasley & Co. 2. That, if plaintiff was the assignee, defendant was entitled to retain ont of the deposit- enough to pay two notes, amounting to about $250, which it held, given by Beasley & Co., which matured after the assignment was made and before suit was brought. The circuit judge found the proceedings relating to the assignment fatally defective, and directed a verdict for defendant. The record shows that the assignment was made August 31, 1895; that on the same day a copy of said assignment' was filed with the county clerk; that neither the original assignment nor a duplicate of it has ever been filed with the clerk. It also discloses that, after office hours on September 10th, the assignee and his attorney visited the county clerk’s office with an inventory of assets and a list of creditors that were not sworn to, and with a bond, the surety to which was the Fidelity & Deposit Company of Baltimore, Md. They found a deputy clerk in the office, who had returned to the office for his bicycle. A request was made of this deputy that he approve the bond and file the papers. He declined to do so, on the ground that it was something that he knew nothing about; that it came within the duty of Mr. Christian, another deputy, or the clerk himself. The papers were left in the clerk’s office. The next morning the assignee and his attorney again appeared at the clerk’s office. The assignee wanted to verify the inventory and list of creditors. He was told that this must be done by the assignor, who was summoned, and, after the papers were verified, a filing was indorsed on one of them by the clerk, and the bond was detached and placed in the vault. There was no approval of the bond, or no filing of it, indorsed upon it, and there never has been, though the clerk testified that he regarded the bond as good, and would have indorsed it with his approval on the 11th day of September if his attention had been called to it. Counsel for plaintiff asked that he be allowed at the trial to indorse his approval upon the bond, but the circuit judge declined to let him do so. No proof of the authority of the company to become surety on the bond was made. See Act No. 266, Pub. Acts 1895. Objection was-made to the admission of these papers because they did not comply with the provisions of 3 How. Stat. § 8739; 2 How. Stat. § 8740. A filing of a copy of the assignment, instead of an original or a duplicate, was not a compliance with the statute. A copy is a transcript of an original writing (Bouv. Law Diet.), and may be made by anybody. A copy cannot be given in evidence unless proof is made that the original is lost, or is in the power of the opposite party. While a duplicate is the double of anything. Bouv. Law Diet. It is either one of the two originals, both of which are executed by the same party or parties, and may be offered in evidence. It is no part of the duty of the clerk to file a copy of an assignment, but he could not refuse to file an original or a duplicate. The creditors are entitled to know that an assignment has in fact been made. That they cannot ascertain from inspecting what purports to be a copy. The failure to file an inventory and list of creditors within 10 days with the clerk is not a compliance with the statute. The failure to file with the clerk a bond, approved by him, within 10 days, is not a compliance Avith the statute. Munson v. Ellis, 58 Mich. 331; Beard v. Clippert, 63 Mich. 719; Springett v. Colerick, 67 Mich. 367; Abbott v. Chaffee, 83 Mich. 256. The surety was the Fidelity & Deposit Company of Baltimore. There is nothing in the record to show that this company was authorized to become a surety on the bond. The defendant is a creditor, which seeks to apply funds in its possession to the payment of a debt owed it by the assignors of the plaintiff. The creditor has a right to insist that, before it can be deprived of this fund, the plaintiff shall show a substantial compliance with the statute. It will not be necessary to discuss the other questions raised by the record. Judgment is affirmed. The other Justices concurred.

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Long, C. J. This action is brought to recover damages for an injury to the plaintiff by a passenger train at a highway crossing on the defendant’s road. On Sunday, June 4, 1893, a washout had occurred on the Chicago & Grand Trunk Railway, between Lansing and Durand, so that the through passenger train from Chicago eastward was taken from Lansing to Ionia, thence eastward to Du-rand, over the defendant’s road, passing through the village of Muir, where the accident happened. The train passed the station at Muir, without stopping, a little past noon, running at a rapid rate of speed, the witnesses varying in testimony in regard to it; some stating the rate as high as 45 miles an hour, and others about 20 miles. It was an irregular excursion train. Three blocks east of the depot, and about 1,170 feet distant, the train passed over Plain street at a grade. The plaintiff, a man about 67 years of age, quite deaf, lived at Portland, about seven miles from Muir, and on that morning, traveling from his home to Carson City, passed through the village of Muir. He entered the town from the south side on Prairie street, and turned eastward into Superior street, which is parallel with the track of defendant’s road, and about 200 feet distant from it. He traveled along Superior street about 1,170 feet, when he turned northward into Plain street. No train was in sight when he turned into Plain street. He was riding in a single carriage, with the top up and side curtains off, drawn by one horse, which was gentle and steady. Driving northward along Plain street, his view was for the most part obstructed, first by a dwelling-house, then by some bushes, a hen-house, and a pile of ties, the ties extending up to within 6 or 8 feet of the railroad track. The hen-house was about 6 feet high, and the ties, at the utmost, were only 9 feet high. The plaintiff did not stop his horse, but drove along to a point past the pile of ties, when, looking westward, he saw the train approaching, about 70 feet distant from him. 'His horse was then upon the track. He drove across, and the train caught the carnage, overturning it, and injuring the plaintiff severely, as well as damaging his horse and carriage. The negligence charged is: 1. That the defendant, by allowing the ties to remain there, and obstruct his view, led him into a place of danger. 2. That it failed to provide a watchman. 3. That the train was running at an unlawful rate of speed, and without sounding the bell or whistle. 4. That the defendant had no right or authority to run the train on Sunday. At the close of the case, the court below directed verdict and judgment in favor of the defendant. Plaintiff brings error. From the record it is apparent that the plaintiff took none of the precautions which the law requires of one who is about to cross a railroad track. Some claim is made that Stoddard, who was in advance of the plaintiff, passed over the track in safety, and that the plaintiff had the right to rely upon that fact, and was thereby not required to take the same precaution which he otherwise' would; but it appears that Stoddard was greatly in advance of plaintiff, and had turned the corner off Plain street, a distance of nearly 175 feet, before the plaintiff reached the crossing; and it does not appear that plaintiff in any manner relied upon the fact that Stoddard had passed safely over. Jensen v. Railroad Co., 102 Mich. 176; Houghton v. Railway Co., 99 Mich. 308. The plaintiff, if he could not see an approaching train by reason of these obstructions, was bound to use greater pre cautions in nearing the track. A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and, if either sense cannot be rendered available, the obligation to use the other is stronger, to' ascertain, before attempting to cross, whether a train is in dangerous proximity; and if he neglects to do this, but ventures blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at his own risk. This is the general rule settled in this State, but modified by the proposition that he is not bound to the same degree of care where he has no reason to expect a train to pass at that time. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Guggenheim v. Railway Co., 66 Mich. 150. But the law requires a person to exercise a great degree of care in making these crossings. The track itself is a warning of danger; and, if one goes upon it heedlessly, he assumes the risk incident thereto. Here the plaintiff was quite deaf. It is apparent that he could not hear the noise of the train. He knew the track was there; was familiar with the road.. He could not see because of these obstructions, and yet he did not stop or take any other precaution to ascertain if a train was approaching. He had no right to rely upon the fact that it was Sunday, and that no train was likely to approach, and drive blindly on. He must exercise some care. We are unable to find that he exercised any, even the slightest, care. If he had stood up in his carriage, and looked westward, he could have seen over the hen-house and the pile of ties, and have seen the train when it was some 1,200 feet away. He did not stop, and, if he had, he was, it appears, too deaf to hear the rumbling of the train. The case, it seems to us, is one where the plaintiff was so manifestly guilty of contributing to his own injury that a recovery should not be permitted. In Shufelt v. Railroad Co., 96 Mich. 327, it appeared that, if Mrs. Shufelt had stopped 18 or 20 feet from the crossing, she could have seen the train. Mr. Justice Hooker, in that case, speaking for a majority of the court, said: ‘ ‘ It was her duty to look both ways, after getting where she could see, before venturing upon the track, and she should have taken sufficient ’time to do so, though it became necessa^r to stop her team for the purpose. * * * A person is not justified In driving upon a straight track in the face of an approaching train without looking for it, and obstructions to the view in proximity to the track increase the obligation of extreme caution.” The present case, upon its facts, shows more clearly the obligation resting upon the plaintiff, for not only was his view obstructed, but he was very deaf. Whatever view may be taken of the testimony, giving it all the latitude claimed by counsel for plaintiff, it is difficult to find in it any proof of care or caution taken by plaintiff, as he ran blindly into danger. The contention of counsel that this was a Sunday excursion train, and unlawfully run, we think, can have a bearing only upon the question as to whether the plaintiff would not be required to exercise the same care in making the crossing. If he was not expecting a train, or had a right to assume that no train ever rhn on Sunday over that road, and he was relying upon that fact, it might, in a sense, excuse him from that degree of care that otherwise he was bound to exercise. But it is apparent from the record that, if the plaintiff had that in view, he did not take the precautions which the law requires, for even under such circumstances he had no right to go blindly upon the track. But, though it is the exception on that road to run Sunday trains, yet excursion trains frequently go over the road on Sunday. The judgment must be affirmed. The other Justices concurred.

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Moore, J. Litigation growing out of nearly the same facts as in this case was had in the case of Haldeman v. Berry, 74 Mich. 424. A reference to that case will make it unnecessary to repeat all the facts appearing in the record in this case. After that case was decided against Berry et al., they brought this suit to recover the damages which they attempted to recover in that proceeding by way of recoupment. The contract which was entered into by the parties was made, if made at all, by J. H. Mason acting for Berry et al., and by Collins acting for Haldeman. The facts necessary to an understanding of the case, in addition to those stated in Haldeman v. Berry, 74 Mich. 424, are: After Dean died, Collins appeared in Detroit, and presented a letter to Mason, reading as follows: “Louisville, Feb. 13, 1882. “ J. H. Mason, Esq. “ Dear Sir: Mr. Lewis Collins is fully authorized to do business for me. I have purchased from the administrator Mr. A. B. Dean’s interest in the asphaltum business, and as his successor am prepared to fulfill all his contracts. •“W. N. Haldeman.” The presentation of this letter was followed by some talk, which resulted in the execution of the memoranda and letters found on pages 428, 429, and 430 of 74 Mich., which letters plaintiffs in this proceeding claim constituted, a contract for the breach of which this action was brought. They recovered judgment, and defendant appeals. In addition to the letters found in the opinion in the case of Haldeman v. Berry, supra, this record shows letters the substance of which is as follows: April U, 1882, Mason to Collins: “Looking anxiously for advices of shipment.” Aprils, 1882, Collins to Mason: “Latest advices are that first shipment will no doubt be made before last of April.” April 8, 1882, Mason to Collins: “If no certainty of getting it, must take immediate steps to get a supply from other sources.” June 2,1882, Collins to Mason: “ Cargo being delivered at the landings.” June 10, 1882, Mason to Collins: “Is it any more certain now than when you wrote a vessel was being loaded ?” February 2,1888, Collins wrote Mason that by retaining from the cargo delivered in December, 1882, the asphaltum loaned Dean, as well as by demanding 5 per cent, discount for cash, to both of which “I have and do now assent, you have confirmed the contract of February 14, ’82, and it is confirmed and binding.” Further, “Your favor of December 7th shows that your necessities have been supplied from another source, and you are practically without damage.” Collins sent the draft of a new contract, stating, “It is not to be deemed a revocation or canceling of the one now existing, unless distinctly accepted.” February 10, 1883, Mason wrote Collins that he did not consider himself in any way bound by his former contract with Dean; “He failed to fulfill it, and, of course, I am not bound by it.” February 12, 1888, Collins wrote Mason, withdrawing his proposed contract of February 2d, and saying: “I am free to say, and Mr. Haldeman is of the same opinion, that had you ignored the Dean and Haldeman contract wholly, and not have retained the amount of asphaltum loaned Dean, or five per cent, for cash, as agreed with Dean, the effect would have been, to annul the contract. As it is, you have accepted so much and held us to so much as pleased you; and now we will exercise the same privilege. It will be some little time before a cargo can be tendered to you. You will be, notified in advance, and we shall expect $38 and $40 per ton of 2,000 pounds, at 30 days, in payment. I am sorry we could not agree, as I prefer to do business amicably. But what can’t be cured must be endured.” February 12, 1888, Collins telegraphed Mason: “Letter withdrawn. Will stand by old contract.” February 15, 1888, Mason wrote Collins that he need make no tender to be applied on any contract, as, under existing circumstances, he would not receive it. March &, 1888, Mason wrote Collins, offering to take 100 to 200 tons in July or August at prices stated, but not to apply on any contract orders theretofore given to him or Dean, “as all such orders or contracts are void.” March 5, 1888, Collins wrote Mason that he did not mean that, by his offer of a small cargo about July 1st, the obligation under which he thought Mason rested to take 1,130 tons should be of no further force. March 10, 1888, Collins wrote Mason: “We had now best adjust our differences at law, and may the cause of justice win. I will be in Detroit next week to institute suit for breach of contract.” Collins visited Detroit in March, 1883, employed counsel, and commenced the suit against Berry Bros, in behalf of Haldeman. In that suit Berry Bros, claimed damages by way of recoupment, which case is the one reported in 74 Mich. For the purpose of showing a ratification by Haldeman of the acts of Collins, the files in the case of Haldeman v. Berry were offered and received in evidence. It is the claim of Mr. Haldeman that he had no knowledge of the bringing of this suit by Collins until after a judgment in a large amount had been obtained against him; and that he prosecuted the appeal in the Supreme Court, not with a view of ratifying Collins’ acts, but to protect himself against the judgment obtained against him, and that he did this by advice of counsel, and that it should not be treated as a ratification of Collins’ acts. , It is the claim of the plaintiffs that the written ' authority given Collins authorized him to do what he undertook to do, and that, if it did not, if Mr. Haldeman desired to repudiate his contracts, he should have acted promptly; and that, when Collins assumed to bring suit in the name of Haldeman, it was the duty of the latter to deny his authority to do so, and that, if he failed to do so, his action was competent evidence for the jui’y to consider as bearing upon the question of ratification. It is admitted by defendant that he wrote the letter of February 13th to J. H. Mason, but he insists that it did not confer any authority upon Collins to make any new contract with Mason; that it only authorized him to act in relation to the contract then existing between Dean and the Berrys; and that, as the authority conferred is in writing, it was the duty of the court to construe the contract, instead of leaving it to the jury to say, as the court did, whether the letter, taken in connection with all the circumstances and facts surrounding the case, authorized' Collins to make the contract which he did make,— citing Mechem, Ag. § 104. The court left these two questions to the jury in the following language: “When this letter was written, you will remember that Mr. Mason had entered into a contract for the delivery in 'Detroit of a certain quantity of asphaltum by Mr. Dean for Berry Bros. It was really the contract of Berry Bros. After his death this letter was sent by the defendant in this case to Mr. Mason. Now, whatever authority was conferred upon Mr. Collins by this letter, Mr. Haldeman is bound by, and by none other, unless you shall subsequently find that the contract—-whatever was entered into by Mr. Collins—was subsequently ratified by Mr. Haldeman. When an authority is given to an agent by a principal, the principal is bound only so far as the agent shall keep within his contract, and, when that authority is in writing, a fair interpretation of what was intended by that writing is what governs; and I leave it in this case to you to say whether there was any authority intended to be given by Mr. Haldeman to Mr. Collins to execute or enter into any new contract, or simply whether it was authority merely to carry out the contract that had been entered into by Mr. Dean with Mr. Mason. If you shall find that under this letter there was no authority conferred upon Mr. Collins to enter into a new contract, but you shall find a new contract was entered into between Mr. Collins and Mr. Mason, then so far the plaintiffs in this -case would not be entitled to recover, unless you found that authority was given by this writing to enter into this contract,—this new contract. “It is claimed on the part of the plaintiffs that, even if there was no authority conferred upon Mr. Collins, he did' enter into a new contract with the knowledge and approval of Mr. Haldeman, and as evidence of that proposition -the exhibits that have been offered in evidence are permitted to go to you, so that you may determine whether, by the conduct or actions of Mr. Haldeman, he knew of or ratified in any manner this new contract that was entered into by Mr. Collins and by Mr. Mason. The evidence for you to consider in determining that proposition is this: It is claimed that this new contract by the plaintiffs was entered into by Mr. Collins, and that subsequently a suit was brought upon that contract to this court, in the name of the defendant, Mr. Haldeman, and that a judgment was entered against Mr. Haldeman in that case—he being the plaintiff—on the defendants’ (Berry Bros.’) plea of recoupment, for, I believe, something near $18,000. If Mr. Haldeman authorized the commencement of this suit in this court, then he recognized and ratified that contract. Here, on this proposition, so far these parties joined issue, the plaintiffs claiming that the evidence in this case shows that Mr. Haldeman authorized the commencement of that suit, Mr. Haldeman denying it, stating here that he never authorized Mr. Collins to commence this suit, nor never knew the suit was commenced, and knew nothing about the suit until he was informed subsequently that a judgment had been rendered against him in this court. It then follows, gentlemen of the jury, that this case was taken to the Supreme Court of this State, and there determined by a reversal of the judgment. It is admitted upon the part of the defendant in this suit, Mr. Haldeman, that he sent here from Louisville his counsel, who appears here in this case, and who was a witness upon this stand, and it is contended by the plaintiffs in this suit that all the testimony in this case, the brief and record, etc., showed that Mr. Haldeman then recognized this suit, and by that means ratified the contract which was entered into subsequent to the death of Mr. Dean between Mr. Mason and Mr. Collins. On the other hand, it is contended here that it is through the advice of counsel—that is, that counsel that Mr. Collins had hired in the suit in which Mr. Haldeman’s name was used—that this case was taken to the Supreme Court, and that they were informed that that was the only way that Mr. Halde man could defend himself as against the judgment that had been rendered here in this suit of twelve or thirteen thousand dollars against him. Now, right here, it is contended by counsel for the plaintiffs that that was not necessary to do in order to protect Mr. Haldeman at all, but that Mr. Haldeman could have moved in this court, on a motion to set aside that judgment by a bill in chancery, on the ground that his name was improperly used, that it was a fraudulent judgment as far as he was concerned, because he had nothing to do with it, and that that was his proper remedy. Now, gentlemen, that remedy is sometimes resorted to, and it is a legal remedy; but I charge you that in determining that particular question in this case it is for you to determine the intention with which Mr. Haldeman acted, or the advice that he received, or what he acted upon, whether he intended to or did simply try to protect himself against this judgment, or whether he intended .to or did ratify that new contract. If you find that in taking this remedy he simply sought to protect himself against the judgment, and acted by the advice of counsel, and did not. in tend to nor did not recognize that new contract as his own, or the authority of Mr. Collins to make it for him, then there is no ratification of that new contract in this case. But if he did recognize that new contract, or held Collins out,—that is, gave him authority in such a manner that people would be justified in believing that he was acting for him,—or he ratified this contract in the manner I have stated to you, then that ratification would be as binding upon him as if he had actually entered into the contract in the beginning.” It is undoubtedly the rule that a written contract is to be construed by the court. It is another rule of law that, if the language of a contract is obscure or equivocal or ambiguous, it will be construed most strongly against the party using the language (Kirwan v. Packing Co., 12 Ind. App. 1; Falley v. Giles, 29 Ind. 114; National Bank v. Insurance Co., 95 U. S. 673; Marr v. Given, 23 Me. 55 [39 Am. Dec. 600]); and that ‘ ‘ where language is ambiguous, and the agent bona ficle adopts a permissible construction, the principal cannot, on the ground that such construction was not intended by him, disown and dishonor the act of his agent” (Whart. Ag. § 224; Mechem, Ag. § 304; Hopwood v. Corbin, 63 Iowa, 218; Foster v. Rockwell, 104 Mass. 167). The court might well have held that, under the proofs and circumstances of the case, Collins and the plaintiffs having acted under the permissible construction which could be put upon the letter, it must be held to confer authority upon Collins to act for Haldeman. The court did not think best to do this, however, and submitted the question to the jury. "We do not think this was prejudicial error. See White v. King, 87 Mich. 107; Carson v. Smith, 5 Minn. 78 (77 Am. Dec. 539); Kirwan v. Packing Co., supra. This disposes of all the questions relating' to the authority of Collins to make the contract. It is insisted by defendant that plaintiffs rescinded the contract, and that they also, by their acts and letters, waived any damages growing out of the failure of Haldeman to perform it. It is evident, from the correspondence and the action of Collins in bringing the suit of Haldeman v. Berry, that he did not regard the contract as rescinded. December 7, 1882, Mason wrote a letter, in which he stated that he had succeeded in finding .a substitute for the asphaltum in English pitch, which suited him quite as well as the asphaltum; and it is insisted that this was a waiver. Mr. Berry gave his version of the circumstances under which the letter was written, and of the remittance for the asphaltum which was received. .These were all questions of fact, and were properly submitted to the jury. Judgment is affirmed. The other Justices concurred.

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Long, C. J. The plaintiff, and John - Wieland and Egbert Hurd, his assignors, were assessed $180 for cleaning out and widening what is known as the ‘ ‘Gunderman Lake and Prairie Creek Drain,” in Dewitt, Clinton county, for the year 1895. On the 2d day of March the parties paid such taxes to the defendant township treasurer under protest. These protests were signed by the parties, and it appears that prior to the payment of the taxes the defendant had seized and taken into his possession some personal property belonging to John Wieland, for the purpose of satisfying the payment of the tax, and also threatened to take some of the personal property of Egbert Hurd for the payment of his said taxes; and that prior to the commencement of suit these parties assigned their claims to the plaintiff. On the trial it was contended by the plaintiff: 1. That the application for cleaning out the drain was illegal, in that it did not recite that the application was made to the commissioner by whom the drain was constructed, or to. his successor in office, and in that it did not set forth that five applicants are freeholders of the township in which said drain is situated. 2. That the drain was widened beyond its original width. 3. That the contracts for doing the work were let for a drain 1¶ feet slope to one foot rise, and paid for on that basis, while in-fact the work was actually performed on the basis of one foot slope to one feot rise. 4. That there was a fraudulent arrangement between the commissioner and the contractors, by which the taxpayers were defrauded of large sums of money. On the trial the court directed a verdict in favor of the defendant. The statute under which the petition was made is section 1, chap. 8, Act No. 203, Pub. Acts 1893, and provides: “Whenever a drain, or any portion thereof, needs cleaning out, straightening, deepening, widening, or extending, any five freeholders of the township or townships in which such drain is situated, one or more of whom shall be owners of land liable to an assessment for benefits in the cleaning out, deepening, widening, straightening, or extending, as the case may be, may make application in writing to the commissioner by whom it was constructed, or to his successor in office, setting forth its necessity,” etc. The application for the cleaning out of this drain is signed by nine persons, and recites that five of them— giving their names—-are owners of lands that were assessed for benefits in the construction of the drain, and are now owners of land liable to be assessed for benefits in the cleaning out of the drain; and that the drain needs cleaning out to its full capacity its entire length. Counsel for plaintiff contend that the case of Tinsman v. Probate Judge, 82 Mich. 562, settles the rule that the application was insufficient. In that case the petition did not show that one or more of the petitioners were assessed for the construction of the two drains which they asked to have widened and deepened, and it was held that the statute required this, and that such requirement was jurisdictional. That proceeding was had under Act No. 233, Pub. Acts 1889. As has been seen, the petition in the present case shows that five petitioners were assessed for benefits for the original construction, and that they then held land liable to be assessed for the improvement. We think there is no showing that the drain was widened beyond its original width. The contracts under which the cleaning out was done appear to,have been destroyed after all the work had been completed; but it was shown that the contracts referred to a diagram made of the ditch before the letting of the contracts, and after the surveys had been made, and that a certain portion was to be of the dimensions of one foot slope to one foot rise, and another portion, 1|- feet slope to one foot rise, and there is no showing but that these were the dimensions of the original ditch. There is no evidence that the contracts were let upon any different basis than that shown in the diagram, and whatever the contractors may have done in the construction of the drain in making it wider can in no manner affect the plaintiff’s rights, as the contracts were let simply for the cleaning of the old ditch, and in accordance with the diagram. There is not a particle of evidence in the record that there was collusion between the commissioner and the contractors by which the taxpayers of the township were defrauded. The judgment below is affirmed. The other Justices concurred.

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Grant, J. (after stating the facts). The court should, as requested, have directed a verdict for the defendant. Plaintiff was not in the exercise of ordinary care. He was perfectly familiar with the situation, and knew the danger. He chose to direct his course by a light which was not the one he supposed it to be. It is doubtful whether, at the point where he selected this light as his guide, he could have seen the light in Denton’s house if it had been there, on account of an angle in the street. His counsel in their brief say: “It is absolutely certain that, had there been a railing there, he would not have fallen off. ” It is equally certain that, if he had guided himself by the railing upon the north side, he would have passed over in safety. It may be said that three things contributed to the accident,—the darkness of the night, the mistake of the plaintiff in taking one light for another, and the absence of a rail on the south side. His own mistake caused the accident, and for this the defendant cannot be held liable, however negligent it may have been in leaving one side of the walk unguarded. Had there been no light, it would clearly have been his duty to guide himself by the rail on the north side. He cannot avoid this duty by showing that he followed a false light, instead of the one he was accustomed to follow. The village was in no wise responsible for his own mistake, without which he would not have been injured*, Further discussion is unnecessary. The case is ruled by Black v. City of Manistee, 107 Mich. 60. In that case plaintiff neglected to guide herself by the hand-rail when passing over an icy sidewalk. See, also, Smith v. City of Jackson, 106 Mich. 136; Kuhn v. Walker Tp., 97 Mich. 306; Beach, Contrib. Neg. § 248. Judgment reversed, and no new trial ordered. The other Justices concurred.

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Montgomery, J. Defendant, Day, was the general agent of the Equitable Life Assurance Society of New York. Plaintiff entered into his employment in 1887, under a written contract, as solicitor of insurance. This contract, it would seem, related to insurance effected through the instrumentality of plaintiff alone. Plaintiff claims that during the years of 1887, 1888, and 1889 he assisted defendant in effecting insurance on various lives, upon an agreement to share the commissions received, and that for these items there has never been a settlement and payment by defendant. Plaintiff recovered upon this claim. Defendant entered a motion for a new trial, which was refused, and he brings the case, here for review. But two points are presented. One relates to the admission of a single question on the cross-examination of defendant, and the other assignment of error relates to the refusal of a new trial. The plaintiff had testified that Mr. Day and himself had caused insurance to be written upon the lives of Elias Matter, Mr. Wright, and W. 0. Hughart, under an agreement that the commissions received upon the insurance were to be divided between the two equally. Defendant disputed' this agreement, and testified, in addition, that settlements were made from year to year of the business transactions between the two, and that the settlements were satisfactory. On the direct examination, defendant testified that, as to the insurance written on Mr. Wright, he told plaintiff that, if he could, he would save something for him out of the commissions, and that plaintiff replied that he would be satisfied with that arrangement, and that he (defendant) paid plaintiff out of the commissions a sum satisfactory to plaintiff. On cross-examination, defendant testified to the amount of the premium on the three Wright policies, stating that it was $1,018.20; that the commission was 35 per cent.; and that Mr. Raymond, under his present claim, would be entitled to 50 percent.; that he (defendant) paid to one Lancashire $152 of the premium, and to Mr. Raymond $12?; and that he (defendant) received $29.30. He further testified without objection as to the amount of his commission on certain other policies, and as to the commission he would receive on renewals. He was asked what kind of policies the Wright policies were, and replied that they were 15-year endowments He was then asked: “How much annual commission did you. get after the first year ? ” This was objected to, and received subject to exception, and the witness replied, “Seven and a half per cent.” This ruling presents the first question in the case. We think the testimony was properly received. It was in dispute between the parties as to whether plaintiff was to receive, under an agreement with defendant, one-half the commission, or the amount paid him. As the testimony stood, defendant’s testimony to the effect that he was not to pay more than $127 was fortified by the inference that the jury might draw, that, as he (defendant) had been required to pay $152 to Lancashire, it would be unreasonable to require him to pay substantially all that remained to plaintiff; and, if the fact had been that defendant would have no further concern in the insurance after the receipt of the first premium, the inference to be drawn from this would have been very strong; but, as bearing upon the probabilities, we think the fact that he had a further and other interest in the insurance effected was of some importance, and competent to be considered by the jury. The question is within the principle of numerous decided cases. See Misner v. Darling, 44 Mich. 438; Banghart v. Hyde, 94 Mich. 49, and cases cited. After the trial, defendant discovered in his office a letter written him by the plaintiff, which tends strongly to support the defendant’s claim of a settlement of accounts in February, 1891. An application for a new trial was made, based upon the discovery of this letter. The case was tried on the 2d and 3d of November, 1894. The testimony of diligence is by an affidavit of Miss Thompson, a clerk in the employ of defendant, who states that, some time previous to the 2d of November, she was instructed by defendant to make a careful and diligent search, and to obtain any correspondence or receipts or other evidence bearing upon any agreement between plaintiff and defendant; that, complying with such instructions, she did make a careful search, as she supposed, of all correspondence of said plaintiff; that subsequent to the 2d of November, in compliance with directions of defendant, she spent the greater portion of four days in the examination and careful reading of the correspondence between the parties; and that, on the 12th day of November, she discovered the letter in question. The ground for refusing the motion for a new trial is not stated in the record, but it is assumed in the briefs of counsel that the circuit judge was of the opinion that proper diligence in the effort to discover the testimony before trial was not shown. We should not feel justified in reversing the action of the trial judge where, as upon such a motion as the present, the matter is committed to his sound discretion, except in a case where a clear abuse of such discretion is shown. We think this is not that case; that there was ample room, in the exercise of judicial discretion, for the circuit judge to entertain the opinion that the defendant had not brought himself within the rule of diligence required to justify a new trial upon the ground of newly-discovered evidence. See 3 Grah. & W. New Trials, 1026 et seq. The judgment will be affirmed. The other Justices concurred.

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Grant, J. The defendants are husband and wife. This suit was commenced in justice’s court, based upon two promissory notes, for $63 each, upon one of which a payment had been made. The notes read as follows: “Six months after date, I promise to pay to the order of C. A. Sherrod $63, * * * with interest, value received by me since I have become the sole owner of the stock of groceries formerly belonging to the estate of C. L. Costigan.” This was signed by defendant Therese, and indorsed by defendant Eugene, as follows: “I hereby guarantee the payment of the within note, waiving notice of protest.” Plaintiff recovered verdict and judgment in both courts. C. L. Costigan was the son of the defendants, and kept a grocery store and saloon. After his death, defendant Eugene was appointed administrator, and testified that, as such', he continued to carry on the business of his deceased son for the benefit of his estate, notwithstanding he showed no authority for doing so, and took out the liquor tax receipt in his own name. He attended to the saloon, and his wife to the grocery. Plaintiff owned the building. Eugene executed a lease to him in the name of C. L. Costigan, his son who was dead; plaintiff, however, supposing that to be the name of the defendant, and that he was the one who executed the lease. Therese and her husband testified that she purchased from him, as administrator, the stock of goods and business, shortly before giving the notes. The defense was that these notes had no reference to her own property, and that, therefore, she, being a married woman, was not liable. The court instructed the jury that plaintiff could not recover unless the undertaking sued upon had reference to her sole property, or unless she purchased the, property, and that the rent for which these notes were given was a part of the consideration for the purchase. It is claimed that there was no testimony upon which to base this instruction. We cannot concur in this view. She had purchased the property at the time the notes were given, and was in possession of the building. There was evidence tending to show that Mrs. Costigan had owned the stock for a long time. The inferences to be drawn from all the evidence were properly left to the jury, who were carefully instructed as to the rules, applicable to the case. The judgment is affirmed. The other Justices concurred.

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Hookee, J. Plaintiff had been' in the employment of the defendant corporation for several years, at a stated salary of $13 per week. In December, 1892, Mr. Goodell, then defendant’s manager, “said to the plaintiff that there was a probability of some changes in the management of the company, and the people coming in would make some change, and he would give him an agreement, so that he would be fixed, and not lose his place;” that he afterwards .gave him a writing, and gave him to understand that he could not be put out by the new management, but that he would retain his position for the year. The following is a copy of the writing: “Detroit, Mich., January 1, 1893. “ This is to certify that, in'consideration of the faithful performance of his duties during the last five years, Simeon F. Fuller is to receive twelve hundred dollars ($1,200) per year until further notice, or during the year 1893. The salary is not to be reduced in any event, and may be raised, at the discretion of the Peninsular Co. or its manager, at any time. “Peninsular White Lead & Color Co. “O. D. Goodell, Manager.” Within a short time, Mr. Worcester became manager of the company, and the plaintiff continued to work for the defendant under this arrangement for 1 year 8^ months, without further conversation about the matter. At that time the company sold out its business, and the men were all paid off and discharged, Fuller, among the rest, having knowledge that the company was going out of business; and when the sale was made he was informed that he would not be wanted further. This action is brought to recover plaintiff’s salary to January 1, 1895, upon the claim that his was a yearly hiring, and that, when he commenced on the year 1894, he could not be discharged before the year expired. We think that the evidence shows conclusively that the plaintiff accepted employment upon the terms stated in the writing, which was that he should be paid a salary of $1,200 per year until further notice. It might be raised, but could not be reduced, during 1893, but might thereafter, upon notice. To say that he could only be dismissed at the end of a year would make this provision meaningless, for nobody contends that without it the contract might not be changed, or even terminated, at any yearly period by either party. The only reasonable construction is that for the year 1893 the plaintiff had a right to a salary of $1,200. After that his right might be terminated upon notice, which was equivalent to saying that the defendant might terminate the contract, because he could not be compelled to work at a lower price, or insist upon receiving any stated amount. The judgment is reversed. No new trial should be ordered. Long, C. J., Grant and Montgomery, JJ., concurred. Moore, J., did not sit.

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Hooker, J. The plaintiff furnished to the defendants a machine called a “sander,” upon defendants’ promise to pay |350 in money and an old sander, which had been in use in their factory. In the action which was brought for the money consideration, the defense is made that plaintiff, as part of the contract, agreed to indemnify the defendants against litigation with another manufacturer, by a letter or bond which should be satisfactory to the defendants. The contract consisted of correspondence. The defendants wrote on June l?th, as follows, viz.: “But the Berlin Machine Co., of Beloit, Wis., represented by Mr. Forbes, one of their company, informs us that you were infringing on their patents, and that it would only be a question of time before we would be liable, if we bought one of your machines. Now, if you can furnish us with satisfactory letter or bonds that yoü will protect us in any such case, we will give you the order for the sander, and would like to have you ship it as quickly as possible.” Plaintiff replied as follows, viz.: “If you can wait about two weeks, we will furnish you machine, and will indemnify you fully against all interference from Berlin Machine Co.” To this the defendants answered, as follows, viz.:' “Please rush the sander as quickly as possible, as per our former coi'respondence.” On November 19th, plaintiff sent a statement of account, with a bond for $1,000, signed by the plaintiff company. On November 23d, the receipt of this letter was acknowledged, and plaintiff was informed that Mr. W. D. Young was absent, and expected home the first of the next week, and that the matter would be placed before him as soon as he should return. On November 30th plaintiff wrote, asking remittance. No attention was paid to this letter, and on December 5th plaintiff drew on the defendants, notifying them by letter. On December 7th the defendants wrote that they could not pay the draft, as they had not had opportunity to go over the bond question with their attorney, signifying willingness to settle as soon as they could see their attorney, and have the bond question fixed satisfactorily to them, and asking a recall of draft. On December 10th they returned the $1,000 bond, asking a bond for $5,000, signed by two satisfactory sureties, who should have a proper rating. On December 14th plaintiff declined to furnish this, saying that the request was unreasonable, and asking a return of the machine. This the defendants refused, claiming a right to the benefit of their contract. Thereupon this action was brought. The judge directed a verdict for the defendants, on the ground that, before the plaintiff could recover, it must prove that the bond was sufficient in amount, and the sureties good; and he did this notwithstanding the fact that counsel for the plaintiff offered to prove such facts, and also to prove other items of account against the defendants. We are of the opinion that the court erred. If it be conceded that the defendants were entitled to demand a bond as a condition precedent to the acceptance of the machine, it is too late to insist upon such condition after taking and using the machine for several months, and they should be limited to the right to recoup such damages as they have sustained by reason of the failure of the plaintiff to perform that part of the contract. They have deliberately elected to keep the machine, have used it for a long period of time, and refused to return it when plaintiff offered to take it back. It is not stated that the defendants have experienced any difficulty, and apparently they were willing to accept and keep the machine in silence, until asked to pay for it, and then seek to avoid payment upon the ground that a condition— very hard, if not unreasonable—was not complied with. Mr. Beach says: “But to permit a party under all circumstances to refuse to pay because dissatisfied, and at the same time to retain the fruits of the agreement, is an unwarrantable extension of the doctrine applied to machines or articles of manufacture which can be rejected. Therefore in all cases, if the party relies upon dissatisfaction as a defense, he must rescind the agreement and restore the status quo.” 1 Beach, Cont. ■§ 106. Such cases were those cited by counsel for the defendants; i. e., cases where acceptance was refused. But we do not find it necessary to go to the extent of saying that defendants should be deprived of the benefit, of their contract, as appears to have been held in the case of Campbell Printing-Press Co. v. Thorp, 36 Fed. 414, which was apparently a Michigan contract. It is sufficient to say that the contract has been performed in a substantial part by the plaintiff, and the defendants have accepted and had the benefit of part performance, and they should not be permitted to rely upon the performance of the residue as a condition precedent to liability. Upon this point the author says: 1 ‘ Conditions precedent must be performed in order to make the conditional promise absolute. But, after the one party has performed the contract in a substantial part, and the other party has accepted and had the benefit of the part performance, the latter may thereby be precluded from relying upon the performance of the residue as a condition precedent to his liability. In such case he must perform the contract on his part, and must rely upon his claim for damages in respect of the defective performance. ‘ It is remarkable that according to this rule the construction of the instrument may be varied by matter ex post factoj and that which is a condition precedent when the deed is executed may cease to be so by the subsequent conduct of the covenantee in accepting less. This is no objection to the soundness of the rule, which has been much acted upon. But there is often a difficulty in its applications to particular cases, and it cannot be intended to apply to every case in which a covenant by the plaintiff forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract.’” 1 Beach, Cont. § 107. And see cases cited in note. See, also, Clark, Cont. 676, and note. The judgment of the circuit court is reversed, and a new trial ordered. The other Justices concurred. Ellen v. Topp, 6 Exch. 424.

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Montgomery, J. One Frances A. Shafer filed a bill in the circuit court for Kent county against the relator, praying that the title to certain land of complainant be quieted, and also praying for an injunction to restrain the defendant from building a cement driveway and cement or stone coping upon land claimed to belong to complainant, and adjoining the boundary line between land owned by complainant, on the one side, and defendant, on the other. The circuit judge granted an injunction. The defendant moved to dissolve the injunction, and, upon the application being refused, applies to this court for mandamus to compel the dissolution of the injunction. The relator contends that a court of equity has not j urisdiction to settle a' dispute over a boundary line, and, therefore, that the court had no jurisdiction in this case to grant the injunctive relief prayed. The cases relied upon are Andries v. Railway Co., 105 Mich. 557; Wykes v. Ringleberg, 49 Mich. 567; Bresler v. Pitts, 58 Mich. 347. These cases undoubtedly establish the doctrine that a court of equity has not jurisdiction to settle every dispute relating to a bound ary line, or, to use the language of Mr. Justice Campbell in the case last cited, that “there is no jurisdiction in a court of equity to settle boundaries merely because disputed and difficult of ascertainment.” O n the other hand, if a case is brought within some other head of equity jurisprudence, it is not conceived that the mere fact that there is involved in the question of the complainant’s right a necessity for fixing a boundary line ousts the court of jurisdiction. This was determined in Wilmarth v. Woodcock, 58 Mich. 482, 66 Mich. 331. See, also, Stewart v. Carleton, 31 Mich. 270. The bill in this case sets out that complainant occupies the premises described in her bill, and has been in the full and complete possession thereof since the 28th of January, 1870; that there was an adjustment of the boundary line between herself and the prior owners of the lot occupied by defendant, upon the line now claimed, and that a fence was constructed upon this line, and has since been treated and acquiesced in by all the parties as the true line fence; that complainant has occupied the premises for more than 21 years; that, when defendant purchased the land, the fence was pointed out to him as a true boundary, a,nd that he bought with that knowledge and understanding; that said fence became old, and was removed in the last few years, but that most of the posts that marked the location of the same are still there in the ground, although some of them, at the rear, have been removed or buried by said defendant; that defendant is about to take possession of said disputed strip, and build on the front portion, and running about 40 feet back, a cement stone coping and cement or tar driveway; that nearly the whole coping and part of the driveway is upon complainant’s lot, and north of the line of said fence or posts; that, for a large portion of said 40 feet, said fence or coping will come under complainant’s eaves; that the strip which defendant declares his intention to take possession of is worth $200, and the building of said .coping will damage complainant over $100; and that two men have commenced to remove the turf to build said coping, and will, unless enjoined, dispossess complainant. This is followed by an allegation of irreparable injury, and by the prayer, which includes a prayer that the title of complainant be quieted, for an injunction, and for general relief. By the case made by complainant below, it also appears that she is in possession, and that the remedy by ejectment was not open to her at the.time of filing the bill, and it would appear, also, that an action, of trespass, or even of ejectment, ' based upon the occupancy by defendant of that portion of the land which he proposed to take for the driveway and coping, would not settle the right to the other portion of the disputed territory in the rear of the lot. 2 How. Stat. § 6626. We think a prima facie case for equitable relief was made out by the bill, and it follows that, the court having jurisdiction of the subject, we will not, by mandamus, review the action of the circuit judge in refusing to dissolve the injunction. The other Justices concurred.

