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Chandler, J. The father of plaintiffs in his lifetime was the owner of a 75-acre farm near Monroe, this State; the father died intestate in 1920 leaving as his heirs at law five children, three of them being the plaintiffs. One of the children, Burton Wright, sold his interest in the farm to his brother Ernest. Burton predeceased Ernest, who was killed in an accident in 1928. None of the children were ever married excepting Ernest. No probate of the father’s estate was had and the three unmarried children, the plaintiffs, continued to live on the farm, and Ernest who resided a short distance away did the active farming of the property. After the death of Ernest, his widow, in conjunction with the probating of her husband’s estate, insisted that the father’s estate also be probated and that she be paid her share in cash. Administration was had upon the petition of plaintiff Marion, and defendant bank was appointed administrator of the father’s estate and in due course obtained from the Monroe county probate court a license to sell the farm for the purpose of paying debts, expenses of administration, and distribution. The plaintiffs in the probate proceedings, and in subsequent negotiations, were represented by an attorney, a reputable member of the Monroe county bar. A petition was filed by the plaintiffs in the probate court to set aside the order granting the license to sell, which was dismissed by the probate judge. The plaintiffs evidently wanted the widow of Ernest to take her share in property, but no proceedings were ever taken for a partition of the farm. Ernest died leaving no children, and his widow and the plaintiffs became his sole heirs at ,law. His interest in the real estate of his father was a two-fifths interest by reason of his having acquired the interest of the deceased brother Burton. After the license to sell the farm was granted, the defendant, administrator, claimed to have received an offer for the same of $15,000, and the record indicates that .the plaintiffs were advised that it was for their best interests to let the farm be sold and the proceeds divided. Plaintiffs, however, decided to acquire ownership of the farm and purchased the same of the administrator for the sum of $15,000. The defendant bank was requested by the plaintiffs to make a loan of $7,500, that being substantially the amount required in cash to pay a mortgage that was then on the farm held by the Dansard State Savings Bank of $1,545.67, back taxes of $841.20, expenses of administration, for quieting title to the land in question, and to pay the widow of Ernest her share in cash for her interest in the real estate and the personal property, which totaled $3,808. The bank declined to do so. The plaintiff Marion testified that she contacted in the neighborhood of 100 people in an effort to obtain a loan on the farm of $7,500, but without success. The defendant referred the plaintiffs to one Carl Kiburtz, a broker, who agreed to obtain the money for plaintiffs. The plaintiffs executed a promissory note to Mr. Kiburtz for the sum of $7,500, bearing-interest at the rate of 7 per cent, per annum, payable semiannually, $250 of the principal sum to be due April 19, 1932, and the whole sum to be payable three years after date. The payment of this note was secured by the execution and delivery of a real-estate mortgage covering the 75-acres in question. Kiburtz, being unable to negotiate the sale of the note and mortgage, assigned the same to the defendant, who furnished the. money on April 21,1930. The plaintiffs in these negotiations were still represented by their attorney, who was a witness to the mortgage in question. It does not appear that the plaintiffs at the time of these negotiations knew that defendant bank furnished the money and took an assignment of the mortgage; however, the record discloses that the bank notified the plaintiffs that it was the owner of the mortgage a few months after the mortgage was given. No payments were ever made upon the note and mortgage in question after April, 1931, and on April 19, 1932, the plaintiffs were in default on said mortgage both as to interest and principal, and had not paid the taxes assessed against said premises. In May, 1932, the bank threatened to foreclose the mortgage, and the plaintiffs, in consideration of defendant refraining from so doing, executed a warranty deed to the bank, which was placed in escrow and was to become absolute on April 1, 1933, unless previous to that time the plaintiffs should pay to the escrow agent all interest past due on said mortgage together with the interest due April 1, 1932, and all interest due October 1,1932, and should deliver proof of payment of all taxes and assessments due and payable on the premises described in the mortgage previous to April 1, 1933. Said escrow agreement further provided: “If said interest as aforesaid and taxes and assessments as aforesaid shall have been paid to the escrow agent before April 1, 1933, the deed affixed to this escrow agreement and deposited with said escrow agent shall be returned to parties of the second part [plaintiffs]; otherwise it shall be delivered to the First National Bank, of Monroe, Michigan, party of the first part, and may be recorded, and all right, title and interest of parties of the second part to said lands therein described shall pass upon such delivery. In consideration of the above covenants and agreement the First National Bank, of Monroe, Michigan, covenants and agrees to refrain from foreclosure and to accept the covenants placed in escrow of the premises as satisfaction of the mortgage debt.” The plaintiffs failed to comply with the terms of the agreement and said deed was delivered to the bank. On January 12, 1934, the deed was recorded in the office of the register of deeds of Monroe county. The defendant bank was closed by proclamation of the governor in February, 1933; placed in the hands of a conservator, and during the process of reorganization certain of its assets were placed in the hands of three trustees, amongfet which assets was the farm in question, which was deeded by the bank to said trustees on January 10, 1934, by quitclaim deed which was duly recorded. In view of the claim of the plaintiffs that they never knowingly executed the deed to the bank above referred to and did not know that the bank was claiming ownership of the farm in question, a letter written by the bank to plaintiff Marion Wright under date of September 27, 1934, and received by her, is quite significant. The letter follows: “Dear Madam: We have had it called to our attention that part of the fence on the western part of the property you are living on — I think around the orchard — is in need of repairs. We called up Mr. Woelmer the other day, asking him to go up there and look at the other part of the fence on which we had a complaint, but he claimed that it was fixed. I do not know who fixed it. Evidently you did yourself. “We hate to be annoyed by having people call np complaining about the condition of these line fences. They must be fixed up to the satisfaction of the neighbors. Kindly look after the same and see whether they need any additional repairs and, if so, have it done at once. “You have lived on these premises since we have had a deed for the same. For one year and a half we have received not one cent in the way of rent and the taxes on the farm have been accruing and the general condition of the farm has been going backward. “I talked to the liquidating committee just yesterday and they definitely intend to do something on this in the near future. We are giving you ample warning that you cannot expect to forever occupy these premises without paying for the same. It may be a hardship on you, but I do not know what your intentions were at the time you gave a first mortgage on these premises, when you promised to do certain things and as collateral to that promise, you pledged the farm. “We are not going to have some of our good customers of this bank look with disfavor on this institution because certain property which we own is not being kept up and whether you think you are in the right or not with the condition of line fences, we must insist that they be taken care of at once. “Yours truly, The First National Bank ok Monroe, Edmund W. Reisig, Cashier.” EWR: ILM. Either in 1934 or 1935 the trustees of the segregated assets of the defendant caused the buildings on the premises in question to be painted, this with full knowledge of the plaintiffs. In view of the claims of the plaintiffs of fraud and concealment on the part of defendant that the bank made the loan to plaintiffs, and that plaintiffs had not given a war ranty deed to defendant, it is also quite significant that on March. 