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Montgomery, J. In 1890 the defendant city contracted with one Tennis to construct a sewer in the center of South Lafayette street, together with manholes and catch-basins, or sand traps. These catch-basins were located between the gutter and the sidewalk, and the excavation for the construction of the same was 7 feet 4 inches in depth, with a diameter of 5 feet 4 inches. The contractor entered upon the construction of this work, and, after the excavation of one of these openings for a catch-basin, on the evening of November 17, 1890, plaintiff, then a lad of 15 years, while on an errand to a grocery store, and crossing Lafayette street in a diagonal direction, fell into this opening, and received serious injuries, for which he recovered in this action. The defendant brings error, and relies, in its argument, upon four grounds of error, principally: (1) That the court erred in admitting proof of a pathway running diagonally across Lafayette street, in the course taken by plaintiff . ' (2) That there was no sufficient proof that the basin was left unguarded. (3) That the plaintiff was guilty of contributory negligence. (4) That no notice of the failure to guard the opening was shown. Testimony was introduced tending to show that it was customary for people to cross the street in the direction taken by the plaintiff, and that a path had been worn across the street at this point. We think this testimony could not have damaged the defendant, as it was the right of the plaintiff to cross the street at any portion of the traveled way, and he was not confined to the crosswalk. 1 Thomp. Neg. 387; Lincoln v. City of Detroit, 101 Mich. 245. The fact that others, in considerable numbers, took this same course, bore on the question of plaintiff’s care on the occasion in question. The defendant’s testimony tended to show that, wh’en the men quit work on the day in question, they placed barriers around tbe hole, and left a lighted lantern there. The testimony as to the barriers being there was not wholly undisputed, but, in addition to this, there was testimony tending to show that the lantern did not contain oil enough so that the lantern could be kept lighted. Two witnesses testified that, immediately after the accident, they attempted 'to light this lantern, and keep it lighted, and failed in the attempt. The trial judge properly left it to the jury whether, in view of this testimony, the place was properly and reasonably guarded and lighted. It cannot be said that, if it was a duty to leave a light at this place at all, this duty was performed by leaving a lantern with so little oil that it would not remain lighted during the occasion for its use as warning. 3. The contention that the plaintiff was guilty of contributory negligence as matter of law cannot be allowed. It is true the night was dark, but the public streets are intended for travel in the evening as well as in the daytime, and it is not negligence to attempt to travel the public streets in the evening. We are cited to numerous cases by defendant’s counsel, but, in the main, they are cases where the traveler had left the public highway, or the wrought portion thereof, and are clearly distinguishable from this case, in which the plaintiff kept within the limits of the highway. 4. The further contention is answered by the rule laid down in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), and reaffirmed in Southwell v. City of Detroit, 74 Mich. 438, in which case the rule is laid down %iat a city, when performing a duty imposed upon it by law, cannot shift the responsibility for conditions created by itself in the performance of such duty upon a contractor, and rid itself of its obligations. See Hayes v. City of West Bay City, 91 Mich. 418. See, also, Brusso v. Buffalo, 90 N. Y. 679; 2 Dill. Mun. Corp. (4th Ed.) § 1027, and note, where the authorities are collected. We think no error was committed to the prejudice of defendant, and the judgment will be affirmed, with costs. The other Justices concurred.

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Montgomery, J. This action is based upon a bond made by the defendant Dayton, as principal, and his codefendants, as sureties, in the sum of $15,000, with a condition as follows: ‘ ‘ The condition of this obligation is such that whereas the above suit in chancery is pending for an accounting and settlement of a partnership heretofore existing between the parties thereto, in which each side claims rights not conceded by the other, and each said complainants and said defendant claim a sum of money due, owing, and to be decreed to them, and by mutual agreement it is understood that this obligation shall be filed: Now, therefore, the condition of this obligation is such that if the above-bounden principal shall well and truly pay all such sums of money, and perform and satisfy any final decree made against him in this cause, then this obligation to be void; otherwise, to remain in full force and effect.” Plaintiffs recovered a judgment of $1,665:76, and defendants bring error. Plaintiffs introduced in evidence a decree of the circuit court in chancery, in the suit pending and referred to in the condition of the bond, which provided, among other things, that defendant should pay the receiver the sum of $1,460,11, and should pay to complainants in that case (the plaintiffs in this) costs, which were shown to have been afterwards taxed at the sum of $89.85. The decree further provided that the receiver, out of the sum mentioned to be paid to him, pay to the complainants the sum of $574.08. It is alleged that the declaration did not set out when or why a receiver was appointed, or what his relation to the chancery case was, or why the defendant Dayton should pay him any money, or how the plaintiffs were damaged by his failure to do so. The decree itself is set out in the declaration, and contains a recital that Charles F. Hammond had been theretofore appointed receiver in the cause. We think this is sufficient. We think it also appears sufficiently that the plaintiffs were interested in the payment of this money, at least to the extent of the $574.08, which was by the decree directed to be paid by the receiver to plaintiffs. This much, at least, appears. It is also urged that no consideration was shown for the execution of the bond. We think this case is fully covered by the recent case of Boyer v. Sowles, 109 Mich. 481. It is also contended that there is no proof that the condition of the bond has ever been violated, and no proof that plaintiffs were damaged in any way by defendant’s failure to pay the receiver; that the evidence simply shows that, during the pendency of the chancery suit, each of the parties thereto filed a voluntary bond. We find an insuperable difficulty in dealing with these various questions, growing out of the state of the record. There was no special finding of facts and law, and this court has frequently held that in such case we cannot review the conclusions reached by the court upon the facts and law. See Butts v. Davis, 50 Mich. 310; Cumming Tp. v. Schick, 94 Mich. 222; Gemberling v. Lazarus, 100 Mich. 324. The propriety of this rule is made manifest in the present case. It appears that, at the conclusion of the testimony, two requests to find were presented to the court. The first was: “The court is requested to find, as a matter of law, that the undisputed proof in this case shows no liability on the part of the sureties on the bond, and that the verdict as to such sureties must be for defendant sureties. “Second: Under all the proof in the case, the judgment should be for the defendants Holmes and Stahl.” This did not suggest a failure to make a case against the principal, nor was there any request for a finding of the facts upon which a judgment should be based. The court refused to^adopt these views of counsel, and that is as far as the record goes. We think the contention of plaintiffs that, no other objection except those stated having been made upon the trial, no other is now open, is, upon this record, correct. The judgment will be affirmed. The other Justices concurred.

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Grant, J. Replevin. Property replevied: A gas meter of the value of six or seven dollars. The cause of the suit: The refusal of the defendant to pay a bill for furnishing 60 feet of gas pipe, and labor, to connect deféndant’s stables with plaintiff’s gas-pipe line. The amount of the bill rendered, according to plaintiff’s testimony, was $7.45; according to defendant’s testimony, $11.50. The suit was instituted in justice’s court, and was appealed to the circuit court, and then to this court. The circuit court held that title to the meter was in plaintiff, that the right of possession was in defendant, that plaintiff could not maintain the action, refused to award the return of the property, and directed the jury to assess damages to the defendant, which they did at the sum of $55. As long as the law permits.such petty suits to be appealed from one court to another till they reach the court of last resort, imposing expense upon litigants and the public, costing many times the amount involved, the courts must determine them upon legal principles, notwithstanding they take time which ought to be devoted to important suits. Two, questions are presented: (1) Had plaintiff the right to remove the meter ? (2) If it had not that right, what is the measure of damages ? In disposing of the first question, we shall assume that the defendant is liable for the reasonable cost of putting in the service pipe. It is conceded that the plaintiff owns the meter, and that ’it may remove the same for nonpayment of gas consumed. It is argued that the company could not remove it for nonpayment of the bill for making the connection and piping the defendant’s barn, and the court so instructed the jury. This involves a determination of the contract between the parties. The connection was made, the pipe furnished, and the meter put in for the sole purpose of furnishing gas to the defendant. The agreement to do these things and to furnish gas were parts of. the same contract. If the company may remove its meter for failure to comply with the one provision of the contract, it is difficult to understand why it may not for failure to comply with the other. The defendant agreed to pay for both. The plaintiff is under no obligation to continue to perform its part of the contract when the defendant has refused compliance. Under the defendant’s contention, the gas company might pipe a man’s building at great expense, for which he agreed to pay, and when it was done, and the meter in place, be compelled to furnish gas so long as he paid for the gas consumed, although he refused to pay the other bill. Suppose that, before the meter was put in, the man should refuse to pay, would the company be liable for damages for not putting in the meter? Would he be entitled to the meter without first paying or tendering the reasonable cost of piping? To these questions there can be but one answer. If A. agrees to place a machine, the title to which remains in A., upon B.’s land, and to do further work with it for B. after it is so placed, upon condition that B. pay the expenses of moving and placing the machine, and after A. has done this work B. refuses to pay, B. cannot say to A., “I will not pay you for moving and placing the machine, but you must keep it on my land and work it for my benefit so long as I pay you the agreed price for its use.” A. has two remedies. He may either remove his machine, or he may go on with his contract and sue B. for the labor performed. This practically illustrates the defendant’s position,—that plaintiff must continue to perform its part of the contract, while defendant violates its part. Its counsel cites no authority to support it. The present case is not one of the ordinary performace of labor or the furnishing ,of materials, unattended with any other conditions. We think the plaintiff was entitled to remove its meter, and to maintain the action of replevin upon refusal to deliver it. There was no evidence to sustain the verdict for damages. The defendant did not show that it was entitled to any but nominal damages. After the meter was removed, it used lamps and lanterns, which were cheaper than gas. The court instructed the jury to ‘ ‘ give such damages as defendant is entitled to for being deprived of the convenience and use of gas, * * * and you must make up that estimate of damages as best you can under the testimony.” Inconvenience, unaccompanied by pecuniary loss, is not an element of damage upon being deprived of the use of property. No actual damage being shown, it was the duty of the court to instruct the jury that they could find only nominal damages. Judgment reversed, and new trial ordered. Long, C. J., and Moore, J., concurred with Grant, J. Montgomery, J., concurred in the result. Hooker, J., did not sit.

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Moore, J. Complainants filed a bill alleging the existence of a public highway through the township of Greenfield known as the “Grand River Road,” which road is described as having been in existence móre than 35 years. The bill states that it is 100 feet wide, and is one of the most important public roads in the township. It avers that defendant has erected and now “maintains in said public highway a purpresture in the shape of a public barn;” that said barn occupies a portion of said highway; and that defendant’s use of said road, which is greatly traveled, is unlawful. It also states that the highway commissioner served a written notice upon the ■defendant to remove the barn, and that he declined to do so, and claimed he had some right to the land. The bill prayed for a decree requiring the defendant to remove the barn, and for a perpetual injunction to restrain the replacing of any obstructions in said road upon defendant’s part. The defendant interposed a general demurrer to the bill. A decree was entered dismissing the bill of complaint, from which decree the complainants appeal. We are not favored with a brief from the defendant* so that we do not know what his contention is. The complainants insist that they have a right to maintain this bill under 2 How. Stat. § 6611, which reads: “Said circuit court in chancery shall also have jurisdiction and authority to :|hear and. determine all cases of' encroachments upon the public highways, streets, and public alleys in organized townships, incorporated villages, and cities, in this State. Such suits may be instituted in the corporate name of such townships, villages, and cities.”’ Five days after the section just quoted became a law* the legislature passed the highway act of 1881, which did not affect cities and villages, but provided very fully for highways in townships, and provided remedies for encroachments where none had existed before. The act of June 8th did not in terms repeal the act of June 3d, and it is insisted here that it did ‘ not repeal it by implication. 3 How. Stat. §§ 1371-1378, treats in detail of obstructions to highways, and of encroachments thereon, of the notices that shall be given in cases of obstruction, and how actions shall be brought. It provides for service of process, and gives the right of trial by jury when demanded, and the right to an appeal to the circuit court, and a right of trial by jury there. It also provides that the encroachment may be removed by the commissioner within 10 days after final judgment. These two statutes were construed by Justice Campbell in the case of Township of Lebanon v. Burch, 78 Mich. 641. In that case, after reciting the various, provisions of the statute, the learned justice said; “ This furnishes complete and specific relief, in connection with trial by jury, to which the landowner is consti tutionally entitled, and leaves no occasion for resort to equity, unless under some possibly peculiar circumstances, which, cannot generally exist.” Continuing the discussion, he said: “ Under the highway law, no township officer, except the commissioner, has 'any right to meddle with highway matters. His duty is, when he thinks a road is encroached on, to satisfy himself in some responsible way, which will bear the test of a lawsuit, where the highway lines are, and how they are encroached upon. * * * The bill and proceedings in the present case are entirely repugnant to the rules which have always been observed in regard to jurisdiction and procedure. In the first place, there is not only an adequate remedy at law, but one devised for the very purpose, and made obligatory in terms, and better adapted to do justice; * * * and in this connection it should be noted that, by the settled practice in England and here, a bill cannot be filed to take into a court of chancery jurisdiction over a controversy of a legal nature, without a verification of such facts as show its propriety.” Applying the language of this able jurist to the case under consideration, it seems to be clearly shown that the bill of complaint was properly dismissed. The complainants have an adequate remedy at law, and no facts are stated in the bill indicating the necessity of the court of equity taking jurisdiction. The decree of the court below is affirmed. The other Justices concurred.

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Moore, J. Plaintiff sued defendant, declaring on the common counts in assumpsit. Defendant pleaded the general issue, with notice of set-off and recoupment. A number of witnesses were sworn on each side. The case was submitted to a jury, who rendered a verdict in favor of plaintiff. Defendant appeals. The counsel who appears for defendant in this court did not take part in the trial of the case in the circuit court. All the assignments of error may be considered under three heads: First, what occurred between counsel during the cross-examination of defendant. ’ Second, the refusal of the court to allow counsel for defendant to prove the general reputation of the defendant. Third, the refusal of the court to allow Mr. "Winter to testify what, in his opinion, was the cause of the dock’s going out. The record does not show that Mr. Winter was an expert, nor does it show such knowledge upon his part as would entitle him to give opinion evidence as to the cause of the failure of the dock to stand.. It was not error to exclude his testimony. As to the second group of errors assigned, no testimony had been offered attacking the general reputation of Mr. Godkin. The most that had been done, as will appear later, was to ask him questions implying, by inference, wrongdoing upon his part. His answer was received, and it denied any wrongdoing. We know of no rule of law that would authorize proof of general reputation in a civil cause under such circumstances. As to the first group of errors, the record shows the following to have occurred: “ Q. Where were you born and brought up ? “A. I was born in Canada, near Toronto. “ Q. In Canada ? “A. Yes, sir. “ Q. And you lived there with your father? Your father owned a farm there in Canada? “A. Yes, sir. “ Q. And you engaged in business there in Canada? “A. Yes, sir. “ Q. In the timber business ? “A. Yes, sir. “ Q. Didn’t you raise money to engage in that business by mortgaging your father’s farm ? “A. No, sir. “ Q. Do you swear that you didn’t execute a mortgage on your father’s farm, and forge your father’s name to it? “A. I swear I never did. “Mr. Humphrey: I think that is an outrage. You don’t propose to attempt to prove such a thing, and you know you can’t prove it. “Mr. Hoffman: If you will permit me to prove it, I will do it. “Mr. Humphrey: Well, sir, we will permit you to prove it, and defy you to prove it. You know you can’t prove it, and it is an outrage on this man to ask such a question. “Mr. Hoffman: I have been informed that that is the truth. “Mr. Humphrey: You know you 6an’t prove it. “Mr. Hoffman: I know I can do it, and, if this witness testifies to the truth, he will admit it. “Mr. Humphrey: Well, I object to any such question, unless they say they will follow it up by evidence that it is so. “Court: Well, that is collateral matter, and within certain limits such questions are allowed. When it reaches the limit, we will see that it is stopped. “Q. How old were you when you commenced business? “A. Seventeen. ■ ‘ ‘ Q. How large a business ? How much money did it involve ? “ A. I think we made about $1,300 the first year. ! ‘ Q. How much capital did it take ? “Mr. Humphrey: I object to that,'as being entirely immaterial and irrelevant. “ Mr. Hoffman: I want the jury to know what kind of a man this is that is testifying here. “ Mr. Humphrey: Suppose it took $ip0,000, and suppose it took $15. I object to the question, and ask that the objection go on record, and I ask a ruling. “ Court: Of course, in cross-examination, we cannot always compel counsel to disclose his purpose. I don’t see the purpose at the^present time, but there may be one. Within proper limits, we have to allow such an examina tion to go on for a limited time. Unless something discloses itself, we shall have to restrain this line of inquiry. 11 Mr. Hoffman: I seek'only to be fair. I don’t want to do anything but be fair, and my only purpose in asking these questions is not for the purpose of worrying the witness or filling in the time, but for the purpose of showing to the jury the character of the man who is testifying now. But, at the suggestion of the court, I will drop that, and enter upon another subject of cross-examination.” It is urged with much zeal on the part of the defendant that he was prejudiced by what occurred, and upon that proposition he cites a large number of cases. It will be noticed that the most objectionable language used was in a colloquy, not between the counsel and witness, but between the respective counsel; each of them making assertions that it would have been well to omit, and counsel being alike in fault. No request was made of the court to correct any impression the jury might get from the colloquy prejudicial to the defendant, and no exceptions were taken to what occurred. The trial judge, however, upon his own motion, used, in his general charge, this language: “Your province is to say what the facts are in this case from the testimony which has been offered, and you are expected to decide that, regardless of who are the parties to the litigation, and regardless of their opinions, or the opinions of counsel who have conducted the respective sides of the litigation. If, as it is claimed, any assertions of fact, any statements, have been made by counsel, unsupported by the testimony, you should disregard them. Any charges, criminations, or recriminations of counsel, outside of the testimony introduced, should cut no figure in° this case. The province of the attorneys is to prepare the case, to present the testimony before the jury, and then, they having had time and experience to carefully consider the whole case, they appear before you, and from their standpoint argue the matter. That is, as a rule, of great assistance to the jurors, and their arguments should not be disregarded. It is the duty of the juror to sit and carefully listen and weigh, the arguments of counsel, and, as far as their theories appeal to their better judgment, to adopt them. But mere assertions made by counsel, not supported by evidence in the case, should cut no figure in the case.” The charge covered the questions at issue by the pleadings and proofs, and stated the law very clearly and correctly. The record does not disclose such error as would justify a reversal of the case. Judgment is affirmed. The other Justices concurred.

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Grant, J. (after stating the facts). Three defenses are interposed. It is urged that Davis was not an agent of Smalley; that the latter did not authorize Davis to make any representations ; that he was to have no interest in the corporation; had no partnership relations with Davis; that he was not concerned in and received no part of the purchase money for which the property was to be sold, above his original price of $2,500. This defense cannot obtain. Smalley gave Davis a false paper. He knew it was false, and that it could not be used for any legitimate purpose. He knew that a fictitious consideration was stated in the deed. He testified: “Q. Did you give Davis a receipt? “A. He has got a receipt for $2,500. I must have given it. “Q. Was that receipt a lie? “A. It appears it is. “Q. Did you think it was right to give it to him when you gave it to him ? “A. I did not think it right, but I did it.’” Mr. Macgurn testified that on one occasion Smalley told him that Davis wanted the receipt to show to parties that he was trying to get interested in forming a company. Mr. Redfield testified that Smalley told him that the consideration was to be stated at $5,000, but the mortgage was to be given for $2,500; and Mr. Redfield asked him if Davis had paid a part of the consideration, to which Smalley replied, “That is a matter between us.” Where one deliberately gives another a false statement in writing, knowing the purpose for which it is to be used, which that other uses to deceive a third party, he is a joint wrong-doer, and must be held responsible for the consequences which follow. Smalley cannot defend upon the ground that he received no benefit from the fraud. Weber v. Weber, 47 Mich. 569. It is also urged that an action for deceit in the sale of real estate does not lie for the fraudulent misrepresentation as to the price paid. In support of this, the' learned counsel cites Holbrook, v. Connor, 60 Me. 578 (11 Am. Rep. 212); Medbury v. Watson, 6 Mete. (Mass.) 259 (39 Am. Dec. 726); Mooney v. Miller, 102 Mass. 220. In Medbury v. Watson the question now presented was not in issue, and the language of the court upon which the counsel relies was not necessary to a decision of the case. In Mooney v. Miller the representations relied upon referred to the quantity of wood and hay that could be cut from the land, the possibility of acquiring adjoining lands with buildings thereon belonging to third persons, and to the number of acres in the lot, the boundaries of which were truly pointed out. It was properly held that the action would not lie. The case of Holbrook v. Connor appears to sustain the defendant’s contention. The court was divided in opinion. The authorities are quite fully referred to and discussed in the majority and minority opinions. We cannot accede to the doctriné of that case as applied to this. Macgurn was a stranger to both- the business and the locality, and did not know the value of the property. Smalley was a very old man, and stood high in the community. Davis’ reputation was good. Both had asserted in writing that the price at which Smalley agreed to sell to Davis was $5,000, of which $2,500 had been paid. We think Macgurn was entitled to rely upon these representations, and to recover upon proof of their falsity. The rule of caveat emptor does not apply to such a case. Jandorf v. Patterson, 90 Mich. 40. It is next urged that Macgurn and Davis compromised the fraud, and that this estops complainants. The law is well settled that where one, with full knowledge of the situation, settles with one tort feasor, he discharges not only him, but also the others. This is conceded. 1 Am. & Eng. Enc. Law (2d Ed.), 428. But the facts in this case do not bring the complainants within this rule. Mr. Davis was made president of the company, and had much to do with its management. For reasons unnecessary to mention, Mr. Macgurn became suspicious of Mr. Davis, and about that time he was informed that Mr. Davis had not paid the $2,500. He thereupon went to see Mr. Smalley, who admitted that he had received no money. He also said that he had received a letter from Mr. Davis, which he refused to let Mr. Macgurn see, and that the only paper he considered he was bound under was the mortgage. He then returned to Mr. Davis, who denied Mr. Smalley’s statements, and asserted he had paid Mr. Smalley. Mr. Macgurn, being dissatisfied with his management, insisted that Davis should withdraw from the concern. Mr. Macgurn paid him $280, the balance due him for services rendered to the Company, and he assigned his stock to a person in trust for the corporation, and withdrew from all connection with it. Neither Macgurn nor Davis understood that they were settling the fraud, or that their negotiations had any reference whatever to the transaction connected with the purchase of the property. The rights of neither Davis nor Smalley were affected by that arrangement. Davis had paid nothing for his stock. Mr. Macgurn desired to rid the corporation of any control by Davis, whom he believed to be dishonest, and who was financially irresponsible. This did not amount to an accord and satisfaction, with full knowledge of the facts. Mudsill Mining Co. v. Watrous, 9 C. C. A. 415, 61 Fed. 163. Decree affirmed, with costs. The other Justices concurred.

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Moore, J. The plaintiff sued the defendant to recover from him the amount of deposits paid to him by the Central Michigan Savings Bank on the forenoon of the day in the afternoon of which the bank closed its doors for want of funds to carry on its business. The defendant had judgment in the court below. The plaintiff brings error. The facts, so far as it is necessary to state them, are as follows: The Central Michigan Savings Bank was incorporated in 1875, under the general banking act, and conducted a savings and a commercial department, until it suspended, April 18, 1893, when plaintiff was appointed as receiver. During all the time the bank was doing business Mr. Bradley was its cashier, and had general management and control of its affairs. When the bank suspended, its assets were nominally $860,000, and its liabilities, exclusive of capital and surplus, were about $700,000. After the bank closed, and its affairs passed into the hands of a receiver, it was found that a large amount of the paper held by it was *of doubtful value, because the makers of the paper had become financially embarrassed during the,year prior to the suspension of the bank; and it is now evident that the depositors will not be paid in full. The defendant made his.last deposit in the bank February 27, 1893. The day the bank suspended, “the defendant had six certificates of deposit, four of which he had held more than three months. Those were paid to him, principal and .interest. The deposits represented by the fifth and sixth certificates had not been in the bank three months, and no interest was paid on them. It is claimed by the plaintiff that the bank was insolvent, and known to be so by the cashier, and that it had also committed two acts, at least, of insolvency. In relation to the last proposition, the proofs show that the bank owed the state treasurer $25,000; that, two or three days before the suspension, the deputy state treasurer called at the bank, and asked for the money. The bank had funds enough to pay him, but he was told by Mr. Bradley that he would much rather he would not draw the money then, on account of the closeness of the money market, and he went away without it, though he was afterwards paid. The proof with reference to the other act of alleged insolvency is that, some weeks before the bank closed, Herbert Johnson left at the bank, with Mr. Bradley, a $10,000 mortgage belonging to his father, together with a discharge, to be delivered when the money should be paid by the maker; that two or three days before the suspension he called at the bank, and inquired if the money had been paid, and was told by Mr. Bradley that it had not; that on the morning of April 18th, after the bank opened, he called at the bank, and asked again if the mortgage had been paid, and Mr. Bradley replied that it had not; that shortly afterwards he learned that the mortgage had been paid to Mr. Bradley a week or ten days before, whereupon he demanded the money, together with $1,600 due his father on open account, and for which he had a check; that Mr. Bradley tried to induce him to take some securities; that, after waiting some time, Mr. Bement came in, and paid Mr. Bradley $5,000, which money Mr. Bradley gave Johnson, together with a draft on the Third National Bank of Detroit for the entire balance; that he took such draft, and went to Detroit, immediately presented the same, and payment was refused,—for what reason the record does not disclose, though it discloses that the draft was drawn against a fund that the bank had in Detroit. The bank closed on Tuesday. On Saturday and Monday preceding, some deposits were made in the bank, and there was a slight run on it. On Tuesday morning there was a run on the bank, and in the effort to stop the run about $108,000 was paid out. Included in this was the amount paid Mr. Jenison. The run then became so great that it was evident the bank must suspend, and its doors were closed at about 3 o’clock, with funds amounting to about $10,000 still in the bank. Mr. Bradley’s testimony is that there was no thought of preferring Mr. Jenison when the payment was made to him, that they were paying all certificates of deposit as they were presented, and that he hoped and expected the bank would be able to continue business, and that he then believed that the bank had sufficient assets to pay all of its depositors in full. He also testified that what was done in reference to the deposit of the state treasurer and the Johnson collection, as well as the payment of all the deposits, was Jone to protect the bank, and to enable it to continue to Jo business, and was not done expecting the bank would discontinue business, or for the purpose of preferring one creditor over the others. The plaintiff asked the circuit judge to instruct the jury as follows: “If, when the defendant received his money, the bank was insolvent, and if the defendant demanded to be preferred, and if Mr. Bradley so understood him, and, so understanding, caused the money to be paid to him, and if the defendant was, as matter of fact, preferred by such payment, then the law presumes that what was done was intended; and, if the payment to Jenison was not made with a view to his preference, the burden of proving such fact rests upon the defendant. ‘ ‘ The refusal by Mr. Bradley to pay over the money to Mr. Johnson on the morning of the 18th was an act of insolvency of the bank. Mr. Bradley is conclusively presumed to have known that it was an act of insolvency, and thereafter, for the few hours the bank remained open, he had no right to pay money to other depositors with a view to their preference. And from Mr. Bradley’s refusal to pay Mr. Johnson in the morning, and that he did pay Mr. Jenison a short time thereafter, the jury may presume he did intend to prefer the defendant. “If the real situation of the bank, as it actually was, considering the actual condition of affairs, made it reasonably certain that the bank must suspend, then Mr. Bradly must be held to have known it; and the mere fact, if it be a fact, that he (Bradley) did not expect to suspend, or did not believe he would be obliged to suspend, is of no consequence. “If the actual condition of the bank at the time the money was paid to the defendant rendered it morally cer^ tain that it must soon suspend, and if such prospect was apparent to any intelligent person, then the mere fact, if it be a fact, that Mr. Bradley did not so believe, is unimportant. “If, when the money was paid to the defendant, Mr. Bradley knew and understood that the bank was in a precarious situation, and that suspension was not only probable, but imminent, then such payment was unlawful. ‘ ‘ The mere fact, if it be a fact, that Mr. Bradley believed or expected, or that he now thinks that he then believed or expected, that the bank would not be obliged to suspend, is of no consequence, if, as matter of fact, there was then no reasonable ground for such belief or expectation.” The court declined to give these requests, and, as appears from the record,— “The court thereupon instructed the jury that there was no evidence that any act of insolvency had been committed when payment was made to Mr. Jenison; to which instruction plaintiff’s counsel then and there excepted. The court further instructed the jury that plaintiff Was not entitled to recover unless the jury were satisfied from the evidence that, when the money was paid to defendant, Mr. Bradley expected the bank’s suspension, or thought he, probably must suspend; to which instruction the plaintiff’s counsel then and there excepted. The court further instructed the jury that, if they were satisfied from the evidence that Mr. Bradley did not expect to suspend when the money was paid to the defendant, but thought the probabilities were he should get through, that plaintiff could not recover; to which instruction plaintiff’s counsel then and there excepted.” This case involves the construction of 3 How. Stat. § 3208e6, which reads as follows: “* * * All payments of money, either after the commission of an act of insolvency or in contemplation thereof, with a view to prevent application of its assets in the manner prescribed in this act, or with a view to the preference of one creditor over another, shall be held to be null and void.” It is the contention of the plaintiff, stated in the language of his eminent counsel: ‘ ‘ First. That no payment should have been made, nor withdrawal permitted, after the trouble began. ‘ ‘ Second. That, the bank being insolvent, every such payment (even had there been no run) was unlawful. ‘ ‘ Third. There were at least two ‘ acts of insolvency ’ committed prior to the payment to defendant. He was paid; the bank suspended; he was preferred. If paid, and if suspension followed, such payment was, of hecessity, a preference, and therefore the case is made out.” Unfortunately, there has been no construction given to the section of the statute, under which this action is bx’ought, by our court. The question at issue must be determined by the rulings of other courts in relation to similar statutes. A reading of the statute, giving its words their natural meaning, would, indicate that two things must concur to make the payment void: Not only must there be an act of insolvency, or a contemplation of insolvency, but the payment must be made with a view to prevent -the application of the assets of the bank in the manner provided by the act, or the payment must be made with a view to the preference of one creditor oven another. Can it be the law that when a bank, having assets sufficient so that its officers believe, if it can continue in business, it will be able to pay all its debts, is confronted with a run on the bank, and, to avoid the necessity of suspension, pays its depositors as fast as they present their certificafes of deposit,—that under such circum.stances, if the bank is compelled to suspend, the receiver can sue, and recover the money paid in good faith to the depositors ? In the case of Hayes v. Beardsley, 136 N. Y. 299, which was a case of payment of certificates of deposit after the bank became insolvent, and after the cashier had known for months that it was insolvent, this language is used: “There was no satisfactory evidence that these payments were made by the bank to prevent the application of its assets in the manner prescribed in the national banking act, or with a view to a preference of the defendant over the other creditors of the bank. * * * There does not appear from the facts found to be any better ground for claiming that these payments made to the defendant were void than there is for making the same claim in reference to the numerous payments made in the regular course of business by this bank to its customers during many months prior to the closing of its doors. In order to uphold a recovery in an action like this, there should be some satisfactory evidence that the cashier or other officer actually paid the money of the bank in contemplation of insolvency, for the purpose of giving a preference to the payee, and with a view to prevent the application of the assets of the bank to the creditors generally.” The provisions of the act construed in this decision are almost identical with the provisions of the Michigan banking act, and we think the construction a reasonable one. If the receiver can maintain this proceeding, I can see no good reason why he may not sue and recover from each of the depositors who drew their money after the bank became embarrassed. Such a construction does not commend itself to one’s sense of justice. See Curtis v. Leavitt, 15 N. Y. 198; Fidgeon v. Sharpe, 5 Taunt. 545; Tiffany v. Lucas, 15 Wall. 410; Jones v. Howland, 8 Metc. (Mass.) 377 (41 Am. Dec. 525); Utley v. Smith, 24 Conn. 310 (63 Am. Dec. 163); Haas v. Whittier, 97 Cal. 411. The circuit judge was not very fortunate in the language used by him in his charge to the jury. We do not regard his charge as a good statement of the law. However, in view of the decisions already cited, we do not see how, under the record as made, the plaintiff can maintain his action. There is nothing in the record from which the jury would have been warranted in finding that the payment to the defendant was made with a view to prevent the application of the assets of the bank in the manner prescribed in the banking act, or with a view to the preference of the defendant over the other creditors. Taking this view of the case, we affirm the judgment.

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Montgomery, J. The Cross Lumber Company was a corporation organized under tbe laws of this State. In May, 1892, an agreement was made between the Cross Lumber Company and defendant, by the terms of which the Cross Lumber Company was to furnish the capital to be used in the business of buying and selling shingles, etc., and defendant, Dudley, was to manage the affairs of the concern, and the profits and losses were to be equally divided. The business was conducted under the name of F. A. Dudley & Co., and was continued until the spring of 1894, when F. A. Dudley & Co. stopped doing business, closed out the stock on hand,-and collected in the accounts as fast as collections could be made. The books of account were kept by defendant, Dudley, and, after the company had ceased active operations, defendant furnished the Cross Lumber Company with a statement from the books, showing the condition of the business. Plaintiff, claiming to have succeeded to the rights of the Cross Lumber Company, brings this action, alleging an account stated, and was permitted to recover in the court below. Numerous errors are assigned, but we think the case must turn upon the question of the right of the plaintiff to maintain the action in his own name. On the trial it was objected that the plaintiff could not recover, for the reason that no sale or assignment of the Cross Lumber Company’s claim to plaintiff was alleged in the declaration. Plaintiff seeks to avoid the force of this objection by claiming that plaintiff had succeeded to the rights of the Cross Lumber Company, and that the account stated was with the plaintiff. The circuit judge treated this fact as conclusively shown by the testimony, but we think that in doing so the court erred. Plaintiff states in his testimony that, after the company ceased operations, defendant furnished the Cross Lumber Company with a statement from the hooks, showing the condition of the business. The statement sent was a trial balance, which did not purport to be a statement of account between plaintiff and defendant, but in which appeared a debit of the Cross Lumber Company, and also a debit of defendant, to F. A. Dudley & Co., and various other small items of account against different parties. Plaintiff’s testimony as to his succession to the business of the Cross Lumber Company is as follows: ‘ ‘ Q. What became of the Cross Lumber Company ? “A. I purchased the stock of the stockholders, and closed the business up myself. The business of F. A. Dudley and the Cross Lumber Company was carried on under the firm name of F. A. Dudley & Co. “Q. State whether or not the business of F. A. Dudley & Co. was transferred to you, together with the other property of the Cross Lumber Company. “A. Yes; an account against them on our books was. “ Q. State whether there was any written instrument showing such transfer of the property generally. “A. No; transfer of stock,—the only written transfer there was. “ Q. You simply took the property or business yourself afterwards ? “A. Yes.” And on cross-examination he further testified upon the subject as follows: “ Q. Now, you say that, when the Cross Lumber Company went out of business, in 1893 or 1894, this claim, together with other claims, you purchased for yourself ? “ A. Yes, sir; that came into my hands from the purchase of the stock,—owning the stock entirely. “ Q. Let me understand you. You say that this corporation went out of existence in 1894, or the latter part of 1893. What do you mean by that ? “A. Why, according to the law under which we were organized, we were obliged to report to the secretary of state when the business was closed, and we did at that time, or I did it, really. ‘ ‘ Q. Was that the time the corporation went out of existence ? “ A. Yes, sir. “ Q. Closed up its business? “ A. As near as it could; yes. “ Q. And you succeeded to this claim by purchase of the stock from the corporation ? “A. Yes, sir.” We think the evidence did not conclusively show that defendant had made a promise to the plaintiff, understanding that he had succeeded to all the interests of the Cross Lumber Company. At most, this was a question for the jury. This being so, the succession of the plaintiff to the Cross Lumber Company should have been averred in the declaration. But, even if averred, it was not shown, as the extent to which the proof went was that the plaintiff had become the sole owner of the stock of the corporation. This did not entitle him to sue in his own name. Button v. Hoffman, 61 Wis. 20 (50 Am. Rep. 131). The judgment will be reversed, and a new' trial ordered. The other Justices concurred.

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Moore, J. Rouse, Hazard & Co., the plaintiff in these proceedings, recovered a judgment upon November 3, 1894, for the sum of $1,761, damages and costs, in the Wayne circuit court, against the Detroit C3rcle Company, Limited. Hpon this judgment, execution was issued, and returned wholly unsatisfied, after being in the hands of the sheriff of Wayne county for more than 20 days. The Detroit Cycle Company, Limited, is a limited partnership association, organized and existing under chapter 79 of 1 Howell’s Annotated Statutes; and the defendants herein, Edwin B. Robinson, John A. Matheson, and John T. Holmes, were the original subscribing members thereof, and remained so during the whole course of the proceedings in this case. After the execution was returned unsatisfied, plaintiff applied to the Wayne circuit court, under the provisions of section 2366, 1 How. Stat., to have ascertained the amount of the subscriptions, respectively, of the defendants to the capital of the Detroit Cycle Company, Limited, not paid up, and for an order that execution issue against said defendants for the amounts so ascertained. The defendants successfully resisted this application in the circuit court, and thereupon the plaintiff applied to this court for a writ of mandamus to require the circuit judge “to compel the Detroit Cycle Company, Limited, and the defendants, to produce the books of the company, especially its subscription list book, showing the names of the members of the association, and the amount of capital remaining to be paid upon their respective subscriptions, and also to receive such other evidence as might be offered by the plaintiff and the members of the association concerning the amount of capital remaining to be paid upon the subscriptions of the respective members of the association, and, after ascertaining the truth in regard thereto, to forthwith order execution to issue against the said members for the amount of their unpaid subscriptions, if any there should be.” The writ was granted after argument in this court, and the case is reported as Bouse, Hazard & Co. v. Donovan, 104 Miclfi 234. On the filing of the defendants’ answers to the plaintiff’s application, an issue was framed, and ordered tried ^.before a jury. The issue was: “In what amount, if any, are the said John T. Holmes, John A. Matheson, and Edwin B. Robinson, and any or each of them, indebted to the said Detroit Cycle Company, Limited, on account of any unpaid subscriptions to the capital of the said company ? ” This issue was tried before the Honorable Robert E. Frazer, circuit judge, with a jury, on April 16, 1895; and, under the charge of the court, the jury found that each of the defendants was indebted to the Detroit Cycle Company, Limited, on account of unpaid subscriptions to the capital stock of the said company, in the sum of $1,833.33. Certain points of law were reserved by the court for argument after the verdict was rendered; and after an argument of these questions, in accordance with the statute (1 How. Stat. § 2366), and the mandate of this court, an execution was ordered on January 8, 1896, and issued, against each of the defendants, for the amount of $1,833.-33, or so much thereof as might be necessary to satisfy plaintiff’s judgment, with costs. This order, and the proceedings upon which the same was based, defendants are now endeavoring to review in this court by writ of error. The Detroit Cycle Company, Limited, filed its articles in the office of the register of deeds for Wayne county, Mich., as a limited partnership association, under the provisions of chapter 79 of 1 Howell’s Annotated Statutes, on November 1, 1892. The defendants were the original members of said association, and subscribed for equal subscriptions, amounting to the sum of $3,333.33 for each defendant. There was paid in by each member thereafter the sum. of $1,500, in cash; and there remained still unpaid by each of said members up to about the 6th day of October, 1893, the sum of $1,833.33. On or about October 6, 1893, the association became financially embarrassed, owing the Gormully & Jeffery Manufacturing Company, of Chicago, between $14,000 and $16,000, and owing two local banks in Detroit about $6,000. The debts to the banks were in the form of notes made by the Detroit Cycle Company, Limited, and indorsed by all three of the defendants individually, and were further collaterally secured by an assignment of bicycle contracts. An arrangement was made between the Gormully & Jeffery Manufacturing Company and the defendants, whereby the Gormully & Jeffery Manufacturing Company was given a chattel mortgage on all the property of the Detroit Cycle Company, Limited; and at the same time there were assigned to the Gormully & Jeffery Manufacturing Company all the bicycle contracts, including those held by the banks as collateral security. At the same time, and as a part of the same arrangement, each of the defendants gave to the Detroit Cycle Company, Limited, his note for $1,833.33, given for the purpose, as each of the defendants testifies, of paying up his subscription to the capital stock of the Detroit Cycle Company, Limited. These notes were immediately indorsed in the name of the Detroit Cycle Company, Limited, by the defendants, and turned over to the Gormully & Jeffery Manufacturing Company as a further security for the indebtedness of the Detroit Cycle Company, Limited, to it. Thereupon the Gormully & Jeffery Manufacturing Company advanced enough money to take up the notes of the Detroit Cycle Company, Limited, in the two local banks in Detroit; and, these notes having been taken up, the collateral security for the same was turned over by the banks to the Gormully & Jeffery Manufacturing Company. These notes were all payable in one year from the date they bore, namely, October 6, 1893, with 6 per cent, interest, and were never paid by the defendants, and were never protested, though they are still outstanding. Immediately after the chattel mortgage was given to the Gormully & Jeffery Manufacturing Company, the latter sent a man to Detroit, to take charge of the business of the Detroit Cycle Company, Limited; and the Gormully & Jeffery Manufacturing Company sent on new goods, and conducted the business. No amendments of the original articles of association, and no schedule, as provided for in 1 How. Stat. § 2365, or any other paper except the original articles of association, were ever filed in the office of the register of deeds for Wayne county, Mich. It also appeared that in the secretary’s records of the minutes of the stockholders’ and directors’ meetings of the association, running from October 14, 1892, to January 11, 1894, no record anywhere appeared authorizing or making a call for the unpaid subscriptions of the capital stock of the association, or authorizing the receipt of the respective members’ notes therefor, although under date of October 6, 1893, there is a record of a meeting of the directors, and the authorization by them of the execution and delivery of a chattel mortgage to the Gormully & Jeffery Manufacturing Company. The absence of any record of the receipt of the members’ notes was explained by the secretary from the fact that Ee did not enter the minutes of all the meetings in his record, although one of the three members testified that he did not hear of any resolution do this effect, but that it was only agreed to between the members. The defendants requested the court to charge the jury as follows: “3. It appearing from the undisputed evidence in this proceeding that the defendants gave their promissory notes-to the company for the amount of their unpaid subscriptions, which notes were accepted by the company in payment thereof, and which notes are now in the hands of third parties, and the defendants are liable thereon, the verdict must be for the defendants. “4. It appearing from the undisputed evidence in this suit that the defendants gave their promissory notes for the amount of their unpaid subscriptions to the company, which notes were taken by the company, and the amount thereof realized in cash, and applied upon existing indebtedness of the company, the making of said notes and realization of the money upon them constituted a payment of said unpaid subscription, and the verdict must be for the defendants.” “If the foregoing are refused— “6. If the jury believe that the notes in question were given in payment of the unpaid subscriptions, and were accepted by the company as such, and by them transferred to third parties, who now hold them, and the defendants are liable thereon, then the verdict must be for the defendants. “7. If the jury believe that the notes in question were given for the purpose of paying up the unpaid subscriptions, and the same were taken, and cash realized upon them, which cash was applied in satisfaction of existing indebtedness of the company, so that the company received full benefit thereof, the giving of the notes and the application of the proceeds thereof constituted pay ment of the subscriptions, and the verdict must be for the defendants.” The trial judge declined to give these requests. He entertained the view that the statute authorizing the formation of these limited copartnership associations is a special enactment, permitting such organizations with limited liability as to stockholders, and that all the necessary and essential requirements of the statute must be complied with. He held that this had not been done, and that whether the notes had been given and received for the purpose of paying the balance due on subscriptions was not important, and directed a verdict against the defendants. It is the claim of the plaintiff that the law as applied to limited partnerships is to be applied to associations like the defendant, and that subscriptions to the capital cannot be paid by giving notes. On the part of the defendants it is claimed that the law as applicable to corporations should be applied to these associations, and that if defendants gave their notes to pay for the capital subscribed by them, and these notes were received by the defendant association as payment, and the proceeds of the notes were received by the association, and applied to the payment of its debts, this would constitute a good payment of the capital subscribed, and would release the members from further liability? Nearly all the questions involved in this proceeding are involved in the case of Staver & Abbott Manfg. Co. v. Blake, post (decided at the present term of court). It will not be necessary to refer to the opinion in that case further than to say that, as to the question of whether the law of limited partnerships applies to the defendant association, or the law of corporations, the answer is that the case must be controlled by the law applicable to corporations. We have no doubt that subscriptions to capital stock of corporations may be paid by the giving of promissory notes, especially if the notes are at once converted into money, and the proceeds applied for the benefit of the corporation. Goodrich v. Reynolds, 31 Ill. 490 (83 Am. Dec. 240); Hardy v. Merriweather, 14 Ind. 203; Stoddard v. Foundry Co., 34 Conn. 542; Magee v. Badger, 30 Barb. 246; Vermont Gentral R. Co. v. Clayes, 21 Vt. 30; Pacific Trust Co. v. Dorsey, 72 Cal. 55; Clark v. Farrington, 11 Wis. 306; Blunt v. Walker, Id. 349 (78 Am. Dec. 709); Lyon v. Ewings, 17 Wis. 61; Andrews v. Hart, Id. 297; Western Bank of Scotland v. Tallman, Id. 530. It is the claim of the plaintiff that the notes were not given in good faith, and for the purpose of paying up the unpaid portion of the capital. We think the good faith of the transaction was a question for the jury, and that they should have been instructed as requested by counsel for defendants in the sixth and seventh requests to charge. The record discloses that, upon the application of the plaintiff’s attorneys, the circuit court, in chancery, had appointed a receiver for the defendant company, Joseph F. Noera filing the creditor’s bill. A judgment creditor’s bill was also filed by William A. Hulbert et al. against the defendants. John A. Stanbery was appointed receiver in both cases, and claimed the assets of defendant company. Both chancery suits are still pending. The solicitors for the complainants, in their behalf, and in behalf of the receiver in both cases, in open court, waived all claim to any of the unpaid subscriptions to the capital stock of the defendant that were unpaid by Robinson, Matheson, and Holmes, as against the claims of the plaintiff. Objection was made to this offer, and the court replied that he had serious doubt of the power of the receiver to waive the claim, or of the court to grant the waiver, but expressed himself as being settled in relation to the other points in the case. Defendants also introduced in evidence an application for execution under the same statute as is invoked in this proceed ing, against the same defendants, for the same unpaid subscriptions, upon a judgment recovered by the W. Bingham Company, plaintiff, against the defendant association, in the circuit court of the United States for the Eastern district of Michigan. The defendants asked to have the following requests to charge given to the jury: “1. A receiver of all the property and assets of the defendant company having been appointed prior to the judgment in this suit, and being now in office, the plaintiff has no standing in this proceeding, and is not entitled to the order asked. ' “2. It appearing that, since judgment was rendered in this suit, a receiver has been appointed in another suit of all the property and assets of the defendant company, the plaintiff has no standing in this suit, and is not entitled to the order asked.” “5. It appearing from the evidence in this case that an application similar to the one in the present case has been made against the defendants in the circuit court of the United States for the Eastern district of Michigan, upon a judgment recovered against the Detroit Cycle Company, Limited, by the W. Bingham Company, the defendants are therefore liable to have execution issued against them in each case for the amount of their subscriptions remaining unpaid, and to be subjected to a double liability not contemplated by the statute under which the defendant association is organized. This being so, the plaintiff’s remedy is in equity, where the rights of all parties can be protected, and not by an application for an execution, such as is now pending before the court.” The court refused to give either of these requests. This is assigned as error. It is now urged by counsel for plaintiff that defendants cannot avail themselves of any defense they may have to this action, growing out of the appointment of a receiver, for the reason that the receiver was appointed before these proceedings were begun, and before the mandamus case of Rouse, Hazard & Co. v. Donovan, 104 Mich. 234, was decided. It is their claim that as the defense might then have been interposed, and was not, the matter must be treated as res adjudicata. An inspection of the Case of Rouse, Hazard & Co. discloses that neither of the defendants Holmes, Matheson, or Robinson were parties to that proceeding, or that they took any part in it, except to appear in the case before the circuit judge, and enter their protest against the circuit judge’s entertaining jurisdiction over them. There was nothing in the record to indicate that any receiver had been appointed, and we are not prepared to hold that the case is res adjudicate/,. The record as now made does disclose that, before this proceeding was brought, a receiver was appointed by the chancery side of the court; and he still holds his appointment. A receiver is an officer of the court. He is undoubtedly entitled to the assets of the defendant company, if it has any. He is spoken of as the “hand of the court.” High; Rec. § 2. It would be a very anomalous position, indeed, if this proceeding could be maintained after a receiver had been appointed for the very purpose of collecting the assets of the defendant association to pay its creditors. Defendants’ requests 1 and 2 should have been given. Judgment is reversed, and no new trial ordered. Grant and Hooker, JJ., concurred. Long, O. J., and Montgomery, J., did not sit.

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Hooker, J. This case seems to possess the essential features of that of Vincent v. City of Kalamazoo, ante, 230. The complainant owned lot 12 of block 44 of the Cass farm, in the city of Detroit, said lot being 42.04 feet wide. Running through this block is a strip of land which defendants claim to be a public alley, and of this a strip 7.96 feet wide, adjacent to lot 12, has been occupied with said lot by the complainant and his predecessor, from whom he took a quitclaim deed, and was put in possession of said strip at the time he acquired title to the lot. The evidence of exclusive possession for many years more than the statutory period is clear, and it appears that, when the complainant commenced a permanent improvement upon the disputed strip, the city authorities ordei*ed him to desist, upon the claim that it was public ground and part of a public alley. Thereupon the complainant filed this bill to settle the question. Counsel for the city contends: 1. That this is a bill to restrain a trespass, and that there is an adequate remedy at law. 2. That the complainant’s claim is not based upon any paper title. In our opinion, this is something more than a bill to restrain a threatened trespass. The city threatened no trespass, but made a claim, of title to an easement in the land, rendering it imprudent for the complainant to erect his contemplated brick structure thereon until the question should be settled. He thereupon filed this b’ill to quiet his title, and we think that he was warranted in so doing by 2 How. Stat. § 6626, the object of which -section has been held to be “to enable persons in possession of real estate, and having the legal or equitable title thereto, to remove all doubts as to the validity of their titles arising from the claims of other persons who are taking no steps to test the validity of their claims either in law or equity.” See note to section 6626. Upon the other point it occurs to us to say that the statute is not limited to persons holding under paper titles. It includes all legal titles, and titles by adverse possession are legal titles. Nor do we know of any case that sustains defendants’ contention that adverse possession must be based upon a paper writing. In the case cited (Marble v. Price, 54 Mich. 466), it is not so held, but it is said that the occupancy was without claim or color of title. See, also, Hyne v. Osborn, 62 Mich. 235; City of Big Rapids v. Comstock, 65 Mich. 78. In Campau v. Lafferty, 50 Mich. 114, it is said that “adverse possession need not be based on color of title, and it may become perfect even though the possessor originally had no shadow of title.” We think that title by adverse possession may be acquired to land laid out for an alley, as well as to that within the boundaries of a public street. Counsel now seems disposed to admit that the city has no right of control over a public alley in Detroit, and argues that, if the city has no control over the alley, the complainant and his grantor cannot acquire rights in the alley by adverse possession as against the city of Detroit, and therefore the city was not a proper party, and the bill should be dismissed. This is hardly consistent with the other contention, and certainly not with the allegations of the answer, which asserts the right and authority of the city in the premises. A disclaimer would have been a proper pleading, if the claim now made was relied on when issue was joined. The decree of the circuit court in chancery is affirmed, with costs. The other Justices concurred.

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Grant, J. The declaration contains three counts. Upon the trial the plaintiff abandoned the first two counts, and recovered upon the third. The third alleges that the defendant was negligent in “ permitting a quantity of dry grass, rubbish,, and other combustible material to be and remain upon its right of way; in causing a fire to be started in said grass and rubbish, and permitting said fire to pass and escape from its right of way to the adjoining lands of the plaintiff.” The fire occurred July 16th. The combustible material which was charged to have accumulated consisted of grass and dead leaves which had accumulated among low huckleberry bushes along the right of way. The plaintiff based his right to recover upon the accumulation of the combustible material. While there was testimony from which it might be inferred that the fire caught from an engine, it is apparent that the jury were not agreed upon the origin of the fire. After they had been out some time, they returned into court, saying they could not agree. The judge refused to discharge them, and was about to send them back for further consideration, when the following colloquy took place: ‘ ‘ Juror: It is not necessary that we should find that that fire started from that engine, is it,—from the cars running through there? “ The Court: Not if the damage occurred because of the negligence of the railroad company. ‘ ‘ Juror: It don’t make any difference where the fire originated or started,—what was the cause of the fire ? “ The Court: Not if it occurred because of the negligence of the railroad company. “ Juror: That is what I thought. “ The Court: If there is nothing further, you gentlemen may retire.” The instruction, in substance, said to the jury that the origin of the fire was of no consequence, but if they found that, on account of the dry weather, the defendant was negligent in not removing the dry grass and leaves, they should find for the plaintiff, although the defendant might have had nothing whatever to do with starting the fire. Whether there are any circumstances under which a railroad company would be liable for a fire started by a third party in such accumulations along its right of way, we need not determine. If plaintiff did not rely upon the fact that the fire was started by the defendant, it was certainly incumbent upon him to prove its origin, and that his damage resulted from the negligence of the defendant. If plaintiff had started the fire himself, or if a stranger walking along the right of way had intentionally or carelessly set fire to the grass and rubbish, or if an adjoining owner had set fire on his own land, and the fire had run across defendant’s land to plaintiff’s, clearly the defendant would not have been liable. In either of such cases the negligence of the defendant would not have been the proximate cause of the injury. The reason why, under certain circumstances, a railroad company is required by law to remove such inflammable material, when practicable, is to prevent its engines from setting fire thereto, and not to protect adjoining property from the acts of other parties. The court should have instructed the jury that, under the evidence, they could find for the plaintiff only upon the theory that it caused the fire. The duty of railroads in regard to such combustible material will be found discussed in Sibilrud v. Railway Co., 29 Minn. 58; Kesee v. Railroad Co., 30 Iowa, 78 (6 Am. Rep. 613); 2 Rorer, R. R. 792-805; 8 Am. & Eng. Enc. Law, 1. Other questions are raised, but, as they are not likely to occur upon a new trial, we need not discuss them. Judgment reversed and a new trial ordered. The other Justices concurred.

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Long, C. J. The bill in this case was filed to enforce a lien claimed by the complainant on a quantity of goods stored in his building, in the city of Lansing, this State. The cpmplainant is the owner of the building, which, for a term of years, was rented to George M. Dayton as a dry-goods and millinery store. Some time prior to January, 1895, the title to these goods had been transferred by mortgage foreclosure to his wife, Sarah M. Dayton, one of the defendants in this case. On or about the 5th of January, 1895, some arrangement was made by which Mrs. Dayton sold, or agreed to sell, the stock of goods to defendant Stone. During the taking of an inventory, Mrs. Dayton and Mr. Stone had some misunderstanding or dispute in reference to what the terms of the contract were, when the store was locked up, and the key deposited in the People’s Savings Bank, of that city. There was a considerable quantity of goods in the store, both on the main 'floor and in the basement. The complainant’s claim is that about January 5, 1895, Mr. Dayton, acting for his wife, notified the complainant that the goods had been sold to Stone; that the lease was surrendered, and that complainant must look to Stone thereafter for his rent; that, after spending some days in taking an inventory of the goods, Stone went away, declaring that he would not take them; that the Daytons claimed he must take them, and litigation ensued; that both the Daytons and Stone disclaimed any interest in the goods, refusing to take them away, and they were left in the store. The complainant thereupon had a talk with Mr. and Mrs. Dayton, in which he directed them to take the goods away, and told them that, if they did not, he should claim a lien on them for storage. They claimed not to own the goods, and stated that they surrendered their lease. It is admitted that the Daytons gave no express assent that the complainant should have a lien if the goods remained there, but they left the goods, and never removed them. Complainant thereafter caused a notice to be served upon Stone of what the Daytons claimed. The complainant claims that, while the goods remained in the store, he kept watch over the store to see that it was properly fastened up. While the goods were so in storage, and in January, 1896, the defendant Carl Loomis, who is a deputy sheriff of Ingham county, levied an execution upon them for the sum of $1,230. The execution was issued in favor of Clarissa Byam against George M. Dayton. It is not shown from the record just how Loomis obtained admission to the store to make this levy, but it is apparent that it was not with the consent of the complainant. The complainant claims that, under these circumstances, he held the goods as warehouseman; and he offered proof tending to show that the storage of the goods was worth at 'least $50 per month, and asked an accounting for the amount of his claimed lien, and also for an injunction against defendant Loomis, restraining him from interfering with the possession of the goods, or with his (complainant’s) lien thereon, until such amount should be first paid. Upon the filing of the bill in the court be low, an injunction was issued, as prayed, against Loomis, and on the hearing the court entered a decree finding that on January 5, 1895, Sarah M. Dayton was the owner of the goods in question; that she never parted with such title or ownership; that on January 5, 1895, she surrendered all her rights as a tenant in said store to the complainant, and at the same time left such goods and property in said store, and permitted the same to be stored there, after being notified by complainant that he would claim a lien thereon for his charges for storage. The court thereupon found that the complainant had a lien upon the goods, and that $50 per month was a reasonable charge for such storage, and payable so long as said goóds remained in said store, and that defendant Sarah * M. Dayton, or any of the defendants, might pay to the complainant the amount of such storage, but that, in default of such payment, the goods should be sold to satisfy such claim of lien; that the cost of the proceedings should also constitute a lien upon the goods. No personal decree was rendered against any of the defendants. From this decree, defendant Loomis alone appeals. It is contended by his counsel: ■ 1. That there is no evidence upon which the court below could base a decree for complainant. 2. That the store in which the goods were stored is not a warehouse, and the complainant not a warehouseman, within the contemplation of the law governing and regulating warehouses and warehousemen. 3. That, at the time of the levy of the execution, the possession of the goods, as well as of the alleged warehouse, was in George M. Dayton. 4. That a verbal lien cannot be created, as ^against creditors. 5. That the complainant is estopped from claiming a lien, because it was his duty to advise Mr. Stone of his claim at the time he contemplated taking the goods from George M. Dayton, and that it was also his duty to advise defendant Loomis of his claim at the time the levy was made. The contention that there has been no change of pos session of the goods from the Daytons to the complainant, we think, is settled the other way by the evidence. The complainant asked that the goods be removed. Mr. and Mrs. Dayton both disclaimed any ownership in them, and insisted that the title had been transferred to Mr. Stone. They refused to have anything further to do with them, and claimed that they would be no longer bound by the lease. Apparently, the complainant acquiesced in the surrender of the lease, and made no further claim under it. He then notified Stone of the situation, but it is apparent that Mr. Stone made no claim to the goods, and he was not bound, by any contract with complainant', to pay rent or storage. The complainant was then put in the position of having the goods in his store with no party claiming ownership of them. He then asserted to the Daytons that he would insist upon a lien for storage. From that time forth he was the only person having possession. The only change of possession that could be made was the care and oversight which the complainant exercised; and, under the circumstances here, we think it was sufficient to put the goods into the possession of the complainant. The store was locked up. It was complainant’s store, and the lease under which the Daytons held had been surrendered by them. While in fact the complainant may not have been’ a warehouseman, under the provisions of chapter 58,1 How. Stat., and Act No. 220, Pub. Acts 1895, as being employed in the business of a warehouseman, yet, as between himself and the Daytons, he had asserted his rights as such, and had made a claim of lien for store-age. As between those parties and himself, his lien was perfect, as it seems to have been assented to by the Daytons, inasmuch as they did not remove the goods. It is to be remembered that the claim asserted by defendant Loomis is that the goods were the property of Mr. Dayton, and the execution ran against him, and the levy was made by Loomis upon the goods as the property of Mr. Dayton. But the court found that they belonged to Mrs. Dayton. The proofs support this finding. There was no evidence in the case that they did not belong to her. The court found that complainant had a lien. From this decree Mr. and Mrs. Dayton have not appealed. The goods belonging to Mrs. Dayton, defendant Loomis, under these circumstances, was not in a position in the court below, and is not in a position here, to assert any claim under his levy of execution, as he could not take the property of Mrs. Dayton to satisfy the debt of Mr. Dayton. The Daytons not having appealed, the decree, as to them, must stand; and, as to defendant Loomis, it must stand for the reason, among others, that the goods do not belong to Mr. Dayton, against whom defendant’s execution runs. Complainant will recover his costs of this court against defendant Loomis. The other Justices concurred.

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Per Curiam. The relator, William P. Osborn, was employed as special assessment clerk in the office of the receiver of taxes of Detroit. The office of receiver is filled by appointment by the common council, on the nomination of the mayor. The charter is silent as to what employés shall be employed in that office, and as to the method of their appointment and discharge. The com mon council passed an ordinance relative to the clerks and assistants, as follows: “When assistants are necessary for the proper dispatch of the business in his [receiver’s] office, he shall apply to the common council for the same, and such assistants, when appointed, shall receive such compensation as the common council shall by resolution prescribe.” Undoubtedly it is in the power of the council to determine what employes shall be there employed, and to fix their compensation. Among such employés is one called the “special assessment clerk.” September 3, 1895, the receiver sent a communication to the council, appointing Mr. Osborn, and requesting his confirmation. He was confirmed, and filled the position until the 29th day of February, 1896, when the receiver discharged him, informing him that his services, were no longer required. After the close of the year he presented a petition to the circuit court for the county of Wayne, against the common council, asking for a writ of mandamus to compel the payment of the balance of the year’s salary, claiming that his employment was by the year. His contention is that his discharge was illegal, insisting that the common council alone had the power of removal. We find no express provision of the charter placing in the council the power of removal of the employés of the receiver of taxes, and the ordinance above quoted does not confer it. The circuit court should have refused the writ. Judgment is reversed, and an order dismissing the writ of mandamus will be entered, in accordance with this opinion.

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Grant, J. This suit involves the right of the plaintiff to recover the commission on an exchange of real estate which plaintiff claims he effected between the defendant and a third party. He recovered a verdict of $333.41. The claims of the respective parties, as submitted by the court to the jury, are as follows: “Plaintiff claims that defendant entered into an agreement to pay him 2 per cent, for commission for selling or exchanging his property on Lincoln avenue, in this city, for some other property; that defendant asked him what commission he would charge for the sale of this property; that he replied 2 per cent, for sale or exchange; that defendant said he would be willing to pay him 2 per cent., provided that he could bring a man who had property which was satisfactory to him. It is undisputed in this case that afterwards the plaintiff did bring together Mr. Engle and Mr. Elmer H. Stone, and that Engle and Stone made a contract. “The defendant denies that he made any such agreement, but claims that the agreement was that, if plaintiff would exchange his property on Lincoln avenue, having a $5,500 incumbrance on it, for other improved property having less incumbrance on it, he would pay him 1 per cent.; that, if plaintiff brought him a customer who would pay cash, he would pay plaintiff 2 per cent.; if he brought him a customer who had vacant lots without any incumbrance on them, it would be an exchange for that property, and he would give him 1 per cent.; and if he brought him a customer who offered him an exchange of vacant lots with the same amount of incumbrance on them which was on the Engle house, he would not pay him anything.” The testimony of the parties as to the terms of the contract is in direct conflict, each giving testimony to support his claim. Plaintiff did bring the parties together, and they executed a contract. This contract the parties, it seems, did not carry out on account of certain disagreements between them. They attempted to execute another contract, but failed. 1. This was the second trial of the case,'and the defendant insists that the plaintiff tried his first case upon a different theory from that claimed upon the second trial. His testimony upon the first trial was made a part of the record, and we find nothing in it to show any inconsistency. 2. Defendant insists also that there was a variance between the declaration and the proofs. The suit was commenced in the justice’s court, where the declaration was on the common counts, with bill of particulars, as follows: July 15, 1893, to commissions on $10,500, at 2 per cent______________________________-...............$210 And “specially for commission on sale of real estate,” claims damage.................................... 300 Defendant demurred to this declaration in justice’s court, and asked for a more specific statement. This was overruled. The defendant refused to plead, judgment was taken, and on appeal to the circuit court he pleaded the general issue. There is no claim that defendant was misled by the pleadings. The fact that it was called a com mission on “sale,” instead of “exchange,” is not fatal. In one sense, it was a sale of the defendant’s property. Such technical objections will not be considered where defendant is not and cannot be misled. 3. Complaint is made that the plaintiff was permitted to make his case by “piecemeal,” and that the court held at the close of the plaintiff’s testimony on his direct examination that he had made out a prima facie case. Plaintiff had testified to his contract with defendant, that he had brought Engle and Stone together, and that they had drawn up and executed a contract, and that Engle then said, “It is all right.” Plaintiff’s attorney then asked the court to decide whether he had made a prima facie case. While this may be somewhat unusual, we find in it no error. 4. Complaint is made that the court erred- in refusing to instruct the jury, “If you believe that.plaintiff testified falsely about not having an agreement from Stone for a commission, or as to any other material fact, you may consider that in weighing the rest of his testimony.” The court, in his general instruction, covered this point by instructing them that, “If any of the witnesses testified falsely in any particular, you should consider that, and weigh their testimony as to that as you would any other fact in the case.” We find no error upon the record, and the judgment is affirmed. Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.

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Moore, J. This is a proceeding brought to test the validity of the minority of stockholders law. The Michigan Mutual Life Insurance Company was organized-July 3, 1870, under a general law for the incor poration of life-insurance companies, approved March. 30, 1869. 1 How. Stat. chap. 131. Section 1 of that act provides, among other things, that— “Any number of persons, not less than 13, may associate together and form an incorporated company, for the purpose of making insurance upon the lives of individuals, and every insurance pertaining thereto, and to grant, purchase, and dispose of annuities.”' The next section is, in part, as follows: “Sec. 2. The persons so associating shall subscribe articles of association, which shall contain * * * the manner in which the corporate powers are to be exercised; the number of directors and other officers, and the manner of electing the same, and how many of the directors shall constitute a quorum, and the manner of filling all vacancies ; * * * any terms and conditions of membership therein which the corporators may have agreed upon, and which they may deem important to have set forth in such articles.” The articles of association of the Michigan Mutual Life Insurance Company contain the following: “The corporate powers of the company shall be exercised by a board. of directors, which shall consist of 21 members, which may be increased, at the option of the board, to not more than 40. “The first meeting for the election of directors shall be called by the present officers, and held as soon as practicable after these articles shall take effect. “No person shall be eligible who is not owner of at least 10 shares of the guaranty capital of the company, and at least two-thirds of the directors shall be residents of the State of Michigan. The board, at their first meeting, shall divide themselves, by lot, into three equal classes, as near as may be, whose terms of office shall expire at the end of one, two, and three years, respectively; and thereafter one-third of the directors shall be chosen annually, for the class whose term then expires, who shall hold office for three years, or until their successors are elected. * * * They shall be chosen by ballot, and a majority of all the votes cast shall elect. Every shareholder shall be entitled to one vote for directors for every share of guaranty capital standing in his name on the books of the company, and may vote in person or by proxy. And every policy-holder insured in this company for the period of his natural life, in the sum of not less than $5,000, shall also be entitled to one vote in the annual election of directors, which vote must be given in person. * * * ” From the origin of the company, the directors have been elected according to the provisions of said articles. Relator Joseph W. Dusenbury has been a stockholder from November 15,1890, and a director from January 27, 1891. He has attended every meeting of the stockholders from and including January 26, 1892, to January 28, 1896. Until the last-named date he has never objected to the election of directors in the manner prescribed by the articles. The terms of nine directors expired in 1896, and notice was given of an election to fill their places. On January 28,1896, at the stockholders’ meeting, relator J. W. Dusenbury claimed the right to vote his stock, and that for which he held proxies, according to the minority representation law. He did not claim that more than nine directors should be then elected. He multiplied the number of shares for which he voted by nine, and voted half of this amount for himself, and half for his brother, Will J. Dusenbury. The stockholders rejected relator’s claim, and followed the articles of association, in accordance with which nine directors, who received all the votes, save those of relator Joseph W. Dusenbury, were declared elected. Respondents received each 3,655 votes. Relators, through their multiplication, claim to have received each 5,571 votes. In 1885 an act was passed which reads: “An act to secure the minority of stockholders, in corporations organized'under general laws, the power of electing a representative membership in boards of directors. “Section 1. The People of the Stgte of Michigan enact, that in all elections for directors of any corporation organized under any general law of this State, other than municipal, every stockholder shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons as there may be directors to be elected; or to cumulate said shares, and give one candidate as many votes as will equal the number of directors multiplied by the number of shares of his stock; or to distribute them on the same principle among as many candidates as he shall think fit. All such corporations shall elect their directors annually, and the entire number of directors shall be balloted for at one and the same time, and not separately.” 8 How. Stat. § 4885a. The Constitution of Michigan, adopted in 1850, contains the following: “Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed.” Art. 15, § 1. It is the claim of the respondents that the power of the majority to elect all the directors, and so fully control the corporation, is a vested and valuable right of property, secured by the Constitution of the United States against the interference of State legislatures or constitutional conventions; citing in support of this proposition Hays v. Com., 82 Pa. St. 518; Baker’s Appeal, 109 Pa. St. 461; State, ex rel. Haeussler, v. Greer, 78 Mo. 188; Smith v. Railroad Co., 64 Fed. 272. In Hays v. Com., supra, it is true, language of the following tenor was used: “If it be not a vested right in those who own the major part of the stock of a corporation to elect, if they see proper, every member, of the board of directors, then I would like to know what a ‘vested right’ means. This was part of the contract under which they entered into the company, and for which they paid their money,”—and the court cite in support of that proposition the leading case of Trustees of Dartmouth College v. Woodward, 4 Wheat. 518. It is very generally agreed that the Dartmouth College Case would not now apply to a case where the law conferring corporate authority reserved the right to alter, amend, or repeal. The doctrine of the right of the majority of the stockholders to elect the directors being a vested right was not the point upon which the case of Hays v. Com., supra, was decided. In that case it was held that the constitutional provision reading, “In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer,” did not apply to a corporation in existence at the time the constitutional provision was adopted, and the court say: “It is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say, in the second section, sixteenth article, ‘the general assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution ?’ This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the State, by accepting the benefit of some future legislation. It is only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation; but, if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of such provisions, material or immaterial ? It is, indeed, manifest that .such an argument is foreign to the question in hand. It might apply to a legislative enactment attempting to alter this charter, but it cannot apply to this case, arising, as it does, directly on the constitution itself, for it is excluded by the very terms of that instrument. ” The case of Baker’s Appeal, 109 Pa. St. 461, was a proceeding to determine whether the American Academy of Music was brought within the provisions of the constitution providing for cumulative voting, by accepting its provisions in the manner indicated by law. It was held, “If, at a meeting duly called for that purpose, a majority, not in number, but in interest, of the stockholders present thereat in person or by proxy, authorizes such acceptance, then, and not till then, can the holders of the major part .of the capital stock be stripped of their vested right to elect a full board of directors, all of their own selection the court accepting the view expressed in Hays v. Com., that the constitutional provision permitting cumulative voting was not intended to, and did not, apply to corporations in existence, unless accepted by them. In the case of State, ex rel. Haeussler, v. Greer, 78 Mo. 188, it was held that the right of corporators to vote at elections for directors was a property right, and that a provision of law providing for cumulative voting would not apply to a corporation which held its charter from the legislature, where the charter provided that each stockholder should have one vote for each share of stock, and that the directors should be elected by vote of the stockholders, and contained the further provision that the legislature should have no power to alter, suspend, or repeal the charter. It was further held that, if the mode of voting is prescribed by an irrepealable charter, it is protected by that provision of the Constitution of the United States which prohibits the States from passing laws impairing the obligation of contracts. In the case of Smith v. Railroad Co., 64 Fed. 272, it was held that a law passed in 1876 providing for cumulative voting would not apply to a corporation obtaining its charter while Kansas was a territory, though the constitution adopted when Kansas became a State contained a provision providing for the amendment and repeal of acts conferring corporate powers. The constitution had a provision that “all laws and parts of laws in force in the territory * * * shall continue and remain in full force until they expire or shall be repealed.” The territorial statute in force when the charter was granted contained the following provision: “The charter of every corporation that shall hereafter be granted by law shall be subject to alteration, suspension, or repeal by any succeeding legislature: Provided, such alteration, suspension, or repeal shall in no wise conflict with any right vested in such corporation by its charter.” The court said: “Whether or not this act wasin force at the time the defendant’s charter was granted it is not necessary to decide, as the proviso in this section has extracted the meat, and left only the shell.” The case of City of Detroit v. Detroit, etc., Plank-Road Co., 43 Mich. 140, was a case where a charter had been accepted by a corporation which had built a plank road and erected toll gates. It was sought, by an amendment, to require the company to remove a toll gate, and to vacate that portion of its road then within the city of Detroit, without compensation. In an opinion written by Justice Cooley it was held that “the effect of the proposed amendment, if valid, would be to take from the corporation about two miles and a half of the road upon which it collected toll, and that the legislature cannot, under its power to amend a charter, take from the corporation any of its substantial property; * * * that, if the State may deprive the corporation of the right to take tolls on two miles and a half of its road, it may in respect to any other part, and. * * * may annihilate the property of the corporation altogether; and that a statute which could have this effect would not be a statute to amend franchises, but a statute to confiscate property. It would not be a statute of regulation, but of spoliation. ” We do not think any of these cases, when analyzed, go so far as to sustain the claim of counsel for respondents. It is claimed by the counsel that the method of electing the directors of the Michigan Mutual Life Insurance Company was made in pursuance of the statute, and constitutes a contract between the stockholders of the company, which the legislature cannot set aside; and it is asserted that the minority stockholders’ law changes the contract between the stockholders, and is therefore within the constitutional provision which forbids impairing the obligation of contracts. It would seem to be a complete reply to this view to say that the stockholders knew when they entered this corporation that the Constitution reserved to the legislature the right to amend, alter, or repeal the law under which the corporation was organized. 1 Thomp. Corp. § 89. The stockholders are as much bound by this constitutional provision as though it were contained in the articles of incorporation. Parker v. Railroad Co., 109 Mass. 506. In this case it was said: ‘! Many cases have arisen in this court involving the construction and application of the power to amend or alter charters. The reservation of power is broad and comprehensive. Whatever may be its limitation, it at least reserves to the legislature the right to make any reasonable amendments, regulating the mode in which the franchise granted shall be used and enjoyed, which do not defeat or essentially impair the object of the grant, or take away any property or rights which have become vested under a legitimate exercise of the powers granted.” See, also, South Bay Meadow Dam Co. v. Gray, 30 Me. 547; Shields v. Ohio, 95 U. S. 324. In the case of Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 270, it was held, in an opinion written by Justice Harlan: “A legislative grant to a corporation of special privileges, if not forbidden by the constitution, may be a contract; but, where one of the conditions of the grant is that the legislature may alter or revoke it, a law altering or revoking, or which has the effect to alter or revoke, the exclusive character of such privileges, cannot be regarded as one impairing the obligation of the contract, whatever may be the motive of the legislature, or however harshly such legislation may operate, in the particular case, upon the corporation or parties affected by it. The corporation, by accepting the grant subject to the legislative power so reserved by the constitution, must be held to have assented to such reservation.” See, also, Greenwood v. Freight Co., 105 U. S. 13, which is a very interesting case, containing a full discussion of this subject. In Market Street R. Co. v. Hellman, 109 Cal. 571, it was held that, when an individual becomes a stockholder in a corporation, it is with the implied assent on his part to the right of the legislature to alter and amend the law, within the scope of the constitutional provision, and is as binding upon him as a contract to the like effect of his own making would be. This was a case providing for the consolidation of corporations by a majority of the stockholders, without regard to the desire of stockholders opposing the consolidation. In Railroad Co. v. Georgia, 98 U. S. 359, it was held that a corporation held the rights granted to it under and subject to the law as it was when the new charter was granted, and that where the law in existence when the corporate franchise was granted provided that the franchise was “subject to be changed, modified, or destroyed at the will of the creator,” the franchise was held subject to these provisions. We understand the rule in relation to the reservation of power to amend, alter, or repeal to be correctly stated in Parker v. Railroad Co., already quoted; and, as stated by Justice Gray in Commissioners on Inland Fisheries v. Holyoke Water-Power Co., 104 Mass. 446 (6 Am. Rep. 247): “A power reserved to thé legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right.” See, also, Sinking Fund Cases, 99 U. S. 700. The nature of a corporation is therefore an important consideration in determining the extent of the reserved right of the State to alter or amend its charter. Is it a corporation in which the public is interested ? If so, the legislature may exercise the reserved power as just stated. Is not the public interested in the proper control and management of great life-insurance companies, like the Michigan Mutual Life Insurance Company? Is it not true that their incomes are largely drawn from the public, and that the proper or improper management of the company’s affairs affects the public as well as the stockholders? Is it not true that the policy-holders of the company are quite as much interested in what becomes of the assets of the company as the stockholders themselves ? The answer to each of these questions must be in the affirmative. For cases in which the power to alter, amend, or repeal charters or acts of incorporation has been exercised, see Fitchburg R. Co. v. Grand Junction R. Co., 4 Allen, 198; Durfee v. Railroad Co., 5 Allen, 230; Roxbury v. Railroad Corp., 6 Cush. 424; Massachusetts Gen. Hospital v. Assurance Co., 4 Gray, 227; Com. v. Eastern R. Co., 103 Mass. 254 (4 Am. Rep. 555); Commissioners on Inland Fisheries v. Holyoke Water-Power Co.., 104 Mass. 446 (6 Am. Rep. 247); Mayor, etc., of Worcester v. Railroad Co., 109 Mass. 103; Parker v. Railroad Co., Id. 506; Pennsylvania College Cases, 13 Wall. 190; Holyoke Co. v. Lyman, 15 Wall. 500; Oldtown, etc., R. Co. v. Veazie, 39 Me. 581; Boston & Albany R. Co. v. Village of Greenbush, 5 Lans. 461; Schenectady, etc., Plank-Road Co. v. Thatcher, 11 N. Y. 102; Buffalo, etc., R. Co. v. Dudley, 14 N. Y. 336; In re Lee & Co.’s Bank, 21 N. Y. 9; Albany Northern R. Co. v. Brownell, 24 N. Y.. 345; Northern B. Co. v. Miller, 10 Barb. 260; White v. Railroad Co., 14 Barb. 559; Hyatt v. McMahon, 25 Barb. 457; Anderson v. Com., 18 Grat. 295; Joslyn v. Steamship Co., 12 Abb. Pr. (N. S.) 329; Sherman v. Smith, 1 Black, 587; Perrin v. Oliver, 1 Minn. 202; Iron City Bank v. Pittsburgh, 37 Pa. St. 340; Com. v. Fayette County R. Co., 55 Pa. St. 452; Shields v. Ohio, 95 U. S. 324; Maine Cent. R. Co. v. Maine, 96 U. S. 510; Greenwood v. Freight Co., 105 U. S. 13; Close v. Glenwood Cemetery, 107 U. S. 466; Spring Valley Waterworks v. Schottler, 110 U. S. 348; Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 258; Bissell v. Heath, 98 Mich. 472. We do not think it can be said that the minority law changes the character of the business in which the Michigan Mutual Life Insurance Company is engaged, or that it takes away any substantial right acquired by the corporation. It changes the tei’ms of office of the directors, and provides for a representation on the board of directors of a minority of the stockholders. We do not think this disturbs any vested right such as is referred to by the cases cited by counsel for respondents (see Miller v. State, 15 Wall. 478), and that the minority law is constitutional. It is objected that quo warranto is not the remedy. Quo loarranto was brought in many of the cases cited. State, ex rel. Haeussler, v. Greer, supra. Hays v. Com., supra. And we think it the proper remedy. Frey v. Michie, 68 Mich. 323. The relators were elected as directors, and should have been so declared. In view of the fact that the annual meeting of the stockholders will be held so soon, it will not be necessary to make any further order in the proceeding. Costs are given to relators. The other Justices concurred.

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Moore, J. This is an application for a retaxation of costs on the grounds—First, that the clerk did not allow all that should have been allowed for printing the record and briefs; and, second, because an item of $10 paid to a surety company for signing the appeal bond was not taxed. An inspection of the record shows that the. amount taxed by the clerk of this court for printing the record and briefs was all that the appellant was entitled to have taxed. It was fully equal to what printers generally charge for doing work of like character. It is claimed that under the provisions of Act No. 266, Pub Acts 1895, the item of $10 should be taxed. The title of this act reads as follows: “An act relative to bonds and other obligations with surety or sureties, and the acceptance as surety thereon of companies qualified to act as such, and the release of' such surety, and the safe depositing of assets for which such surety may be liable, - and to the charging by fiduciaries of the expense of procuring sureties, and repealing all laws in conflict therewith.” There is nothing in the title of the act to indicate that money paid by a party litigant to a surety company for, signing an appeal bond could be recovered as taxable costs, where the party did not occupy the relation of a fiduciary. I do not think the item of $10 was properly taxable. The motion is denied. The other Justices concurred.

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Montgomery, J. (after stating the facts). The sole, question presented on the record is whether, under the circumstances set out in the statement of facts, the proceeds of the sale of exempt property, designed for investment in other exempt property, to take the place of that sold, are subject to attachment while in the hands of the debtor, kept as a separate fund, or are, before reaching his hands, subject to garnishment. The authorities upon this subject are inharmonious. There are cases holding, as • contended by plaintiff, that the proceeds of the voluntary sale of property exempted from execution are not exempt. Wygant v. Smith, 2 Lans. 185; Knabb v. Drake, 23 Pa. St. 489 (62 Am. Dec. 352). The latter case even goes further, and holds that, where property is taken from the owner by proceedings in invitum, a judgment recovered for such wrong is subject to garnishment. But this holding is in conflict with the great weight of authority, and it is generally held that in such case, as well as in the case of a loss of exempt property by fire, the proceeds are exempt, at least until such time as the owner has reasonable opportunity to' appropriate the proceeds to the purpose of replacing the exempt property wrongfully taken from him, or consumed by fire. See Cooney v. Cooney, 65 Barb. 524; Tillotson v. Wolcott, 48 N. Y. 188; Mudge v. Lanning, 68 Iowa, 641; Rood, Garnishm. § 98; 1 Shinn, Attachm. § 71; Thomp. Homest. & Ex. § 748. It has also been held in various jurisdictions where the rule obtains, as in this State, both as to personal and real property exempt, that the owner has the right to sell or exchange such exempt property, and that such sale does not result in establishing a lien in favor of the creditor, or render the property, after the sale, subject to levy, that the money derived from the sale of a homestead, designed in good faith to be applied to the pui’chase of another homestead, and kept separate from other funds for that purpose, is not subject to seizure by creditors. See Watkins v. Blatschinski, 40 Wis. 347; State v. Geddis, 44 Iowa, 537; 1 Shinn, Attachm. § 71; Rood, Garnishm. § 97. We can conceive of no reason for distinguishing between the proceeds of exempt personal property and the proceeds of an exempt homestead, and we think the rule of the Wisconsin and Iowa courts in harmony with the liberal interpretation of the exemption laws which has always obtained in this court. The judgment of the court below will be affirmed. The other Justices concurred.

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Long, C. J. This is an action of ejectment to recover possession of certain lands described in the declaration. Upon the trial it was shown that plaintiff had title, but defendants claim that they were in possession under a certain contract for the sale of the lands to them. The claimed contract of sale is evidenced by certain letters passing between the parties. November 4, 1891, defendant Daniel Loomis wrote the plaintiff that he desired to purchase the land, and asked him to draw up a contract of sale, and send it to him. He then stated in the letter: “ I agree to pay $25 March the 20th, and $25 every six months after first payment, or more if convenient, and interest at the end of each payment; and I agree to fence and chop down and improve to the amount of $50 worth the first year, or cause it to be done, and also to set out fruit trees the first year, and they will be on hand in the spring for setting,—I think about $10 worth.” On December 15th the> plaintiff wrote defendant, accepting the terms of the offer, and agreeing to charge the same upon book account, charging the defendant with the- land, and crediting payments, and when full payment was made he agreed to deed the land to him. February 8th, plaintiff wrote defendant again, saying he would pay up all taxes prior to 1891. On the back of this letter, he indorsed the contract, as it was then understood between the parties, as follows: “To Daniel Loomis: The land mentioned in letter opposite side of this sheet is the E. -J- N. W. sec. 29, T. 15 N., R. 6 west, containing 80 acres, more or less. I have letter from Mr. Daniel Loomis in which he agrees to pay $250 for the land, as follows: $25 March 20, 1892, and $25 each six months after first payment, or more if he can, and agrees to chop and cut down and improve to the amount of $50 the first year; also to set out fruit trees. They will be on hand in the spring for setting. And he is to pay taxes on said land, including the year 1891 and following years. The above I copy from your letter,” etc. After these letters were written, the defendants went into possession’ of the land. They paid the $25, and made the $50 improvements on the land, and set out the fruit trees, as agreed. They built a house on the land and moved into it, and still continue to reside there. The letters were offered in evidence by the defendants, under the claim that they constituted a contract of sale of * the land, and gave them the right of possession. The letters were objected to by counsel for the plaintiff, but were received subject to the objection then made. On motion, the. court thereafter struck them out of the case, holding that they constituted no more than a mere license, as to any right of possession. All evidence was stricken out as to the contract of sale. Some claim was made by Mrs. Loomis under a tax deed, but the court found that invalid, and, we think, properly, and that will not be discussed. We think the court was in error, however, in holding that the letters did not constitute a valid contract of sale of the land. Ryan v. U. S., 136 U. S. 68; Wilcox v. Cline, 70 Mich. 517. The price was agreed upon, and the time and mode of payment. The letter accepting the defendant’s proposition is signed by the plaintiff, and payments were made thereunder. But counsel contends that the letters do not give the defendants the right of possession, and for that reason they could not defend their possession, as against the plaintiff, inasmuch as they had not made the payments in accordance with the terms of the contract. It appears that the payment of $25, and the clearing of the $50 worth on the land, and the setting out of the fruit trees had been fully performed. No other payments had been made when this suit was commenced in the early part of 1895; that is, over two years had elapsed from the time the last payment was made under the contract to the time of commencement of suit. If the defendants had the right of possession by the terms of the contract, the mere failure to make payments as by the contract agreed would not, of itself, give the plaintiff the right of immediate possession. He must terminate the contract relations by notice of forfeiture or demand of possession. Michigan Land & Iron Co. v. Thoney, 89 Mich. 226. Did the contract, therefore, give the defendants the right of possession ? It provided that they should make certain improvements, and set out fruit trees on the land. While it is not specific as to possession, it cannot be said but that the parties must have understood, at the time of the making of the contract, that defendants were to have possession. It is not like the case, cited by plaintiff’s counsel, of Buell v. Irwin, 24 Mich. 145. There a mere quitclaim deed was provided for, and the contract was wholly silent as to possession. Under the circumstances here, the court should have directed verdict in favor of defendants, as no notice of forfeiture had been given, nor demand of possession made. Judgment is reversed, and new trial ordered. The other Justices concurred.