29, 1935, the plaintiffs entered into a written lease with a Mr. Conlisk, one of the trustees of defendant, for the premises in question for a period of one year from and after the first day of April, 1935, and agreed to pay as rental for said premises the sum of $300, which lease was an exhibit in the case and the execution thereof was admitted by the plaintiffs. The record in this case indisputably shows that plaintiffs never paid any part of the principal, and that after April, 1931, no part of the interest on the mortgage; neither did they pay any of the rent specified .in the written lease, nor at any other time paid any rent for the use of the premises, and never paid any of the taxes assessed against said premises. The taxes for and including the year 1930 and subsequent years until the present time have been paid by defendant. O.n April 10, 1937, defendant instituted summary proceedings against plaintiffs before a circuit court commissioner in and for the county of Monroe to recover possession of the premises involved, and upon the trial of that case the plaintiffs were in court represented by an attorney, a Mr. T-TiTl, of Detroit, and at the conclusion of the trial in May, 1937, a judgment of ouster against said plaintiffs was entered by said commissioner from which judgment no appeal was ever taken. On October 20, 1939, a writ of restitution was issued out of said court and was duly executed, plaintiffs being put out of possession of the premises involved. In December, following said ouster, the plaintiffs filed their bill of complaint in this case claiming that the mortgage executed by them is void on the theory that the defendant, while administrator of the estate of their father, by loaning to them the sum of $7,500, and taking an assignment of the 'mortgage involved, violated its fiduciary relation by an act of self dealing. Plaintiffs also claim that the deed in question was void as the same was never knowingly executed by them and was a part of the transaction by which the mortgage in question was taken by the bank, that it was without consideration and should be canceled. The theory of the plaintiffs, that the defendant committed an act of self dealing in violation of its fiduciary duty in taking an assignment of the mortgage and the furnishing of the money, cannot be sustained. Even if the loan had been made directly by the defendant to the plaintiffs, and the note and mortgage in question had been given directly to the bank as mortgagee, the loan was as a matter of fact made to the plaintiffs who were the owners of the farm, and therefore the mortgage lien did not attach to property belonging to the estate, of which defendant was administrator, and was never at any time an obligation of said estate. Neither can we hold that the method by which the transaction of obtaining the loan and giving the mortgage was either a direct or indirect attempt on the part of the administrator to acquire property of the estate of which it was trustee. We find nothing in the record that rises to the dignity of evidence that tends to show any fraud or unconscionable conduct on the part of the defendant in its dealings with plaintiffs, either as administrator of the father’s estate or as the owner of the mortgage on the premises in question. It is the contention of plaintiffs that the transaction by which the bank acquired the mortgage in question was in violation of 3 Comp. Laws 1929, § 15824 (Stat. Ann. § 27.2990). We are not in accord with this view, but, even if it could be said that the defendant in loaning the money and taking the mortgage in question was violating a duty it owed as fiduciary to the plaintiffs, the transaction at most would be only voidable, and the defendant in this instance has not only met plaintiffs’ prima facie case, but has established beyond peradventure that no fraud or breach of trust was committed. The record is convincing that the defendant never intended or planned to take any advantage of plaintiffs nor to, in any way, deprive them of their inheritance. No fraud was intended or committed, either active or constructive, and we must hold that the trial court was correct in its determination that no fraud or wrongdoing had been committed by defendant; and as bearing upon the entry of a decree dismissing plaintiffs’ bill because there had been no fraud or overreaching on the part of defendant shown by any credible witnesses, we quote the trial court’s opinion, with which we are in accord, filed at the conclusion of the hearing: “I don’t know as it will benefit any of us to go into detail in argument of this matter. It is a case where the sympathy of the court might be moved towards the plaintiffs, but it is not a case where you are dealing with ignorant people. One of these plaintiffs graduated in the same class I did in high school in Monroe here in 1902, and she taught school for a good many years after that; so that you are not dealing with ignorant plaintiffs in this case. You are dealing with educated plaintiffs, at least one who took advantage of that education and made a living by it for years and years in this community. “The plaintiffs must show by a preponderance of the evidence, must sustain the various allegations to permit the court to find in their favor. In passing upon that the court has to pass upon the credibility of the witnesses. All of the plaintiffs testified they knew nothing about this deed. It was entirely new to them until I think along about the 11th of May, 1937, when the register of deeds told them there was a warranty deed. Check yonr exhibits in this case; you will find a letter was received by Marion Wright, who, under the testimony in this case, handled this property and these deals for the other plaintiffs under their own testimony; Marion Wright had received a letter from the trust officer of the bank a considerable period before that; reference is clearly and unmistakably made to the existence of this deed and the fact that the bank owned the property by this deed and objected to the condition in which the plaintiffs were permitting it to exist. Again going back to your question of credibility, that bears considerable weight in the mind of the court. “Then you have testimony of .these plaintiffs with reference to what disposition was desired to be made by them and by the widow of her [their ?] deceased brother of this property; in other words, the theory of the plaintiffs being now that they were forced into this transaction against her [their ?] will. Yet the testimony of the local municipal judge here this morning, a party certainly disinterested in this case, said that a very short time after the closing of the probate case Marion Wright, the plaintiff in this case who handled the transaction for the other plaintiffs in this case and for herself, in conversation with him flatly contradicted any premises upon which such a theory might be evolved. Now, I say as a matter of credibility a court cannot surmount that and find that in this case they have sustained their various allegations by a preponderance of the evidence. “It does not seem to me there is a thing in the world that this court can do under all the testimony in this case, even disregarding the question of laches, and the court finding that they did have knowledge of these transactions, I certainly think laches would exist, and laches would be a bar to these plaintiffs at the present time; because, as I say, you have at least three witnesses who through out the progress of this testimony have been mentioned by the plaintiffs frequently, Kiburtz, Conlisk and Gutmann, who are now dead; certainly the delay in instituting this action if they had that knowledge, and the court believes they did have knowledge from the testimony in this case, their delay in instituting this action until three material witnesses have died and cannot be presented in the determination of this case, would bring them under the rule of laches. But disregarding that entirely, the. court is compelled to find that plaintiffs have failed to sustain the various allegations set up in the bill of complaint by a preponderance of the evidence, and for that reason the several grounds of relief prayed for in the bill of complaint should be denied, and the bill of complaint dismissed.” It is also contended by the plaintiffs that the mortgage is invalid because usurious. The record discloses that Mr. Kiburtz the broker was to have $500 for financing the plaintiffs in the purchase of the farm. The bank’s records show that $500 of the money loaned to plaintiffs was retained by it as-a finance charge, and the uncontradicted testimony of Mr. Reisig, cashier of the bank, is that $100 of this sum was paid to Mr. Kiburtz for his efforts in attempting to secure the loan. The testimony of Mr. Reisig is to the effect that $400 of the $500 in question was treated as an advance payment of interest. This is contradicted by the plaintiffs, and we reach the conclusion from the bank’s own accounting that at least $400 of the $7,500 loaned was retained by it as a finance charge' and inured directly to its benefit. We find that this is out of proportion to any legitimate fee that the bank was entitled to receive, and, since the rate of interest was 7 per cent, annually, it amounted to more than can legally be charged and constitutes usury under 2 Comp. Laws 1929, §§ 9239-9241 (Stat. Ann. §§ 19.11-19.13). Therefore the plaintiffs claim the defendant has actually taken or received a usurious sum of money. If such, is the case, it subjects defendant to the penalty attached, that is, the loss of interest. See 2 Comp. Laws 1929, § 9240 (Stat. Ann. § 19.12). At the time the escrow agreement was entered into between plaintiffs and defendant on May 20, 1932, the plaintiffs were in default on their note and mortgage, even had they been given credit for the usurious amount retained by the bank, and therefore the execution and delivery of the deed in escrow could not be said to be without consideration. Until the penalty is incurred the defendant has the right to receive and enforce payment of lawful interest on the