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Montgomery, J. This is an action on a promissory-note for $330.50, payable to the order of John Lewis, and appearing to have been indorsed by him. On the trial of the case, plaintiff proved that the signature of the payee, John Lewis, was genuine, and introduced the note, and rested. The defendant then offered to introduce evidence to show that the note was procured of Lewis by plaintiff by means of undue influence, and to show that the executor of the estate of John Lewis is defending the present case for the defendants, and indemnifying them against loss. The plaintiff objected to the introduction of the testimony for the purpose of showing the fact of undue influence. The objection was sustained, and this ruling presents the principal question in the case. A preliminary objection is raised to the hearing in this court,—that the assignments of error were not embodied in the bill of exceptions. We would be disposed to remand the record for the purpose of correction, rather than to refuse to entertain the appeal, and, inasmuch as the record clearly shows that the question involved was fully presented and argued before the court, no injustice can be done, either to the court or appellee, in passing upon the question upon the present record. The rule is settled in this State that the defendant may, in an action on a negotiable promissory note, show that the plaintiff is not the real owner. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122); Reynolds v. Kent, 38 Mich. 246; Hannahs v. Sheldon, 20 Mich. 278. It is true, as a general rule, that the defendant is only concerned in the question of whether the plaintiff is the legal owner. But, in the case of Hillman v. Schwenk, 68 Mich. 293, it was held that, where the indorsee of a note sues, it is competent for the administrator of the estate of the payee to take upon himself the defense of the suit upon the trial. Undue influence is recognized by all the authorities as a species of fraud (8 Am. & Eng. Enc. Law, 649), and fraud, inducing a transfer of personal property or a chose in action, renders such transfer voidable, and one of the remedies of the party defrauded or his executors is a rescission of the transfer (8 Am. & Eng. Enc. Law, 650; 2 Pom. Eq. Jur. § 872). As to personal property, the act of rescission does not require the interposition of a court of equity. In case of rescission of transfer of personal property, the title reinvests ipso facto. Bigelow, Fraud, p. 76. The rule is otherwise as to conveyances of real estate, but this is based upon the idea that the legal title to real estate, having passed by the conveyance of the title, cannot be reinvested in the grantor in an action at law. Bigelow, Fraud, pp. 47, 76, 77; Moran v. Moran, 106 Mich. 8. ■ Plaintiff cites, in support of her contention that the only remedy of the administrator is in equity, the case of McKinney v. Hamilton’s Estate, 53 Mich. 497, and McKinney v. Curtiss, 60 Mich. 611. McKinney v. Hamilton’s Estate did not present the question whether the maker of a note, having notice of the claim of the true owner, could defend against one in possession of the note, and prima facie entitled to recover upon it; but the question was whether, in an action at law, the ,true owner could, without production of the note, recover, and it was held that one, even though he be the true owner, could not demand payment and recover without the delivery of the note. But it does not follow that he cannot, in a suit against the maker, intercede and defend against the transferee, where the title of such transferee is tinctured with fraud. Nor does it follow, because he has a remedy in equity, that this is exclusive. 1 Pom. Eq. Jur. § 180; McKinney v. Curtiss, 60 Mich., at page 620. The case mainly relied upon by plaintiff’s counsel in the court below is that of Carrier v. Sears, 4 Allen, 336 (81 Am. Dec. 707). The doctrine of that case was distinctly this: It is no defense, by the maker of a negotiable note, to show that the note was obtained from the payee by undue influence, when he was of unsound mind and incapable of making a valid indorsement, if the payee, or his legal representatives, have never disaffirmed it. But, in the opinion in the case, the court distinguish that case from Peaslee v. Bobbins, 3 Mete. (Mass.) 164, admitting that the text of the earlier case is apparently in conflict with the views expressed in Carrier v. Sears. The writer of the opinion says: “The fact in the case was, as I well remember, that the defendant had been notified by the guardian of the insane payee not to pay the note to the plaintiff, and the defense was conducted by the guardian for the benefit of his ward. We have examined the record, and find, in the original specification of defense, the statement ‘that said Fletcher, as guardian to said Parker [the payee of the note], claims said note as the property or estate of said Parker.’ There was no controversy upon this point; and, the guardian having claimed and exercised the right to disaffirm and avoid the indorsement, the only question was upon the mental incapacity of the payee at the time the indorsement was made. The language of the court was, therefore, perfectly warranted in its application to the circumstances of the case, as it was presented and understood by the parties, but would require limitation, if taken as the enunciation of a general principle.” This doctrine is not in conflict with the decision of this court in Hillman v. Schwenk, supra, although the opinion, in other portions, may conflict with Hannahs v. Sheldon, supra. We think the contention that the right to rescind the transfer does not survive to the executors is without force. See Rogers v. Windoes, 48 Mich. 628. Judgment reversed, and new trial ordered. The other Justices concurred.

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Grant, J. (after stating the facts). The relator contends that, when an attorney is appointed to defend an indigent prisoner in the circuit court, he has the right, upon his own motion, upon conviction, to appeal the case to the Supreme Court, and that the supervisors of the county are required by law to pay the expenses of printing the record and brief, and for his services in taking the case to this court. If such a right exists, it must be found in the statute. The right of appeal in civil and criminal cases is statutory. Section 9046, 2 How. Stat., as amended by Act No. 96, Pub. Acts 1893, provides for the appointment by the court of an attorney to defend an indicted person when he shall be unable to procure counsel, and that the court shall determine his compensation, which shall not exceed $50. Section 9047 is as follows: “An attorney shall not, in such case, be compelled to follow a case into another county or into the Supreme Court, and, if he does so, may recover an enlarged compensation, to be graduated on a scale corresponding to the prices above allowed.” These two sections must be construed together. No attorney can defend a prisoner, and subject the county to pay for such expense, without an order of the court. It is the duty of the circuit judge to examine into the circumstances, and determine whether it is his duty to appoint an attorney to defend at the expense of the county. The order of the circuit court is the sole authority for subjecting the county to the expense of the prisoner’s defense. Section 9047 means this, and nothing more, viz., the attorney cannot be compelled, even by the order of the court, to follow the case into another county, or into the Supreme Court. The attorney is an officer of the court, and as such is required by law to obey its orders. He may therefore be compelled, though against his wish, to defend the prisoner, when ordered by the court to do so. The purpose of this act is to relieve him from this duty if there be a change of venue, or an appeal to the Supreme Court. If the prisoner desires the attorney so appointed to follow the case into another county, he must obtain an order of the court to that effect. If the attorney refuses, as he may, then the court before which the case is to be tried must take care of his rights. If the prisoner desires to have his case reviewed by the court of last resort, he must apply to the court to obtain an order. This was the course pursued in People v. Hanifan, 90 Mich. 516. It seems impossible of belief that the legislature intended that any attorney defending an indigent prisoner under the order of the circuit court should, upon his own motion, subject the county to the expense of an appeal to this court. It is a consistent view to take that the legislature did intend to provide for the employment and payment of an attorney to follow the case to this court if, in the opinion of the circuit court, the case should be appealed. Upon conviction the presumption of innocence has disappeared, and the presumption of guilt prevails. There may be cases involving questions which should be determined by the court of last resort, and in such cases it would be very proper for the circuit court to make an order authorizing the prisoner’s counsel to appeal the case, and he would then be entitled to compensation under section 9047. If he chooses to appeal the case upon his own motion, he must look to his client for compensation. We are confirmed in this view by the fact that this section was enacted 40 years ago, and has never been construed by the profession or the circuit courts to confer the power now claimed. The judgment is affirmed. The other Justices concurred.

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Hooker, J. The complainant, a corporation doing a manufacturing business at Detroit, was largely indebted to the Third National Bank of that city and others, and the following scheme was hit upon, in a consultation between complainant’s officers 'and Frederick Marvin, the cashier of the bank, to afford it relief: It was proposed that the complainant should mortgage its plant to the Union Trust Company, to secure an issue of 100 bonds of $1,000 each, said bonds to be guaranteed by several of complainant’s stockholders, who were already upon its outstanding paper. Said bonds,'when issued, were to be left in the custody of the Union Trust Company, and were to be delivered by it to Frederick Marvin, cashier of said bank, for sale, upon his demand; and, as fast as sold, Marvin was to give the complainant credit for the proceeds, upon its account in said bank. In pursuance of this arrangement, the mortgage and bonds were made and deposited; and a written order upon the trust company for the delivery of such bonds to Marvin, cashier, was given by complainant, and 75 of the bonds were taken by Marvin, and disposed of, and credit given to complainant upon its bank account. Subsequently, Marvin obtained the remaining 25 bonds, numbered, consecutively, from 76 to 100, inclusive; and it is in regard to these bonds that this controversy arises. The circumstances under which these bonds were taken by Marvin appear to us to be as follows: On September 7, 1892, the complainant received notice that certain paper, which it had given to the Third National Bank, was due, some of it in the hands of the Peninsular Savings Bánk, and possibly some in the State Savings Bank. This paper was guaranteed by the Third National Bank, and complainant was notified from said bank that the paper was due. An officer of the complainant called at the Third National Bank to arrange the matter; and, in Mr. Marvin’s absence, the assistant cashier, acting under the direction of the board of directors, agreed to extend credit until Mr. Marvin should return, when the matter could be adjusted with him, upon condition that the remaining 25 bonds should be held by the bank as collateral to secure the bank. This was upon an offer by the complainant to so arrange the matter, and after the assistant cashier had ascertained and informed his directors that the bohds were in the hands of the Union Trust Company, subject to the order of Mr. Marvin, cashier. The following is a copy of a note given upon that occasion: “$20,361.67. Detroit, Mich., Sept. 7, 1892. “On demand after date the Detroit Motor Co. promise to pay F. Marvin, cashier, or order, at the Third National Bank, twenty thousand three hundred and sixty-one 67-100 dollars, with interest at the rate of seven per cent, per annum, value received; having deposited or pledged with him as collateral security, with authority to sell the same at public or private sale, or otherwise, at his option, on the nonperformance of this promise, and without notice, twenty-five thousand dollars of the unsold bonds of the 'Detroit Motor Co., in the hands of the Union Trust Co. of Detroit, Michigan. “Detroit Motor Co., “By F. A. Blades, Sect.” Indorsed on back: “D. B. No. 377. “This note is given for two notes falling due Sept. 7, 1892; one for $15,271.25, at the Preston National Bank; one falling due Sept. 7, 1892, at the Third National Bank, for $5,090.42. Said notes to be arranged for on Mr. F. Marvin’s return to city. “Detroit, Sept. 7, 1892. “By F. A. Blades, Sect. “F. A. Blades.” A few days later, Mr. Marvin returned; and on September 10, 1892, he surrendered this note, at the same time taking i’enewal notes for those for which'it had been given, and obtaining the consent of the complainant that the bank should hold the 25 bonds as collateral security for all debts of the complainant to the bank. Soon after, Mr. Marvin procured the bonds, and deposited them in the vaults of the bank, with its other collateral. It is contended that this is not shown by the evidence, especially as to 10 of said bonds; but, in our opinion, it may be properly inferred from the testimony given. In October, 1892, Marvin executed his note for $10,000, payable to himself, as cashier, and put the amount to his credit in the bank, without the knowledge of the directors,' and without making an entry upon the offering book, as was the custom. Said note stated that he had deposited or pledged, as security, $10,000 of the first ip.ortgage bonds of the complainant. A second note for $5,000 was made May 2, 1893. This stated that he^had “deposited or pledged Detroit Motor Co. bonds,” without stating the amount. In neither case were the bonds designated by number or otherwise, and they do not appear to have been attached to or to have accompanied the notes. Soon after the date of the second note, Mr. Marvin’s conduct was investigated, and his resignation was tendered, but not accepted for some months, it being deemed inexpedient to do so at the time. He was, however, dismissed in September, 1893. At this time the 20 bonds identified by the testimony were found among the securities of the bank which were held as collateral. There was nothing to show that they were not held as collateral to the complainant’s paper, or to whom they belonged. Mr. Marvin is said to have pointed out these particular 20 bonds as collateral to his paper, and claimed that he owned them. Noble, who succeeded Marvin as cashier, testified that they could not tell who owned these bonds, ‘ ‘ except they were the only bonds in our possession pledged as collateral to a certain note, and if they were in our collateral file, arid had been stated to be the property of the person who pledges them.” He also testified that these 20 bonds, which he says were collateral to the Marvin- notes (which does not appear from the notes, however), were transferred to what he calls the regular collateral account, in the absence of Marvin. Hudson, a director of the bank, testifies that he learned that the bank had $20,000 of bonds collateral to Marvin’s notes, and, with Marvin’s consent, they took them away from the notes, leaving the notes without collateral, and gave him credit for $15,000 on his overdraft, and charged them to the bond and mortgage account. The bank was subsequently closed, and went into the hands of a receiver, and this bill is filed to compel the defendants to account for and restore the 25 bonds to the complainant, subject to the right of the bank to hold them as collateral security for the indebtedness of the complainant. Counsel for the receiver contends: 1. That Marvin, and not the bank, was complainant’s agent for the sale of the bonds, and that it is in no way responsible for his appropriation of the bonds. 2. That the bonds were not, in fact, pledged to the bank, because not delivered to the cashier at the bank; and that, legally, they cañnot be said to have come to its possession. 3. That, in appropriating these bonds to his own use, Marvin was not acting within the scope of his authority as cashier, and that the bank is not liable for his acts. 4. That complainant has a complete remedy at law. We are satisfied from the evidence that the scheme of issuing these bonds was the result of the pressure brought by the bank, to induce payment of the complainant’s paper held by the bank; but whether this were so or not, and whether, if it were, we would be justified in holding that the bank undertook the sale of bonds, and that it was within its powers, we are convinced that afterwards, in an attempt to secure itself upon its claims against the complainant, Mr. Marvin, its cashier, demanded and received the bonds in controversy, and brought them into the bank, and deposited them with other collateral security of the bank. It is therefore unnecessary to discuss or pass upon several of the questions raised. We think that the bank is in no situation to take these securities upon Marvin’s indebtedness, and that it holds them as security for the indebtedness of complainant, and the receiver should so apply them. As to 15 of these bonds, there is no dispute over their whereabouts, as they are shown to be in the possession of the bank, which claims title to them. Counsel asks what was done with the other 10, and say that it does not appear. Our opinion is that it satisfactorily appears that all of the bonds were taken to the bank under circumstances that justify the conclusion that they ■ came into the possession of the bank. Beyond this, we agree with defendants’ counsel that “it does not appear what became of them;” and we need not conjecture, but may assume that they are in the possession of the defendants, or have been disposed of for their benefit. It is urged that the complainant’s remedy is at law, or, at all events, that it should filé a bill to redeem; averring a willingness to pay the debt. This does not appear to have been a mooted question below. Counsel did not see fit to raise it by demurrer, as he might have done, but chose to go to hearing upon'his claim of title to the bonds. Under the circumstances, especially in view of the alleged insolvency of the bank, we think this technical defense should not be permitted to prevail. Equity has jurisdiction to compel a replacement of stock held as collateral security, lost through gross negligence or carelessness of, or misapplication by, the pledgee, or payment of its value. Colebrooke, Collat. Sec. § 340. We are of the opinion that the complainant should be decreed to be the owner of said 25 bonds, subject to the lien of said bank, and that defendants restore the same to the complainant upon tender of payment of its indebtedness, or account for them upon said indebtedness at their par value. It is decreed accordingly, complainant to recover costs of both courts. The other Justices concurred.

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Moore, J. This is a proceeding to set aside an attachment levy made by defendants upon one-half of a city lot in Muskegon. The record shows that the attachment was made October 5, 1895, by creditors of a firm of which complainant was a member. This half lot, which was known as “No. 12 Muskegon Avenue,” was bought by complainant, who was then á married man, in 1890. It was occupied by himself and family for about 3£ years. About a year and a half before the levy, complainant and his family moved to No. 53 Muskegon avenue, into a house then occupied by his father and his family, and continued to reside there until after the levy upon the property at No. 12 Muskegon avenue was made. At the time complainant moved to No. 53 Muskegon avenue, his father deeded the property located there to him. There was a mortgage upon the property of about $800, and some back taxes. It is the claim of complainant that he never intended to abandon his homestead at No. 12, but that he and his family always regarded it as his homestead; that he moved to No. 53 to enable him to care for his father, who was very old,—the house at No. 12 not being large enough to accommodate both families. It is also his claim that, when No. 53 was deeded to him, his father was not able to pay the mortgage and taxes, and was afraid he would lose the property. He also claims that the arrangement between his father and himself at the time of the making of the deed was that the complainant should pay the mortgage and taxes, and that, when he could sell the property without sacrificing it, he was to do so, and, after reimbursing himself, was to pay the surplus to his father; that he expected to make the sale, and to carry out his agreement. It was the claim of the defendants that, when complainant moved to No. 53 Muskegon avenue, he intended to abandon his home at No. 12 Muskegon avenue, and that his return to No. 12 was because he was afraid that his creditors would levy upon it, and was for the purpose of defrauding his creditors; that by giving mortgages to his mother-in-law upon both pieces of property for an amount largely in excess of his debt to her, which mortgages were^ signed by complainant’s wife, he has shown his purpose to defraud his creditors, and that these acts of the complainant and his wife characterize them as persons whose testimony ought not to be believed. The case was tried in open court, and the circuit judge granted a decree according to the prayer of the bill. The complainant, his wife, and his father all gave testimony tending to establish the truth of complainant’s claim. The defendants controverted this testimony. In Hoffman v. Buschman, 95 Mich. 540, Justice Hooker held that “the retention of homestead rights, though the party live elsewhere temporarily, is possible. It is largely a matter of continuing intent, and i's a fact to be proved like any other fact.” In Kaeding v. Joachimsthal, 98 Mich. 78, it was held, in a case where the parties had been absent from the homestead six years, that, where there was a continuing intent to return to their home after the object of their temporary absence should have been attained, such intent protected the homestead. The cases are collated in the decision just quoted. See, also, the case of Myers v. Weaver, 101 Mich. 477. The circuit judge had the witnesses before him. While there were some things done by the complainant, in his effort to keep his creditors from reaching his property, that are open to criticism, we are not inclined to say that the conclusion of the circuit judge that the property was exempt from levy is erroneous. The decree is affirmed, with costs. The other Justices concurred.

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Grant, J. {after stating the facts). Four objections are raised by the attorney general to this claim: 1. That this provision of the city charter is in violation of section 20, art. 4, of the Constitution, in that no such object is expressed in its title. 2. That the general tax law of the State was passed subsequently to this charter, which act exempts all state property from taxation, and therefore repealed this provision of the charter. 3. That the act reincorporating the city of Lansing was not constitutionally enacted, because it was not read three times in each house of the legislature before its final passage, as required by section 19, art. 4, of the Constitution. 4. That the act is an appropriation of public money for local purposes, and is therefore void under section 45, art. 4, of the Constitution, in that two-thirds of the members of each house did not vote for the bill. It has been the policy of this State from the beginning to exempt its property from taxation, local and general. I am not aware of any act before passed by the legislature imposing the burden upon the State of assisting municipal corporations financially to support their local govern ments. This is taxation pure and simple, and confers the extraordinary power upon the local authorities to assess the state property at any sum they shall deem proper, and then to apportion a certain part of the city taxes to the State. The State has no part or lot in the matter. No provision is made by which any state officer is notified, and can appear to contest the assessed value of the state property or the amount of the taxes, or to protect the interests of the State. That such power is extraordinary is a very mild statement of the case. It is the sole instance ever found upon the statute books of Michigan where private or public property was assessed, and taxation imposed, without - giving the owner an opportunity to be heard. Such power is repugnant to every principle of just taxation. The title to the act gives no hint of an intention to confer such power. It is not a common incident to municipal corporations. No better case can be found to illustrate the necessity and wisdom of the constitutional requirement. There is nothing in the title to this act to indicate to the taxpayers of this State or to their representatives in the legislature that the state property is to be taxed, or that its funds are to be appropriated to maintain the local government of the city of Lansing. No one would be bold enough to assert that, if such appeared in the title, it would not have met with opposition. We think this provision of the act is clearly unconstitutional, because the object is not expressed in the title. Davies v. Board of Sup’rs, 89 Mich. 295. It is unimportant, in this view of the case, to discuss the other questions. The writ is denied. Long, C. J., and Moore, J., concurred with Grant, J.

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Per Curiam. This case is ruled by Van Houten v. Insurance Co., 110 Mich. 682, in which an opinion was filed November 17, 1896. The judgment is affirmed.

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Grant, J. (after stating the facts). We are of the opinion that the case was properly submitted to the jury. The goods were shipped and invoices sent by mail to defendant, as was done in Heyn v. O’Hagen, 60 Mich. 150. There is evidence from which the jury might find that defendant received the invoices and made no objection. This, unexplained, would be evidénce of original authority, and, in connection with the testimony of Lamb, was important. Defendant does not testify what time elapsed between the date he saw the goods marked to him and the letter of December 30th denying the authority. We also think that the evidence of Lamb, if believed by the jury, is sufficient to sustain the verdict. If there were discrepancies in his testimony, it was the province of the jury to weigh them, and determine what the fact was, and how much credence they would give to his statement. The judgment is affirmed. The other Justices concurred.

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Hooker, J. The plaintiffs were in possession of certain lumber, claiming title, when it was taken by the defendants upon an attachment against the Mascotte Lumber Company. Plaintiffs brought replevin, and, after proof of the above facts and the value of the property, the court directed a verdict for the defendants, and the plaintiffs removed the cause to this court by writ of error. Plaintiffs’ proof of possession under a claim of purchase from the true owner, and the forcible taking of the lumber without consent, made out a prima facie case. Van Baalen v. Dean, 27 Mich. 104; Rose v. Eaton, 77 Mich. 255. Upham v. Caldwell, 100 Mich. 269, cited by counsel, is readily distinguishable. It then became necessary for the defendants to justify their taking by showing a right or authority superior to that of the plaintiffs. On the contrary, although prima facie wrong-doers, they offered no testimony, but chose to rely on -the claim that the transfer by assignment to the plaintiffs was defective, and induced the court to exclude it. But, if they were wrong-doers, they had no interest in this question. It was necessary to show that, by a valid writ or otherwise, they stood in the shoes of the true owner, or other person having an interest in the property, and had the right to question the plaintiffs’ title. It was, therefore, error to instruct the jury that the plaintiffs could not recover. It is contended that the assignment of error, i. e., “that the court erred in directing a verdict for the defendants,” is not special under Sup. Ct. Rule No. 12. Upon this record this assignment was equivalent to saying that there were facts in the case upon which a jury might find plaintiffs entitled to recover,—a radically different case from one where the court is said to have committed error in directing a verdict for the plaintiffs, or in refusing to direct one for the defendants. In those cases there may be uncertainty as to what the error relied on or point raised is. See Alberts v. Village of Vernon, 96 Mich. 549; Johnson v. Ballou, 25 Mich. 460. It is claimed that the judgment should be affirmed for the reason that the bill of exceptions does not include the assignments of error, as required by Rule 12 as recently amended. Under the circumstances of this case we are not disposed to subject the plaintiffs to a final judgment in the face of manifest error, and the record is such that nothing would be gained by remanding it for correction at plaintiffs’ expense. The rule is a new one, and we are disposed to enforce it with leniency at the present term. Hostetter v. Elevator Co., 4 N. Dak. 357. The judgment is reversed, and a new trial ordered. The other Justices concurred.

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Hooker, J. The defendant has appealed from a decree granting to the complainant divorce from the bonds of matrimony upon the ground of extreme cruelty, alleged to consist of refusal of cohabitation. No legal question of interest or importance is involved, and it is unnecessary to discuss the testimony or facts sought to be established. The testimony was taken in open court, and we find nothing to indicate that the circuit judge’s conclusions were not fully warranted, and his decree a just one. It is therefore affirmed, and, in addition to the sum heretofore allowed for costs and solicitor’s fee, it is decreed that defendant be allowed the further sum of $300 for her support and maintenance pending proceedings. The other Justices concurred.

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North, J. In this suit plaintiff seeks to recover damages alleged to have been sustained by her in consequence of injuries received by her minor son in an automobile accident for which she charges defendants are responsible. The facts and circumstances surrounding the accident appear in Essenberg v. Achterhof, 255 Mich. 55. Prior to the accident the father of the minor had died. The mother here seeks to recover expenses incurred by her incident to her minor son’s injuries and also the loss of his earnings during his minority which the mother has or will sustain. Plaintiff had judgment for $2,100; and the defendants have appealed. Appellants ’ first contention is that the question of the emancipation of the minor son should have been submitted to the jury as an issue of fact. The trial court held as a matter of law that the son had not been emancipated. The testimony disclosed that until the week prior to his injury the minor’s earnings had been limited to substantially 75 cents a week for assistance rendered on Saturdays to his stepfather, who operated a milk route, and that the son had been allowed to retain these small earnings for his individual spending money. The testimony also disclosed that other minor sons of plaintiff living in the family were permitted to retain their earnings after paying an agreed amount to plaintiff for board. However, it further appears from the record that this minor son was not only living in the home of his mother, but that he was clothed, boarded, sent to school by her, and had plans for continuing his school work until graduation. In the former suit by the minor son, no attempt was made on his part to recover for impaired earning power during his minority. The evidence of the injured minor having been permitted to retain his small earnings for spending money of of the relationship between the mother and her other sons, in -the face of the positive facts disclosed by the record and refuting emancipation, is not sufficient to icreate an issue for the jury. Allowing a minor to retain small earnings as spending money is not in and of itself proof of emancipation. It is only an ordinary incident in the development, education, and home life of most minors; being merely the equivalent of a parent giving the minor such amounts for his own use. The trial judge was correct in refusing to submit the question to the jury. Appellants also assert the trial judge in his instructions to the jury adopted a wrong rule of damages. They contend that the measure of the mother’s recovery for damages resulting from the impaired earning power of her injured son is the amount by which his earning capacity during minority is diminished less the cost of rearing him. They cite numerous cases in their brief, but, with the exception of one, to which attention will later be called, each of the Michigan decisions involved the death of a minor rather than his injury and impairment of earning power. Obviously, in case of death the proper rule of damage would be to deduct the cost of rearing, because by death of the minor the parent is relieved of that expense. But this is not true where the minor survives. The Michigan decision on which appellants largely rely is Pratt v. Detroit Taxicab & Transfer Co., 225 Mich. 147, wherein it is said: “It was and is insisted that the trial judge was not authorized in submitting to the jury the question of plaintiff’s pecuniary loss for the services of his minor son by reason of the fact that such loss must be limited to the probable earnings of the minor less the expense of his living until he reached the age of 21, and that the case being barren of any evidence of the probable expense of his living, the verdict * * * is without evidential support.” The' decision in the circuit court was affirmed in this court; and is construed by appellants as upholding the rule of damages for which they contend. A careful reading of the Pratt Case, together with an investigation of the record and briefs therein filed, discloses that the question now before us was not at all involved. There the trial judge, in accordance with the defendant’s request, charged the jury that the damages “as counsel have both indicated * * * (are) the loss of the wages that the father would sustain, * * * less the expense of his (the minor’s) care and keep from the time of the accident to the time that he is 21 years old.” The defendant was the appellant, and therefore could not and did not assign error upon a charge given in exact accordance with its request. Further, as noted from the above-quoted portion of the charge, counsel on both sides of the Pratt Case seem to have agreed that the-rule of damages given by the court to the jury was the proper rule. The only complaint made by appellant on this phase of the record was that the ultimate result could not be determined by the jury because there was no testimony tending to establish the cost of maintaining the minor. This contention was overruled on the authority of Black v. Railroad Co., 146 Mich. 568. The Pratt Case is not an authority in support of appellants’ contention as to the proper rule on the measure of damages in the instant case. Decisions may be found in other jurisdictions sustaining the rule for which appellants now contend; but they concede in their brief that it is the minority rule. We think it is not the proper rule. In Houston & T. C. R. Co. v. Lawrence (Tex. Civ. App.), 197 S. W. 1020, the correct rule of damage is thus indicated : “The damages recoverable by a parent for injuries to a minor child, not resulting in death, are not restricted to the value of the services of the child during his minority, less the expense of feeding and clothing; this is so for the reason that the expenses of feeding, clothing and educating the minor during his minority devolve upon the parent anyway, and such expenses in the present case were not shown to have been diminished, but rather increased, by the injury. Texas & P. R. Co. v. Morin, 66 Tex. 133 (18 S. W. 345).” See, also, Thomas v. Railway Co. (Mo. App.), 180 S. W. 1030, 1031. It is further contended by appellants that the verdict is excessive. At the time of injury the son was not quite 16 years of age, and was attending high school. He had just been employed by his stepfather to work during the vacation period at ,$6 per week. His earnings for the one week he worked were paid to and retained by the plaintiff. One of plaintiff’s other minor sons was employed in this same manner at $17 per week. As a result of his injuries, plaintiff’s son has a permanently stiffened knee; and obviously is handicapped, if not wholly incapacitated, for doing the work for which he was employed. A reasonable inference is that as he grew older his earning capacity would have normally increased. Plaintiff’s testimony was that she had incurred and partially paid hospital and physicians’ bills incident to her son’s injury amounting to $1,063. Thus it is fair to assume that the jury awarded plaintiff less than $1,000 as damages resulting from the impaired earning capacity of her minor son. Under this record the amount so awarded is not excessive. Appellants’ claim that the verdict is excessive is in part, at least, based upon their contention that the court failed to instruct the jury as to the proper measure of damages. Our holding above is not in harmony with appellants ’ contention in this regard. The judgment of the circuit court is affirmed, with costs to appellee. Clark, C. J., and McDonald, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred.

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Butzel, J. Effie M. Sharpe, plaintiff, filed a bill for divorce against Lewis Sharpe. The parties were married on January 11, 1928, at Detroit. Plaintiff was 48 years of age and had never been married before. Defendant was almost 10 years older. Previous to her marriage, plaintiff was a buyer for a department of a very large mercantile establishment. She gave up her position and cannot get it back. Defendant had three children by two previous marriages, both wives having died. They were sisters whom plaintiff had known and through whom she had met defendant over 20 years prior to her marriage to him. Plaintiff knew that defendant ran a saloon where intoxicating liquor was sold. He gave up the business when he married. The parties had spent many evenings together previous to their marriage and frequently at roadhouses where intoxicating liquors were partaken of at their meals. Liquor was used during their honeymoon trip, and although plaintiff very vehemently declared in the course of her testimony that she hated liquor, she admitted’ that she herself had indulged in its use. She must have known that the running of a saloon was illegitimate. The parties had many quarrels during the short period of four months during which they lived together, but excepting one or two instances they were not of a serious nature. We do not believe there is any reason why, with an effort on the part of each of them, there cannot be a reconciliation and a restoration of domestic peace. According to plaintiff’s own testimony, after the return from the wedding trip, she found that defendant was drinking to excess and she asked him to again engage in the liquor business. He acted in accordance with her suggestion and they took up their residence in a flat over the saloon he conducted. The charges made by her were not, in the opinion of the trial judge, supported by the requisite preponderance of testimony reaching the dignity of evidence. He was not at all in sympathy with plaintiff’s asking for legal redress when she admitted that she asked defendant to engage in an illegal business which may have been indirectly the contributing cause of defendant’s alleged misconduct. We believe the court reached the correct conclusion in dismissing the bill of complaint. The decree is affirmed, with costs to defendant. Clark, C. J., and McDonald, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred.

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North, J. Fred G. Dewey, as attorney for the plaintiff in the above-entitled cause, by order of the circuit court, was given an attorney’s lien in the amount of $1,460.66 upon the judgment of $3,350 obtained against the principal defendant. See Shank v. Lippman, 253 Mich. 451. Thereafter Mr. Dewey garnisheed the account of the defendant at the Peoples Wayne County Bank, which disclosed an indebtedness to the principal defendant in the amount of $4.74. Upon motion of the principal defendant the circuit judge dismissed the garnishment proceeding upon the ground that “the said lien claimant did have no just cause to be apprehensive of the loss of such claim.” See 3 Comp. Laws 1929, § 14857. Without obtaining leave of this court, an appeal has been taken from the order dismissing the garnishment proceeding. Appellee moved to dismiss the appeal on the ground that it appears from the record the amount involved is not in excess of $500, and under both the rule (Court Rule No. 60) and the statute (3 Comp. Laws, 1929, § 15491) permission to appeal was necessary. Clearly the motion is well founded. See Hermesmeyer v. Northwestern Investment Co., 254 Mich. 384. In the matter now before the court, the right to appeal without leave is not controlled by the amount involved in the principal suit, but rather by the amount of the liability of the garnishee defendant to the principal defendant. There is no showing that this is in excess of $500. The appeal is dismissed, with costs. Clark, C. J., and McDonald, Potter, Sharpe, Pead, Wiest, and Btjtzel, JJ., concurred.

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Butzel, J. The following statement of facts and controlling questions of law have been certified to this court pursuant to the provisions of Rule No. 78 of Michigan Court Rules: On July 22,1923, and prior thereto, William Doyle was a police officer of the city of Saginaw duly qualified and acting as such. On that day, while engaged in the performance of his official duties as a police officer, he suffered a sunstroke and thereafter died on May 15, 1925. Following the sunstroke, William Doyle became ill and was treated by a physician until the time of his death, and, for the purposes of this record, the sunstroke is considered the proximate cause of his sickness and death. Neither William Doyle, in his lifetime, nor his widow, or any person claiming to be his dependent, made any claim for or received workmen’s compensation under the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.). On October 20, 1925, Margaret Doyle, the widow of William Doyle, made application to the council of the city of Saginaw for a pension under the provisions of the charter of the. city of Saginaw providing for pensions to the widows and dependents of firemen and policemen dying as the result of injuries received while in the perform anee of their official duties. Hearing was had upon this petition by the council November 24, 1925. On October 14, 1930, the council formally denied the application for pension. On October 21, 1930, suit was commenced in the circuit court for the county of Saginaw for the recovery of moneys claimed to be due on account of accrued pension. The plaintiff filed a declaration and the defendant thereupon moved to dismiss. The relevant provisions of the charter of the city of Saginaw are as follows: “Sec. 154. Any person 'who has been a fireman or a policeman and a member of the fire or police department of the city of Saginaw for a period of twenty-five years, may, by written application, be placed on the list of retired firemen and policemen of this city., In computing the period of service of any fireman or policeman, the length of time served by him as a member of the fire or police department of either the city of Saginaw or East Saginaw as they formerly existed before consolidation as the city of Saginaw, shall be added to the time he has served in the city of Saginaw as now constituted. “Sec. 155. Any person who’ is a fireman' or policeman and has been a member' of the fire or police department of the city of Saginaw, Michigan, for a period of ten years, who may hereafter become incapacitated, while in the actual performance of his official duty, through any cause other than by accident, shall be placed on the list of retired firemen and policemen of this city by resolution of the council of the city of Saginaw, whenever there may be furnished to said council sufficient proof of such incapacity. The said council to prescribe the form and character and sufficiency- of the proof required. “Sec. 156. All firemen and policemen who may be placed on' the retired list and remain thereon, shall receive a sum equal to one-half of their annual salary paid to them at the time of their retirement, not to exceed six hundred dollars per year, to be paid to them, in equal weekly payments during the remainder of their lives. ‘ ‘ Sec. 161. When the widow, children or dependent parent, or either of them shall be entitled to a pension, as in this charter provided, such widow, children or dependent parent shall make application for a pension to the said council, on a form to be provided by said controller, and shall furnish such proof with reference to marriage, birth and age of children, and dependency of parents, and other essential particulars, as said council, aforesaid, shall determine or require. All applications and proof shall be retained in the office of the controller of said city. When applications for pensions are allowed, due notice of such action, with the names of all pensioners, shall be given to the controller, who shall cause such record to be made as in this charter provided. “Sec. 162. In case of incapacity of any fireman or policeman at any time from injury or accident received by him in the performance of his official duty, or in case of death resulting from injury received by him in the performance of his official duty, there shall be paid to him or his widow, children or dependent parents, as the case may be, the sum provided for in section 156 of this charter, provided, however, that this sum or sums shall not be paid until after said person or his widow, children or dependent parents shall have ceased to receive compensation under and by virtue of the ‘Michigan workingman’s compensation and employers’ liability acts, ’ approved March 20, 1912, the provision of this charter being supplemental to said act; and provided, further, that in case said ‘workingman’s compensation and employers’ liability act’ shall be held unconstitutional or void for any reason by the Supreme Court of the State of Michigan, or the Supreme Court of the United States, then the pro visions of this charter shall obtain as to firemen and policemen injured, or killed while in the performance of their official duty, the same as though incapacitated from any other cause.” Questions. First: Was sunstroke an injury within the meaning of the pension provisions of the charter of the city of Saginaw? Second: Was an application for and an award and payment of workmen’s compensation a condition precedent to the payment of the pension provided for in the charter of the city of Saginaw? Third: Under the terms of the charter of the city, is a pension payable for an injury which is not within the provisions of the workmen’s compensation act and of a character for which workmen’s compensation could not be recovered? Fourth: Has the plaintiff, widow of the deceased police officer, an election to take the pension provided in the charter or workmen’s compensation? Fifth: Are the provisions of the charter for pension and provisions for workmen’s compensation alternative or cumulative rights? It is unnecessary to discuss at length the nature of a sunstroke, about which there is not a unanimity of opinion among the medical authorities. Heatstroke and sunstroke are so similar that the terms are frequently used interchangeably. According to 14 Oxford Medicine, pt. 2, p. 664 (2): “There is abundant proof based on clinical observations and experimental investigations which support the view that heatstroke results from a disturbance of the heat balance of the body due to an environment that is unfavorable for heat elimination # * *. The theory that sunstroke is due to •'the actinic rays of the sun rather than to heat is no longer tenable.” We are surfeited with so many serious questions in jurisprudence that we dare not venture, even were we able, to pass judgment upon controversies in fields foreign to our own. We are able to say, however, that sunstroke is not a compensable accident in the meaning of the workmen’s compensation act of Michigan. At most it may be regarded in the same light as an occupational disease and not within the purview of the act. Decisions from other States where the act differs from our own are not pertinent. It is true that in LaVeck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916D, 1277), in the case of a workman who was overcome while in a very hot room where he was obliged to perform an abnormally large amount of work during the week, the court held that the unusual hours of work and the unusual conditions were the cause of a cerebral hemorrhage and resulting paralysis, and that he was entitled to compensation. This case was distinguished in Roach v. Kelsey Wheel Co., 200 Mich. 299, where plaintiff’s decedent was working with others in rebuilding brickwork around a boiler which caused the temperature of a very hot day to rise to about 136 degrees, and decedent was overcome while working and later died from prostration. It was held that this was not a compensable injury. A dissenting opinion conceded by implication that had death been due to the natural heat of a summer’s day, there could be no recovery. In Adams v. Acme White Lead & Color Works, 182 Mich. 157 (L. R. A. 1916A, 283, 6 N. C. C. A. 482, Ann. Cas. 1916D, 689), it was held that lead poisoning was not an accidental injury compensable under the Michigan statute, but it was such a disease as might be expected from the nature of the work. In Landers v. City of Muskegon, 196 Mich. 750 (L. R. A. 1918A, 218), a fireman died of pneumonia contracted as a result of becoming drenched while fighting a fire. The court, in holding that it was not an accidental injury, stated: “The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.” In Sherman v. Flint Spring Water Ice Co., 229 Mich. 648: “Wearing a wet mitten on a zero day and freezing his hand is not an accident within the meaning of the compensation act. Getting one’s hands wet and cold, and one’s mittens wet, while engaged in handling ice are natural, if not necessary, incidents of the work.” To like effect: Andrejwski v. Wolverine Coal Co., 182 Mich. 298 (6 N. C. C. A. 807, Ann. Cas. 1916 D, 724); Kutschmar v. Briggs Manfg. Co., 197 Mich. 146 (L. R. A. 1918B, 1133); Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445; Wilcox v. Clarage Foundry & Manfg. Co., 199 Mich. 79; Perkins v. Jackson Cushion Spring Co., 206 Mich. 98; Savage v. City of Pontiac, 214 Mich. 626; Hagrove v. Arnold Construction Co., 229 Mich. 678 (40 A. L. R. 398); Mauch v. Bennett & Brown Lumber Co., 235 Mich. 496; Sinkiewicz v. Lee & Cady, 254 Mich. 218. Many municipalities have provided for pensions in case of death or disability of policemen on account of the unusual risk they run in encountering lawlessness or acting in dangerous situations. The quoted provisions of the charter, however, do not state the reason for their adoption. Counsel do not question but that the workmen’s compensation act applies to policemen under 2 Comp. Laws 1929, §§ 8411, 8413. The fact that neither Doyle nor his dependents made application for compensation does not help us in construing the charter, for sunstroke is not a compensable accident or injury under the act. The main question is whether the right to pension exists when the right to compensation- does not exist. The provisions of the charter, if read without reference to the workmen’s compensation act, might lead us to other difficulties in determining for what length of time compensation should run to the children of a deceased policeman who survived their mother. We are led to the conclusion that additional compensation is provided for only after the payment of the weekly awards under the act, and that as the charter provisions are only supplemental to the act, they apply only to such accidental injuries as are compensable under the act. Slater v. City of Grand Rapids, 248 Mich. 480, and Ford v. Kuehne, 242 Mich. 428, are not pertinent, for the charter provisions therein referred to contained no such conditions or limitations as those now in question. The provisions of the charter that the sums specified therein should not be payable until “after said person or his widow, children, or dependent parents, shall have ceased to receive compensation under” the act, and the further statement that the provisions of the charter are “supplemental” to the act, cannot be overlooked. These words show that the receiving of compensation is a condition precedent to receiving a pension. A supplemental act is one designed to improve an existing statute, by adding something thereto without changing the original text. McCleary v. Babcock, 169 Ind. 228 (82 N. E. 453); Loomis v. Runge, 14 C. C. A. 148 (66 Fed. 856). Supplemental statutes include every species of amendatory legislation which goes to complete a legislative scheme. Rahway Sav. Institution v. Common Council of Rahway, 53 N. J. Law, 48 (20 Atl. 756); First State Bank of Shelby v. Bottineau County Bank, 56 Mont. 363 (185 Pac. 162, 8 A. L. R. 631). The charter provision in the case at bar being ‘ ‘ supplemental ” it is clear that it creates no original and independent rights, but only something in addition to the compensation act. It is necessary to tie it up with the compensation act, and to limit recovery under it to situations where the injured party can and does receive compensation. Since sunstroke is not compensable under the act, it is not compensable under the charter. Questions 1, 3, 4, should be answered: No. Question 2 should be answered: Yes. Question 5 should be answered: The provisions are cumulative rights. The questions being of a .public nature, no costs will be allowed. Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.

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North, J. In September, 1927, the common council of the city of Detroit enacted an ordinance permitting the Detroit & Canada Tunnel Company (for merly the Detroit-Ontario Subways, Inc., and hereinafter called the Tunnel Company) to construct, maintain, and operate an international tunnel and approaches thereto for vehicular travel between Detroit, Michigan, and Windsor, Ontario. The portion of the tunnel with which we.are concerned was constructed in Randolph street in the city of Detroit. Plaintiffs were lessees of the St. Lawrence Hotel located at the Corner of Atwater and Randolph streets, under a lease expiring June 19,1931. In this building, which was four stories high, plaintiffs operated a hotel, a restaurant and lunch room, and subrented two portions in which stores were conducted. The excavating and tunneling of defendants in Randolph street extended in front of plaintiffs’ property; and they allege that defendants’ failure to provide the hotel property with sufficient lateral and subjacent support resulted in damaging the building and rendering it unsafe for occupancy, that the means of ingress and egress to plaintiffs’ property were greatly impaired by defendants, and plaintiffs in consequence suffered loss of trade and income. In this suit they seek to recover loss of profits and for losses incurred incident to operating expenses prior to May, 1930, at which time the building was found to be in such a dangerous condition that it was ordered demolished by the Detroit department of buildings. Plaintiffs’ declaration contains two counts: the first based upon Act No. 314, Pub. Acts 1921 (3 Comp. Laws 1929, §§ 13500-13503), and the second alleges the withdrawal of lateral support and negligence in the method of excavating and underpinning resulting in damage to plaintiffs’ leasehold, for which recovery is sought on the theory of common-law liability. The trial judge in determining plain tiffs were not entitled to recover on the second count said: “Before he can recover, the plaintiff must prove by a preponderate of the evidence that careless excavating was done which resulted in his damage. The court is unable to find from the proofs that such was the case.” Act No. 314, Pub. Acts 1921 (3 Comp. Laws 1929, §§ 13500-13503), relied upon in the first count of plaintiffs ’ declaration, in part reads: ‘ ‘ Section 1. It shall be the duty of every person, partnership or corporation who excavate upon land owned or occupied by them to a depth exceeding twelve feet below the established grade of a street or highway upon which such land abuts or, if there be no such established grade, below the surface of the adjoining land, to furnish sufficient lateral and subjacent support to the adjoining land to protect said land and all structures thereon from injury due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation. “Sec. 2. Such owner or occupants shall be liable to the proper person entitled to sue therefor, for the actual damage to land and structures and any other resulting damages, arising from failure to fulfil the duty created by this act. They shall also be liable to occupants or tenants of such land or structures for damage to their property or business proximately resulting from injury to such land or structures caused by their failure to fulfil said duty. ’ ’ Upon trial before the circuit judge without a jury, plaintiffs had judgment for $9,506. The Tunnel Company and the other defendants who were contractors or subcontractors have appealed. Among the defenses urged in the trial court and also urged in this court are: (1) The statute above quoted is unconstitutional; and (2) even if the act is valid, it does not apply to excavations made by the city or its licensees in a public street. If the second contention is well founded it becomes unimportant, for the purposes of this case, to pass upon the constitutionality of the act. "While statutes or ordinances of similar purport will be found in the many States, as might be expected, they vary in terms; and therefore an adjudication of the exact question before us cannot be found. But courts of other States have passed upon the question as to whether statutes couched in somewhat similar terms are applicable only to private owners of adjoining parcels of land, and therefore inapplicable to operations carried on by municipalities or licensees in a public street. In arriving at a proper construction of this statute, it must be borne in mind that it is in derogation of the common law under which one excavating on his own land is bound as to lateral support to protect the soil on the neighboring lot in its natural state, but he is not required to provide support for the added weight of buildings erected thereon. Hemsworth v. Cushing, 115 Mich. 92; Bissell v. Ford, 176 Mich. 64; Horowitz v. Blay, 193 Mich. 493; Collias v. Detroit, etc., Loan Association, 220 Mich. 207. Legislation of this type has been characterized as a radical departure from the common law. Hirschberg v. Flusser, 91 N. J. Law, 66 (102 Atl. 353). Being in derogation of the common law the statute should be strictly construed. It is urged by appellants that the phraseology of the statute itself precludes the idea of its being applicable to excavations in streets. It applies only to excavations the depth of which exceed 12 feet “below the established grade of a street or highway upon which such land abuts. ’ ’ From the wording of the statute and the obvious purpose of its enactment the conclusion is almost inescapable that the legislature had in mind only such excavations as were on land abutting a street, and therefore not land included within the street itself. The contention is thus stated in one of appellants’ briefs: “The intention was undoubtedly to extend the common-law rule as between private owners of city lots, so that one owner who makes a deep excavation must protect his neighbor’s building as well as his soil. * * * There is nothing in the statute which plainly and expressly shows an intention to change the existing law so far as public streets are concerned, and nothing can be added to the statute by implication.” Citing Speck v. County of Wayne, 237 Mich. 202. It is further urged by appellants that, unless the terms of the statute clearly include municipalities and impose the statutory liability on them and their licensees incident to street excavations, it should be held that such municipalities and their licensees are not included within its provisions. “It is the prerogative of the State to be exempt from coercion by suit except by its own consent. * * * The remedy, therefore, for consequential injury resulting from the State’s actions through its agents, if there be any, must be that and that only which the legislature shall give. It does not exist at common law.” Citing Northern Transportation Co. v. Chicago, 99 U. S. 635. In passing upon somewhat similar statutory provisions, it has been held in both New York and Ohio that they are not applicable to excavations made in public streets. The New York statute reads: “Section 474. Whenever excavations for building or other purposes, on any lot or piece of land in the city of New York, shall be intended to be carried to the depth of more than ten feet below the curb, at a place where there is any party or other wall wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced, whether said adjoining wall is down more or less than ten feet below the curb.” Laws of New York, 1887, chap. 566. In Jencks v. Kenny, 19 N. Y. Supp. 243 (quoting syllabus), it is held: “The New York consolidation act (quoted above), requiring an owner excavating below 10 feet to protect his neighbor’s wall, does not apply to one excavating in a street of New York city under a contract with the municipal authorities.” Again, in New York Steam Co. v. Foundation Co., 195 N. Y. 43 (87 N. E. 765, 21 L. R. A. [N. S.] 470), it is said: “Nor is the defendant liable because it violated any duty imposed on it by statute or ordinance, such as the building code, which * * * applies to adjacent property under private ownership, and has no application to excavations in a public street. ’ ’ In the above case each of the parties was exercising proprietary rights in a public street; and following the above-quoted portion of the opinion the court added: “The rights of the parties are not controlled by the common-law doctrine of lateral support, as thus far applied by the courts. That doctrine is limited to adjacent lands under private ownership, except that, while it requires the adjacent landowner to preserve the .lateral support to a public highway, it does not require the municipality owning the highway to preserve the lateral support to the adjacent land. Village of Haverstraw v. Eckerson, 192 N. Y. 54 (84 N. E. 578, 20 L. R. A. [N. S.] 287); Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195 (53 Am. Dec. 357).” In a later New York decision it was again held, quoting syllabus: “Section 22 of the building code of the city of New York, as then in force, requiring a person causing an excavation to be made on a lot in said city, to a depth of more than ten feet, to protect buildings on an adjacent lot, and the like statutory provisions on which it is based relate only to excavations on lots and do not apply to excavations in a public street.” Susswein v. Bradley Contracting Co., 184 App. Div. 852 (172 N. Y. Supp. 652). In Brinkmeier v. City of Cincinnati, 20 Ohio N. P. 346, the court said: “On the part of the plaintiff it is contended that apart from negligence, in the absence of any proof of negligence, the plaintiff is entitled to recover by virtue of General Code, § 3782, which provides that if ‘the owner or possessor of any lot of (or) land in any municipality digs * * * to a greater depth than nine feet below the grade of the street or streets on which said lot or land abuts or * * * below the established grade of the street * * * and by said excavation causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner or possessor shall be liable in a civil action to the party injured to the full amount of such damage.’ It is the contention that the city is the owner of its streets and that as sneh is liable to an abutting owner for damage arising from an excavation deeper than nine feet. “However, a careful reading of the entire statute convinces me that the legislative intent was not to include a municipal corporation as to its ownership of the streets themselves. Reference is clearly had to a lot abutting on a street, and it seems to me to require a very forced construction to include in the foregoing phrase the street itself.” We think it is equally plain that a careful reading of the Michigan statute forces the conclusion that the legislature intended it to apply only to privately-owned land abutting on a street and not to the street itself; and to sustain plaintiffs’ contention that it also includes land within the street necessitates resorting to a forced and strained construction. The only remedy open to plaintiffs was their common-law right of action to recover for damages, if any, to their property proximately caused by defendants’ negligence. The trial judge found no negligence established; and plaintiffs have not appealed from this determination. It is not revi'ewable on a record, which like that before us, does not contain the testimony taken in the circuit court. The judgment is reversed, and the cause remanded, with direction to enter judgment for defendants. Costs to appellants. Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.

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McDonald, J. This bill was filed to secure the reformation of a deed on the ground of mutual mis take. On the hearing, a decree was granted to the plaintiff. The defendant has appealed. The testi- ■ many tends to establish the following facts: • In 1914, the village (now city) of Highland Park was constructing a water supply main from Lake St. Clair. It desired to run the main through a small strip of land belonging to the plaintiff and her husband, Joseph Droste, now deceased. The Drostes refused to grant a right of way. The Gratiot Highlands Company owned a subdivision on the other side of Gratiot avenue across from the Droste property. Mr. Hesse was an officer of that company and a friend of Mr. Droste. So he was employed by Mr. Patterson, superintendent of water works of the village, to secure the right of way. He was not successful, but, in subsequent negotiations, he secured an agreement from them to sell the property to the village for $550. The agreement was in writing in the form of a receipt. It reads as follows: “June 20, 1914. “Received of Gratiot Highlands Company, sum of twenty-five dollars, same being first payment on a strip of land 20 feet wide as shown by plan hereto attached and is a part of the s. e. corner of Taylor road and Gratiot avenue. “The price is to be $550 for which sum Joseph Droste and wife agree to sell and Gratiot Highlands Company agree to purchase and the balance of the purchase price of $525 to be paid upon delivery of the warranty deed and a survey of the property and Mr. Droste and wife are to have a tap on each side of the property to take care of the two divided parts. “It is understood that this land is to be used for the right of way for the Highland Park water main. “(Signed) Joseph Droste. “Accepted: “Gratiot Highlands Company. “By H. J. Hesse.” Subsequently, a warranty deed was executed by tbe Drostes to the village. The restriction as to the use of the property by the grantee was not carried into the deed. It was an unconditional conveyance of the fee. This bill was filed to reform the deed in accordance with the agreement. It is well understood that an instrument will not be reformed on the ground of mistake unless the mistake was mutual. In this case, the agreement which the plaintiff says was omitted from the deed by mistake was made by Mr. Hesse, acting, it is claimed, for the village. Conceding, for the purpose of discussion, that Mr. Hesse was agent in negotiating for the right of way or the purchase of the property, his agreement to place a restriction on its use was not binding on the village unless his action was authorized or subsequently ratified. It is not claimed that it was authorized. The claim is that his agreement was ratified by the council. There is no merit in this claim. The village charter provided that no real estate or interest therein could be purchased or private property taken for public use except by concurrent vote of four-fifths of all members of the council (Highland Park Village Charter, chap. 4, § 6). The agreement in question was not presented to the council. The deed was presented and accepted and payment of the purchase price ordered. But there is nothing in the record tending to show that the council or any other of the city authorities ever heard of the agreement. The deed which they accepted contained no restriction or reservation whatever. It was an absolute conveyance of the fee. There was no mistake on the part of the grantee. The agent who drafted the deed may have made a mistake in omitting therefrom some of his agreements with the vendors, but his omission was not the act of the village. He made promises to the plaintiffs which he omitted from the deed, bnt they were not promises of the village, because they were made without authority and were not ratified. The mistake was not mutual to the parties named in the deed. In Adams v. Iowa Gas & Electric Co., 200 Iowa, 782 (203 N. W. 229), which was an action for a reformation of a contract so as to include representations of an agent, it was said: “Unless it may'be said that the representation of the agent was binding upon this defendant, the alleged mistake cannot be said to be mutual. It is elementary, that if one party is acting through an agent, it is necessary that he have authority to make the stipulations alleged to have been omitted from the contract.” . . In the instant case, reformation of the deed decreed by the trial court compels the defendant to ■ accept a deed with conditions it never agreed to or approved. It was not a party to the mistake. The decree of the trial court is reversed, and a decree will be entered here dismissing the plaintiff’s bill. The defendant will have costs. Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.

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Clark, C. J. Counsel are agreed that the question has not been decided by this court. It is on a paragraph of the will of May Walker, giving to trustee a sum of money “to pay the entire net income of said trust fund to Mrs. Predericka McMillan Crouse during the term of her natural life,” and it is: “Is income payable on the trust involved from date of death of testatrix to the date of turning over the fund to the trustee 1 ’ ’ The trial court answered in the affirmative. The plaintiff executor has appealed. The estate was productive of income from the death of testatrix and the amount and rate thereof were found in fact by the trial court and the finding is not questioned. It is not contended that the fund is residuary nor that testatrix stood in loco parentis to the beneficiary. The legacy is of income, not a part of the corpus of the estate. And this is true although the will further provides that trustee may, in its sole discretion, use any part of the trust fund for support and maintenance of beneficiary. The gift, as regards the beneficiary alone, is of income.. Interest upon a legacy is not here sought. The attempt is to secure the legacy itself, the income of the fund from the death of the testatrix. The beneficiary is entitled to the income whenever it accrues, and, as there has been such net income from the death of the testatrix over the period in question, beneficiary should have it. Authorities on the question are divided. See 40 Cyc. p. 1881. The better rule, accepted by the trial judge, is stated in a leading case, Matter of Stanfield, 135 N. Y. 292 (31 N. E. 1013), quoting: “Where the income of an estate, or of a designated portion, is given to a legatee for life, we think it is clear that he becomes entitled to it whenever it accrues, and if the estate is productive of income from the death of the testator, he can require the executor to account to him for the income from that time. The rule that general legacies shall not bear interest until the expiration of one year from the grant of letters testamentary, or of administration (Matter of McGowan, 124 N. Y. 526 [26 N. E. 1098]), has no application in such a case. It is, by its terms, limited to general legacies payable out of the corpus of the decedent’s estate. In the present case the bequest is not a part of the principal of the estate, or of any property possessed by the testator in his lifetime; but of that which is to arise or accrue after his death from a specified fund to be set apart for that purpose. It is the income which constitutes the respondent’s legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself and his effort, therefore, involves no infringement of the rule regulating the payment of interest upon general legacies. ’ ’ The case was cited and approved in Matter of Bird, 241 N. Y. 184 (149 N. E. 827). Some other cases supporting this view are: Martha Catron’s Estate, 82 Mo. App. 416; Webb v. Lines, 77 Conn. 51 (58 Atl. 227); Flickwir’s Estate, 136 Pa. 374 (20 Atl. 518); Mulcahy v. Johnson, 80 Colo. 499 (252 Pac. 816); Doherty v. Grady, 105 Me. 36 (72 Atl. 869); Ayer v. Ayer, 128 Mass. 575. Affirmed. Costs to appellee. McDonald, Potter, Sharpe, North, Fead, Wiest, and Bijtzel, JJ., concurred.

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McDonald, J. The plaintiff, Grand Rapids Trust Company, as receiver of the Peninsular Fire Insurance Company, obtained a judgment in the Wayne circuit court against defendant Gleason V. Lutes, and caused execution to issue which was returned unsatisfied. This bill was then filed against Lutes and others for discovery, appointment of receiver, and for general judgment creditor relief. Hattie Besser and the Alpena County Savings Bank, also judgment creditors of Lutes, were permitted to intervene as parties plaintiff. The bill charges that defendant Lutes is the owner of an interest in a partnership known as the Gen eral Association; that he is the owner of 311,500 shares of stock in the Gill & Fortune Lumber Company, Ltd., a Canadian corporation; that the defendants Lange, Eoss, and Kinsler have conspired with Lutes to conceal hi's interest in that company; that they were claiming an assignment from Lutes of the certificate for 185,600 shares of the stock which the plaintiff charges was made to hinder and defraud his other creditors. Eoss, Kinsler, and Lange were the only defendants represented at the hearing, and the contested issue was whether the assignment was fraudulent as to creditors. The trial court held that it was and entered a decree impounding the stock for their benefit. Eoss and Kinsler assigned their interests to Lange and he alone is prosecuting this appeal. In the history of the stock certificate in question, it appears that in June, 1923, one William Fitzpatrick sold to the defendant Gleason Y. Lutes 285,600 shares of stock in the Gill & Fortune Lumber Company, Ltd., and received in part payment of the purchase price certain promissory notes, three of which of $5,000 each are involved in this controversy. The agreement for the sale was in writing, in which it was provided that 100,000 shares of the stock were to be delivered to Lutes and the remaining 185,600 shares held in escrow by the Great Lakes Finance Corporation for delivery when the notes were paid or satisfactorily indorsed. Some time in July, 1923, Fitzpatrick, who had been associated with the defendants Eoss, Kinsler, and Lange in the operation of a stone quarry in Cheboygan county, Michigan, purchased the quarry from them and gave in payment therefor the three Lutes notes indorsed in blank by himself. Both Fitzpatrick and Lutes represented to the defendants that the notes were secured by the certificate of the 185,600 shares of stock held in escrow by the Great Lakes Finance Corporation. After verifying this representation by telephoning the Great Lakes Finance Corporation, defendant Ross, in the presence of Lutes and Fitzpatrick, made the following notation on the back of the notes: “This note is secured by 185,600 shares of Gill & Fortune Lumber Company, Ltd., stock which is held in escrow for the guarantee of this payment.” The defendant Ross was president of the Conductors Protective Assurance Company of Detroit. His company had made a loan of $3,500 to the defendants and held a mortgage for that amount on the 100 acres of land included in the stone quarry property. This mortgage had been foreclosed at the time of the sale to Fitzpatrick. The deed to Fitzpatrick was given by the company. The notes given by Fitzpatrick in payment were taken by the defendants, who had an oral agreement with the company by which they were to collect the notes, pay the company $3,500, and retain the balance. The notes were not paid when due. They were given to defendants’ attorney, Mr. Wynn, for collection. He was unable to sue Lutes because,he could not get service' on him. Negotiations with Mr. Foster, attorney for Lutes, resulted in getting the certificate of stock from the Great Lakes Finance Corporation and placing it in the custody of Mr. Wynn as escrow agent to be held by him as security for the payment of the notes. Subsequently, as no payment had been made by Lutes, an agreement was made with him by which the certificate of stock was assigned and delivered to the defendants in full payment of two of the notes which at that time, with accumulated interest, amounted to approximately $13,000. The notes were delivered to Mr. Foster. After considerable delay the certificate was sent to the home office of the Gill & Fortune Lumber Company, Ltd., in Ontario, Canada, for registration, which was refused because a levy had been made on the stock by the Fidelity & Deposit Company of Maryland. Defendants began mandamus proceedings to compel the transfer. When the suit at bar was commenced, further prosecution of the mandamus proceedings was enjoined. It is this assignment that is involved in this suit. The trial court held it was made to hinder, delay, and defraud creditors, and therefore was void. In reaching this conclusion, he found that the defendants were not creditors of Lutes; that they were not bona fide holders of the notes and had no interest in them. The evidence does not sustain the court’s findings. The notes were received by the defendants from Fitzpatrick in payment of the purchase price of the stone quarry, the title to which was in the Conductors Protective Assurance Company by virtue of the foreclosure of a mortgage securing a loan of $3,500. The defendants had invested a large amount of money for personal property and equipment not covered by the mortgage but included in the sale. The company recognized their interest and was wilb ing to take the amount of its mortgage from the proceeds of the sale and allow them to retain the balance. The defendants made the sale with that understanding’, and the agreement then made gave them a larger interest in the notes than the company had. That agreement has never been questioned, and, as far as appears by the record, is valid and binding on the parties. The defendants had a real and substantial interest in the notes. But in any event, when the assignment of the certificate was made, the defendants were holders of the three negotiable instruments on which they could sue in their own names and which they could discharge on payment. Negotiable instruments law (2 Comp. Laws 1929, §§ 9258, 9300). They obtained the notes in good faith and for value. They were bona- fide creditors of Lutes. In the transaction with Lutes wherein defendants accepted an assignment of the certificate of stock in payment of two of the notes, we can discover no fraud. They had a lien on the stock long before they took the assignment. The notes had become due in 1925 and 1926. They took the assignment in 1930. They were crowding Lutes for payment. He gave them the certificate of stock as security,' and later, when further pressed, made an absolute assignment in payment of two of the notes. They had a right to demand security and the right to take the assignment providing there was no collusion with Lutes to hinder, delay, or defraud other creditors. Though he was financially in failing circumstances, he had a right to pay them in preference to his other creditors. It matters not that the effect was to hinder or defeat other creditors in the collection of their debts. If the transaction was honest and without intent to injure them, it cannot be held to be fraudulent. In respect to such transactions the law is well settled. “In general, when there is no fraud, and when the law does not forbid, a man may dispose of his own property according to his own ideas of propriety. If he is indebted by note to different parties, he may apply his property to the payment of one, and refuse to apply it to the payment of another, and he may lawfully discriminate in this way though in doing so he ignores the stronger moral claim resting upon Mm. This results from the supreme dominion which is involved in the absolute ownership of property.” Northrup v. McGill, 27 Mich. 234. The following cases are also in point: Scripps v. Crawford, 123 Mich. 173; Harnau v. Haight, 209 Mich. 604; Hartford Accident & Indemnity Co. v. Jirasek, 254 Mich. 131. In the instant case there is no evidence tending to show that the defendants were trying to aid Lutes in putting his property beyond the reach of creditors. They held an honest debt against him. They gave a fair consideration for the assignment. It did not render him insolvent. It was not fraudulent. The decree of the trial court is reversed, with costs to the defendants. Clark, C. J., and Potter, Sharpe, North, Fead, "Wiest, and Butzel, JJ., concurred. -

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Btjtzel, J. Mary A. Stofflet owned a homestead and a tract of vácant land to the west thereof, all fronting on the south side of Lawrence street, Ann Arbor, Michigan. On December 31, 1911, she conveyed 35 feet of the vacant property to Richard and Anna B. Kearns, designated herein as the defendants. We shall not refer to others, who also are joined as defendants, but took no part in the transactions herein set forth. In the deed to defendants, the northerly line of the property thus sold was described as beginning at a point on Lawrence street 193.98 east of the east liné of North Division street, and then extending east 35 feet, etc. The parties believed that 3 feet intervened between the westerly wall of the bay window of Mrs. Stofflet’s home and the easterly line of the 35 feet of vacant land sold to defendants. As a matter of fact, the bay window bordered on the easterly line of the 35 feet sold to defendants. The deed provided for a mutual driveway 6 feet in width, 3 feet to be taken from the east side of the 35 feet sold, and 3 feet from the west side of the property retained by Mrs. Stofflet. When defendants staked out their lot for the purpose of erecting a home, they first discovered that part of Mrs. Stofflet’s home stood 'on the westerly 3 feet of the property retained by her. Upon her attention being called to this discrepancy, she negotiated to purchase 3 feet west of the 35 feet in order to give it to defendants and in turn take back from them the more easterly 3 feet of the 35 feet, ahd thus contribute her share of land for the mutual driveway. The purchase was not made, but in consideration of her paying one-half of the cost of paving the driveway 6 feet in width and wholly on the defendants’ property, she was given the right to use the driveway. This use was permissive and in no way adverse. No written agreement was executed, nor was the permission given for any length of time. The Kearns erected their home west of the driveway thus built. In 1920, Mrs. Stofflet deeded the homestead to Harry Gr. Martin, plaintiff herein, and his wife, now deceased. The deed included the right to use the driveway. In 1924, a dispute arose, and, without plaintiff’s knowledge, his tenant for a time paid rent to defendants for the use of the driveway. A few years later, dissension arose and plaintiff filed this bill to quiet title to the easement he claimed in the driveway wholly on defendants’ property. Many questions are raiséd, but a decision of one of them is controlling. Plaintiff bases his claim on adverse user over a period of 15 years and upwards. We think it clear from the record that the use from 1911 until 1920 was permissive and not adverse. There could not be adverse user for the prescriptive period since then. The trial judge held in his opinion that the driveway was wholly on defendants’ property; that only the easterly 3 feet thereof was covered by the reservation in the deed; that plaintiff might use the easterly 3 feet of the driveway, but had no rights whatsoever in the westerly 3 feet. Defendants filed no cross-bill and made no claim to any rights in the westerly 3 feet of plaintiff’s property on which part of the house has stood since prior to 1911. The trial judge also expressed .his regret that a dispute over such a small matter should cause litigation between neighbors, and urged that it be settled out of court. We concur in his views, as well as in his decree dismissing the bill of complaint, with costs to defendants. Clark, C. J., and McDonald, Potter, Sharpe, Pead, and Wiest, JJ., concurred. Nor,th, J., did not sit.

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Wiest, J. This is an appeal by defendant from a summary judgment against him as an indorser of the following note: “Mason, Michigan, October 24, 1930. “On or before sixty days after date, I promise to pay to August Musolff or bearer, for value received, eleven hundred fifty dollars at the office of Dart National Bank, Mason, Michigan, with interest at. the rate of seven per cent, per annum. This note is given on the sale and purchase of one pair of horses dapple gray 4 & 5 years old; five head of registered Holstein cows and also all increase and it is expressly agreed that the title thereto shall remain in the said payee or any holder hereof until this note, or any renewal thereof, is fully paid, whereupon said title shall vest in the undersigned. In case default is made in such payment or said payee or any holder hereof shall deem himself insecure, or said property is removed from the premises now occupied by me without written consent of the said payee or any holder hereof this note shall become immediately due and payable and the said payee or any holder hereof is authorized to take possession of said property at once, wherever the same may be found. And after five days’ written notice mailed to me at the post office named below, sell and dispose of same at public or private sale, and after deducting all expenses connected therewith apply proceeds of such sale to the payment thereof, and the balance, if any, I agree to pay without interest as aforesaid. All parties to this instrument do hereby expressly waive presentation, demand, protest and notice of protest and consent that time may be extended without notice. We, each hereby certify that no undue influence or constraint has been exerted against the undersigned Mrs. Ulch in the execution hereof. “(Sgd.) George H. Ulch. “(Sgd.) Leontine Ulch.” This note was a renewal of a previous note of like wording, also indorsed by defendant, and which had been purchased by plaintiff before maturity, and of which plaintiff was holder in good faith. By answer defendant admitted execution of the note and his indorsement but asserted it was nonnegotiable and alleged usury in the original note by way of a $50 bonus, and alteration by substitution of one animal for another and consequent impairment of the security without his consent. Defendant presents four questions: “(1) Was the note sued upon by plaintiff as a matter of law negotiable ? “(2) Were the affidavits in opposition to motion for summary, judgment as a matter of law sufficient? “(3) Did the lower court err in refusing to consider the defenses set up in the affidavits in opposition to motion for summary judgment? “(4) Did the lower court err in refusing to take the interrogatories requested by appellant as provided for by section 6 of Court Rule No. 30, upon the filing of the affidavit according to rule? ” The note was in the nature of a chattel mortgage for, on its face, it evidenced retention of title as security only. Retention of title, by way of security only, does not destroy negotiability. As stated in Hersch on Michigan Conditional and Instalment Sales, § 32: “However, a transaction may be put through by promissory notes * * * reserving title by way of security only, not constituting a pure conditional sale. (Choate v. Stevens, 116 Mich. 28 [43 L. R. A. 277]; Van Den Bosch v. Bouwman, 138 Mich. 624 [110 Am. St. Rep. 336]; Tropical Paint & Oil Co. v. Hall, 225 Mich. 293.) And vendor can sue upon the notes without losing his security and may also take possession of the property. (Holcomb & Hoke Manfg. Co. v. Cataldo, 199 Mich. 265; Atkinson v. Japink, 186 Mich. 335.) Such notes are negotiable. (First State Savings Bank v. Russell, 244 Mich. 298; Schmidt v. Pegg, 172 Mich. 159; Wilson v. Campbell, 110 Mich. 580 [35 L. R. A. 544]; Choate v. Stevens, 116 Mich. 28 [43 L. R. A. 277]; Brooke v. Struthers, 110 Mich. 562 [35 L. R. A. 536]; Littlefield v. Hodge, 6 Mich. 326.)” Defendant claims that the acceleration provision in the note destroyed negotiability. We said in First State Savings Bank v. Russell, supra, of quite a similar note: “The clauses for acceleration of time of payment- and for inclusion of ‘accessories, parts or repairs’ in the security, stamp the instrument as a note and chattel mortgage. Heyman Co. v. Buck, 221 Mich. 225; Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15.” Also: “A note may be negotiable although secured by a mortgage. Littlefield v. Hodge, 6 Mich. 326; Choate v. Stevens, 116 Mich. 28 (43 L. R. A. 277); Schmidt v. Pegg, 172 Mich. 159.” The affidavits in opposition to the motion for summary judgment established no defense against plaintiff bank, a bona fide holder, the note being negotiable and purchased in due course by plaintiff before maturity. The defense of usury cannot be urged. It is also claimed that negotiability of the note was destroyed by material alteration, in that one cow was exchanged with the payee for another. A material alteration, to fall within the negotiable instruments act (2 Comp. Laws 1929, §§ 9373, 9374), must be of the writing itself. The substitution of one cow for another by agreement of the maker and payee did not constitute alteration of the instrument releasing the indorser. Defendant was not a guarantor but an indorser, and, as such, cannot urge an alteration in the security arising out of the exchange of one cow for another. The alleged defenses set up in the affidavits in opposition to the motion for summary judgment were not available against a good-faith holder of the note. One of the attorneys for defendant made affidavit: “That certain material facts which ought to appear in the affidavits of Charles W. Burton and Leontine Ulch are known to C. C. Dart and Albert Musolff, whose affidavits affiant is unable to secure by reason of their hostility and that they have personal knowledge of the fact that the cow was removed from the farm of Mrs. Ulch and removed from the security of the title-retaining note without the knowledge or consent of said Charles W. Bnrton and that if at the time Albert Musolff removed the cow the plaintiff was the holder of said note and the title to said cow, that the said Albert Musolff acted as the agent of said plaintiff, and this deponent believes that if placed under oath and sworn they would be required to testify to said material fact. “"Wherefore, your deponent believes that by the issuing of interrogatories that such facts could be presented to the court in opposition to the motion for summary judgment, and that a continuation should be had for the purpose of submitting said interrogatories to said parties, as allowed by section 6, Court Rule No. 30.” Mr. Dart was a witness at the hearing of the motion for summary judgment, and testified that he first learned of the substitution of one cow for another from the affidavit of defendant. There was no error in not permitting the requested interrogatories, for the matters sought constituted no defense against a bona fide holder. The judgment is affirmed, with costs to plaintiff. Clark, C. J., and McDonald, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred.

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Sharpe, J. On August 7,1931, an election was held pursuant to the provisions of Act No. 278, Pub. Acts 1909, as amended by Act No. 395, Pub. Acts 1919, to determine whether certain territory in the township of Breitnng should be annexed to the village of Kingsford. The proceedings incident to the taking of a vote on the question are not attacked. Section 4 of the act (1 Comp. Laws 1929, § 1766) provides that the question “shall be submitted to the qualified electors of the district to be affected” by the change of boundaries. Section 5, as amendéd in 1929 (1 Comp. Laws 1929, § 1767), reads as follows: “The district to be affected by every such proposed incorporation, consolidation or change of boundaries, shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed: Provided, however, That proposed incorporations, consolidations or changes of boundaries shall be submitted to the qualified electors residing within the territory proposed to be incorporated or residing within the village to which territory is to be annexed as the case may be, and also to the qualified electors of the city, village or township from which the territory to be taken is located and at the election, when the said question is voted upon, the city, village or township shall conduct the election in such manner as to keep the votes of the qualified electors in the territory proposed to be incorporated or annexed or detached in a separate box from the one containing the votes from the remaining portions of such city, village, or township, and if the returns of said election shall show a majority of the votes cast in the district proposed to be incorporated or annexed, voting separately, to be in favor of the proposed incorporation or change of boundary as the case may be, and if a majority of the electors voting in the remainder of the district to be. affected as herein defined, voting collectively, are in favor of the proposed incorporation or changé of boundary as the case may be, then such territory shall become incorporated as a village or shall become a part of the corporate territory of the village or shall be detached therefrom, as the case may be: Provided further, That in case there are no qualified electors residing within the territory proposed to be detached, or annexed, if a majority of electors voting in the remainder of the district to be affected, as herein defined, are in favor of the proposed change of boundary, then such territory shall become a part of the corporate territory of the village or shall be detached therefrom, as the case may be: Provided further, That the question of incorporating a new village from territory located in a township or townships shall be determined by a majority of the votes cast at an election at which only the electors residing within the territory proposed to be incorporated shall vote.” The count disclosed that in the territory to be annexed 193 votes were cast in favor of annexation and 4 against; in the village of Kingsford 517 for and 683 against, and in the township, not including the territory to be annexed, 302 for and 24 against. It thus carried in the territory to be annexed, and “in the remainder of the district to be affected,” as defined in the statute, there were 819 votes cast for and 707 against annexation. The returns of the election were made to the county clerk, and, pending the canvass thereof by the board of county canvassers, the plaintiff village and some of its taxpayers filed the bill of complaint herein, praying for an injunction restraining the consolidating of the vote of the village with that of the territory in the township not included in the territory to be annexed and its certification to the defendant county clerk by said board. The defendants answered, admitting the material facts alleged in the bill, and prayed for its dismissal. The case was submitted on bill and answer. Plaintiffs had decree, from which defendants have appealed. It is plaintiffs’ claim that section 5, above quoted, is unconstitutional in that it violates the provisions of sections 20 and 21 of article 8 of our State Constitution. These sections read as follows: “Sec. 20. The legislature shall provicle by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts. “Seo. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.” The purpose of these and other provisions which follow undoubtedly was to secure to cities and villages a greater degree of home rule than they formerly possessed. The provision for a general law for their incorporation was intended to confer upon them almost exclusive rights in the conduct of their affairs, not in conflict with the Constitution or general laws applicable thereto. The power vested in the legislature to provide for their incorporation is in no way limited. The authorities are united as to its extent. “Unless restricted by the constitution, the legislature may not only establish the original limits of the municipal corporations, but may alter or change the boundaries at any time by directly annexing or' detaching territory contiguous or otherwise, dividing or consolidating corporations, or, it may authorize such changes to be made by general or special law unless forbidden by the constitution, and this, may be done without the consent and even against the protest of the corporation, the local authorities or the inhabitants of the communities affected. This is regarded as a purely discretionary legislative prerogative, and unless the obligations of contracts or vested rights of third persons are impaired by such action, in accordance with the well established rule, the judiciary cannot interfere.” 1 McQuillin Municipal Corporations (2d Ed.), § 284. ■ “The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion, and substitute those which are different.” 1 Cooley’s Constitutional Limitations (8th Ed.), p. 393. See, also, 1 Dillon on Municipal Corporations (5th Ed.), § 355; 43 C. J. p. 106; 19 E. C. L. p. 732; Laramie Co. v. Albany Co., 92 U. S. 307. The legislature in 1889, by Local Act No. 455, consolidated the cities of East Saginaw and Saginaw into one municipality. While litigation ensued (Smith v. City of Saginaw, 81 Mich. 123), the power of thé legislature to so enact was not questioned. Act No. 279, Pub. Acts 1909' (1 Comp. Laws 1929, § 2228 et seq.), provided for the incorporation of cities. The provision therein for the annexation of territory, and the vote to be taken thereon, is similar to that in the village act. In Cook v. Kent Board of Canvassers, 190 Mich. 149, the result of an election held for that purpose was attacked. The section of the statute was quoted in full, and no suggestion made by the court that the legislature exceeded its power in defining “the district to be affected” by the change of boundaries. The trial court was apparently influenced in his decision by what was said by this court in Bray v. Stewart, 239 Mich. 340, 344: “The territory taken into the village when incorporated is in no way separated from the township. It still remains a part thereof, is subject to taxation therein, and its residents are electors thereof. ’ ’ It was, however, further said: “For some reason, however, the legislature in 1919 amended section 5 to read as above set forth. The change made might have some application where a consolidation or change of boundaries is desired, as was the case in Oakman v. Board of Sup’rs of Wayne Co., 185 Mich. 359, but the necessity of securing the assent of any but those who are electors in the territory to be incorporated where such incorporation is sought is not apparent.” In the Bray Case, a new village was sought to be incorporated, and the amendment to section 5 was held to be controlling of the electors who had the right to vote thereon. In Oakman v. Board of Sup’rs of Wayne Co., supra, the annexation of territory to the city of Detroit under Act No. 279 was involved. It was there said: “In Act No. 279 it will be noted that provision is made for an election in not only the municipality from which the territory is proposed to be detached but also in the municipality to which the annexation is proposed to be made. If the act stopped there, counsel’s argument would have much force, but it goes further and provides that the votes of those residing in the particular territory to be annexed shall be kept separate, and that, if a majority of those residing therein shall consent thereto, the annexation shall be made. In other words, the act not only requires a majority vote of all those residing in both municipalities, but requires a majority vote of those residing in the particular territory.” The wisdom of permitting the votes of those residing in the township outside of the territory sought to be annexed to be counted collectively with the vote in the village is not apparent, but in our opinion it must be held that the legislature under the constitutional provision had the power to so provide. ‘ ‘ Courts are not to tamper with the clear and unequivocal meaning of words used in a statute. There can be no departure from the plain meaning of a statute on grounds of its unwisdom or of public policy.” Handy v. Township of Meridian, 114 Mich. 454, 457. The act as passed in 1909 (Act No. 278) was entitled, “An Act to provide for the incorporation of villages and for changing their boundaries.” By an amendment thereto in 1913 (Act No. 95) the title was amended to read: “An act to provide for the incorporation of villages and for revising and amending their charters,” and that title has been since retained. Act No. 279, relating to cities, had a similar title when enacted in 1909, but the title was amended by Act No. 5, Pub. Acts 1913. It also omitted the provision for changing boundaries. Both of these acts have been many times before this court, and, so far as we have been able to dis cover, this is the first time the sufficiency of the present titles has been assailed. Both the legislature and the courts have treated these titles as sufficient to sustain the provisions for change of boundaries. The necessity of such changes from time to time is apparent, and in our opinion the power conferred upon the legislature by the Constitution “to provide by a general law for the incorporation” may fairly be said to include the change of boundaries when needed. The decree entered is reversed and set aside, and one may be here entered dismissing the bill of complaint. As a public qustion is involved, no costs will be allowed. Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred.

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Clark, C. J. Bill for accounting was filed March 6, 1930, answer on May 16th, and praecipe on May 22d following. Nothing further appears until May 1, 1931, when the cause was listed as' case number 7 on the chancery call for assignment. On that day plaintiffs filed a petition to produce boohs and records and obtained ex parte from Hon. Adolph F. Marschner, presiding judge, an order to produce. The cause continued on call on May 4th as number 7, and on May 5th as number 3, and was assigned on that day to Hon. Gruy E. Smith, circuit judge. The cause came on for hearing, defendants appearing, plaintiffs not appearing. The bill was dismissed for want of prosecution. Plaintiffs moved to reinstate before the trial judge and were refused. They brought on for hearing a like motion before Judge Marschner and it was denied. The motion was renewed again and denied. Plaintiffs appeal and contend that under section 6, Court Rule No. 40, the ex parte order to produce operated to stay proceedings, to take the case off the call, and to continue. It is apparent that Judge Marschner’s refusal to sustain his order to produce and that the other orders declining to reinstate are due to the fact that plaintiffs’ petition for order to produce was dilatory and for purpose of delay. We find no abuse of discretion in declining to reinstate the cause. Affirmed. Costs to defendants. McDonald, Potter, Sharpe, North, Fead, Wiest,' and Butzel, JJ., concurred.