amount actually owed, and could have enforced payment of the same by foreclosure at the time of the execution of said escrow agreement. It cannot, therefore, be said that the defendant had collected more from plaintiffs by the retention of the $400 finance charge than lawful interest on the date of the execution of the escrow agreement. This transaction, that is, the making of the escrow agreement and the delivery of the warranty deed, amounted to a voluntary settlement between the parties. It was a sale by the plaintiffs of their equity of redemption to the mortgagee, the consideration being the forbearance to foreclose and the acceptance of the property in full satisfaction of the mortgage debt, the sale to become absolute as of April 1, 1933. At any time between the date the deed was placed in escrow until it became absolute, the plaintiffs could have cleared the property of the lien by the payment of the sum actually owed by them to defendant. Until such date, April 1, 1933, it was intended only as security, but after that date an absolute conveyance of the legal title. This the plaintiffs recognized by their subsequent conduct in making the lease of the premises in question above referred to and in their failure to pay any taxes assessed against the farm for a period of several years. Even though the contract of May 20, 1932, involved in part the payment of usury by the plaintiffs, its effect was a voluntary settlement of a usurious obligation. It was not necessary for the plaintiffs to pay this usurious sum and it was therefore a voluntary payment by them. The rule in this State is that one who has freely and of his own accord fulfilled a usurious contract cannot have relief or recover the money paid thereon. Dykes v. Wyman, 67 Mich. 236. Our research has failed to disclose a single case wherein the usurious debt was settled by taking the property, conveyed to secure it, where a court of equity has opened the transaction and allowed a redemption on the grounds of usury alone. In the instant case the plaintiffs are seeking equitable relief. They are not entitled to equitable relief at least until they show their willingness and ability to do equity, which in this case would be the payment of the amount loaned to them by defendant with lawful interest, and' the payment of taxes, which the defendant has paid to keep the premises in question from being sold for nonpayment thereof. The plaintiffs make no offer to do this. We find no showing by plaintiffs here that appeals to the conscience of a court of equity. We are also in accord with the findings of the trial court that if plaintiffs ever had a cause of action against defendant their laches is a bar to such action for the reasons given by said court. The decree entered by the trial court is affirmed, with costs to defendant. Sharpé, C. J., and Bttshnell, Boyles, North, Mc-Allister, Wiest, and Butzel, JJ.t concurred.	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Butzel, J. Herbert E. Drake, plaintiff, suffered a compensable injury to his back on August 19, 1936, and a final settlement was approved by the department of labor and industry January 8, 1937. Plaintiff resumed work on December 21, 1936, and worked continuously until July, 1938, when he was laid off. On November 4, 1938, he filed a petition for further compensation claiming that his physical condition had changed for the worse and that he had become totally disabled. Defendant proved at the hearing on the petition that on April 8, 1938, plaintiff, claiming the loss of Ms rigM eye through a subsequent accident, had received an award of $18 per week for 100 weeks from September 22, 1937. This award was subsequently redeemed for $1,400, the settlement being approved by the department. The amount of the settlement if divided into weekly payments of $18 each would cover a period of more than 77 weeks, ending on March 15, 1939, while the 100 weeks, for which the lump sum settlement was made, expired on August 30, 1939. At the conclusion of the hearing, Deputy Commissioner Black made an award denying compensation. He stated the compensation was “not in order at this time,” as plaintiff in the interim had been awarded compensation for 100 weeks from September 22, 1937, for the loss of an- eye, and the 100 weeks did not expire until August 30, 1939. Plaintiff filed an application for review of the order of the deputy commissioner but failed to press it any further. On February 9, 1939, the department entered an order dismissing’ the claim for review for failure to file a transcript of the testimony. The award of the deputy commissioner denying compensation thus became final at that time. Nothing further was done by plaintiff until September 1, 1939, when he again filed a petition for further compensation. Testimony was taken before a deputy commissioner. The evidence was very conflicting. In defendant’s attempt to impeach plaintiff’s credibility, it was shown that on October 5, 1932, plaintiff had been examined by the Kalamazoo city health department and the record in the latter’s files showed that plaintiff had made the statement at the time that the sight of his right eye was gone due to an accident in 1912; that he had worn a steel brace for 7 years and had a slight disability. A witness further stated that she made an eye test at the time and that plaintiff was blind in his right eye. At the conclusion of the hearing, the deputy commissioner denied plaintiff’s petition for further compensation and stated: “The case presents a clear issue of fact and the credibility of the witnesses forces the above-mentioned denial of further compensation.” A claim of review was filed and, notwithstanding the opinion of the deputy commissioner, who had an opportunity to see the witnesses, the department reversed his findings and awarded plaintiff full compensation dating from August 1, 1938, covering the larger part of the period for which plaintiff had received compensation through the cash settlement for the loss of his eye. Defendant, in appealing from this award granting further compensation, contends that the department had lost jurisdiction of the review of the case because plaintiff had not filed a transcript of the testimony within 20 days after filing application for review. On November 24, 1939, which was but a few days after the rendition of the award of the deputy commissioner denying plaintiff further compensation, the claim of review was filed. On February 16, 1940, defendant filed a motion to dismiss plaintiff’s appeal for failure to file a transcript of the testimony. Rule 10 of the department provides : “Sec. 1. * * * The party appealing * * * shall obtain * * * a transcript * * * and file the original of same with the commission within twenty days after an appeal is filed. The time for filing the transcript of testimony may be extended for good and sufficient cause upon application to any commissioner of the compensation division.” On February 19,1940, plaintiff filed a petition for an extension of time in which to file a transcript, set ting’ forth his inability to furnish it sooner. Notwithstanding defendant’s objections, the department on March 14, 1940, entered an order providing that plaintiff’s appeal would be dismissed unless the transcript was furnished within 10 days from the date of the order. Defendant contends that this ruling was erroneous and attempts to apply our decisions in regard to time specified in statutes to rules of the department.. We believe that the rule in regard to filing a transcript within 20 days, which is immediately followed by a provision for extension of time, leaves the matter within the discretion of the department. Sovey v. Ford Motor Co., 279 Mich. 313, cited by defendant, referred to the filing of a claim for review within a statutory 10-day period. Distinction between a statutory limitation and a rule of the department was recognized in that case for we stated that the court consistently held that statutory limitations of time in judicial proceedings, as distinguished from court rules, are imperative. In Guss v. Ford Motor Co., 275 Mich. 30, we held that the department might extend the time for filing the transcript of testimony upon a showing of good cause. Susan v. Universal Brewing Equipment Co., 291 Mich. 396; and Kalucki v. American Car & Foundry Co., 200 Mich. 604, cited by appellant, are distinguishable on their facts. ' We are not dealing in the present case with the mandatory provisions of a statute. We hold that the department was within its rights in construing its own rules and extending the time. Plaintiff filed the transcript on March 25, 1940, 11 days after the order, but the l’Oth day fell on Sunday. Section 9 of rule 3 of the department provides that when the final day for compliance with an order or notice falls upon a Sunday or a legal holi day, the party shall have the next business day to comply therewith. Inasmuch as Sunday was the last day, the filing of the transcript on Monday conformed with the rule. Appellee contends that plaintiff should be able to recover concurrent compensation for both the back injury and the eye injury notwithstanding O’Brien v. Albert A. Albrecht Co., 206 Mich. 101 (6 A. L. R. 1257). Plaintiff further claims that when the payments for the loss of the eye were settled by cash redemption, plaintiff was immediately entitled to further compensation for the previous back injury, compensation for which had theretofore been stopped by an agreement approved by the department from March 15, 1939; or, at least, plaintiff is entitled to compensation when the 77 weeks represented by the lump sum settlement expired. Ve need not consider these claims, for there was an adjudication by the order of Deputy Commissioner Black to the effect that plaintiff was not entitled to further compensation at that time since he had been awarded compensation for 100 weeks and the appeal from the order thereafter was dismissed. This became-res jtidicata and disposes of the claims for concurrent compensation during’ the 100 weeks. The department could not recapture the old appeal which had been previously dismissed. See Levanen v. Seneca Copper Corp., 227 Mich. 592; Anderson v. Ford Motor Co., 232 Mich. 500; Righi v. Robert Gage Coal Co., 269 Mich. 46; Hughsonv. City of Kalamazoo, 271 Mich. 36; Roe v. Daily Record, 273 Mich, 5; Guss v. Ford Motor Co., supra; Tulk v. Murray Corp., 276 Mich. 630; Fitzpatrick v. Olds Division of General Motors Corp., 282 Mich. 646. As there is testimony to support the finding of the department that plaintiff is entitled to further compensation on account of a change in physical condition, we must affirm 'such finding. Such compensation can only begin from August 30, 1939. The award of the department is set aside, with costs to defendant, and the case remanded for entry of an award in accordance with this opinion. Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred.	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North, J. Martin G. Hope, appellant herein, was charged with being guilty of committing a mis demeanor by recklessly driving a motor vehicle in violation of 1 Comp. Laws 1929, § 4696 (Stat. Ann. § 9.1564). On his first trial in justice court the jury disagreed; but upon the second trial he was convicted. The penalty imposed was payment of costs of $89 and in default thereof confinement in the county jail until the fine was paid, not to exceed 90 days. The defendant appealed and upon trial by jury in the circuit court he was again convicted. Thereupon the circuit judge sentenced the defendant to pay within 24 hours a fine of $100 and costs in the sum of $250, and in default of such payment within the time specified defendant should “stand committed to the county jail for 90 days.” The fine of $100 was paid and defendant took a receipt therefor from the clerk of the court. Later defendant because of noncompliance with the balance of the sentence was brought before the circuit judge on a bench warrant. Thereupon the circuit judg’e, being of the opinion that the amount of costs as fixed in the sentence was excessive, reduced such amount to $205.45. The circuit judge then made the following disposition of the case: “He (defendant) is now here, brought in on a bench warrant issued by the court. The defendant is now remanded to the sheriff for confinement for 90 days in accordance with the sentence of the court, in default of payment of costs as required by the sentence, costs in the amount of $205.45. Upon payment of the costs in that amount the revised order will provide for his release from further confinement.” Appellant’s position is stated in his brief as follows : “It is the contention of the defendant that the sentence imposed by the court was greater than authorized by law and that the same would be void as to the excess. “That the sentence as imposed is void as an alternative sentence. ’ ’ Passing appellant’s contention, later considered herein, that the amount of costs imposed was in excess of the amount sanctioned by law, we find no merit in either of appellant’s contentions: (1) that the sentence “was greater than authorized by law” or (2) that the sentence was void “as an alternative sentence.” The penal provision of the statute reads: “Every person convicted of reckless driving under section four of this act shall be punished by imprisonment in the county or municipal jail for a period of not less than five days nor more than ninety days, or by fine of not less than twenty-five dollars nor more than one hundred dollars, or by both such fine and imprisonment.” 1 Comp. Laws 1929, §4747 (Stat. Ann. §9.1616). Another statutory provision applicable to the instant case reads: “Whenever the accused shall be tried and found guilty, * * * the court shall render judgment thereon and inflict such punishment, either by a fine or imprisonment or both as the nature of the case may require, together with such costs of prosecution as the justice of the peace shall order; but such punishment shall in no case exceed the limit fixed by law for the offense charged, and in rendering such judgment and inflicting such punishment the court may award against such offender a conditional sentence, and order him to pay a fine with or without the costs of prosecution, within a limited time, to be expressed in the sentence and in default thereof to suffer such imprisonment as is provided by law and awarded by the court, in all cases where the of fender shall be convicted of an offense punishable at the discretion of the court, either by fine or imprisonment or both.” 3 Comp. Laws 1929, § 17447 (Stat. Ann. § 28.1213). See, also, 3 Comp. Laws 1929, § 17331 (Stat. Ann. § 28.1075). Obviously in the instant case the circuit judge under the statute could have imposed a fine of $100 and 90 days in jail. Instead, the sentence imposed was a fine of $100 and payment of costs in the amount fixed; but in default of payment commitment to the county jail was ordered until payment but not to exceed 90 days. The “conditional sentence” so imposed was not void as an alternative sentence, and it was not in excess of the penalty authorized by the statute, unless the amount of the costs fixed at $205.45 exceeded the amount which the court could lawfully require the defendant to pay. People v. Harrington, 75 Mich. 112. As bearing upon whether costs fixed in the amount of $205.45 were in excess of the amount of costs plaintiff could lawfully be required to pay, the following facts appearing in the record are pertinent. The costs fixed in the amount of $205.45 by the circuit judge were made up of the following items: witness fees, $29.95; officers’ fees, $6.50; costs assessed in the justice court, $89; and costs of the county in paying for one day’s service of a panel of 20 jurors at $4 each, $80. There is nothing in the record before us which in any way challenges the accuracy of the amount of the first three items above noted, totaling $125.45. But assessing costs against a defendant for a jury in a criminal case is not permissible under the laws of this State. People v. Kennedy, 58 Mich. 372. Every person charged with a criminal offense has a constitutional right to a trial by jury. In the opinion written by Mr. Justice Wiest in People v. Robinson, 253 Mich. 507, 512, he said: “and costs are expenses incident to a prosecution, and not inclusive of any of the expenses of holding required terms of the circuit court. ’ ’ The circuit judge was in error in including in the costs the item of $80 above noted. The case is remanded to the circuit court for the correction of the sentence by reducing costs to $125.45 and for enforcement by the circuit court of the sentence as amended. Sharpe, C. J., and Bushnell, Chandler, McAllister, Wiest, and Butzel, JJ., concurred. Boyles, J., concurred in the result.	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Butzel, J. Plaintiff, as sole dependent of Jacob Sutter, deceased, sought compensation under the occupational disease amendment to the workmen’s compensation law, Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-1 el seq., Stat. Ann. 1940 Cum. Supp. § 17.220 el seq.). Decedent had worked as a molder in the foundry of the Kalamazoo Stove & Furnace Company, defendant, for approximately 12 years. The testimony of the doctor who attended him in his last illness and the autopsy showed that he had suffered from a bilateral diffused pneumoconiosis and silicosis and active proliferated tuberculosis with cavitation; that he contracted the disease some eight years prior to his death. Decedent’s fellow-employees had noticed his frequent coughing in 1932 or 1933. Plaintiff testified that in the two years preceding decedent’s death, she had noticed that he was weak, suffered loss of appetite and had pains in his chest and lungs; that theretofore he had been strong and healthy. Defendant’s records showed that decedent first entered its employ on August 10, 1927; that on December 9, 1937, he was laid off and rehired on April 4, 1938, an interval of almost four months; he was again laid off on December 27, 1938, and was not again rehired until October 3, 1939, a period of over nine months. The laying off of the molders as a rule was due to lack of work. The employees, however, were free to work for others and were rehired as occasions arose. In 1928 or 1929, decedent worked for another company in Owosso, Michigan, for two months while defendant was shut down but then returned to the employ of defendant. Both the deputy commissioner and the department on appeal denied plaintiff compensation. The department based its decision on section 5 of the act, No. 61, Pub. Acts 19'37 (Comp. Laws Supp. 1940, § 8485-5, Stat. Ann. 1940 Cum. Supp. §17.224), which reads: “Neither the employee nor his dependents shall be entitled to compensation for disability or death resulting’ from such occupational disease, unless such occupational disease is due to the nature of his employment and was contracted therein, or in a continuous employment similar to the one in which he was engaged at the time of disablement, within twelve months previous to the date of disablement, whether under one or more employers. The time limit for contraction of the occupational disease prescribed by this section shall not bar compensation in the case of an employee who contracted such occupational disease in the same employment with the same employer by whom he was employed at the time of his disablement and who had continued in the same employment with the same employer from the time of contracting such occupational disease up to the time of his disablement thereby.” The department held: “The work record showed that he was not continuously employed. That statute expressly limits compensation in cases where a workman has worked for one or more employers within twelve months to diseases contracted within the twelve months. In cases of continued employment, where the disease was contracted in the same employment, he must have continued to work. During the periods of his lay-offs he was free to work elsewhere if he choose [chose]. He was not an employee of the defendant during those periods.” Plaintiff contends that the use of the words “continuous” and “.continued” in section 5 of the act shows that the legislature meant to give different meanings to the words, and that inasmuch as decedent did not work for any one else during this period he had continued in defendant’s employ. Appellant claims that any employer who foresaw the faintest indication that an employee might be afflicted with an occupational disease might purposely lay him off so as to avoid payment of compensation, and thus defeat the very purpose of the act. On the other hand, appellee states that if the lay-off or discharge was not bona fide, the court would give the employee relief. He points to a somewhat analogous situation in Smith v. Pontiac Motor Car Co., 277 Mich. 652, and contends that the court would hold that it was not a bona fide termination of the contract of hire, but that the employment, as a matter of fact, continued. It is unnecessary to pass upon this question in the present case inasmuch as compensation must be denied on another ground. Attention is called, however, to the claims of ambiguity so that, if any ambiguity exists, it may be removed if the law is amended. The testimony leaves no doubt that the room in which decedent was working was continually dusty. The sand used in the molding process was damp, so that the atmosphere was humid, and the air was filled with dust from the powders used by molders. There was no ventilation except from windows; it was difficult to reach and open them, and during the winter months they were usually closed up by being frozen. Another witness stated that the dust was so thick in the foundry room that one could hardly breathe at times. Adjoining the foundry room is the mounting room where emery wheel grinders are used at times in order to fit the parts together. There is a door connecting the two rooms. One witness testified that, while there is quite a bit of dust around or close to the grinding machines, it did not bother one over in the molding room. In the mounting room, they also used sand blasting to clean the larger castings, while the smaller ones were put in a “rattler,” a machine similar to a rotating barrel. The purpose of these machines is to remove the excess sand from the castings and the process has no effect on the metal. Quite a bit of dust emanates from the sand blast operation and some of it enters the foundry. Tuberculosis is not compensable under the act. Silicosis is only compensable under section 2 when it is caused by mining. Pneumoconiosis is the only possible disease for which plaintiff can recover. The department did not make any finding of fact as to what part, if any, pneumoconiosis played in decedent’s death. Pneumoconiosis is compensable under the act when it is caused by “quarrying, cutting, crushing, grinding or polishing' of metal. ’ ’ Although the department made no findings of fact, we will assume for the purpose of decision that the chief cause of death was pneumoconiosis which plaintiff claims was contracted by the inhalation of dust occasioned by the grinding of metal. Plaintiff contends, and the department agreed with her, that the limitation imposed by the words “caused by” appearing in the second column of section 2 does not confine recovery to cases where claimant is himself performing the work mentioned as a cause, but that it is sufficient if he is exposed to the disease by being, situated contiguously to workmen so engaged. Even if this is correct, and again attention is called to the uncertainties in the act, the grinding was done in a different room. The occupational disease statute is in derogation of common law, and is to receive a strict construction by the courts. It was aptly stated in Tews v. C. F. Hanks Coal Co., 267 Mich. 466: “The compensation act is in derogation of the common law and, therefore, its measure of relief may not be extended beyond its express terms; it is a legislative creation permitting no enlargement by principles of equity or common-law adaptations. It is arbitrary and where it speaks nothing can be added nor changed by judicial pronouncement. It imposes liability upon operatives under its provisions and measures exclusive relief in its own terms. ’ ’ Section 1 (c) of the act defines “occupational disease” as follows: “The term ‘occupational disease’ means a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment.” Thus, the causes enumerated in the second column of section 2 must be causes which are “characteristic of and peculiar to” claimant’s trade. Grinding of metal is not a portion of the trade of molding. In Lucier v. Pansy Hosiery Co., Inc., 286 Mich. 585, this court held that a manager of a hosiery shop was not suffering from an occupational disease when disability was caused by the escape of noxious fumes from the furnace. The court said: “The injuries which plaintiff suffered were not due to assuming a risk inherent in the nature of her employment by defendant company; the risk of injury to health from inhaling noxious fumes is not characteristic of, nor normal, nor constantly pres ent in, the occupation of managing a hosiery, shop. Such injuries resulted rather, from a fortuitous event which cannot he classified as one of the assumed risks inherent in the particular occupation in question, or as an occupational disease; and her remedy is under the workmen’s compensation act.” See, also, Dawe v. Norge Division of Borg-Warner Corp., 286 Mich. 90. The New York act is very similar to our own. In Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313 (12 N. E. [2d] 311), the New York court explained the restriction imposed by the second column of the New York act (pp. 318, 319): “Each disease is linked with the process used by the employee by which the disease is caused, such as lead poisoning contracted in a process involving the use of or direct contact with lead. Every such disease is thereby required to be actually caused in the course of the employment and from the particular work the employee is performing. * * * Thus an occupational disease is one which results from the nature of the employment, and by nature is meant, not those conditions brought about by the failure of the employer to furnish a safe place to work, but conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general. Thus compensation is restricted to disease resulting from the ordinary and generally recognized risks incident to a particular employment, and usually from working therein over a somewhat extended period. Such disease is not the equivalent of a disease resulting from the general risks and hazards common to every individual regardless of the employment in which he is engaged.” See, also, Sokol v. Stein Fur Dyeing Co., 216 App. Div. 573 (216 N. Y. S. 167). The fact that the second column of the New York act is entitled “Description of Process” while in the Michigan act it is captioned “Caused by” is a distinction of form and not of substance. Decedent’s death in the present case arose from the lack of proper ventilation in the foundry in which he worked. While the legislature has provided for the maintenance of sanitary conditions in foundries (2 Comp. Laws 1929, § 8341 [Stat. Ann. § 17.35]), it has not seen fit to predicate statutory liability thereon under the occupational disease amendment. We must enforce the act as we find it. Appellant contends that section 3 of the act sets up a cause of action which is independent of the limitations of section 2. The first portion of section 3 reads: “If any employee is disabled or dies and his disability or death is caused by one of the diseases mentioned in the schedule contained in section two of this part and the disease is due to the nature of the employment in which such employee was engaged and was contracted therein.” Section 3 follows section 2, provides for compensation, and must be read in connection with section 2. The opinion of the department of labor and industry disposes of this contention as follows: ‘ ‘ There is nothing to this contention. Each one of the occupational diseases listed is preceded by the words ‘disabilities arising from’ then follows a list of the diseases. Opposite each disease and preceded by the words ‘caused by’ are the occupations, processes, et cetera, by which the disease may be caused. Each listed occupational disease should be read as ‘disabilities arising from’ pneumoconiosis ‘caused by’ quarrying, cutting, crushing, grind ing or polishing of metal. Only the diseases listed and included within the qualifying words under ‘caused by’ are compensable. If the legislature had intended to provide compensation for all occupational diseases there would have been no occasion whatsoever for listing them by name and the limitation on the occupational diseases caused by the processes opposite each disease and under the words ‘caused by’ would be wholly unnecessary.” We agree with the reasoning of the department and hold that there is no merit in this contention since the act must be read and construed as a whole. Plaintiff’s decedent was not engaged in quarrying, cutting, crushing, grinding or polishing of metal and, therefore, plaintiff may not recover under the act. The award of the department is affirmed, with costs to defendant. Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred.	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Sharpe, C. J. Plaintiff, Frank H. Fuller, filed a bill of complaint to construe the will of his brother Mortimer S. Fuller, deceased. The facts are not in dispute. Mortimer S. Fuller died July 29, 1937. His will executed November 5, 1930, and codicils executed March 31,1931, and January 15,1935, were admitted to probate. The paragraphs of the will involved in this case read as follows: IV. “I am the owner, in my own name, of the title to the land described as: The south half of the south east quarter of section 22, town 2 south, range 15 west, being the township of Arlington, Van Burén county, Michigan; and also, of the east 60 acres of the south half of the northeast quarter; and of the north half of the northeast quarter of section 6, town 3 south, range 13 west, being the township of Antwerp, Van Burén county, Michigan. I am joint owner, with my wife, May W. Fuller, of the north half of the southeast quarter of section 22, Arlington township, and my wife and myself are also joint owners of other parcels of real estate, containing 47% acres. I am advised that my said wife, if I leave no will would inherit % of all of said real estate standing in my name, and that she has one year from the probate of my will to make her election whether she shall accept this will or accept the provisions of the laws of Michigan as to my estate. Therefore, on condition that my said wife accepts and abides by the terms of this will she shall have the full use, during her lifetime, of the said south half of the southeast quarter of section 22, of Arlington township, and she shall be absolute owner of said land described as being in Antwerp township, and the absolute owner of all the rest and residue of my estate, real and personal, after the above specific legacies are paid. This bequest to her is upon the express condition that after her death the south half of the southeast quarter of section 22 above described, and also the north half of said quarter section, being the entire 160 acres, shall pass to and belong to the conservation department of the State of Michigan. My said wife shall, within one year after the probate of this estate, execute and deliver to the said conservation department of the State of Michigan a deed to the north half of the southeast quarter of section 22 of Arlington township, retaining, however, the full use and control thereof to herself during her lifetime. “The conservation department is bequeathed the entire use and ownership of said lands, the title thereto to be in said department or in the State of Michigan, or in snch other manner as will best carry ont the purposes and desires of said conservation department, in said real estate. It may be used by said department, or by any other department of the State of Michigan, for educational purposes, or for ■reforestation, game preserve, experiment station, or any other purposes to which the said department, or the State of Michigan may desire to appropriate the same, it being the intent of this bequest that the State of Michigan is not limited as to title or use of said real estate. Y. “In case the conservation department or other proper authority of the State of Michigan refuses to accept this legacy; or, in case my said wife refuses to abide by this will, or fails within one year to execute deed, as above required, of the north 80 acres of the southeast quarter of section 22, Arlington township, then all the provisions of this will, except the specific legacies to Merrill S. Fuller and True A. Chandler, Walter Coffinger and James L. Webb, and also except the provision for the life use of the south half of the southeast quarter of section 22 of Arlington township, shall be null and void, and with the exceptions herein specified, all of my property, real and personal, shall descend to my heirs at law, the same as though no will had been made. ” During the lifetime of Mortimer S. Fuller, the 160 acres involved in this cause were owned as follows : The north 80 acres were jointly owned by Mortimer S. Fuller and wife, while the title to the south 80 acres was in the name of Mortimer S. Fuller, but not jointly with his wife. On August 3, 1937, the attorney for Mrs. Fuller wrote the department of conservation inclosing a copy of paragraphs 4 and 5 of the will, and stating: “Mrs. Fuller is very favorable to these provisions of the will, and quite anxious to carry out its provisions.” On August 30,1937, the will was admitted to probate by the probate court of Van Burén county and Mrs. Fuller was appointed administratrix with will annexed of the estate. On August 31, 1937, Mrs. Fuller executed her election to abide by the provisions of the will and also executed a warranty deed to the State of Michigan of the north 80 acres, reserving to herself a life interest. In January, 1938, Mrs. Fuller made a trip to Lansing and consulted with an official of the conservation department. She suggested to the department that she would give it immediate possession of the timber lot which consisted of the west 60 acres of the north 80 acres and the west 20 acres of the south 80 acres; and it in return was to deed to her the east 20 acres of the north 80 acres and the east 60 acres of the south 80 acres. Under date of February 15, 1938, the department of conservation wrote to Mrs. Fuller’s attorney advising him of its acceptance of. the legacy and of Mrs. Fuller’s proposition. As a result of these negotiations, on March 25, 1938, Mrs. Fuller executed a quitclaim deed to the State of Michigan conveying all her right, title and interest in the 80 acres agreed upon. On the same day, this deed and the warranty deed dated August 31, 1937, were mailed to the conservation department. They were recorded in the register of deeds office on June 13, 1938. On June 6, 1938, the department of conservation forwarded to Mrs. Fuller a deed from the State of Michigan conveying to her its interest in the 80 acres agreed upon. This deed was recorded June 20, 1938. On June 17, 1938, the acceptance of the department of conservation to the terms of the will and Mrs. Fuller’s election to abide by the provisions of the will were filed in the probate court. About June 13, 1938, Mrs. Fuller filed her final account as administratrix with will annexed of the estate of Mortimer S. Fuller and an ex parte order was entered allowing the account. Within 90 days from the entry of the above order, the probate court upon petition of Mrs. Fuller and Frank H. Fuller set aside the above order allowing administratrix’ final account and the final account was advertised for hearing in the regular way. After a hearing upon the final account, the probate court held that: “The provisions of the will as to time, relative to making elections, are found to have been complied with by the State of Michigan and May W. Fuller, and title vested in these parties. ’ ’ Plaintiff filed an appeal to the circuit court and later filed his present bill of complaint. Both cases were heard together. The trial judge entered an order reversing the order of the probate court and entered a decree setting aside the deeds of Mrs. Fuller to the State of Michigan and the deed of the State of Michigan to Mrs. Fuller; and ordered that the estate should be distributed in accordance with paragraph 5 of the will. Defendants appeal and contend that the defendant May W. Fuller and the defendant State of Michigan did comply with the terms and conditions of paragraph 4 of the will of Mortimer S. Fuller, deceased; and that the property passed to said defendants'by virtue of paragraph 4 as contained in said will. It is urged by plaintiff that paragraph 4 of the will contains the following conditions precedent: 1. “Therefore, on condition that my said wife accepts and abides by the terms of this will she shall have the full use, during her lifetime, of the said south half of the southeast quarter of section 22, of Arlington township, and shall be absolute owner of said land described as being in Antwerp township, and the absolute owner of all the rest and residue of my estate, real and personal, after the above specific legacies are paid.” 2. “This bequest to her is upon the express condition that after her death the south half of the southeast quarter of section 22, above described, and also the north half of said quarter section, being the entire 160 acres, shall pass to and