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Potter, J. Plaintiffs filed a bill to set aside, on the ground of mental incompetency, fraud, and undue influence, deeds by Ellen E. Shipley of real estate in Wayne county, assignments by her of vendor’s interests in land contracts, and an agreement given by defendant to deceased Ellen E. Shipley in consideration therefor, ah accounting, and other relief. From a decree for plaintiffs, defendant appeals. . Plaintiffs Eichard P. Connor and Frank Connor are brothers of the deceased, Ellen E. Shipley. Adele Connor is the wife of Eichard P. Connor: Marguerite Connor and Edwin Connor are daughter and son of Frank Connor. William Shipley was the husband of Ellen E. Shipley, deceased; and defendant, Mary L. PIarris, is a sister of deceased, Ellen E. Shipley. Before her last illness Ellen E. Shipley was a woman of good business ability, possessed of a substantial amount of property which she successfully controlled and managed. At the time of her death, and for some time prior thereto, she had lived in California. In 1929 Ellen E. Shipley sold to Mary L. Harris real estate in Macomb county for $30,000 and other real estate therein for $50,000. Defendant, Mary L. Harris, gave five promissory notes in payment of the $50,000 piece of land; one to pay toward a mortgage held by Smith-Burns Mortgage Company on property in Breitmeyers Subdivision, E., Belleview avenue, until the sum of $1,706 was paid in full and discharged; another to pay toward a mortgage of $2,625 held by the Grrosse Pointe Sav ings Bank on property transferred by Ellen R. Shipley to Mary L. Harris; another to pay the balance of $17,055 on a land contract on real estate in the Dudley B. Woodbridge Subdivision; another to pay a mortgage of $18,000 held by the Wayne County Home Savings Bank on property in the city of Detroit. All these transactions are summarized in a statement signed by Mrs. Shipley and Mrs. Harris as follows: “Property purchased for Cash payment down $1,000 $50,000 Taxes due on property 1,400 Grosse Pointe Bank 2,625 Harry J. Phillips, Curtis Apts. 17,055 Mtg. Wayne County Bank 18,000 Smith Burns 1,706 41,786 “Balance due $8,214 “Ellen R. Bishop Shipley. “Mary L. Harris.” On account of deflation of prices, Mrs. Harris, the defendant, was hard pressed for money, and on February 2, 1930, wrote her sister Mrs. Shipley she could go no further in meeting her payments. Mrs. Shipley had not been well. In the latter part of 1929 she had a uterine cancer and entered the Hollywood hospital, was treated at different times, and finally entered the hospital, in the early part of 1930, on what proved to be her last illness. She grew progressively worse. She suffered from gastric disturbances, inability to eat, to retain food, loss of weight, emaciation, auto-intoxication, self-poisoning from the absorption of decaying tissues, lost strength, and was sometimes delirious. The cancer could not be removed; fistulas of the bladder developed; she was given codein, morphine, and the Coffee-Humber treatment. On account of her toxic condition, she lay with her eyes shut, in a stupor; was not responsive to questions, and realized, as did defendant, it was only a short time before she would die. Defendant knew her sister had a substantial amount of property; Mrs. Shipley did not want defendant to have her papers; but that was a thing of great interest to defendant, who had not been in California long before she got an order on Mr. Shipley to deliver to her the papers belonging to Mrs. Shipley. She had possession of these papers and knew the contents thereof, and Mr. Downing, the attorney who prepared the papers in dispute here, had prepared the will of Mrs. Shipley. Up to the time defendant came to California, Mrs. Shipley was on excellent and affectionate terms with her husband, as well as with the other plaintiffs herein. This is shown not only by her conduct, but by her letters and by her last will and testament. Defendant had assumed heavy obligations. She owed Ellen R. Shipley considerable money. She was hard pressed for cash. She started operations immediately upon reaching California to get the property of deceased into her own hands. Ellen R. Shipley evidently had some suspicions of defendant’s strength of character. Before defendant came there, Mrs. Shipley had her papers secreted in the garage where .she lived. Soon after defendant reached California, she obtained an order on Mr. Shipley from deceased to deliver to her the papers belonging to deceased. At that time she obtained from Mr. Shipley a copy of the last will and testament of his wife. The defendant poisoned the mind of the deceased against her husband by telling her he was selling her personal furniture, until deceased was, in the language of the nurse, “terribly upset,” and complained that her husband was selling her personal furniture- while she was on her deathbed. This was not true, but it indicates either Ellen R. Shipley labored under an hallucination or had been deceived or misled by some one telling her what was manifestly untrue. The defendant sought to prejudice Mrs. Shipley against the other plaintiffs. She told William Shipley, the husband of deceased, that Ellen had no business to give her property to her brother Frank because he had a bad wife. She complained that her sister Ellen had given some of her property to her brothers, claiming they could not take care of what they already had. When her brothers came to California prior to the death of Mrs. Shipley, Mrs. Harris was in apparent control of the situación in the hospital. She refused to let the husband, Mr. Shipley, visit his wife, and refused to let Mrs. Shipley’s brother visit her except for short intervals and in her presence. When plaintiff Adele Connor and Mrs. Shipley were alone at one time for a short time and were attempting to talk, the defendant came in and told plaintiff Adele and her sister Ellen to “shut up,” and in other ways she exercised a dominating influence and supervisory control over this weakened, helpless, and dying woman. Though defendant denies that as early as February 26, 1930, she knew her sister was dying, or that she talked with the attending physician about her sister’s condition, her letter of that date to plaintiffs Richard P. Connor and Adele Connor shows she knew her sister was dying, that she had talked with the doctor, he held out no hopes of recovery, and it was just a matter of a few days when her sister would die. After they came to California some of plaintiffs learned some papers had been procured, and asked defendant about them. She promised to show them the papers, but failed to do so, stating to the attending .nurse she did not know what to tell them. The scrivener who drew the papers in question testifies, and he is corroborated by the subscribing witnesses in some particulars, that by arrangement with the attending physician no opiates were administered to Mrs. Shipley the day the papers in question were procured. He pictures Mrs. Shipley as bright, intelligent, acute, free from pain, cheerful, and unusually brilliant, while from the nurse, attending physician, and hospital records comes the proof which disputes these claims. The doctor denies the story of Downing that no opiates were to be administered or that he talked with him. The hospital records for the day show that Mrs. Shipley suffered from vomiting spells, and the doctor, instead of saying that she was bright and mentally competent, quick and intelligent, denies he even talked with Downing, and testifies Ellen R. Shipley was not on that day mentally competent to transact business. As pictured by all the testimony, Mrs. Shipley was in extreme pain, which was controlled and deadened by powerful opiates. Defendant knew she was dying, she had so written to the plaintiffs above mentioned. She had procured the administration of the last sacrament to her sister by a priest of the Catholic church. The attending physician says she was at that time growing progressively worse. When we consider the relationship between the parties, the condition of helplessness of Mrs. Shipley, and her dependence upon her sister, her weakened and dying condition, the anxiety of Mrs. Harris to get her property, the disposition that had been made of it by will prior to the arrival of Mrs. Harris in California, her dec larations she would have it fixed so Mr. Shipley would not get it, the necessitous circumstances of defendant, her avariciousness and desire to get control of the property of Mrs. Shipley, her constant surveillance of her in the hospital, the change wrought in the disposition of Mrs. Shipley’s property, her statements to Mrs. Shipley that her husband, William, was selling her personal furniture while deceased was on her deathbed, her prejudicial statements to Mrs. Shipley against the plaintiffs, her exclusion of them from contact with Mrs. Shipley except in her presence, her position just outside the door when these conveyances were being procured by Downing, the execution of the papers in question in the absence of the attending physician, her refusal to state the contents of the papers to plaintiffs or to disclose their character, the terms of the papers themselves by which Mrs. Harris stripped her dying sister of all her property without consideration, in violation of the terms and conditions of her last will and testament, upon an agreement to pay her $300 a month for property concededly worth $100,000 and upwards, which $300 a month she did not pay and was morally sure she would never be called upon to pay because of her sister’s dying condition, and the payment of $100 á, month to Mr. Shipley, who on account of old age could not live long and who has since died, we agree with the trial court the transactions were so shocking to the sense of justice and fair dealing that the conveyances in question ought not to stand. Persons mentally competent so to do, may, when free from fraud and undue influence, dispose of their property as they desire. Undue influence, to warrant setting aside a conveyance, must be sufficient to overcome the free agency of the grantor and substitute the will and in tention of some one else in place of that of the grantor. Fraud and undue influence are seldom capable of direct proof. They are generally proven and established as an inference from the facts and circumstances of the case. In cases of fraud and undue influence, which is generally discussed as a branch of constructive fraud (Black on Rescission and Cancellation [2d Ed.] chap. 10), the court is not so much concerned with grantor’s intention as with how that intention was produced. Huguenin v. Baseley, 14 Ves. Jr. 273, 300 (33 Eng. Repr. 526); Duncombe v. Richards, 46 Mich. 166, 171. That Mr. Downing suspected nothing wrong is not conclusive. Duncombe v. Richards, supra; White v. White, 89 Ill. 461; Kastell v. Hillman, 53 N. J. Eq. 49 (30 Atl. 535). The grantor was peculiarly under the care, control, and domination of defendant, who stood in a fiduciary relation to her, and obtained, without consideration, a large amount of property from grantor. Under such circumstances the burden of proof is upon defendant, to show the fairness and good faith of the transaction. Seeley v. Price, 14 Mich. 541; Witbeck v. Witbeck, 25 Mich. 439; Barnes v. Brown, 32 Mich. 146; Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547); Gates v. Cornett, 72 Mich. 420, 434; Sponable v. Hanson, 87 Mich. 204; Hemphill v. Holford, 88 Mich. 293; Smith v. Cuddy, 96 Mich. 562; Whiteley v. Whiteley, 120 Mich. 30; Noban v. Shoup, 171 Mich. 191; In re Sadler’s Estate, 201 Mich. 281; Wagbo v. Smiseth, 227 Mich. 313; Bilman v. Kolarik, 234 Mich. 689; Cole v. Henning, 237 Mich. 108; Coy v. Doney, 241 Mich. 308. “In all the variety of the relations of life in which confidence is reposed and accepted, and dominion may be exercised by one person over an other, the court will interfere and relieve against contracts or conveyances when they would abstain from granting relief if no particular relation existed between the parties in which trust and confidence was reposed and accepted and there was not an opportunity for an abuse of the confidence and the exercise of undue influence.” Waddell, Admr., v. Lanier, 62 Ala. 347. “Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted; where there is no such fiduciary relation, the confidence and influence must be proved by satisfactory extrinsic evidence; the rules of equity and the remedies which it bestows are exactly the same in each of these two cases. The doctrine of equity concerning undue influence is very broad, and is based upon principles of the highest morality. It reaches every case, and grants relief ‘where influence is acquired and abused, or where confidence is reposed and betrayed.’ ” 2 Pomeroy’s Equity Jurisprudence (4th Ed.), § 951, p. 2026. “Transactions of this nature are regarded by courts of equity with suspicion, and scrutinized with vigilance. The presumption is against the propriety of the transaction, and, as has been frequently said in our own cases, the duty of courts is to refuse judicial sanction to such an instrument until fully satisfied of the fairness of the transaction, and that the instrument is the intelligent act of the person executing it.” Smith v. Cuddy, supra, 569. In fact, “The equitable rule is of universal application that where a person is not equal to protecting himself in the particular case, the court will protect him.” Connelly v. Fisher, 3 Tenn. Ch. 382. The statement of the general rule in Allore v. Jewell, 94 U. S. 506, was quoted with approval in Bilman v. Kolarik, supra. “It may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.” Allore v. Jewell, supra, 511. The trial court, we think, arrived at a correct conclusion. Decree affirmed, with costs. Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Buteel, JJ., concurred.

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Butzel, J. Postal Telegraph Cable Company brought suit against Edgar P. Carpenter, defendant, to recover the amount of workmen’s compensation, medical and hospital expenses it paid to and on behalf of Joe Carowitz, a 16-year old messenger boy, on account of injuries he sustained through being struck while on his bicycle by an automobile owned and driven by defendant. The accident occurred on July 13, 1928, on Front street near Shaw mut avenue, in the city of Grand Bapids. The boy left plaintiff’s office on the north side of Pearl street in order to deliver a message. He rode along Pearl street in a westerly direction and crossed the railroad tracks. Pearl street comes to an end at Front street, which runs north and south. In order to proceed in a westerly direction from Pearl street, it is necessary to turn south on Front street hut a short distance, and then proceed along Shawmut avenue, which begins at Pearl street. The south line of Pearl street, if extended westerly and straight across Front street, would run into the north line of Shawmut avenue. There is a direct conflict in the testimony as to which side of Front street the hoy was on when struck by defendant’s automobile. According to the boy’s testimony, the wheel of his bicycle began to wobble just after he crossed the railroad tracks, and, when he had partly crossed Front street, it shook to such an extent that he looked down: He held the bars with one hand, with which he also held an orange he was eating.' He was riding 13 or 14 feet from the curb line on the northwest corner of Shawmut avenue and Front street. He was looking down and not ahead of him when defendant’s car coming in an easterly direction drove into him. The car was not being driven at a rapid rate of speed and came to an immediate stop. The hoy did not see the car until immediately prior to the accident. Had he driven with care and looked up instead of towards the ground, or if, while looking down, he had remained.closer to the curb, he would have avoided the accident. See Smith v. Ormiston, 242 Mich. 600, 602. The trial court held that defendant was-guilty of negligence, but also that the hoy was guilty of contributory negligence. As the findings of the court are not against the clear weight of the evidence, the judgment in favor of defendant will not be disturbed. Fendt v. Tarabusi, 246 Mich. 538; Osmalowski v. Deyman, 249 Mich. 586; Ketcheson v. Spragg, 250 Mich. 662; Rice v. Katz, 255 Mich. 1. Judgment affirmed, with costs to defendant. Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.

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Butzel, J. Plaintiffs and appellants, describing themselves, both in the original declaration, and also in the writ, and affidavit for the writ of garnishment, as George D. Grant, Walter William Grant, and Charles A. Grant, doing business as Grant Brass Works, a Michigan corporation, brought suit against defendant National Manufacturer & Plating Company. The pleadings do not disclose where plaintiffs carried on their business. Defendant filed a plea of general issue, and the garnishment was released by the filing of a bond in accordance with stipulation between plaintiffs and principal defendant. At the trial of the case, almost five years later, it was shown that defendant had been adjudicated a bankrupt in 1928, and insufficient was realized from its assets to pay any dividend to general creditors. It further developed that Grant Brass Works was not a corporation as stated in some of the pleadings previously filed, but that it was a copartnership composed of George D. Grant, Charles A. Grant, and Walter W. Grant. It was admitted that it had never filed a certificate of co-partnership, as required by 2 Comp. Laws 1929, § 9934, which prohibits the bringing of any action or proceeding in any of the courts of this State until after full compliance with the provisions of the act. Defendant’s attorneys thereupon moved to amend the plea by giving notice that plaintiffs had failed to comply with the act and therefore could not recover in the present suit. The trial judge granted a continuance in order to enable plaintiffs’ counsel to meet the new defense, and, on the ad journed day, after granting the motion to amend, rendered a judgment in favor of defendant. Plaintiffs, in contending that the amendment should not have been permitted, claim that defendant waived its right to amend and to make the objection that the trial court found fatal, because defendant had stipulated to release the garnishment on the filing of the bond, and also on account of defendant’s long delay, claimed to be laches, in giving notice of the special defense. The trial judge in his opinion stated that the suit was brought in such form that it was uncertain whether plaintiff was a corporation or not; that if it was a copartnership it was not shown where it did business and it was not incumbent upon defendant to make inquiry in the many counties of this State to ascertain whether a certificate of copartnership had been filed or not. He further granted a continuance to plaintiffs so that they could meet the defense, if possible. As a rule, the permission to amend rests wholly within the discretion of the trial court, and unless this discretion is abused, we will not interfere. This is true irrespective of whether the court refuses or permits the amendment. In the case of People, for use of National Regulator Co., v. Rosewarne, 247 Mich. 22, relied upon by plaintiffs, we refused to interfere with the order of the trial court denying the right to amend a plea by giving notice of failure of a corporation to qualify in this State. In that case, the amendment was not sought until the trial of the case, which was also several years after the case had been begun; defendant could have obtained the information by inquiry at the secretary of State’s office, and, as'' the opinion stated, the record did not show whether the defendant deliberately waited, or whether the failure to ascer tain plaintiff’s status was due to negligence. In the instant case, the uncertain manner in which plaintiffs described themselves, and the further fact that they did not show where they did business, fully justified the judge in permitting the amendment when the actual facts developed at the trial of the case. As was stated by Mr. Justice Cooley, in Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262), where the court refused to give defendants permission to add to their plea a notice of the statute of limitations: “The application * * * was one addressed to the discretion of the court below, and its denial cannot be reviewed by this court. * * * The practice has wisely vested such court with a power of final disposition with which we have no inclination to interfere.” It is within the discretion of the trial court to permit defendant to amend its pleadings by adding a notice under the plea of general issue. Ruddock v. Detroit Life Ins. Co., 209 Mich. 638, 655. The judgment is affirmed, with costs to defendant. • Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.

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Carr, J. Plaintiff in this case, on February 7, 1950, instituted suit against defendant for an absolute divorce. The summons was personally served and the appearance of defendant was filed on February 16th thereafter. She failed to answer, and by order entered April 17, 1950, as appears from the calendar entries, her default was taken. On the 3d of May following, a decree of divorce was signed by the trial judge and was filed and entered. It was duly enrolled on May 26th. By the terms of the decree plaintiff was granted the relief sought. The custody of a minor child of the parties was granted to defendant, and plaintiff was ordered to pay $10 per week for the support of such child. In accordance with the statute and rule (CL 1948, § 552.9 [Stat Ann 1949 Cum Supp § 25.89]; Court Rule No 51, § 6, adopted October 13, 1947) said decree was declared to be interlocutory and to become final 6 months from and after date ■of entry unless otherwise ordered by the court during such period. On October 24, 1950, defendant filed a motion to set aside her default and to vacate the interlocutory decree. In connection therewith she proffered her answer to the plaintiff’s bill of complaint, together with a cross bill, and asked leave of court to file the same. The motion was accompanied by defendant’s affidavit setting forth that on October 13th preceding she had given birth to a child of which the plaintiff was the father. It was further stated that she was not aware of her condition until informed by a physician that she was about 6 months pregnant. The affidavit failed to state specifically when she was so advised. It also set forth defendant’s claim that the failure of the decree to make provision for the support of the child in question would constitute a hardship, and that she was unable to support and maintain such child. The motion was noticed for hearing on October 30,1950. An order staying the finality of the decree was not sought, nor was such an order entered. The parties stipulated that hearing on the motion might be adjourned to December 5, 1950, and the trial court entered an order accordingly. Plaintiff filed objections to the granting of the relief sought, but the trial judge concluded that the defendant should be granted the relief asked-in her motion, and an order was entered on December 5th setting aside the default and the decree, and granting to defendant permission to file her answer and cross bill. These pleadings were combined and alleged in substance that plaintiff was not entitled to a divorce, that he had been guilty of extreme and repeated cruelty towards defendant, and that she was entitled to affirmative relief. From the order entered by the trial court plaintiff has appealed. It is his claim, in substance, that the court lacked jurisdiction to set aside the default on the basis of the showing made by defendant. Reliance is placed on Michigan Court Rule No 28, § 4 (1945), which provides in part as follows: “In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within 4 months after such default is regularly filed or entered.” Subject to exceptions, the rule, as stated by this Court in Gombasy v. Gombasy, 318 Mich 139, 144, is mandatory. The existence of fraud, if properly established, is ground for relief. See Denby v. Ellis, 245 Mich 124; Curtis v. Curtis, 250 Mich 105. In the case at bar, however, defendant does not claim fraud on the part of plaintiff nor does she assert any irregularity in the proceedings. There is no showing that brings the case within any exception to the rule stated in Gombasy v. Gombasy, supra. Defendant’s affidavit filed in support of her motion indicates that she sought relief solely because of the birth of the child on October 13th. It did not affirmatively appear from her statements that she was not advised of her condition within the 4-months period following the filing of the default. She failed to make a sufficient showing and was, in consequence, not entitled to have the default set aside and the decree vacated. Domzalski v. Gusynski, 281 Mich 175; Bartnik v. Samonek, 313 Mich 464; Kutiej v. Kutiej, 317 Mich 269. It does not follow, however, from what is said above that defendant’s motion should have been dismissed. Obviously its purpose was to call the attention of the court to matters occurring subsequent to the signing and entering of the interlocutory decree and prior to the filing of the motion. Specifically, as her affidavit clearly shows, defendant sought to have the trial court so modify the interlocutory decree, on proofs, as to make provision for the custody and support of the child born October 13, 1950. "We think that the trial court should have regarded the motion as a petition for modification, and have acted accordingly. That he had jurisdiction to do so is scarcely open to question, and his right to act was not lost by the adjournment of the hearing to a date subsequent to November 3, 1950, when the decree became final. If the matter is handled in this way defendant will receive the hearing to which her showing entitles her, and an adjudication by the court, in accordance with the rights of the parties and the public interest as well, will result. Counsel for defendant argues in his brief that plaintiff was not entitled to take a general appeal, as the record indicates was done. It is insisted that the matter should come before this Court, if at all, on appeal in the nature of mandamus for the prosecution of which leave of this Court is required. The claim is not without merit. Quail v. Cole, 260 Mich 642. However, no motion has been made to dismiss the appeal, and in view of the nature of the controversy we do not feel that this Court should take such action on its own initiative. To the end that the matters in dispute between the parties may be properly determined, the course above suggested is not only proper but perhaps necessary. An order will enter setting aside the order of the trial court from which plaintiff has appealed and remanding the case with directions to the trial court to consider defendant’s motion as a petition for the modification of the decree by including therein such provisions as may be found proper, after hearing, •with reference to the custody and suppo'rt of the child referred to in such petition. No costs are allowed. Reid, C. J., and North, Dethmers, Bushnell, and Sharpe, JJ., concurred. Boyles, J., concurred in the result. Butzel, J., did not sit.

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Reid, C. J. Floyd Brooks is being detained in the Lapeer State home and training school as a feeble-minded person by virtue of a commitment by the probate court for Ionia county, dated May 22, 1947. Howard Brooks, father of Floyd Brooks, filed the petition in this matter for writ of habeas corpus to relieve Floyd Brooks from such detention. Petitioner claims that the petition to the probate court for said commitment was defective by reason of failing to state the facts on which a conclusion of feeble-mindedness of Floyd Brooks was predicated; that 2 physicians did not file sworn certificates of the alleged feeble-mindedness; that the probate court conducted an improper inquest; and that the probate court failed to make a record of some of its proceedings required by the statute to be made and could not by certificate supply the showing so required to be of record. The petition for commitment signed by the county welfare agent alleged as grounds for considering Floyd Brooks (then of the age of 16 years) a feeble-minded person: “Examination by P. C. Robertson, medical superintendent, Ionia State Hospital. Mental age of 8 yrs., I. Q. 50, extremely dull, no concept of right or wrong, does not show any active psychosis, but is mentally deficient. Should be committed to Lapeér State Home and Training school.” The quoted statements, although hearsay, can be considered as statements of fact by the petitioner for the purposes of conferring jurisdiction upon the probate court. The statute then in effect, PA 1923, No 151, § 11, as amended by PA 1941, No 299 (Stat Ann 1946 Cum Supp § 14.811), is in part as follows: “Such petition to contain a statement giving the facts and not the conclusions upon which the allegation of such mental disease is based and because of which the application for the order is made.” An inquest was directed by the statute, PA 1923, No 151, § 11, as amended by PA 1941, No 299, * to he instituted by the probate court. The records of the probate court in this case do not show an inquest. The holding of an inquest or at least, the taking of testimony before the probate court, is certified to by the probate judge. Such certificate is not competent to supply the deficiency of the records in view of the requirement of the statute, CL 1948, § 701.28 (Stat Ann 1943 Rev § 27.3178 [28]): “The judge of probate shall have possession of the seal, records, books, files and papers belonging to said court, and shall keep a true and correct record of each order, sentence and decree of the court, and of all other official acts made or done by him, and of all wills proved therein with the probate thereof, of all letters testamentary, and of administration, and of all other things proper to be recorded in said court. Such records, except as otherwise provided by law, may be inspected without charge by all persons interested.” A recital in the record, “After a full investigation of said matter,” does not show that witnesses .testified competently to facts showing feeble-mindedness of Floyd Brooks, and necessity for his commitment. “Records must be complete and not leave important statutory steps to bare inference.” In re Payette, 315 Mich 700, 703, 704. Only 1 doctor was sworn to his certificate. ' The statute requires the certificates of 2 doctors to be sworn to. CL 1948, § 330.20 (Stat Ann 1947 Cum Supp § 14.810). For want of compliance with the statute in the particulars above recited as to inquest and the record of it, and as to 1 doctor’s certificate not being sworn to, the commitment is void. Floyd Brooks is ordered to be released but without prejudice to further proceedings in accordance with the statute. ■ The writ of habeas corpus prayed for will issue and shall operate as an order for the release of Floyd Brooks pending further proceedings. No- costs, a matter of importance to the public being involved. Boyles, North, and Butzel, JJ., concurred with Reid, C. J. Dbthmers, J. For reasons stated in controlling opinion in Be Fidrych, ante, 485, I concur in the result. Carr, Bitsiinell, and Sharpe, JJ., concurred with Dethmers, J. See CL 1948, § 330.21. — Reporter.

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Boyles, J. Plaintiff sued the defendant insurance company to recover $628 claimed to he due plaintiff for hospital expenditures, under a policy issued hy the company to indemnify plaintiff for such expensé. The company defended on the ground (set up as affirmative matter in its answer) as follows: “That the plaintiff herein had within about 2 years prior to the application for a policy, * * * a coronary thrombosis; * * * that the said answers made by plaintiff in his application for a policy failed to state that he had suffered a coronary thrombosis, * * * that such failure to make such disclosure by the plaintiff materially affected the acceptance of the risk * * * that had the plaintiff made a true disclosure of his prior treatment for coronary thrombosis, the defendant would never have insured him.” The case was tried by the court without a jury and the court held that the defendant had failed to establish that plaintiff .had an earlier attack of coronary thrombosis. From' the judgment entered for plaintiff, the defendant appeals. At the time plaintiff signed the application for the policy in March, 1948, plaintiff was 77 years of age. In February, 1946, plaintiff had been hospitalized, for 23 days. The crucial issue of fact submitted to the trial court was, and still is, whether at that time he had a coronary thrombosis. The company’s defense is based on a claim that plaintiff’s answers to the following questions in the application were not true: “8. (á) Are you in a sound and healthy condition, mentally and physically, and are your habits of life temperate? — (A) Yes. “9. Have you had .medical or surgical advice or treatment or any departure from good health within the past several years; if so, state when, cause and duration? — (A) Dr. Fred Smith of Lake City, Mich., treated for overexertioh. Hospitalized about 3 weeks 1946.” The plaintiff, testifying in regard to his answer to the first question (8 [a]), said: “I answered that question ‘Yes,’ and when I say ‘it is,’ I mean I was in sound health.” The defendant claims that plaintiff was not in sound health when the • application was signed in March, 1948, due to the fact that plaintiff had been hospitalized for a coronary thrombosis 2 years before. There seems to be no claim that plaintiff was not in sound health in March, 1948, due to any other causes or on account of any other reason than that; and there is no proof to that effect. Consequently, defendant’s claim centers ■ mainly around question 9. Plaintiff was hospitalized for 23 days in February, 1946. He testified: “Q. What type of overexertion were you hospitalized for ? “A. The question means how did it act on me or what happenedto me ? “Q. What did you do that was over exertion? “A. I shoveled snow; I was working around the Ford garage. “Q. Here in Cadillac? “A. In Lake City. “Q. After that snow shoveling incident you went to the hospital the day after, is that correct? “A. That’s right. (Witness continues) “I say in this application I was ‘treated for overexertion.’ I knew that I was treated for overexertion — worked hard, and that I fainted, and that’s what the doctor told me. The doctor told me it was caused from overexertion. He told me that, I don’t know just when. Í asked him. I didn’t know what was the matter with me, so I asked him. Only I knew I was sick. Mr. Heazlit (defendant’s agent who took the application) didn’t ask me any more questions about that? I told him what caused the overexertion. He didn’t ask me any medical terms about it. He didn’t ask me anything I didn’t tell him, no. I answered all of his questions. No, I didn’t make any statement in this application that is not true. They’re all the truth. I don’t aim to do that.” The hospital records were received in evidence, and Dr. Fred Smith, who attended the plaintiff during his hospitalization, testified at length. During hospitalization, 2 electrocardiograms (EKGf’s) were taken. They are the best evidence as to plaintiff’s cardiac condition at that time, and state: “Conclusion: (Taken February 7) * * * This is an abnormal electrocardiogram suggesting coronary insufficiency, probably on an arteriosclerotic basis. To rule out a possible recent coronary occlusion with myocardial infarction, a follow-up EKGr should be taken in a few days.” , “Conclusion: (TakenFebruary23) * * * This is an abnormal electrocardiogram suggesting coronary insufficiency, probably on an arteriosclerotic basis. Comparison of the EKGr with the report on a previous one, taken 2-7-1946, shows no significant changes. The auricular and ventricular extrasystoles seen in the earlier gram have disappeared. A recent coronary occlusion with myocardial infarction is unlikely.” The hospital record of that hospitalization, signed by Dr. Smith, shows: “Final Diagnosis “Result Cause of Episode Undetermined EKG report shows no coronary. * * * “Fred R. Smith, MD” It would be of little benefit to the profession to recite in detail the testimony of Dr. Smith, on differ ent parts of which counsel for each of the parties rely. The trial court found that the defendant had failed to establish that plaintiff hád a coronary thrombosis in 1946. The testimony does not clearly preponderate in the opposite direction. In Angust, 1948, 5 months after the policy was issued, plaintiff was again hospitalized. There is no proof of any repetition of the cardiac “episode” of February, 1946, during the interim between that date and August, 1948, at which time Dr. Smith again attended the plaintiff. The hospital record of plaintiff’s hospitalization in August, 1948, states: “Final Diagnosis “Result (1) Cerebral Arteriosclerosis (2) Cerebral Hemorrhage (3) Bed Se-res Decubitus Ulcers “Fred R. Smith, MD” Appellant relies much on a statement furnished it by the hospital before suit was started, giving plaintiff’s past history: “Had a coronary thrombosis about 2 years ago.” However, this was changed later by Dr. Smith to conform to the hospital records and his diagnosis when plaintiff was then in the hospital, as follows: “Had a possible coronary thrombosis about 2 years ago — although EKG at that time was negative.” The final diagnosis shown by the hospital records on each occasion, signed by Dr. Smith, negatives the conclusion that the plaintiff at either time had a coronary thrombosis. From a review of the entire record we are in accord with the conclusion of the trial judge, who found that it had not been established that plaintiff had a coronary thrombosis in 1946. The testimony does not preponderate in the opposite direction. Appellant relies for reversal on North American Life Assurance Co. v. Jones, 287 Mich 298. In that case the Court affirmed a decree cancelling an insurance policy on the ground of fraud in making representations in the application. The facts justified the conclusion and the case is not at all similar, in that regard, to the instant case. After the trial court had concluded the taking of testimony in the case .at bar, the court announced that the only question of fact to be determined was whether the plaintiff had had a coronary thrombosis in 1946, the only affirmative defense pleaded by the defendant. Counsel for defendant then moved orally for permission to amend the answer, “to permit the allegation that there was a serious illness to void the policy whether it was coronary thrombosis or whether it was, as Dr. Smith I believe stated, ‘cause undetermined.’ ” The court ruled that the case had been tried on the theory presented by the defendant and covered by defendant’s counsel in his opening statement, that the motion would make a different case, and denied the motion. The granting or denial of the motion, rested in the sound discretion of the court, and it was not abused. Affirmed. Reid, C. J., and North, Dethmers, Butzel, Carr, Btjshnell, and Sharpe, JJ., concurred.

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Boyles, J. Tbe principal question in this case is whether the defendants are lessees of a place of business on Trumbull avenue in Detroit for a 5-year term. The facts are not in dispute. On July 6, 1944, the plaintiff herein leased said premises to Ben Weitzman and Jack Klein for a 5-year term ending July 5, 1949. The written lease provided: “In case any rent shall be due and unpaid or default, be made in any of the covenants herein contained, then it shall be lawful for the landlord, his certain attorney, heirs, representatives and assigns, to re-enter into, repossess the said premises and the tenant and each, and every occupant to remove and put out.” Defendants claim that Jack Klein assigned.a half interest in said lease to David Grossman, although the record before us does not have such an assignment. It is claimed that sometime prior to. June 15, 1946 (the record does not disclose the date), Ben Weitzman assigned his interest in the lease.to the other lessee, Jack Klein, that he in turn assigned a 1 interest to one Murray Joseph and the other \ interest to David Grossman. On June 15, 1946, Murray Joseph assigned “an undivided J interest” in said lease to Rose Grossman, one of the defendants herein. On May 23, 1949, an attorney wrote the plaintiff as follows: “Please be advised that David Grossman, .the present lessee under lease covering store premises at 2900 Trumbull avenue, desires to give you formal notice that he intends to exercise, and does hereby exercise, his option to renew said lease for an additional 5 years from and after July 5th, 1949.” The sixth paragraph of the lease, which is the center of dispute in the present controversy, and on which the defendants rely in claiming that they are now the lessees, is as follows: “That in event he (the lessees) shall hold over after the expiration of the term demised for a sufficient period of time to create a renewal of this lease by operation of law, that any renewal or future right of possession not evidenced by any instrument in writing, executed and delivered by the landlord, shall be a tenancy from calendar month to calendar month and for .no longer term. Tenant shall have the option of renewing the lease for an additional 5 years at a rental not to exceed $85 per month by notifying the landlord of his intention to do so in writing 30 days prior to the expiration of this lease.” For a month or 2 after the expiration of the original 5-year term of the lease defendant David Gross-man paid the rent but thereafter was in default. No further rent was paid. From October, 1949, to February, 1950, David Grossman sent the plaintiff 5 checks for the rent for October to February, inclusive, all of which were returned unpaid for “not' sufficient funds.” On March 9,1950, plaintiff served on the defendants the following notice to terminate tenancy: “Notice to Terminate Tenancy “To: David Grossman and Rose Grossman “Please Take Notice, That you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described which you now hold of me as my tenant for the reason that I intend to terminate tenancy and to repossess myself of said premises. “Said premises are described as follows to-wit: 2900 Trumbull avenue, consisting of ground floor and basement in the city of Detroit, county of Wayne, State of Michigan. “Reason for Eviction: Nonpayment of rent— [CL 1948, §§ 554.134, 630.12] Stat Ann §§ 26.1104, 27.1986. “Possession of these premises is demanded on or before April 11,1950.” Defendants claim that this was a demand for possession or payment of rent, under CL 1948, § 630.12 (Stat Ann §27.1986), rather than a notice to terminate tenancy. For the reasons hereinafter stated, we are not in accord with that claim. Immediately after serving on the defendants the above notice to terminate tenancy, plaintiff filed a complaint, in summary proceedings, with the circuit court commissioners for Wayne county. The matter was heard and a commissioner found in favor of the defendants, from which judgment the plaintiff promptly perfected an appeal to the "Wayne circuit court. On the appeal, the circuit judge, after hearing, reversed the judgment of the commissioner and entered a judgment finding the defendants guilty of unlawfully withholding possession of the premises, and adjudging that the plaintiff recover the possession thereof. From that judgment and the denial of a motion for new trial, the defendants appeal. The crucial question in the case is whether the defendants have any right to possession of the premises, under an extension of the original term of the lease, which expired July 5, 1949. There had been no instrument in writing executed and delivered by the landlord creating a renewal of the lease for an extension of the term. Although the defendants continued in possession after the expiration of the original term, paragraph 6 of the lease expressly provides that such tenancy “shall be a tenancy from calendar month to calendar month and for no longer term.” However, the defendants rely upon the provisions of the concluding sentence in said paragraph 6, hereinbefore quoted, claim that they had the option of renewing the lease for an additional 5 years, and that they exercised the option by the notice given to the plaintiff on May 23, 1949, also herein-before quoted. We do not consider said notice to be a sufficient exercise of the option for a renewal of the lease. Passing the question whether the attempt to exercise defendants’ option for an extension 43 days, instead of 30 days, prior to the expiration of the lease might be sufficient, there is no showing of any attempt by defendant Rose Grossman to exercise her right to a renewal, although she apparently had the right to a interest in' the lease as lessee. There is no claim that David Grossman acted for or in behalf of Bose Grossman, or that he had any right to do so. His purported exercise of the option, in express terms, merely gave notice that he “intends to exercise, and does hereby exercise, Ms option to renew said lease.” “Several lessees. A covenant to renew a lease made to more than 1 lessee may not he enforced by one of them for himself, nor can he hind his colessee by his election to renew, unless authority had been vested in him to do so.” 51 CJS,'§ 58, p 601. See, also, Howell v. Behler, 41 W Va 610 (24 SE 646); Dible v. Davis, 52 Pa Super 18. An option is a mere offer, and acceptance thereof must be made within the time allowed, and in minute compliance with its terms, or the optionee’s rights thereunder will he lost, substantial compliance being insufficient to constitute an acceptance. LeBaron Romes, Inc., v. Pontiac Housing Fund, Inc., 319 Mich 310, and cases cited therein. The defendants claim, however, that the proceedings taken by plaintiff before the circuit court commissioner were to recover possession or pay the rent. They claim that instead of being dispossessed they should have the right to continue in possession by paying up the rent. Apparently they base this claim upon the fact that plaintiff, in giving notice of termination of tenancy, cited 2 statutes, under one of which the defendants claim the right to continue in possession by paying the rent. We find such claim without merit. Plaintiff gave the defendants notice to terminate tenancy; that defendants were required to surrender and deliver up possession, “for the reason that I intend to terminate tenancy.” The statement that the reason for terminating tenancy was nonpayment of rent does not change it into a demand for possession or payment of rent. Appellants claim that there is no provision in the lease for a forfeiture. On the contrary, the second paragraph in the lease expressly so provides. “The notice and demand of possession operated as an assertion of the intention to forfeit, as well as a notice to quit.” Hogsett v. Ellis (syllabus), 17 Mich 351. By the terms of the lease, defendants were tenants from month to month for an indefinite period, a tenancy at will subject to termination by 1 month’s notice. • “A letting for an indefinite period by the month creates a tenancy at will, and the tenant is entitled to 1 month’s notice to quit in order to terminate such tenancy.” Haines v. Beach (syllabus), 90 Mich 563. In the instant case — neglect or refusal to pay rent on a tenancy at will — the notice served March 9th, to terminate tenancy, was sufficient to terminate the tenancy upon the failure to pay the rent due within the time fixed by the notice (on or before April 11th). Smith v. Detroit Loan & Building Association, 115 Mich 340 (39 LRA 410, 69 Am St Rep 575). “The tenancy created by the parol agreement, with the rent payable monthly, could have been terminated by defendant at any time by giving plaintiff a month’s notice to quit, expiring on the day of the month the rent became due. CL 1915, § 11812 ;† Haines v. Beach, 90 Mich 563.” Ludwigsen v. Larsen, 227 Mich 528. “Letters by lessor’s attorney demanding that lessee then in default vacate the premises held, sufficient to constitute notice to quit and termination of the lease pursuant to statute (CL 1929, § 13492, as-amended by PA 1935, No 145). * * * “A lessee cannot have specific performance of provisions relative to option to purchase property leased after the lessor had terminated the lease while lessee was in default in payment of rent. * * * “Lessee under lease of land from which gravel was taken, containing option to purchase, was not entitled to specific performance thereof after termination of lease by lessor notwithstanding tender of amount which he claimed was then due under the lease.” MacGlashan v. Harper (syllabi), 299 Mich 662. Judgment affirmed, costs to appellee. Reid, C. J., and North, Dethmers, Butzel, Carr, Bushnbll, and Sharpe, JJ., concurred. CL 1948, § 554.134 (Stat Ann § 26.1104).