belong to the conservation department of the State of Michigan. ’ ’ 3. “My wife shall, within one year after the probate of this estate, execute and deliver to the said conservation department of the State of Michigan, a deed to the north half of the southeast quarter of section 22, Arlington township, retaining, however, the full use and control thereof to herself during her lifetime.” In deciding this case we have in mind that, “The primary object in the construction of a will is to determine the intention of the testator.” Loomis v. Laramie, 286 Mich. 707. And “It is the duty of courts to effectuate the intention of the testator as to the disposition of his property, in so far as it is legally possible.” In re Richard’s Estate, 283 Mich. 485. In the case at bar the validity of the will is not questioned by any of the interested parties. The question, as we view it, may be stated as follows: Were the conditions named in the will carried out? To answer this question, we must determine the intent of the testator. It is plain that the testator intended that the widow would not file any statutory rejection of the will and would accept thereunder and carry out his intent and purposes. Testator also wanted his widow to convey her title to the north 80 acres to the State of Michigan reserving to herself a life estate therein; and he intended that the conservation department should eventually become tbe owner of tbe entire 160 acres. He expressly stated: “It being the intent of this bequest that the State of Michigan is not limited as to title or nse of said real estate.” He suggested, but did not limit, certain uses to which the real estate might be put; and stated: “or any other purposes to which the said department, or the State of Michigan may desire to appropriate the same.” An examination of the record shows that on August 31, 1937, the widow executed a formal acceptance of the will; that on February 28, 1938, the department of conservation, likewise, executed a formal acceptance of the will; that on August 31, 1937, the widow executed a deed of the north 80 acres to the State of Michigan as was required by the will; that both of the acceptances were filed in the probate court on June 17,1938; that the deed of the north 80 acres was recorded June 13, 1938; and that all of these acts were performed within the time prescribed by the will. It is urged that the acceptances were not made in good faith, but were made with an intent to circumvent the provisions of the will. An examination of the record does not sustain such a theory. Moreover, we may not infer that a department of State government would lend itself to such a proposition. Citation of authority is unnecessary for the proposition that the widow, as owner of the life estate in the property, could sell or convey all or any part of her interest to any person or to the State of Michigan ; and it likewise can be said that the conservation department, as owner of the fee subject to the life estate, could also dispose of its interest. Each had a legal right to do what was done in this ease ; and, in the absence of fraud, such conveyances will not be disturbed. The decree of the circuit court and the order in the probate appeal are reversed, with costs to defendants. Bushnell, Boyles, North, McAllister, Wiest, and Butzel, JJ., concurred. Chandler, J., did not sit.	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North, J. In each of these three cases, simultaneously submitted to the trial court, the constitutionality of the use tax act (Act No. 94, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 3663-41 et seq., Stat. Ann. 1940 Cum. Supp. § 7.555 (!) et seq.]) is challenged. In each case the plaintiff seeks injunctive relief and a declaratory decree holding the act unconstitutional. The particular grounds upon which the plaintiffs assert unconstitutionality of the act will be hereinafter noted; and the pertinent portions of the statute are printed in the margin hereof. In the circuit court a decree was entered in each case sustaining the constitutionality of the act. Plaintiffs have appealed. At the outset there should be noted, at least in general terms, the character of the business of the respective plaintiffs and the circumstances under which each is sought to be subjected to the use tax. The Banner Laundering Company is a Michigan corporation engaged in the laundry and linen supply business in this State. It purchases cotton and other textile goods and garments, laundry and office supplies, equipment and machinery, for use in its business; and a substantial part of such purchases are made outside of the State of Michigan and in the course of interstate commerce. Its customers con sist of restaurants, hotels, barber shops and others of like nature. It furnishes to these customers clean linens, towels, uniforms, et cetera; and at regular intervals calls for the soiled articles and replaces them with clean articles of like character. The articles so furnished remain at all times the property of plaintiff company. The Ford Building Company, a Michigan corporation, owns and operates in the city of Detroit two office buildings, the Ford building and the Dime Bank building. Incident to such ownership and operation the plaintiff in this case purchases for its own use and its tenants’ use'fixtures, equipment and supplies. In part at least such purchases are made outside the State of Michigan and reach this plaintiff in the course of interstate commerce. Plaintiff Henry H. Sills resides in Detroit. In February, 1938, he purchased at retail in Canada footwear at a price of $10.70. He brought his purchase to Detroit and paid the custom duties thereon. Also in February, 1938, and since that time, he has subscribed to and paid for various magazines and periodicals which have been delivered to him for his own use from without the State in regular course of mail. Each of these three plaintiffs denies that in consequence of the respective transactions of the character above noted there is a legal liability for the payment of the use tax. The first of plaintiffs’ contentions is stated in their brief as follows: “ (1) The statute seeks to impose a tax upon the owners of property. The tax is not a specific tax but is one imposed upon the property and its ownership. The statute contravenes the provisions of article 10 of the Michigan Constitution (1908).” The pertinent portions of article 10 read: “Sec. 3. The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide by law a uniform rule of taxation for such property as shall be assessed by the State board of assessors, and the rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for State, county, township, school and municipal purposes. “Sec. 4. The legislature may by law impose specific taxes, which shall be uniform upon the classes upon which they operate. * * * “Sec. 6. Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is to be applied. * * * “Sec. 21. The total amount of taxes assessed against property for all purposes in any one year shall not exceed one and one-half per cent, of the assessed valuation of said property.” We are not in accord with appellants’ contention that the statutory use tax is a tax on property, and not a specific tax. If appellants are wrong in the particular just noted, their assertion of invalidity because of lack of uniformity (Const. 1908, art. 10, § 3) or because the tax exceeds the rate of one and one-half per cent. (Const. 1908, art. 10, § 21) fails. Fundamentally the issue goes to the character of the tax, rather than to its lack of uniformity, or to its excessiveness. Appellants assert the use tax is not a specific tax, but instead: “This tax is merely a property tax of that nature (on property purchased without and brought within the State), and nothing more;” and further: “The name by which the tax is described in the statute is immaterial. * * * However, this court is not bound by the name given the tax by the legislature; it must inquire into the incidents of the tax, and from these incidents determine its nature.” The argument of appellants in support of their contention is that notwithstanding the nomenclature of the legislature, still the sq-called use tax is a tax upon ownership, therefore a property tax. The conclusion appellants reach is that since the act imposes upon them the duty to pay the tax upon certain personal property used, stored or consumed by them, and a like tax is not imposed on similar property owned by them or others, therefore the tax is not uniform and the act is unconstitutional. The fallacy, at least in part, of appellants’ reasoning is that they overlook the provisions of the act which confine the tax to a certain type or class of tangible personal property, and further that the act does not fix the amount of the tax on an ad valorem basis. Stated in concise terms and disregarding certain expressed exemptions in the statute, the class or type of property which if used, stored or consumed in this State subjects one to the payment of the tax in question is property on which a sales tax has not been imposed under the terms of Act No. 167, Pub. Acts 1933, as amended (Comp. Laws Supp. 1940, § 3663-1 et seq., Stat. Ann. 1940 Cum. Supp. § 7.521 et seq.). It is not a tax imposed upon the use or ownership of all tangible personal propT erty. Instead, one may own, use, store or consume any amount of tangible personal property without being subjected to the use tax, unless such