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Carr, J. Defendants were tried before a jury in circuit court on an information containing 2 counts, the first charging the crime of murder and the second robbery not being armed with a dangerous weapon. A verdict of 'guilty of manslaughter was returned.Defendants made a motion for a new trial, which was denied. They have appealed, claiming that because of errors occurring during the course of the trial the verdict and the sentences imposed should be set aside. On the trial of the canse testimony was introduced by the prosecution establishing that for some time prior to April 26,1949, Frank Cline, the alleged victim of the offenses charged in the information, operated a store in the.city of Brighton. Shortly before noon on the date mentioned Mr. Cline was discovered in his place of business with his hands and feet tied, and suffering from severe wounds. Statements made by him at the time indicated that he had been assaulted and badly beaten. He was removed to a hospital where he died about 1:30 a.m. on April 28th following. Subsequently the defendants were arrested on the basis of information indicating that they were connected with the attack.- Also taken into custody were "William Glenn English and Elmer Chevalier. On the trial of defendants, English and Chevalier were called as witnesses on behalf of the people. At the time in question William Andrus operated a gasoline filling station near Brighton, and the other defendant was connected in some way with a garagé in Detroit. English testified that he worked for Donald Andrus in said garage, that the 2 came to Brighton during the evening of April 25th, and that they discussed with William Andrus and Chevalier the feasibility of robbing the Cline store. Mr. Cline was a man advanced in years, and the tenor of the conversation was that it would be easy to get his money and that he was in the habit of keeping a large sum in the store. On the following day, as English claimed, the 2' defendants went with him to the vicinity of said store. He was given a $20 bill with instructions to make a purchase so that he might discover where the cash register was located. In accordance with the understanding of the par-^ ties, as it is claimed by the people, English entered the store, purchased 2 polo shirts, and was given his change from a cash drawer on the counter. The men then retened to the filling station operated by "William Andrus, where English changed his clothing and obtained about 15 feet of clothesline which he secreted beneath his jacket. English and the 2 defendants thereupon returned to Brighton, English riding with William Andrus in the latter’s car. English entered the Cline store and engaged Mr. Cline in conversation. Donald Andrus also entered, came up behind Mr. Cline and, placing an arm around his neck, pulled him over backward. The 2 men then proceeded to tie the victim of the attack, took the cash drawer, and left the store. The money therein was subsequently removed from the drawer, which was hidden behind some brush near a road. The people’s proofs indicate that on a subsequent day English informed the officers in whose custody he was the location of the money drawer, and it was discovered on the spot that he pointed out. English and Donald Andrus left the vicinity of the attack in an automobile belonging to Chevalier, which was parked beside the Cline store. They then went to the filling station of William Andrus and put the money that they had stolen in a cigar box, which was taken by Donald Andrus. Shortly thereafter William Andrus returned to the station. Other testimony was introduced bearing on the conduct of the defendants and their presence in the vicinity of the alleged offense. Defendants denied their guilt, claiming that they had nothing to do with the attack on Mr. Cline or with the alleged robbery. They pleaded an alibi, with reference to which the jury was instructed carefully and at some length by the trial judge in his charge. The issues on the trial quite largely involved the credibility of the witnesses in the case, particularly of William Glenn English. As indicated by the verdict returned, the members of the jury believed, in large part at least, the testimony of the people’s witnesses. The record does not indicate that any objection to the joinder of the counts in the information was made on behalf of defendants. At the conclusion of the proofs, however, motion was made by counsel to require the prosecutor to elect on which count he would rely for conviction. The motion was denied. On behalf of defendants it is now contended that the denial was erroneous and was prejudicial to them. Their argument rests on the theory that the information set forth separate and distinct offenses. Such argument overlooks the fact that the people necessarily relied on proof of identical facts and circumstances in support of each count. In People v. Sweeney, 55 Mich 586, the defendant was prosecuted under an information the first count of which charged assault with intent to murder and the second assault with intent to do great bodily harm less than murder. It was held that defendant was not prejudiced by the joinder, and it was further said: “Neither does the information present a case in which the people could be required to elect between the counts. When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be eonfounded in making his defense, and the people ought not to be compelled to elect.” In People v. Warner, 201 Mich 547, the information charged, in separate counts, assault with intent to do great bodily harm less than the crime of murder and assault with a dangerous weapon without intent to commit the crime of murder and without intent to inflict great bodily harm less than murder. A motion was made at the outset of the trial to require the prosecutor to elect on which count he would proceed. The motion was denied. In holding that the ruling was correct this Court cited and quoted from People v. Sweeney, supra. Of like import is People v. Rose, 268 Mich 529, where it was held that the trial court was not in error in refusing to quash the information or to compel an election between counts. In People v. Bommarito, 309 Mich 139, defendants, before the jury was sworn, moved to quash all counts in the information except one, on grounds of duplicity and misjoinder. The motion was denied. On appeal it was claimed that the denial was erroneous and prejudicial. This Court held otherwise, saying in part (p 143): “In support of the claim of misjoinder in the information, appellants cite authorities which have to do generally with joinder of distinct and separate offenses where the elements of proof are not the same. There is no question but that the doctrine is well settled that a person should not be subjected to trial for 2 separate and distinct offenses at 1 time. People v. Rohrer, 100 Mich 126. But it is also well settled that the people cannot be required to elect between counts where the offenses charged arose out of the same acts at the same time and the same testimony must be relied upon for conviction. People v. Warner, 201 Mich 547. See, also, People v. Marks, 255 Mich 271.” The foregoing decisions clearly indicate the rule of law obtaining in this State with reference to the matter in question. See, also, People v. Ninehouse, 227 Mich 480; People v. Cabassa, 249 Mich 543; People v. Sachse, 252 Mich 275. In the case at bar the attack on Prank Cline which resulted in his death, and the alleged robbery, involved the same facts and circumstances. The proofs tending to support the charge in the first count in the information also tended to sustain the charge of robbery not being armed with a dangerous weapon. Defendants were not prejudiced by the denial of the motion to require an election between counts. . . In submitting the case to the jury the trial judge charged that it might return any one of 5 verdicts, namely, guilty of murder in the first degree; guilty of murder in the second degree; guilty of manslaughter ; guilty of robbery unarmed; or, not guilty. Error is assigned on such charge. On behalf of defendants it is contended that the court erred in permitting the jury to return a verdict of guilty of manslaughter, on the theory that the proofs indicated that the homicide w;as, under the statute, murder in the first degree because committed in the perpetration or attempt to perpetrate a robbery. It is argued, in substance, that the jury should have been instructed to return a verdict of either murder in the first degree or not guilty, and in support of the contention counsel for defendants call attention to prior decisions of this Court in which the factual situation was such as to justify a- charge of the character suggested. See People v. Netzel, 295 Mich 353, and prior decisions there cited. It may be noted that in the Netzel Case, which was affirmed by a divided Court, the defendant was^ charged with assault with a deadly weapon without intending to commit murder and without intending to inflict great bodily harm less than murder. The trial judge charged the jury that under the proofs there were 2 possible verdicts, either guilty as charged or not guilty. No charge was given with reference to included offenses. It appears, however, that the defendant in the case was a witness in his own behalf and admitted that on the occasion of the commission of the alleged offense he was armed with a rifle. In view of such situation it was held that the. failure to instruct the jury with reference to included offenses was not reversible error. The facts in the case at bar are not analogous. In People v. Treichel, 229 Mich 303, 3 young men were convicted of manslaughter under an information charging murder. The testimony in the case indicated that the defendants, in company with another boy then 12 years of age, entered the home of an elderly man'who lived alone, tied his hands and feet with wire to a bedstead, and then ransacked the house in the attempt to find money. The death of the victim resulted from the assault made on him. As in the ease at'bar, the trial judge instructed the jury that a conviction might be had for murder in the first or second degree, or for manslaughter. On appeal it was urged that the jury should have been directed to either convict of murder in the first degree or acquit. In affirming the convictions, it was said in part: “Counsel for defendants strenuously insist this was error, claiming the information charged murder in the first degree, and it whs the duty of the trial judge, under the evidence and their written request, to instruct the jury to confine their deliberations to such degree and, if unable to convict of murder in the first degree, they must find defendants not guilty. Counsel claim they are supported in taking this position by many decisions of this Court. In this they are in error. The information charged murder without specifying method, or means, or circumstances, and, under the information, .murder in either degree, or manslaughter, might be found. This Court has repeatedly held, where the charge as laid includes murder in the first degree, and the proofs establish such degree, and no lesser degree, it is not error for the court to instruct the jury that, in order to convict, murder in the first degree must be found. But this Court has not held, under a charge like here laid, the court must instruct the jury to find murder in the first degree or acquit. Whether such an instruction may be given or not depends upon the evidence. While the statute constitutes murder committed in the perpetration of burglary as in the first degree, it does not exclude all lesser degrees if the evidence warrants. “In many cases such a holding as here asked would make it extremely hazardous for the people in laying the charge. Suppose the charge is murder in the second degree, and the proofs show murder in the first degree, must there be an acquittal? This information charged murder in the first and second degrees, and this was inclusive of manslaughter. The evidence left it open for the jury to find defendants guilty of manslaughter.” Conceding that the verdict might have been guilty of murder in the first degree because committed in the perpetration of a burglary, the Court declined to hold that such verdict was the only one permissible. Attention was directed to testimony indicating that defendants did not make their attack on their victim with the intention of killing him, and did not anticipate that such result would follow. As in the case at bar, the proofs indicated a purpose to prevent interference with the contemplated search for money. Clearly, had defendants intended to kill Prank Cline they would not have resorted to tying his hands and feet with the clothesline which English had taken into the store. The record indicates that in charging the jury as stated the trial judge followed the decision in the Treichel Case. In view of the analogous situation presented there, he was justified in doing so. A somewhat similar question was raised in People v. Miller, 96 Mich 119. There defendant was prosecuted for the crime of rape, and was convicted of the included offense of assault with intent to commit rape. The proofs on behalf of the people clearly indicated that the offense, if there was such, was rape. On the appeal to this Court it was contended that the trial judge was in error in charging the jury- that they might find the defendant guilty of assault with intent to commit rape or of simple assault. Affirming the conviction, it was said: “Under such proof it cannot be denied that a verdict of assault with intent to rape is illogical. But an' assault with intent to commit rape is necessarily included in every rape. The defendant’s counsel are alleging, not an injurious error, but one which, if it could be called an error, has resulted to defendant’s advantage. In the case of Hall v. People, 47 Mich 636, this question was passed upon, and the omission to charge the jury that the defendant might be found guilty of the lesser offense was held to be error, in just such a case as this.” The Miller Case was cited and followed in People v. Murphy, 145 Mich 524. See, also, People v. Jones, 273 Mich 430. The decision in People v. Austin, 221 Mich 635, is also of interest. There the defendants were convicted of murder in the first degree. The proofs indicated that they gave a drink of whiskey to which carbolic acid had been added to one with whom they were having some difficulty. The victim died as a result of the poison. The trial court instructed the jury that the defendants should either be convicted of murder in the first degree or acquitted. On appeal it was claimed that the instruction was erroneous, and that the court should have submitted to the jury the included offense of manslaughter. In reversing the case on the ground that the charge was erroneous, it was said: “Homicide is the killing of a human being by a human being. It may, or may not, be felonious. If felonious, it is either murder or manslaughter, dependent upon the facts and circumstances surrounding the killing. To constitute murder, the killing must have been perpetrated with malice aforethought, either express or implied. The intent to kill will be implied when death results from poison intentionally administered. If it appears that the poison. was not administered with intent to take life, but to aid in the perpetration of another crime, or in order to accomplish an unlawful act, it is no less murder. But where it is not so administered, and where death as a result is so remote a contingency that no reasonable person could have taken it into consideration when administering the poison and could not have contemplated that death -would result therefrom, the homicide is manslaughter only. The statute classifies all murders perpetrated ‘by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing’ as murder in the first degree. Murder by poison is so included because it results from a wilful, deliberate and premeditated act. Administering poison with intent to kill is necessarily so. That the intent with which the poisonous substance is administered is material to the issue presented on such a charge was clearly recognized in People v. Thacker, 108 Mich 652, and People v. MacGregor, 178 Mich 436. In each of these cases this Court held that the prosecution might show that the defendant, about the same time, was giving poison to another inmate of the household, as bearing upon the intent with which it was administered to the deceased person. The reasoning in Wellar v. People, 30 Mich 16, and in People v. Droste, 160 Mich 66, is instructive on the general rule that where there is testimony from which the jury might find the absence of such .a felonious intent as is necessary to constitute murder, an instruction that they might convict of manslaughter should be given. On the record here presented, the jury should have been so instructed.” Under the prior decisions above cited, we think the trial court in the case at bar -was not in error in submitting to the jury the included offenses of second degree murder and manslaughter. As in People v. Treichel, supra, the proofs were sufficient to support a verdict of guilty of the offense charged, ■but such fact does not require that the verdict returned by the jury be set aside and defendants discharged. We need not.consider whether the trial judge would have erred had he instructed the jury to return a verdict of guilty of murder in the first degree or of not guilty. On the factual situation presented it cannot be said that the verdict of the jury was rendered without a proper basis therefor. See People v. Droste, 160 Mich 66. Appellants’ claim that the verdict and sentences -should be vacated for such reason is without merit. Among the witnesses for the people on the trial were Richard English and Juanita English, the -brother and sister-in-law, respectively, of William Glenn English. On cross-examination Mrs. English was questioned by counsel for defendants with reference to the contents of certain letters written by William Glenn English, while he was in jail, to her husband. Counsel inquired specifically with reference to statements indicating that the writer had been promised leniency by the prosecutor for testifying on behalf of the people. Later in the course of the trial a sister of defendants, testifying in their behalf, claimed that she read such a letter that was in the possession of Juanita English. While on the stand the latter was requested to produce in court all letters written by her brother-in-law to her husband. This she indicated an unwillingness to do. It is now claimed that the trial court erred, to the prejudice of the defendants, in not requiring Mrs. English to produce said letters, particularly the specific letter referred to in the testimony of the defendants’ witness at a subsequent stage of the trial. No request was made to the .court to require the witness to produce any letter or letters. Rather, the claim is that the trial judge should have acted on his own initiative. However, William Glenn English denied making, in any letter to his brother or sister-in-law, statements of the character referred to by counsel in his questions, and Juanita English denied seeing any such letter. No claim is made that defendants had caused a subpoena duces tecum to be served on either Richard or Juanita English. In view of the situation presented, there was no error on the part of the trial judge in connection with the matter. He was not required to assume that the witnesses for the people had testified falsely. In his closing argument to the jury counsel for defendants, as disclosed by the record, undertook to discuss at some length his claim as to the law applicable, to the case. It appears that he insisted on his right to read to the jury statements setting forth the law as he claimed it to be, including requests to charge that he had prepared for submission to the court. Objection was made by the prosecutor, and counsel’s right to pursue the course that he was obviously following was challenged. The trial judge indicated specifically that counsel was entitled to state his theory of the law in his argument, but questioned the right to read to the jury as he was attempting to do. It is now contended that counsel was unduly limited in his argument, although it does not appear that he was not permitted to state, as fully as he desired, his theory and claim as to applicable legal principles. The record fails to disclose error in this respect of which appellants are entitled to complain. After the death of Frank Cline there was found in his store an account book in which he had apparently kept a record of sales made by him in the course of business. On behalf of the people, testimony was offered, including that of a handwriting-expert, that all the entries in the book were in the handwriting of Mr. Cline. The last entry, ostensibly made on April 26, 1949, covered the sale of 2 polo shirts. The witness who first discovered Mr. Cline following the attack made on him testified that the latter made some statement to the effect that he had sold a polo shirt to a man who had subsequently returned to assault him. It is contended that such statement, notwithstanding the condition of Mr. Cline at the time he made it, must be accepted as conclusive proof that he had sold but a single polo shirt to English, and that, in consequence, the entry in the book was a forgery. Counsel advanced such claim in his final argument. Objection thereto was made, and the trial judge remarked that there was no testimony tending to show that the particular entry in question was forged. However, counsel was assured that he might make the claim if he so desired, and the record indicates that he persisted therein. It is now urged that the court’s remark constituted prejudicial error. Obviously, however, the members of the jury were aware of the proofs that had been introduced before them. We do not think that any juror could possibly have been misled by either the objection of the prosecutor or the remark of the court. Mr. Cline might have made an erroneous entry in his sales book, but the record fully supports the remark of the trial court as to the absence of any proof of forgery. Defendants submitted to the trial judge a number of requests to charge, many of which were given and others of which were substantially covered. One of the stated reasons for appeal enumerates 18 requests and avers that the trial court was in error in refusing to give them in the form submitted. A similar claim of error was made in People v. Sweeney, supra, with reference to which it was said: “If it is intended this assignment of error is to be taken distributively, the language used is insufficient for that purpose. The substance of several of the requests was given in the charge, which disposes of this error as assigned.” In the case at bar the record indicates that several of the enumerated requests were waived. Others were covered in substance in the general charge, or were given in a modified form. The rights of the defendants were fully protected, and any claim that they were prejudiced because of the court’s failure to give all of the requests in the form submitted is not tenable. Further claims on behalf of appellants, that the motion for a new trial was improperly denied, that the trial court was in error in not granting a new trial on his own motion, and that appellants have been deprived of their liberty without due process of law, do not require specific consideration. Our examination of the record brings us to the conclusion that defendants had a fair trial in which their rights were fully and carefully safeguarded, that they were represented by able and experienced counsel, and that the proofs in the case fully justified and supported the verdict returned by the jury. We find no reversible error, and the verdict and sentences are affirmed. ■ Reid, O. J., and Boyles, North, Dethmers, Butzel, Bushnell, and Sharpe, JJ., concurred. See CL 1948, § 750.316 et seq. (Stat Ann § 28.548 et seq.); and CL 1948, § 750.530 (Stat Ann § 28.798).

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Dethmers, J. Plaintiff and Herman Fontecchio, hereinafter called defendant, entered into a partnership agreement for the operation of an automobile repair and paint shop for an indefinite period of time. Plaintiff had money but no experience in such business. Defendant, a mechanic, had the necessary experience but no money. Accordingly, plaintiff pur chased a going business of that character for $6,000. Under the partnership agreement his $6,000 investment was to be returned to him out of first profits, after which the partners were to share profits equally. Conformable with plaintiff’s insistence that his interest in the business remain undisclosed, it was agreed that the business should be conducted under defendant’s name only and a certificate of persons conducting business under an assumed name was-filed with the county clerk representing defendant to be the sole owner. In furtherance of the scheme, after the partnership had been in operation for a number of months and plaintiff had already recovered out of first profits all but $1,204.17 of his investment, he transferred the business and its assets by bill of sale to defendant and, in accord with the partnership agreement, took back from defendant a chattel mortgage thereon in an amount equal to about half the value thereof. Plaintiff contributed no services to the partnership. As agreed, defendant contributed his services, managed, operated and kept the books of the partnership, for which, at the outset, he received an agreed salary of $45 per week. "When plaintiff purchased the business it was located in a building upon which a 3-ye"ar lease was then obtained, running to defendant as lessee, which provided for a monthly rental of $60, Wo 3-year renewals upon the same terms, and an option to purchase, for an amount not specified, in the event the lessor desired to and should have an opportunity to sell the premises to another. .Defendant immediately assigned a half interest in the lease to plaintiff.. Later the lessor advised the parties that he desired to sell the building for $7,500 and would sell it to-another if they • did not buy. Plaintiff thereupon stated that he was not interested in buying, that he' considered the property a poor investment at that price, that the parties could look into the matter of buying it later when tbe lease expired, that he had no objection to “the business” purchasing it if defendant so desired, but that, as an individual, he was not interested. Thereafter, at a time when the lease was about to expire and when the time for exercising the option for a renewal had already passed without its having been exercised, defendant and wife bought the building for $7,500. When plaintiff learned of this he objected, contending that defendant could not purchase the building, and insisted that title be placed in the name of the partnership or, in the alternative, that defendants might retain title, collect a rental therefor of $75 per month and that defendant might receive an increase in salary from $45 to $65 per week on condition that defendants lease the premises to the partnership for 10 years. It would appear that the latter was agreed upon but the lease was never executed although defendant did from that time on take the increase in salary and rent. Plaintiff claims that it was defendants’ failure to execute such lease that occasioned the bringing of this suit for dissolution of the partnership. When this suit was brought the original lease had long since expired and there is no showing of any attempt by the partners or either'of them to exercise the renewal option. The partnership agreement contained the following provision: “13. That if either of the partners shall be desirous of terminating the partnership at any time, the continuing partner shall have the privilege of taking the whole partnershp business, at the rate at which the same shall be appraised and valued, on paying this value to the retiring partner.” The trial court ordered dissolution under the quoted section 13 of the agreement and decreed defendant to be the owner of the business and all its assets upon payment to plaintiff of $8,709.53 com prising a $292.02 adjustment in plaintiff’s favor of accounts between tbe parties and the partnership, a balance of $1,204.17 still due plaintiff on his original investment, $625 due plaintiff from the partnership on promissory notes, and a sum of $6,588.34 representing one-half the value of the partnership business and assets as found by the court without regard to the value of rights of the partners or partnership under the lease which the court found to be nonexistent. Plaintiff appeals, claiming that the court erred (1) in dissolving the partnership under section 13 of the agreement instead of ordering a sale of the business and assets at public sale; (2) in failing to decree that the partnership owned the building or, in the alternative, to include the value of the proposed new 10-year lease in computing the total value of partnership assets; (3) in determining the amount due plaintiff-on promissory notes; and (4) in failing to require defendant to account for and reimburse the partnership for the increased salary and rental drawn by him and profits derived by him from the purchase and sale of used cars which he repaired in the partnership place of business. (1) Plaintiff contends that the provisions of section 13 of the agreement were intended to apply only to a friendly termination of the partnership and not where plaintiff has brought suit for dissolution alleging misconduct in the handling of partnership affairs by the defendant. In this connection plaintiff cites Steckroth v. Ferguson, 281 Mich 279, quoting from the syllabus the following: “Provisions of partnership agreement for purchase of interest of partner by surviving or remaining partner held, to refer to situation where one partner voluntarily or involuntarily has ceased to be a participant- in the 'firm business and not to -permit one by his misconduct to ihake the other dissatisfied, practically force him to sell out and let the guilty partner thereby obtain the benefit of the good will of the business.” In the instant case, however, the trial court did not find, nor does an examination of the record disclose, that plaintiff established misconduct by defendant in the handling of partnership affairs to .such an extent as to make plaintiff justifiably dissatisfied or to practically force him to sell out, as in the Stechroth Case. While section 13 of the agreement was undoubtedly intended to provide a means for termination of the partnership without recourse to judicial proceedings, plaintiff, in desiring termination of the partnership, should not be permitted, in the absence of substantial misconduct on defendant’s part, to defeat the latter’s rights under that section of the agreement by the simple expedient of bringing a suit. No reason appears for holding the provisions of section 13, expressly agreed upon by the partners, to be inapplicable to the dissolution here desired and sought by plaintiff. He raises the point that Section 13 does not provide for a method of appraisal. Determination of values, on the basis of competent proofs, is a judicial function constantly exercised by the courts and properly so in the absence of an express agreement for a different method of determination. In the instant case the determination of value of the partnership business and assets was made by the court on the basis of testimony given by an appraiser for plaintiff and an appraiser for defendant. It was fairly within the range of the proofs. (2) Property acquired with partnership funds or by the partners individually for the use of the partnership does not necessarily constitute a partnership asset. In the absence of supervening rights of creditors, such property may, as between the partners, at leást, be owned by them individually as tenants in common or otherwise, as distinguished from the partnership, if such was their intention in the acquisition and holding thereof. In this connection see CL 1948, §449.8 (Stat Ann §20.8), and Block v. Schmidt, 296 Mich 610. In the instant case there is no proof that the lease belonged to the partnership. Defendant denied it, testifying that he took the lease in his own name, at plaintiff’s direction, and assigned a half interest therein to the latter individually. Plaintiff offered no proof to the contrary. The entire arrangement, calculated to conceal plaintiff’s interest in the business, and all the relevant proofs indicate an intention on the part of the parties that the leasehold rights should belong to them individually rather than to the partnership. That this was still plaintiff’s view of the matter when he filed suit appears from the prayer contained in his bill of complaint “that the plaintiff herein be' decreed to be the owner of one-half of the business premises hereinbefore described and which are held in trust for the plaintiff by the defendant,” with no alternative prayer that the partnership be decreed to be the owner of the premises or lease. On such state of the record we hold, in the absence of rights of creditors, that, as between the partners, the lease and option rights thereunder, belonged to them individually as tenants in common and not to the partnership. When the situation developed which gave rise to the lessees’ right to exercise the option to purchase and to the necessity for doing so if they wished to buy, plaintiff declined to exercise it individually and made no suggestion that the parties do so as tenants-in common. He contented himself with the suggestion that they might look into the matter of a purchase later, when the lease expired, and with the mere indication of a willingness that the option be exercised in behalf of the partnership and that the building be purchased by and for it if defendant so desired. Plaintiff had no right to insist upon the latter because the lease and option did not belong to the partnership. His individual rights under the lease and option he abandoned by failing and declining to exercise them when it was time to do so. Under such circumstances no bar remained to purchase of the building by defendants for their own benefit, subject only to such leasehold rights as still existed in the lessees. Those leasehold rights expired shortly thereafter. The right to exercise the option for a 3-year renewal had already expired when the premises were conveyed to defendants. Plaintiff never sought to exercise nor did he ever complain of defendant’s failure to. exercise, in behalf of them both, the renewal option. Rather, plaintiff, after objecting to defendant’s purchase, suggested a new lease from them to the partnership on terms in nowise connected with nor determined by the original lease. Plaintiff’s bill of complaint does not set up or allege an agreement by defendants to give him or the partnership a 10-year lease on the premises nor does it contain a prayer for specific performance thereof or for inclusion of the value of such proposed lease in the assets of the partnership. The case was not tried on that theory. On the contrary, plaintiff claimed to be half owner, individually, of the premises and sought to be so decreed. Prom all this it follows that neither plaintiff nor the partnership is entitled to be decreed to be the owner or part owner of the premises or of any rights under the original lease nor to have the value of the old lease or renewal thereof or of the proposed new lease included as part of the partnership assets. As for the value of any such lease, it may be noted that the record is barren of proofs as to what it might be. (3 and 4) Determination of the amount due plaintiff on promissory notes and of the question of defendant’s rights to increased salary and rents and to profits from the sale of used cars all depends upon the prior determination of disputed questions of fact resolved by the trial court in favor of the defendant. We are not convinced that we must have concluded otherwise had we occupied the position of the trial court. See Stratmann v. Stratmann, 287 Mich 94, and cases therein cited. No question relating to division of profits is raised by either party but, in that regard, see Vanderplow v. Fredricks, 321 Mich 483. Affirmed, with costs to defendants. Reid, C. J., and Boyles, North, Btjtzel, Carr, Bhshnell, and Sharpe, JJ., concurred.

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North, J. While assisting in loading some lumber, 60 2x4’s, 8 feet long, which plaintiff had purchased at defendant’s lumber yard, plaintiff was accidentally injured by falling lumber. He brought this suit against defendant, a Michigan corporation, on the theory that his personal injuries were caused by defendant’s negligence. At the close of plaintiff’s testimony at the trial by jury, on motion of defendant the court directed a verdict in its favor. Judgment was entered accordingly, and plaintiff has appealed. Plaintiff was the sole witness in his behalf. As stated in his brief and in his testimony the facts areas follows: An employee of defendant told plaintiff to drive his truck to a designated pile of lumber, to-get on top of the pile, hand down the pieces of lumber and he would send a couple of men over to help-him (plaintiff) load his truck. Plaintiff did as directed and began to lower pieces of lumber from the-top of the pile to the ground so that when the men. came they could put them on the truck which was-alongside the pile. The pile was approximately 12' feet in height and consisted of 2x4’s 8 feet in length. Next to the pile on which plaintiff was standing and separated from it by a space of about 18 inches was another pile, the top of which was above plaintiff’s-head. Plaintiff testified there was nothing to indicate that the adjoining pile was in a dangerous condition and he was not warned by defendant’s employees to be on his guard. As plaintiff pushed lumber down from the pile he was on, the adjoining-pile was. behind him. The 2 men defendant’s yard foreman promised to send arrived and began loading the truck with lumber plaintiff had handed down from the top of the pile. None of the lumber plaintiff was handling came in contact with the adjoining pile and plaintiff did not touch any of the lumber on the latter pile. Plaintiff testified that there is no-danger of properly piled lumber falling and that only improper stacking or bumping the pile with something heavy would cause lumber to fall. There is no claim that the pile was bumped by anything. While plaintiff was handing 'down lumber, he was. hit on the back of the head and knocked off the pile to the ground where he landed on his back and was-, struck in the face across the upper lip, nose and mouth by falling lumber which fell all around him. Plaintiff testified that the 2x4’s came down length wise and that he was struck in the face by the ends of . the lumber. Negligence on the part of defendant and plaintiff’s freedom from contributory negligence are alleged in plaintiff’s amended declaration, as follows: “That at the time and place aforesaid it became and was the duty of defendant to provide a safe place for plaintiff to work in handing down said lumber as directed by defendant and to keep and maintain its premises and merchandise in a safe manner and condition so as not to cause injuries to its patrons, particularly plaintiff; that contrary to and in disregard of its duties as aforesaid defendant carelessly and negligently erected and stacked lumber on said adjoining pile and maintained said pile in an unsafe and dangerous condition so that the lumber thereon was loose and insecure and became unfastened therefrom and fell upon and struck plaintiff inflicting injuries upon him as aforesaid. “That at the time and place aforesaid plaintiff exercised reasonable care and caution and was entirely free from any contributory negligence on his part.” The question of whether plaintiff was furnished a safe place to work is not involved in the instant case. Nor is the defense of assumed risk. This is true since the relation of employer and employee or master and servant, to which these phases of the law are pertinent, did not exist and were not alleged in the instant case. See Bauer v. American Car & Foundry Co., 132 Mich 537; Swick v. Ætna Portland Cement Co., 147 Mich 454; Kaukola v. Oliver Iron Mining Co., 159 Mich 689; Parker v. Grand Trunk Railway Co., 261 Mich 293. The record conclusively shows that pláintiff was an invitee upon the premises which were under defendant’s control. While so on defendant’s premises plaintiff suffered personal injuries by the falling of lumber stored there. But plaintiff wás not entitled to go to a jury as to his right to recover damages from defendant unless he produced competent testimony that the falling of the lumber resulted from or was proximately caused by some negligent act or ■omission for which defendant was responsible. We are mindful that plaintiff in his amended declaration alleged that defendant failed to keep its lumber yard in “a safe manner and condition,” since “defendant carelessly and negligently erected and stacked lumber on said adjoining pile and maintained said pile in an unsafe and dangerous condition so that the lumber thereon was loose and insecure and became unfastened therefrom and fell upon and struck plaintiff.” But the foregoing allegation is denied in defendant’s answer. The burden of proof tending to establish defendant’s alleged negligence was on plaintiff. Proof of the accident alone was not sufficient. The rule of res ipsa loquitur is not followed in this jurisdiction. “The mere fact that an accident happened does not establish negligence on the part of defendants, as the doctrine of res ipsa loquitur is not followed in this State. (Citing cases.)” Mitchell v. Stroh Brewery Co., 309 Mich 231. See, also, Moore v. Traverse City Masonic Building Ass’n, 324 Mich 507; Facer v. Lewis, 326 Mich 702. We quote the following from plaintiff’s brief: “Plaintiff stated that he did not know the cause of the lumber falling.” While plaintiff testified that lumber will not fall from a properly stacked pile, this was only an attempt to take advantage of the doctrine of res ipsa loquitur. «It was not competent testimony tending to prove that the falling of the lumber in the instant case was proximately caused by negligence of defendant. The burden was on plaintiff to produce competent testimony tending to prove in wliat respect did “defendant carelessly and negligently” erect and stack the lumber on the adjoining pile, or maintain the same “in an unsafe and dangerous condition.” The record contains no such testimony. Nor is there any admission in any of the pleadings which would tend to disclose or prove what negligence, or whose negligence, if any, caused the lumber to fall from the pile which was adjacent to the pile from which plaintiff fell. As we understand plaintiff’s position he does not claim that there was any testimony of that character. At least he has not pointed to it. But plaintiff does argue that defendant made the essential admission in its answer. The record does not justify such contention. Under such a record the trial court correctly directed a verdict for defendant at the close of plaintiff’s proof. In so holding, we are mindful of appellant’s claim that prejudicial error resulted on redirect examination of plaintiff by the court’s ruling sustaining defendant’s objection to the following question: “Where did that lumber come from ?” Plaintiff had just testified that after he fell and was on the ground, “I saw a lot of lumber coming down.” Defendant’s counsel objected to the above question on the ground that it had “been thoroughly covered and answered, * * * thoroughly covered in direct examination.” On plaintiff’s direct examination he had replied affirmatively to the question: “Now, the next pile of lumber, that is the one that hit you?” Under the instant record the court’s ruling sustaining defendant’s objection was not prejudicially erroneous nor an abusee of discretion, as asserted by appellant. The judgment entered in tbe circuit court in favor of defendant is affirmed, with costs. Reid, C. J., and Boyles, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.

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Reid, C. J. The petition in this matter was filed to institute condemnation proceedings to take private property for the public use or benefit, for the purpose of eliminating housing conditions detrimental to the public peace, health, safety, morals and welfare, and to aid in replanning and reconstruction of the area involved, in accordance with PA 1937, No 293, as amended (CL 1948, § 125.601 et seq. [Stat Ann 1949 Rev •§ 5.3057(1) et seq.), PA 1933 (Ex Sess), No 18, as amended (CL 1948, § 125.651 et seq. [Stat Ann 1949 Rev § 5.3011 et seq.]), with the provisions of ordinance 262-C, and title 8, chapter 1, of the charter of the city of Detroit. Prom judgment on a verdict determining the necessity for the taking of their property and award of damages, several owners of property- involved, .appeal. A ground of appeal common to all appellants (defendants), is the order and decision of the court allowing defendants 6 peremptory challenges collectively and not 5 peremptory challenges to each defendant property owner, separately. The proceeding was brought under the provisions of the Detroit city charter and the trial court (recorders court for the city of Detroit) followed the provisions of said charter in allowing 6 peremptory challenges to defendants collectively. The provisions of the charter in that regard are stated in title 8, ch 1, § 6, as follows: “The city on one side and the respondents and taxpayers on the other, shall have the right to challenge peremptorily 3 persons called to serve as jurors in each such proceedings; in the discretion of the judge of said court the number of peremptory challenges may be increased to not exceeding 6 on each side.” Defendants claim that such charter provision is void as contravening the State statute, CL 1948, § 618.40 (Stat Ann § 27.1020), which is in part as follows : “In all civil cases each party may challenge peremptorily 5 jurors.” Defendants cite People v. Welmer, 110 Mich 248, which, however, was a criminal case governed by a statute differing from the statute and charter provision involved in this case. CL 1948, § 213.88 (Stat Ann § 8.60) and CL 1948, § 213.94 (Stat Ann § 8.66) are sections of PA 1883, No 124, as amended, which is an act to provide for the condemnation by cities, villages and counties of private property for the use or benefit of the public,, et cetera. “The practice and proceedings of the recorder’s court of the city of Detroit under this act, relating to the summoning and excusing of jurors and tales-men and to imposing penalties upon them for nonattendance, shall be the same as the practice and proceedings of said court relative to petit jurors for the trial of criminal cases, but no peremptory challenges shall be allowed.” CL 1948, § 213.88 (Stat Ann § 8.60). “Cities and villages now authorized under existing-acts of incorporation, or other special acts, to take private property for public uses, may severally proceed, under the provisions of their respective local charters, or other special acts, or under the provisions of this act; and this act shall not be construed as in any way affecting or impairing the provisions of such local charters or special acts on the subject of taking privaté property for public use.” CL 1948, § 213.94 (Stat Ann § 8.66). CL 1948, ’§ 213.76 (Stat Ann § 8.48), a section of the above-cited act, does not allow any peremptory challenges in condemnation proceedings brought under that act. The court was not in error in limiting the defendants to 6 peremptory challenges collectively, under the charter provision. Defendants are incorrect in relying on provisions - for challenges in statutes which are not applicable in the instant proceeding. Defendants further claim that the slum clearance condemnation proceeding is unconstitutional because the real estate, while taken for a public use, is, after objectionable buildings are razed, to be sold for redevelopment by private persons and that, considering the purposes of the condemnation as a whole, the proposed action is improper and unconstitutional, as condemning the lands of one private person to be devoted to the uses and purposes of another private person. Defendants cite Board of Health of Township of Portage v. Van Hoesen, 87 Mich 533 (14 LRA 114). In that case we held irrelevant, incongruous and void, an amendment to an act (How Stat §§ 4763-4777) which as it originally stood was an act to encourage formation of. private cemetery corporations, but the' later amendment undertook to confer on boards of health, public corporations, the power of condemnation of lands for public purposes. However, in that ease we did not say that a properly drawn, suitably entitled act, could • not be upheld which would confer on the public corporations the right to maintain condemnation of lands for the public purposes involved. The provisions of the Detroit city charter involved in the case at bar are not subject to the objections raised in the Board of Health Case, above cited. In Berrien Springs Water-Power Co. v. Berrien Circuit Judge, 133 Mich 48 (103 Am St Rep 438), we held, page 52, that the water power sought to be developed by condemnation, was private in its character and land cannot be condemned for the purpose of creating it. The question to he submitted-to the-condemnation authority in that case is stated on page 55 as, “Does .public necessity require that the land specified in relator’s petition shall be taken to so improve the navigability of St. Joseph river that relator can operate thereon a transportation business and can obtain thereby the water power it desires?” The question of necessity in that case embraced at one and the same time, navigability (a public use) and water power (a private use). The act authorizing a determination that public necessity ■requires a taking for private purposes, was held unconstitutional, in that (Water-Power Co.) case. In General Development Corp. v. City of Detroit, 1322 Mich 495, a suit instituted by a taxpayer, we held slum clearance to be a public purpose, and held to have been properly dismissed a taxpayer’s bill which failed to show how the taxpayer would be-prejudiced by a subsequent sale of the lands (after clearance). But in contradistinction to a case involving interests of a taxpayer, who shall pay less taxes because of the subsequent sqle of the land and deduction from the general fund necessary to be raised for the slum clearance, in the case at bar, on the objection of owners of lands sought to be condemned, we are called upon to decide whether the provision authorizing a sale subsequent to clearance-is a commingling- and combination of a private purpose with a public purpose. It seems to us that the public purpose of slum clearance is in any event the one controlling purpose of the condemnation. The jury were not asked to decide any necessity to condemn the parcels involved for any purpose of resale, but only for slum clearance. The one purpose of the instant proceeding (a public purpose) then is different from the 2 purposes in the Water-Power Case, supra, in which the 2 purposes were concurrent; the height of the water to be attained and consequent area and extent of lands to be condemned was decisive of both the amount of power, a private purpose and navigability, a public purpose. In the instant case, the resale [abating part of the cost of clearance] is not a primary purpose and is incidental and ancillary to the primary and real purpose of clearance. Reconstruction was asked for in the petition and resale is necessary for such purpose, but the resale is not for the purpose of enabling the city nor any private owner to make a profit. The supreme court of Tennessee in Nashville Housing Authority v. City of Nashville, 192 Tenn 103 (237 SW2d 946), say on page 948: “To remove health, crime and fire hazards by slum clearance, is clearly a proper and reasonable exercise of the police power. This removal is effected by slum clearance simpliciter and the.fact that under the subsequent rehabilitation or restoration, the cleared area under a project planned and supervised by the housing authority passes into private hands to private property is an incident which does not change the nature of the slum clearance as being a public improvement in the public interest.” Slum clearance with incidental resale is approved (1) by the Alabama supreme court, Opinion of the Justices, 254 Ala 343 (48 So2d 757), opinion of the justices on questions propounded by the governor; (2) by the supreme court of Illinois in Zurn v. City of Chicago, 389 Ill 114 (59 NE2d 18), and in People, ex rel. States Attorney, v. City of Chicago, 394 Ill 477 (68 NE2d 761); (3) and by the Pennsylvania supreme court in Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa 329 (54 A2d 277, 172 ALR 953). In Dyer v. Township of Burns, 228 Mich 513, in a suit by private individuals to enjoin issuance of bonds authorized by the electors. for the purpose of erecting, furnishing and improving the town hall, the plaintiffs alleged that the township officials did not intend to build a town hall but a building to be used as a place for public entertainment. The trial court found the officers had proceeded in good faith to erect a town hall for township purposes. While the building might incidentally be used for other purposes, under such finding we affirmed the trial court’s decree dismissing the bill. In Cleveland v. City of Detroit, 322 Mich 172, we say (syllabus 9): “Condemnation proceedings for the acquisition of so much and no more property than is necessary for a permissible public use will not be defeated by the mere fact that an incidental private benefit or use ■of some portion of such property will result.” We find in the instant case as claimed by appellee city.: “It was not the purpose of this condemnation proceeding to acquire property for resale. It was to remove slums for reasons of the health, morals, safety and welfare of the whole community.” We consider that the weight of authority is in favor of the appellee city’s contention that the taking of private property for the uses and purposes as disclosed hereinbefore in this opinion is constitutional, notwithstanding the fact that the property taken is later to be resold to diminish the cost, involved in the condemnation and for the purpose of reconstruction. By the foregoing rulings as to permissible challenges and as to constitutionality of the proceeding, we dispose of and dismiss appeals of all appellants, so far as based on those grounds. Appellants American Pipe & Supply Company, of which the Brant Brothers, hereinafter referred to as Brants, are the owners,'have claimed additional error on the part of the trial court in denying “conse-. quential” damages in the taking of parcel 280, part of which is a warehouse used by Brants as a part and parcel of Brants’ business. They had offered testimony tending to show that the warehouse, being part of parcel 280 in question, was part of and necessary to the running of their plumbing supply business conducted at Gratiot and Orleans, 3 blocks away, which business, however, is not located on a parcel being condemned. Brants claim that parcel 280 consists of adjoining buildings 40 to 50 years old on land approximately 150 feet by 105 feet. Two buildings are of garage type and were used for warehouse purposes; the third building consists of 2 stores and a flat above. The entire property, after having been on the market for some time, was purchased in 1946 for $27,500 plus a $2,500 commission. Brants claim they installed fixtures of the value of $6,240.67. The jury could be justified in concluding that there had been no enhancement in value of the parcel during Brants’ ownership, except for the fixtures. The value placed on parcel 280 by petitioner’s appraiser was $38,000 and by appellants’ appraiser, $55,000. The jury’s award was $40,000. The fixtures and equipment put in by Brants (bins and storage racks, conveyor, hoist and a sign), all of which are removable, are not to-be taken by the city in the condemnation, but remain the property of appellants. Parcel 280 with the 3 buildings adjoining each other, is situated at the southwest corner of Chestnut and Riopelle streets in the city of Detroit. The easterly building is 2 stories in height, 40 feet in width and 105 feet in depth. The front portion of both stories is rented out for stores and rooms, and the rear portion of both stories is used for storage space. The middle section and the westerly section are both single-story buildings, having a depth of 105 feet, the former being 50 feet wide, and the latter 40 feet. Both of these buildings were unheated and used for storage purposes. The west building had been leased to a third party who moved from the premises about the time the instant proceedings were begun because the tenancy was uncertain. It will thus be seen that Brants were using only the narrower building in the center and only a portion of the east building for their own storage purposes. Brants have their place of business in a building 100 feet by 140 feet having 3 floors and situated 3 blocks away from parcel 280. They are in the plumbing supply business and utilize the warehouse space they occupy in parcel 280, as hereinbefore designated, for storage of soil pipes, water pipes, bath, tubs and other plumber’s supplies in connection with their business. Parcel 280 was purchased by the appellants on March 1, 1946. The instant proceedings for condemnation were begun slightly less than 1 year later. Previous to that time, the appellants had a warehouse opposite their place of business. They claim that during the short period of slightly less than 1 year, during which they occupied part of parcel 280, it became such an integral part of their business that they are entitled to consequential or severance damages in addition to the compensation found by the jury for parcel 280. On the trial the following occurred: “Mr. Shapero [attorney for Brants]: There’s another question that you have to pass on, a garage on Chestnut and Riopelle which is run in connection with the store on Gratiot avenue which isn’t being taken by condemnation and we expect to show consequential damages by reason of separation of the 2 parcels. “The Court: I won’t allow you to show that.” In considering the court’s ruling, we note that Mr. Shapero had xtreviously elicited from his witness, Mr. Sexauer, testimony as to his opinion of the fair market value of parcel 280 as a whole, comparable with other buildings in the market, with the consequence that there was testimony that parcel 280 could be replaced, so far as concerns the portion of Brants’ business which was there conducted, by other comparable buildings. There was no ground left for consequential damages. After Brants’ witness Sexauer had given the testimony, above referred to, Mr. Albert Brant testified that he couldn’t get any property to use instead of parcel 280, thus in effect contradicting his own witness Sexauer. The court could be considered as justified if he disregarded such contradictory testimony by Brant. Because capable of being replaced for integrated use, the lands of Brants differ from the parcels in an integrated use described in Baetjer v. United States (CCA), 143 F2d 391 (cert denied 323 US 772; 65 S Ct 131, 89 L ed 618), upon which case Brants, appellants in this case, rely. Brants had been permitted to show the various features of parcel 280, and the goods handled therein, cost of installation of bins, racks, hoist and other fixtures necessary to Brants’ use of the parcel, some of which fixtures were movable. The jury award of $40,000 can be considered just compensation in view of the whole situation. Under all the circumstances shown in the record, Brants were justly considered by the court as being without right to make further showing as to consequential (severance) damages. The judgment confirming the award by the jury is affirmed. Costs to appellee city against all appellants. Boyles, North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.

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North, J. The primary question on this appeal is this: Were sections 7 and 8, art 5, of the general statute (PA 1873, No 198 [CL 1948, §§ 467.7, 467.8 (Stat Ann §§ 22.288, 22.289)]) providing for the incorporation and regulation of railroad companies repealed by implication by the so-called death act (PA 1848, No 38, as amended by PA 1939, No 297 [CL 1948, § 691.581 et seq. (Stat Ann 1949 Cum Supp §27.711 et seg.)])? The trial court in effect held that said sections of PA 1873, No 198, as contended by defendant, were repealed by implication. Plaintiff has appealed, permission having been granted. In the instant case plaintiff, as administrator of his adult son’s estate, brought suit against the defendant railroad company to recover for the instant death of plaintiff’s son which was caused by defendant’s train striking, at a highway crossing, an automobile in which plaintiff’s decedent was an occupant. It is specifically alleged in the declaration that plaintiff “is duly authorized to bring this action for and in behalf of said estate under the laws of the State of Michigan, and especially under PA 1873, No 198 * *. * (and) to recover all damages and pecuniary injuries resulting from the death of David A. Southward, for the benefit of his father, Clarence A. Southward and his mother, Margaret M. Southward, who, under the law, would be entitled to inherit the property and estate of their deceased son if he had died intestate.” And the declaration further contains the following: “Prior to the death of his son, plaintiff received a severe injury to his back and spine from which he never fully recovered, and, as a result, was unable to perform hard physical labor necessary to operate his small farm near the village of Milan, Michigan, and to properly support Ms family. In recognition of Ms duty to assist and support Ms parents, deceased quit Ms employment at the General Motors Company plant at Pontiac, Michigan, and agreed to return to plaintiff’s home for the purpose of helping his parents and rendering assistance in the farm work. At the time of his death deceased was living at his parents’ home as a member of the family, contributing $10 per week towards the family expenses, .and assisting plaintiff in the operation of the farm during his spare time, without which assistance plaintiff would have been unable to continue to properly work the same. The services so performed by deceased were of the value of $100 per month and upward. * * * As the direct result of the negligent acts of defendant’s employees which resulted in the death of said. David A. Southward, his said father and mother, who would have been entitled under the law to inherit his personal property if he had died intestate, and, in whose behalf this action 'is brought, sustained pecuniary damages in the amount of $50,000, in that they were deprived of the weekly contributions made by deceased, and, lost the aid and assistance which he rendered on the farm, which contributions and assistance would have continued during the joint lifetime of deceased and his parents, or, until he married and established a home for himself, for the recovery of which this suit is brought.” Defendant moved to strike from the declaration the above italicized, words on the ground that the 1873 act by implication was repealed by PA 1848, No 38, as amended by PA 1939, No 297. The trial court granted defendant’s motion to strike. The court’s order to strike covered other allegations in the declaration, but we deem it unnecessary to detail them herein. The issue presented on this appeal is important because it controls the measure of recovery in the event plaintiff prevails. The following :is stated in appellant’s brief: “If the action of the trial court is sustained, it is defendant’s contention that under the amended death act * * * damages which may be recovered are limited to expenses of funeral and burial. On the other hand it is plaintiff’s contention that he is entitled to maintain the action under the railroad act, and, under the following decisions, among others, construing that statute (citing cases wherein the Court passed upon recoverable items of damage).” The pertinent portion of the railroad act (PA 1873, No 198) reads: “Sec. 7. Whenever the death of a person shall be caused by wrongful act, neglect, or default, of any railroad company, or its agents, and the act, neglect, or default is such as would (if death had not ensued) entitle the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the railroad corporation which would have been liable if death had not ensued shall be liable to an action on the case for damages, notwithstanding the death of the person so injured, and although the death shall have been caused under such circumstances as amount in law to felony. “Sec. 8. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in any such action, shall be distributed to the persons, and in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such amount of damages as they shall deem fair and just, to the persons who may be entitled to such damages when recovered: Provided, Nothing herein contained shall affect any suit or proceedings heretofore commenced and now pending in any of the courts of this State.” CL 1948, §§ 467-7, 467.8 (Stat Ann §§22.288, 22.289). The title and provisions in the more recent death act (PA 1939, No 297 ) are in part as follows: “An act requiring compensation for causing death and injuries resulting in death by wrongful act, neglect or default; to prescribe the measure of damages recoverable and the distribution thereof; and to repeal inconsistent acts. “Sec. 1. Be it enacted by the senate and house of representatives of the State of Michigan, whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only .under this act.” CL 1948, § 691.581 (Stat Ann 1949 Cum Supp § 27.711). Section 2 of the act (CL 1948, § 691.582 [Stat Ann 1949 Cum Supp § 27.712]) specifies the elements of damage for which recovery may be had and for distribution of the amount recovered. Section 3 reads: “Insofar as the provisions thereof are inconsistent with the provisions of Act No 38 of the Public Acts of 1848 as amended by this act, section 32 of chapter 12 of Act No 314 of the Public Acts of 1915, being section 14040 of the Compiled Laws of 1929 is hereby repealed.” CL 1948, § 691.583 (Stat Ann 1949 Cum Supp § 27.713). In appellant’s brief several ingenious reasons are assigned in support of the contention that sections 7 and 8 of the railroad act, above quoted, were not impliedly repealed by the more recent death act from which we have just above quoted; but such reasons fall in the face of the very definite provisions in PA 1939, No 297. †Among such reasons urged by appellant are the following: (1) “No language indicating intention to repeal appears in the 1939 act.” In our judgment this reason is not justified by the record. Instead there are provisions in the former act which are inconsistent with those in the 1939 act. Further, the title to the 1939 act expressly discloses the legislature’s intent “to repeal inconsistent acts]” and section 1 provides: “All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.” (2) Nor are we in accord with appellant’s reasoning that since the amendatory act of 1939 in the matter of repeal or amendment refers only to the former death act (PA 1848, No 38) and the former survival act (PA 1915, No 314, ch 12, § 32 [CL 1948, § 612.32 (Stat Ann § 27.684)]), therefore it must be concluded that it was not intended by the 1939 act to amend or by implication repeal the pertinent portions of the railroad act (PA 1873, No 198, particularly article 5, §§ 7, 8 [CL 1948, §§ 467.7, 467.8 (Stat Ann §§ 22.288, 22.289)]). (3) In support of appellant’s contention it is also-urged that notwithstanding this Court on 3 occasions since the 1939 amendment has rendered decisions wherein the 1939 amendment has been considered, and construed, but in none of such cases have we in any way intimated that any other acts were amended or repealed with the exception of the former death act and the survival act. We are not persuaded that because of tbat circumstance it should be inferred, as plaintiff asserts, that by the 1939 amendment the pertinent portions of the railroad act were not amended or repealed by implication. Also, it may be noted that the issue involved in the instant case was not raised in any way in any of those 3 cases; and further since the passage of the 1939 amendment there has not been recovery under the railroad act for a negligently caused death, so far as we are advised, in any case reviewed by this Court. (4) In support of appellant’s contention that the' 1939 act did not by implication repeal the pertinent provisions of the railroad act, it is asserted that since in the compilation of Michigan Statutes Annotated and the Compiled Laws of 1948, published subsequent to 1939, the compilers have not deleted the pertinent portions of the railroad act, it is fair to presume that such portions of the railroad act were not repealed either expressly or by necessary implication. We are not impressed with this suggestion. It might be considered somewhat presumptuous for the compilers to have omitted from the more recent compilations of Michigan statutes the provisions of a previously enacted statute which had not been expressly repealed by the legislature or been adjudicated by this Court to have been repealed by necessary implication. And embodying in subsequent compilations of the statutes the earlier acts is not without precedent or pertinent judicial comment. In Spillman v. Weimaster, 275 Mich 93, 98, clearly irreconcilable statutes were involved, and it was stated in the Court’s opinion: “Their terms are, therefore, repugnant, and we can find no reasonable hypothesis whereby effect might be given to both. We are therefore constrained to follow the well-settled rule, that a later statute covering the same ground as a former supersedes the former.” In City of Gladstone v. Throop (CCA), 71 P 341, separate and irreconcilable acts concerning towns and villages were incorporated in Howell’s Annotated Statutes. Relative to that circumstance the court said: “We must not be confused, then, by the fact that ■chapter 82 and chapter 81 are printed in the compilation as though both are in force; for if they contain inconsistent provisions concerning the same subject-matter, the earlier must be deemed pro tanto repealed.” In addition to the reasons hereinbefore suggested, in consequence of which we are not in accord with appellant’s contention that sections 7 and 8 of the railroad act were not impliedly repealed by PA 1939, No 297, we think the express provisions of the 1939 act necessitate the conclusion that there was repeal by implication. The title designates the act as one intended “to repeal inconsistent acts.” Section 1 provides: “All actions for such death, or injuries resulting in death, shall hereafter be brought only under this actand hence it appears plainly inconsistent with a conclusion that such suit might still be brought under the provisions of the railroad, act. In so holding we are mindful that in this jurisdiction repeals by implication are not favored; but in numerous cases we have held in accordance with the following: “Repeals by implication are not favored, but do happen, and, when clear, must be given effect.” C. N. Ray Corporation v. Secretary of State, 241 Mich 457, 462. “The rule as stated * * * that if the provisions of a later statute are so at variance with those of an earlier act, or a part thereof, that both cannot be given effect then the later enactment controls and there is a repeal by implication. In such a case it must be presumed that the legislature intended a repeal.” Jackson v. Michigan Corrections Commission, 313 Mich 352, 357. Appellant also makes the following contention r “PA 1939, No 297, if construed as repealing by implication any portion of the general railroad act is. unconstitutional, because no such object is expressed in its title.” And, further: “If any language can be found in the body of the.act which repeals the sections of the railroad act in question, then we submit the statute is unconstitutional because no such object is expressed in its title.” We have previously passed upon a like contention and held it was without merit. “It is unnecessary that title of an act express that an effect of the act is to repeal another act by implication.” Weco Products Co. v. Sam’s Cut Rate, Inc. (syllabus), 296 Mich 190. The ruling of the trial court striking from plaintiff’s declaration the allegations therein under which plaintiff asserts right to recovery in the instant case under the railroad act (PA 1873, No 198, §§ 7, 8 [CL 1948, §§ 467.7, 467.8 (Stat Ann §§ 22.288, 22.289)] ) is affirmed. Costs to appellee. The case is remanded to the circuit court for further proceedings. Reid, C. J., and Boyles, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. Amending PA 1848, No 38. — Reporter. See footnote, page 143. — Reporter. In re Olney’s Estate, 309 Mich 65; Grimes v. King, 311 Mich 399; Baker v. Slack, 319 Mich 703.

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Bushnell, J. Plaintiff Harvey Dutcher and Eugene Rees spent an entire evening together in various bars and taverns in Owosso, Michigan. During the course of the evening Eugene introduced Dutcher to his brother, defendant Orin Rees. Sometime during the evening Eugene, who was employed by the city of Owosso, borrowed Orin’s car in order to place- lights around some construction work. After midnight the 2 again met Orin in a restaurant and Eugene asked Orin to take him and Dutcher home to Corunna, because by that time the buses from Owosso to Corunna had stopped running. Orin replied: “I am busy now. I will a little later on.” Dutcher testified that after Eugene had told him that Orin would drive them home, he gave 50 cents to Eugene, saying, “give this to Orin to help him pay for the gas.” Eugene replied: “It is a good idea. I’ll pay a dollar for gasoline for me using the car.” About a half hour later, Orin said: “I am ready to go if you are ready to go, let’s get out of here.” Eugene testified that as they walked across the street to Orin’s car, he put a dollar bill into Orin’s coat pocket, but said nothing to him about it. The accident out of which Dutcher’s injuries arose occurred just inside the westerly city limits of Corunna, about 3 miles from Owosso. At the trial when plaintiff concluded his proofs, defendant moved for a directed verdict on the grounds of absence of any proof that plaintiff was a passenger for hire, and his failure to show gross negligence. The trial judge reserved decision saying, in effect, that the existence of a guest-passenger relationship in this case was a question of fact for the jury. Defendant made an opening statement and then rested. The court then ruled that defendant was not guilty of gross negligence as a matter of law and removed that question from the consideration of the jury. After the trial judge charged the jury, he submitted the following special question at the request of the defendant: “Do you find from the evidence that the plaintiff was a passenger for hire as the result of an express contract between himself and the defendant whereby the defendant agreed to transport the plaintiff from Owosso to Corunna in consideration of. the payment of money by the plaintiff to the defendant?” The record does not show the jury’s answer to the question, hut merely states: “The jury returned a verdict in favor of the plaintiff in the amount of $2,938.10.” The judgment as entered in the journal recites that the jury found “that the said defendant was guilty in manner and form as the plaintiff - has in his declaration in this cause alleged.” Defendant’s brief is confined to the single question of whether plaintiff was a “guest passenger as a matter of law.” Plaintiff says the real question involved is: . “Were there sufficient facts and circumstances to justify a determination by a jury of whether plaintiff and appellee was a guest passenger or a passenger for hire ?” The record discloses merely a social relationship comparable to that in Bushouse v. Brom, 297 Mich 616. Although that case was decided under the law of Virginia, this Court pointed out that the law of that State is the same as that in Michigan. There, as here — “it was clearly the friendship and social relation of these parties which resulted in plaintiff going on the trip with defendant. It was not a commercial arrangement or one in which the owner or driver of the automobile was induced to transport a passenger for an agreed consideration.” The applicable rule is well stated in 10 ALR2d, at page 1354: “The courts generally concur in holding that a mere incidental benefit resulting to the driver from the transportation is not sufficient to enlarge his liability, but that the benefit must have been given as consideration for the transportation and, in some degree at least, have induced the defendant to extend the offer. So, benefits which may be regarded as merely gratuitous gestures of reciprocal hospitality, or social amenities extended without thought of bargaining, have been held not to be payment or compensation.” See, also, In re Harper’s Estate, 294 Mich 453, 456; Brody v. Harris, 308 Mich 234 (155 ALR 573); and Herman v. Metal Office Furniture Co., 317 Mich 185. The fact that Duteher and Orin Rees had not met each other until the evening in question does not in itself make the tender of a ride a commercial transaction. There is no testimony to indicate that Orin knew that Dutcher was paying him for the short ride home with his brother Eugene. Furthermore, Orin agreed to give Dutcher and Eugene a ride before any offer of compensation was made by Dutcher to Eugene. As a matter of law, Dutcher was clearly the guest of Orin Rees. The trial court, having held that Rees was not guilty of gross negligence as a matter of law, the judgment against him cannot stand. The judgment is vacated and the cause is remanded for the entry of a judgment of no cause of action in favor of defendant. Costs to appellant. Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Sharpe, JJ., concurred. See CL 1948, § 256.29 (Stat Ann § 9.1446). — Reporter.

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Boyles, J. Plaintiffs, as owners of a store building in Detroit, filed the bill of complaint in this case to enjoin the defendants from- removing a furnace and stoker and other property from said building, on the ground that said property was a part of the real estate. Defendants Anna and Paul Sago filed an answer, and defendant Anna Sago, the lessee of said premises, filed a cross bill in which she claimed that she bad been induced to install the furnace and other property mentioned in plaintiffs’ bill of complaint on the promise and representations of plaintiffs that her lease would be renewed or that otherwise she would be allowed to remove the property from the building; that it would be a .great fraud to allow plaintiffs to terminate her tenancy and evict her from the premises before determination whether said property was personal propperty or whether she might remove it. Notice to terminate her tenancy bad been given Anna Sago that her lease would not be renewed. The defendants were temporarily enjoined from removing the property from the building, and the plaintiffs were also temporarily enjoined from dispossessing the lessee or evicting the defendants from the premises until' adjudication was made by the court as to defendant-cross-plaintiff Anna Sago’s right to remove said property from the building. Subsequently, on motion of the plaintiffs, the court entered an order dismissing the cross bill but in said order reserved for the defendants Anna and Paul Sago the right to an adjudication by the court as to their claim to the property. The order recited: “It Is Further Ordered that the defendants shall reserve the right to their claim to the items mentioned in plaintiffs’ bill of complaint at the time of the trial without prejudice because of removal prior to the time of trial.” By concessions made at the trial, the only item in the bill of complaint left for consideration by the court was the boiler which cross-plaintiff Anna Sago-had installed in the heating unit in the building. The circuit judge, after the taking of testimony, entered a decree holding that said boiler was part of the realty and enjoined the defendants from removing it. The court further decreed that the plaintiffs were indebted to cross-plaintiff Anna Sago in the sum of $663.75 by reason of the installation of said boiler. From the latter provision of the decree the plaintiffs appeal. The only question for. .our determination is whether the trial court under the pleadings and the circumstances of the case had-the right to grant the defendant and cross-plaintiff Anna Sago $663.75 by reason of her having installed .the boiler. The first floor of the building was used by the lessee as a beer garden. Defendants Sago lived in the upstairs apartment. Anna Sago, lessee, had been in possession of the premises for nearly 4 years, under written lease, jin which she was required “to keep the premises, including the equipment and fixtures of every kind and nature, during the term, in as good repair and at the expiration thereof yield and deliver up the same in like condition as when taken, reasonable wear thereof and damage by the elements excepted. * * * The tenants agree that during the life of this lease they will make, at their own cost and expense, all such necessary repairs, interior and exterior, which is necessary to keep this building in a good, tenantable condition.” On December 26, 1948, about 5 months before the end of the 2-year term of the lease, the boiler, which was a necessary component of the heating system, cracked and the heating system went out of commission. That had happened once before and the boiler had been welded and repaired. There were conferences between the parties. The boiler could be repaired and put into commission again for around $400 or $500. The lease would expire in about 5 months and defendants proposed to have the repairs made, while the plaintiffs wanted a new boiler installed. The record supports the conclusion of the trial court that the plaintiffs promised to renew the lease if the defendants would install a new boiler. The court properly found: “The issue finally centered in the matter of agreement and understanding of the parties relative to repairing the old boiler or installing a new one. The upshot of it was, that Mr. Sago claimed he would put in a new boiler at his own expense if plaintiffs would renew his lease, and that plaintiff Mr. Kachman told him that he would so renew the lease and that he, the plaintiff, wanted a new boiler.” No question is raised but that Paul Sago was acting for his wife Anna Sago, the lessee. The new boiler was installed, and finally paid for by defendants Sago at an expense of $1,327.50. Appellants claim that tbe court had no right to grant affirmative relief to cross-plaintiff Anna Sago. That claim obviously ignores the fact that the right of said cross-plaintiff to claim the boiler was expressly left in the case for adjudication in the court’s order dismissing her cross bill, without prejudice of removal prior to trial. Defendant Andrew Gabor, the contractor who installed the boiler, had not been paid. He claimed the right of removal unless he was paid. The cross-plaintiff paid him in full and thus took him out of the case as a party defendant. Under the circumstances, cases cited by appellants holding that affirmative relief will not be granted defendants in the absence of a cross bill are not controlling. The chancery • court had jurisdiction to decide all the essential elements in dispute in the case. Controlling of decision is our conclusion in Lau v. Stack, 269 Mich 396, stated as follows (syllabus) : “General rule that defendant in equity suit is not entitled to affirmative relief unless he files a cross bill is subject to exception that plaintiff may be required to do equity as a condition precedent to obtaining all or part of the relief he seeks regardless of the pleadings in the case.” Plaintiffs seek the aid of the equity court, to allow them to retain the new boiler as a part of the realty, notwithstanding their promise to renew the lease if the lessee would install a new boiler instead of repairing the old one. They expect equity to ignore their promise, and to reap the benefit of having a new boiler. The defendants could have fulfilled their obligations under the lease by repairing the old boiler at an expense of less than $500. Relying on plaintiffs’ promise to extend the term of the lease, the defendants expended more than twice that sum by installing a new boiler. It would plainly be contrary to equity and good conscience to decree to plaintiffs the entire benefit of such expenditure while the defendants Sago are deprived of any further use of the building or the boiler. He who seeks equity must do equity. We see no substantial merit in appellants’ claim that the court was without power to decree a lien on the property to secure payment to defendant Anna Sago. “Equity from the relations of the parties may declare an equitable lien out of considerations of right and justice based upon the fundamental principles of equity jurisprudence.” Cheff v. Haan, 269 Mich 593. Affirmed. • Costs to appellees. Reid, C. J., and North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. Butzel, J., did not sit. The reason for the difference between this cost and the decree allowing cross-plaintiff only half of it is not an. issue before us on the appeal.

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Grant, J. (after stating the facts). The learned counsel for complainant state the theory of their case as follows: 1. Defendants secured complainant’s stock, and all the other stock, by fraud in misrepresenting material facts, and in concealing the secret agreement. 3. Defendants acted as trustees of the complainant and other stockholders, i. e., a fiduciary relation existed between them; and, when such relation exists, the trustee cannot retain a secret profit from the execution of the trust. 3. Defendants, being directors, could not profit by the sale, when such sale was brought about or influenced by their official action. 4. A trustee or agent cannot make a secret profit for himself as a result of his agency or trusteeship. 5. The agent cannot be a purchaser. The principles of law stated in the above propositions are not disputed. Although the sale of the stock was a very advantageous one for the stockholders, yet, if the defendants were che mere conduits through which these stockholders were to transfer their stock to Lynn and Baxter, and there had existed a secret agreement between them and defendants that the former were to pay the latter a consideration for procuring the sale of the stock, they would undoubtedly not be permitted to profit by such a transaction. The question, therefore, has become one entirely of fact; and the two questions are, Did the defendants make false representations as to material facts ? and, Was there a secret agreement by which they were to profit at the expense of other stockholders ? We find no evidence whatever of any misrepresentation of facts, material or immaterial. The stockholders were fully informed as to the situation. They knew the condition of their own company, had met and voted to dispose of the property at $2 for $1 for their stock, and had, by the agreement of November 18th, either made Mr. Beal their agent to carry out the sale, or had modified their resolution of sale by agreeing to sell their stock to him at the same rate. The defendants possessed no information which complainant and the other stockholders did not also possess. If Lynn and Baxter had failed to take the property, it is difficult to see what legal objection the stockholders could make to transferring their stock to Mr. Beal upon payment under their contract with him, regardless of the parties to whom he was to convey. All prior oral and written negotiations and agreements were merged in this written contract. It did not mention any other vendee than Mr. Beal. Had the complainant desired to limit the right to sell to Lynn and Baxter, and to make Beal his agent to effect the transfer, appropriate language should have been used for that purpose. What possible difference did it make to complainant to whom Mr. Beal sold, provided he got the price agreed upon ? Assuming, however, that the defendants stood in the position of agents to carry out the wishes of the stockholders^ the question remains, Was there an agreement, at the time the sale was agreed upon, by which Lynn and Baxter, or the corporation to be formed by them, were to give the defendants bonds and stock in the new corporation ? There is no testimony whatever to even indicate that such an arrangement existed or was contemplated, either at the time of the execution of the contract to sell or the extension of that contract. There is no testimony that any such arrangement was even thought of, much less spoken of, until after the arrangements were made for the transfer of the stock, and about 10 days before it was actually transferred to the new corporation. He who charges fraud is bound to prove it, and that by substantial evidence. In order to sustain a decree against defendants, it must be found that they deliberately testified falsely, or else that the transaction is a fraud in law, no matter when the stock and bonds were given to them, or what the consideration, if any, was. Their testimony stands uncontradicted by any witness or any circumstances. The circumstances under which the bonds and stock were given to defendants are thus stated by Mr. Beal: “Mr. Lynn, within a week or 10 days of the final closing of the sale, met me, and said : “ ‘We want you to stay in the company, sure, and I have got these bonds to sell. I want you to sell some of the bonds in Ann Arbor for us; and then I have got some other projects, too, — other gas companies, — I want you to be interested with me. You can control capital of your own and others in Ann Arbor, and I want to go in with you.. I want to have you go in with this company.’ “And I have heard Mr. Goulden and Mr. Bennett, several times (and had agreed with them, too), express their determination when they sold the stock to get right out. They didn’t want anything more to do with it. We saw there was a big storm coming here when the price of gas was_raised, and a fight before the council, probably, for a charter, so that they just wanted to get out. They had expressed themselves that way. “ Q. In your presence ? “A. In my presence several times, and I had agreed with them. ‘ ‘ Q. Agreed with whom ? “A. With Mr. Bennett and Mr. Goulden. “ Q. That you would get out ? “A. Yes; that we would close right out. And then Mr. Lynn came to me and said that Goulden and Bennett would stay in if I would; if I would stay in, why, they would give us five thousand of the bonds apiece. They had, of course, a lot more bonds — Mr. Lynn — than was actually paid for the plants, and those bonds were theirs; and they were very anxious to sell the bonds, and were selling them at a discount, at times, and also with a stock bonus of 25 per cent. Anybody that would take $1,000 of bonds would have $250 of stock. “ Q. The stock bonus went with the bonds ? “A. Yes; that went with the bonds. And Mr. Lynn said: “ ‘ Mr. Goulden and Mr. Bennett will stay in if you do, and I want to have you. We need you three. You understand the business up there, and have a knowledge of the situation; and, in this fight that is going to come on us, we want your hearty support and help and assistance, and, if you will do that, we will give you the bonds and the accompanying stock.’ “ Q. He would give you how much of the bonds ? “A. Five thousand of bonds and 25 per cent, of stock. * * * “ Q. After having this conversation with Lynn, did you then see Mr. Bennett and Mr. Goulden, to see whether or not they had agreed to accept this offer if you did ? Did you talk that over with them ? “A. Yes. “ Q. Before you finally consummated it ? “A. Yes. “ Q. Now, let me see if I understand you. The contract was finally closed that day ? “A. Yes. “ Q. Did that five thousand that was paid you, or paid to either of these men, have anything to do with the price of the plant, according to the actual terms of your agreement ? “A. Nothing whatever. That had been settled long before.” Mr. Bennett’s version of the transaction is the same. This is all the evidence on the subject. Under’ this record, complainant received every cent he contracted for. He was not deceived. The terms of the sale had been agreed upon, and a contract made, not only between the complainant, the other stockholders, and Mr. Beal, but also between Mr. Beal and Lynn and Baxter, by which he agreed to transfer the stock to them upon the payment of §80,000. When about to execute the papers to carry out the contract between Beal and Lynn and Baxter, they wanted defendants to remain as stockholders in the new corporation, and defendants Bennett and Goulden as directors. They at first strenuously objected, and for reasons which to them seemed good. They were finally persuaded to enter the new company, — all as stockholders, and the two as directors, — upon receipt of $5,00.0 of bonds, and the bonus stock which accompanied the same. There was nothing bad, in morals or in law, about this transaction. Lynn and Baxter owned the stock and bonds, and had the legal right to give it away or to sell it upon any consideration they chose. The defendants, had the moral as well as legal right to purchase the bonds and to become stockholders upon any terms they chose to make with those who had the stock and bonds to sell. Their full duty to the stockholders of the old company was performed. We agree with the circuit judge that there is nothing in the transaction which indicates fraud, or reflects upon the honor and integrity of the defendants. Counsel’s statement that an agent cannot be a purchaser states the rule too broadly. An agent may purchase from his principal, so long as he acts in good faith, and his principal is informed of the situation. If the defendants or Mr. Beal had at one time been the agents for complainant to sell his stock, and afterwards complainant made a contract, with full knowledge of all the facts, to sell his stock to Mr. Beal, that contract would be binding. Directors, of course, stand in a fiduciary relation to the corporation itself. They do not stand in that relation, however, when dealing with other stockholders for the purchase or sale of stock. In the purchase and sale of stock between stockholders there must be some actual misrepresentation in order to constitute fraud. Mere silence is not sufficient. The books of the corporation are open to all stockholders alike, and' each may inform himself of the condition of the company. 1 Cook, Corp. § 320; Rose v. Barclay, 191 Pa. St. 594 (43 Atl. 385, 45 L. R. A. 392); Carpenter v. Danforth, 52 Barb. 581; Grant v. Attrill, 11 Fed. 469. Other cases of the like import are cited in the defendants’ brief. Decree is affirmed, with costs. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. Viz.: Tippecanoe Co. Com’rs v. Reynolds, 44 Ind. 509 (15 Am. Rep. 245); Deaderick v. Wilson, 8 Baxt. 108; Alexander v. Rollins, 84 Mo. 657; Crowell v. Jackson, 53 N. J. Law, 656 (23 Atl. 426); Gillett v. Bowen, 23 Fed. 625; Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690); Spering’s Appeal, 71 Pa. St. 11 (10 Am. Rep. 684); Allen v. Curtis, 26 Conn. 456; Bloom v. Loan Co., 152 N. Y. 114 (46 N. E. 166).

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Moore, J. The following statement taken from the brief of the counsel for the appellant shows the question involved in this case: “On the 10th day of February, 1902, the City Savings Bank, a Michigan corporation, located in the city of Detroit, was insolvent; and on that day George L. Maltz, commissioner of the banking department of the State of Michigan, closed and took possession of said bank. On that day there were in the possession of said bank two notes made by Frank M. Thompson, the petitioner, — one for $3,021, dated August 12, 1901, due six months after date, and one for $910, dated January 17, 1902, due four months after date. At the time of the failure, Frank M. Thompson had to his credit upon the books of the said bank, on deposit, the sum of $2,458.43, subject to check. On February 19, 1902, the said Frank M. Thompson demanded from the receiver, appellant herein, that said receiver apply upon the above-described notes the deposit due the said Frank M. Thompson, and, upon payment by him of the balance due upon said notes after the deposit had been deducted, surrender to him the notes. This the receiver refused to do, and, from the order directing such set-off, brings this appeal to this court. The legal question can be stated very simply: May petitioner set off the deposit standing to his credit when the bank closed its doors against his notes not then due ? ” Counsel for appellant contend that these deposits are not subject to set-off, because not mutual credits; that they are not mutual because, at the time the bank suspended, the debt owing from petitioner to the insolvent bank was not due; that such set-off would affect the rights of other creditors, and would give petitioner a preference over them. They are unable to find any Michigan cases directly in point, but cite several which they think in principle support their position, which will be referred to later. It is conceded the deposit of Mr. Thompson became due, without demand, when the bank became insolvent. Colton v. Building & Loan Ass’n, 90 Md. 85 (45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431); Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148). It is also conceded that the receiver stands in the place of the bank, subject to all equities against the bank, and does not sustain the relation of a purchaser of the notes for value, without notice. See Louis Snyder’s Sons Co. v. Armstrong, 37 Fed. 18; Van Wagoner v. Gaslight Co., 23 N. J. Law, 283; Sherwood v. Bank, 103 Mich. 109 (61 N. W. 352). It is urged that, if this bank were solvent, — a “going bank,” — it could not compel Mr. Thompson to pay the notes until maturity, and, on the other hand, he could not compel the bank to accept payment of the notes until they came due; and as the claim of the bank had not matured when the receiver was appointed, though Mr. Thompson’s claim did mature when the bank became insolvent, and before the receiver was appointed, it cannot be said the two claims are in any sense mutual credits, and the sub ject of set-off. Counsel cite, in support of this proposition, Gibbons v. Hecox, 105 Mich. 509 (63 N. W. 519, 55 Am. St. Rep. 463); Mechanics’ Bank v. Stone, 115 Mich. 648, (74 N. W. 204); and Koegel v. Trust Co., 117 Mich. 542 (76 N. W. 74). An inspection of these cases will show they are distinguishable from the one at bar. In Gibbons v. Hecox neither debt was due at the time of the insolvency. In Mechanics’ Bank v. Stone the debt to the bank was due at the time of its insolvency, while the debt from the bank was not due, and was a contingent liability. It was held the rights of other creditors had intervened, and their equities were superior to those of debtors seeking to set off claims not due. In Koegel v. Trust Co. one of the debts did not come into existence until after the appointment of the receiver. In Stone v. Dodge, 96 Mich. 514 (56 N. W. 75, 21 L. R. A. 280), Justice McGrath, speaking for the court, said: “There can be no doubt that the certificate of deposit in this case would, in a proper case, be a proper subject of set-off. It is well settled that, in a suit by a receiver of an insolvent bank upon a note or obligation due the bank, the defendant will be allowed to set off his deposit or a certificate of deposit held by him at the time of the suspension of the bank. Dickson v. Evans, 6 Term R. 57; Pedder v. Mayor, etc., of Preston, 9 Jur. (N. S.) 496; Niagara Bank v. Rosevelt, 9 Cow. 409; Ogden v. Cowley, 2 Johns. 274; McLaren v. Pennington, 1 Paige, 112; Miller v. Receiver of Franklin Bank, Id. 444; In re Receiver of Middle Dist. Bank, Id. 585 (19 Am. Dec. 452); Smith v. Fox, 48 N. Y. 674; New Amsterdam Sav. Bank v. Tartter, 4 Abb. N. C. 215; Berry v. Brett, 6 Bosw. 627; Jordan v. Sharlock, 84 Pa. St. 366 (24 Am. Rep. 198); Farmers’ Deposit Nat. Bank v. Penn Bank, 123 Pa. St. 283 (16 Atl. 761, 2 L. R. A. 273); Kentucky Flour Co.’s Assignee v. Merchants’ Nat. Bank, 90 Ky. 225 (9 L. R. A. 108, 13 S. W. 910); Van Wagoner v. Gaslight Co., 23 N. J. Law, 283; Platt v. Bentley, 11 Am. Law Reg. (N. S.) 171; Clarke v. Hawkins, 5 R. I. 219.” The case of Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148), is in point. This was an action by the receiver of the Fidelity Bank against the maker and indorsers of a promissory note which did not mature until after the insolvency of the bank. One of the defendants sought to offset its deposit with the Fidelity Bank at the time of the failure. This set-off was not allowed in the United States circuit court for the southern district of Ohio. An appeal was taken to the circuit court of appeals, who certified the questions involved to the Supreme Court. Mr. Chief Justice Fuller delivered the opinion of the court, in which the lower court is reversed and the set-off allowed. We quote from the opinion, as follows: * ‘ The note in controversy did not mature until September 7, 1887, but the deposit to the credit of the Farmers’ Bank was due, for the purposes of suit, upon the closing of the Fidelity Bank, as under such circumstances no demand was necessary. The receiver took the assets of the Fidelity Bank as a mere trustee for creditors, and not for value and without notice, and, in the-absence of statute to the contrary, subject to all claims and defenses that might have been interposed as against the insolvent corporation before the liens of the United States and of the general creditors attached. “The right to assert set-off at law is of statutory creation, but courts of equity, from a very early day, were accustomed to grant relief in that regard independently, as well as in aid of statutes upon the subject. * * * Courts of equity frequently deviate from-the strict rule of mutuality when the justice of the particular case requires it, and the ordinary rule is that, where the mutual obligations have grown out of the same transaction, insolvency on-the one hand justifies the set-off of the debt due upon the other. * * * “In the case at bar the credits between the banks were reciprocal, and were parts of the same transaction, in which each gave credit to the other on the faith of the simultaneous credit, and the principle applicable to mutual credits applied. It was, therefore, the balance upon an adjustment of accounts which was the debt; and the Farmers’ Bank had the right, as against the receiver of the Fidelity Bank, although the note matured after the suspension of that bank, to set off the balance due upon its deposit account, unless the provisions of the national banking law were to the contrary.” After quoting the act, it continues: “The provisions of the act are not directed against all liens, securities, pledges, or equities whereby one creditor may obtain a greater payment than another, but against those given or arising after, or in contemplation of, insolvency. Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference; and it is clear that it is only the balance, if any, after the set-off is deducted, which can justly be held to form part of the assets of the insolvent.” Jones v. Piening, 85 Wis. 264 (55 N. W. 413), quotes the case of Oatman v. Bank, 77 Wis. 505 (46 N. W. 881, 20 Am. St. Rep. 136), which is cited ,by this court in Mechanics’ Bank v. Stone, 115 Mich. 651 (74 N. W. 204), and which is a case similar to the latter, and says: “The case at bar differs widely from that class of cases, and turns upon a different principle. Here it was not the indebtedness of the insolvent debtor that was not due when the assignment was made, but a portion of the indebtedness from the plaintiffs to the assignee of the insolvent debtor. An assignee of such an insolvent debtor has no authority to waive the time of credit secured for the sole benefit of his assignor, and pay a debt not due with credits, or the avails of credits,' which are due to the assignor at the time of making the assignment, for to do so would tend to prejudice the creditors of the insolvent’s estate; but a debtor to such estate, whose debt was not due at the time of the making of such assignment, has the authority to waive the time of credit which was secured for his own benefit, and pay the same at once in money, or by way of set-off of the amount due him from such estate. This rule is firmly settled in other States.” To the same effect are Smith v. Fox, 48 N. Y. 674; Rothschild v. Mack, 115 N. Y. 1 (21 N. E. 726); Smith v. Felton, 43 N. Y. 419; Lindsay v. Jackson, 2 Paige, 581; Colton v. Building & Loan Ass’n, 90 Md. 85 (45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431); Jordan v. Sharlock, 84 Pa. St. 366 (24 Am. Rep. 198); Second Nat. Bank v. Hemingray, 34 Ohio St. 390; Keightley v. Walls, 27 Ind. 387; Smith v. Spengler, 83 Mo. 408; Jones v. Robinson, 26 Barb. 310; In re Van Allen, 37 Barb. 229; Stewart v. Anderson, 1 Cranch, 586; Davis v. Manufacturing Co., 114 N. C. 321 (19 S. E. 371, 23 L. R. A. 322); Adams v. Drug Co., 57 Fed. 888 (23 L. R. A. 334); Martin v. De Loge, 15 Mont. 343 (39 Pac. 312); Yardley v. Clothier, 2 C. C. A. 349 (51 Fed. 506, 17 L. R. A. 462); Ex parte Prescot, 1 Atk. 230; 1 Morse, Banks, § 338. As the precise question involved here is a new one in this State, but has been, as we have shown, directly passed upon in the Federal courts and many of the State courts, we feel bound to follow those decisions. Judgment is affirmed. Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.

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Per Curiam. This case is ruled by McKeller v. Township of Monitor, 78 Mich. 485 (44 N. W. 412). Judgment affirmed.

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Grant, J. Plaintiffs and defendant executed a land contract, dated November 17, 1897, by which the defendant agreed to sell certain land to the plaintiffs for the purpose of erecting a store or shop and a dwelling house thereon. Defendant loaned plaintiffs the money with which to erect the building. One Smith was the contractor to build it. Whether that contract was made with plaintiffs or with defendant we are unable to determine from the record. The record is very unsatisfactory, and it is difficult from either the record or the briefs to make a connected statement of the transaction. Neither the land contract nor the contract to build appears in the record. Two hundred dollars is involved, and the dispute ‘ is whether that was a commisssion, agreed upon by Mr. Vogt with plaintiffs for loaning them the money, or whether plaintiff John did work upon this building to the amount of $200, which defendant agreed to pay. The testimony was in direct conflict, and was properly submitted to the jury. We find no error upon the record, and no questions of sufficient importance to merit discussion. The judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.

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Montgomery, J. This is an action of trespass. The declaration contains two counts, — one for breaking and entering the dwelling house of plaintiff, the other .for breaking and entering a store building occupied by plaintiff. The defendant j ustified his breaking by a plea setting up that he entered the two buildings in question while acting as a constable in the city of Detroit, and for the purpose of serving a writ of replevin. The testimony offered by defendant tended to show that he visited the plaintiff at his store on Third avenue, and said to him that he had a writ of replevin for his shop fixtures and for his household goods, and desired him to open the doors and let him in; that the plaintiff replied, “No, I will go over to my folks;” that defendant did not give him any assurance that he would wait for him, but did wait 10 or 15 minutes, and then opened the store, and seized part of the goods; that he then went to plaintiff’s house, on Sixth street, about three blocks distant, but found nobody in the house when he got there; that he tried the front door at the foot of the stairs, and found it locked; that he inquired of a bystander, Mr. Hollands, where plaintiff was, and was told that he was there a little while ago; that he told Hollands that he had a writ of replevin for plaintiff’s furniture; that he then again rapped at the door, got no answer, and, after waiting a little while, no one appearing, he unlocked the door with a skeleton key, went up to the head of the stairs, again rapped, received no answer, unlocked the door, went into the house, and removed the furniture. The plaintiff gave a different version of the transaction, and the circuit judge instructed the jury that, if they found plaintiff’s version of the transaction to be correct, the plaintiff was entitled to recover, but that, if they found the facts as testified to by defendant, and above recited, the verdict should be, “No cause of action.” The jury found in favor of the defendant, and plaintiff brings error. The sole question presented which we deem worthy of discussion is whether, under the facts sworn to by defendant, the breaking"and entering was unlawful. 3 Comp. Laws, § 10655, provides as to the manner of service of a writ of replevin, and that the officer, for that purpose, may break open any house, stable, outhouse, or other building in which such property may be concealed, having first demanded the deliverance thereof at the building or place where the same is concealed. By section 752 this chapter of the Compiled Laws is made applicable to pro ceedings in justice’s court. We think the charge of the circuit judge correctly stated the law. See Howe v. Oyer, 50 Hun, 559 (3 N. Y. Supp. 726); Clark v. Wilson, 14 R. I. 11. The judgment will be affirmed. Hooker, C. J.,, Moore and Grant, JJ., concurred. Long, J., did not sit.

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Hooker, C. J. The complainant, a railroad corporation, built a side track upon the premises now owned by the defendant, under a contract made with his grantors, who were then in possession, operating a mill and elevator thereon. The contract is as follows: “Memorandum of agreement made this 1st day of August, 188?, between the Pontiac, Oxford & Port Austin Railroad Company, of Michigan, hereinafter designated the ‘ Railroad Company,’ and the Craig Wheat-Cleaner Company, of Oxford, Michigan, its assigns or successors, hereinafter designated the ‘Cleaner Company,’ witnesseth, that whereas the cleaner company wishes to secure a side or spur track to their elevator and mill at Oxford for the purpose of shipping grain and mill products by rail to and from Detroit and elsewhere, the railroad company, for one dollar and other considerations hereinafter named, agrees to construct a siding or spur track, in length not less than three hundred feet, from its main track at Oxford, adjacent to said elevator, to facilitate the handling and moving of grain and mill products for the cleaner company, and to bear all of the expenses of the same, except as hereinafter provided. “The cleaner company agrees to furnish free the right of way for said spur or side track over their grounds at place to be agreed upon between the respective parties; the right of ownership of the rails, ties, etc., to remain with the railroad, company, with the further right to remove the same at its option any time after three years from date hereof, should it at any time thereafter desire so to do, by giving the cleaner company thirty days’ notice of its intention. In consideration of said facilities furnished or to be furnished, the cleaner company hereby covenants and agrees that it will use said spur or side track for the purpose of loading and unloading cars with grain or mill products to be shipped over the road of the railroad company, and further agrees that -the shipment of freight in car-load lots shall within two years, computed at the rate of two cents per hundred pounds, aggregate two hundred and fifty dollars; and on failure on the part of the cleaner company to make shipments of such freight aggregating the amount stated, of one hundred and twenty-five dollars for each of the two years co'mmencing with and after the date hereof, they shall pay to the said railroad company in cash, on or before the expiration of the two years, the difference between the amount of freight shipped, computed at two cents per hundred pounds, and the said two hundred and fifty dollars, which is represented in a guaranty note of like amount, of even date herewith. “It is further mutually agreed and understood between the parties hereunto that the guaranty of the cleaner company is made with the understanding that the freight rates to be made by the railroad company to Detroit and other points beyond where the cleaner company may wish to ship their grain or mill products shall not exceed, at the time the shipments are offered and made, the freight rates made to the same points from Oxford for the cleaner company by the Michigan Central Railroad Company. It is further agreed that, should the railroad company at any time or for any reason be unwilling or unable to make the samé rate from Oxford to any point reached by it and its connecting or affiliating roads on any grain or mill-product traffic offered to it by the cleaner company as is made by the Michigan Central Railroad Company, the cleaner company shall be credited upon its obligation at the rate of. one cent per hundred pounds upon all such traffic offered to the railroad company and refused by it for the reasons above stated. “ The railroad company reserves the right to use said spur or side track for other purposes than that of the cleaner company whenever it desires to do so, provided that its use thereof shall not in any manner interfere with or discommode the cleaner company. ‘ ‘ Should the cleaner company make shipment of grain and mill products in car lots from Oxford over the road of the railroad company within two years from the date hereof in amounts, computed at the rate of two cents per hundred pounds, that shall aggregate, together with the credits hereinbefore mentioned, two hundred and fifty dollars, the guaranty note shall become null and void, and be returned to the cleaner company, duly canceled. “In witness whereof, we have hereunto affixed our respective names the day and date first above given, at Oxford, Michigan. “The Pontiac, Oxford & Port Austin R. R. Co., “By James Houston, Gen. Supt. “The Craig Wheat-Cleaner Co., “By A. M. Varney.” ■ The business conducted by the Craig Wheat-Cleaner Company did not prove profitable, and after some years resulted iri failure and discontinuance of business. Subsequently the defendant purchased the property from the Craig Wheat-Cleaner Company, and for a year or more past has operated the same. During the time that the premises were vacant, the railroad company used the track according to its own convenience, but after defendant acquired the premises he objected to the storage of the cars upon the same, and finally obstructed the track. Thereupon the complainant filed its bill to restrain his interference with the use of the track. The defendant answered, claiming affirmative relief. The railroad company contends that it has acquired the permanent right to use this side track according to its own convenience, while the defendant claims that he may revoke its right to use it at all at any time, if such a right has not been already revoked by a conveyance of the premises to him. He contends that the contract amounts to a license. The decree made by the learned circuit judge restrains the complainant from such use of the track as will interfere with the convenience of the defendant, but denies the claim of the defendant, and has the effect of adjudicating' the question of title. Both parties have appealed. This contract should be construed in the light of the surrounding circumstances. The premises in question consisted of several lots fronting upon a street. The side track crosses those lots but a few feet from the street line, practically cutting off their frontage, and making it impossible to construct any building upon the street line so long as the track remains. The contract shows upon its face that it was made for the convenience of the cleaner company. It was accompanied by a guaranty made by the defendant’s grantors, securing to the complainant a rev-' enue from said premises of not less than $125 a year for two years. It reserved to the complainant the title to the rails and ties of which the track was constructed, and the right to remove the track at any time after the expiration of three years. It contains nothing in the nature of a grant of title to the land upon which the track was built, the only provision in that respect being that the cleaner company should furnish free the right of way for said side track. Nothing in the contract expressly provides that the railroad company shall have the right to maintain the side track beyond the time when it should be desired by the cleaner company. -We may safely take judicial notice that manufacturing concerns all over the country enjoy the facilities of side tracks by agreement with railroad companies, and we think it would be a surprise to the business public to learn that, by arranging for such facilities, they yield to the railroad companies who furnish them a right to maintain and use such tracks for their own purposes in perpetuity, after they have ceased to be required for the convenience of those for whose use they were built. If the complainant’s contention is correct, it could maintain its track on these premises, though the cleaning mill should be destroyed by fire, or the owner decide to use his premises for other purposes, which would have no use for a railroad, and which would require the erection of buildings to the street line. It is unnecessary to discuss at length the question of license. If it be admitted that this is a license, and that a consideration was paid for it, and that money was expended by the complainant to accomplish the object of the contract, the fact remains that a reasonable construction of the contract negatives the conclusion that either party supposed that the complainant was obtaining, or that defendant’s grantors were granting, a right of way in perpetuity. The more consistent view is that both parties understood that the railroad company built a side track for the convenience of the occupant, to be maintained as long as he should desire, and no longer, subject, however, to the right of the company to remove after the expiration of three years. We do not discover that the prayer of the defendant’s cross-bill asks a decree for the removal of the track, and we think that while it rémains there the railroad company is entitled to use it in accordance with the decree of the circuit judge. The decree is therefore affirmed, subject to the right of the railroad company to remove said track upon the notice prescribed in the contract, and the right of the defendant to require its removal at any time. The defendant will recover costs of this court. Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.

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