tangible personal property falls within the specific type or class designated in the act. The Constitution of this State (Article 10, §§ 3, 4) plainly empowers the legislature to provide not only for so-called property or ad valorem taxes, but it may also “impose specific taxes, which shall be uniform,” upon the class or classes of property subjected thereto. If a valid reason exists for the segregation of the designated class of property to be subjected to a specific tax, the wisdom of so doing is for legislative determination, not for judicial decision. If there is a reasonable basis for selecting the class or classes, the only remaining constitutional limitation bearing upon the validity of specific taxes is that they ‘ ‘ shall be uniform upon the classes upon which they operate.” There is an obvious and just reason, approximating a necessity, for legislation of the type under consideration. Clearly its purpose is to equalize taxation as between the tangible personal property reached by the sales tax act and tangible personal property to which the use tax is made applicable. Under like circumstances, courts of other States, which have enacted a use tax statute as complementary to their sales tax systems, have held that the use tax is an excise or privilege tax, not a property tax. Douglas Aircraft Co., Inc., v. Johnson, 13 Cal. (2d) 545 (90 Pac. [2d] 572); Vancouver Oil Co. v. Henneford, 183 Wash. 317 (49 Pac. [2d] 14); Oklahoma Tax Commission v. Sisters of the Sorrowful Mother, 186 Okla. 339 (97 Pac. [2d] 888); National Linen Service Corp. v. State Tax Commission, 237 Ala. 360 (186 South. 478). "While it is true, as appellants urge, that the mere fact the legislature has designated the use tax as “a specific excise tax” is not conclusively binding upon the courts in determining whether in fact and in law the tax is a specific tax or an ordinary property tax, still such designation is entitled to “much weight.” Flint v. Stone Tracy Co., 220 U. S. 107, 145 (31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912 B, 1312). “Such statutory statement is to be accepted as true unless incompatible with the meaning and effect of the act as a whole.” Opinion of the Justices, 250 Mass. 591, 597 (148 N. E. 889). For the reasons hereinbefore indicated we conclude that the use tax is an excise tax (as contra-distinguished from an ordinary property or ad valorem tax) imposed on the privilege of using (in the statutory sense, see section 2, subd. [b]) tangible personal property which one has caused to become located in this State and which is not within the exemptions provided in the use tax act; and further, we conclude that the tax provided by this statute is uniform in its application to the tangible personal property on which it is imposed. It follows that this excise tax or privilege tax is not subject to the above-quoted article 10, § 21, of the Constitution, because it is not a tax “assessed against property,” but instead is a specific tax. As appellants’ second contention, they assert: “The statute is discriminatory in terms and as construed and applied by the defendants.” We quote from appellants ’ brief: “In short, in terms the statute purports to reach only a very small segment of the whole mass of property, indistinguishable in nature, which is imported into Michigan and which becomes merged with the common mass of property in Michigan, * * * [the statute] is not uniform per se or upon the classes upon which it operates. * * * “But in the stipulation of facts,, plaintiffs further offered to prove ‘that as [the use tax act] is construed and applied by the defendants, it imposes a tax upon Michigan merchants, manufacturers, processors and persons engaged in business enterprises on account of goods purchased by them, and upon persons doing business in Michigan on account of goods sold by them; but that persons resident in Michigan not engaged in business in that State, using, storing or consuming in Michigan tangible personal property acquired from persons not engaged in business in Michigan, generally make no returns and pay no [use] taxes.’ ” Appellants contend the trial court erred in refusing to receive testimony bearing upon their contention just above noted. We are in accord with the ruling of the trial court. If the use tax act as passed by the legislature has no inherent defects, and is not being administered in an unlawful manner as against appellants, they are not entitled to have the act decreed unconstitutional or to have its enforcement as ag’ainst them enjoined. In none of the three bills of complaint included in the record is there a sufficiently specific or definite allegation of maladministration of the act by the defendants to make that an issue in the cases being reviewed. In support of their contention that the use tax act “is discriminatory in terms,” appellants advert to the fact that the act in section 4 provides numerous exemptions, including the following: (1) Property merged into the common mass which was not acquired at retail sale in the State of purchase, (2) property upon which a retail sales tax was paid in the State of purchase, (3) a great mass of property which, after merger, is devoted to industrial processing, to agricultural producing, or to he resold. But nowhere in appellants’ brief is it persuasively pointed out that the exemptions contained in the statute are not justifiable exemptions, or that in consequence of the exemptions the act is rendered unconstitutional in that it does not operate uniformly or that it deprives appellants or others like situated of due process or equal protection of the law. Instead we think it is plain, at least the contrary is not demonstrated by appellants, that certain of the exemptions contained in the statute are justified by an obvious attempt on the part of the legislature to produce uniformity in the taxation imposed by the use tax act when considered, in connection with the closely related sales tax act. Other exemptions contained in section 4 of the act are of a type frequently embodied in taxation statutes, such as property sold to governmental units for public use, property sold to religious organizations, benevolent, charitable, scientific institutions and the like. But exemptions which render the operation of a taxation measure more just and uniform, or save institutions of the character above noted from the burden of the particular tax, do not render the act invalid for lack of uniformity or deprive persons subject to the tax of due process or equal protection of law, and this is true both of a specific tax and of a direct property tax. While it is not particularly stressed, appellants under this subdivision of their brief note that defendants construe the use tax act as imposing “a tax only upon property merged into the common mass after the effective date of the statute.” But it is not demonstrated that such construction is adverse to appellants’ interests; and whether the construction is right or wrong, it does not render the act unconstitutional. “A statute is to be, treated with that deference due to the deliberate action of a coordinate branch of government and is to be set aside only when it is apparent it was the result of action which the legislature was prohibited by the Constitution from taking.” C. F. Smith Co. v. Fitzgerald, 270 Mich, 659, 667. In recapitulation of this phase of the appeal it may be said that notwithstanding some imperfection may exist in the administration of the use tax act, or that by reason of exemptions (based on justice and sound public policy) the tax in specified circumstances is not imposed, still enforcement of this statute should not be enjoined nor should it be held constitutionally invalid as lacking uniformity or depriving those subjected to the tax of due process or equal protection of the law, as provided in Michigan Constitution (1908), art. 2, § 16; and United States Constitution, 14th amendment. In a Federal case involving the Constitution and statutory provisions of Michigan, the supreme court of the United States said: “It is manifest, therefore, that there are marked differences between the taxed and nontaxed companies, and the differences might be pronounced arbitrary if the rule urged by appellant should be applied, that is, that in the taxation of property no circumstance should be considered but its value, or, to use appellant’s words, 'each dollar’s worth should be treated alike.’ But such rigid equality has not been enforced. In Michigan the legislature has the power of prescribing the subjects of taxation and exemption, notwithstanding the Constitution of the State requires the legislature to provide a uniform rule of taxation, except on property paying specific taxes. People v. Auditor General, 7 Mich. 84; Board of Supervisors v. Auditor General, 65 Mich. 408; National Loan & Investment Co. v. City of Detroit, 136 Mich. 451. The power of exemption would seem to imply the power of discrimination, and in taxation, as in other matters of legislation, classification is within the competency of the legislature. We said in American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 92 (21 Sup. Ct. 43, 45 L. Ed. 102), that from time out of mind it has been the policy of this Government to classify for the purpose of taxation. * * * “Granting the power of classification, we must grant Government the right to select the differences upon which the classification shall be based, and they need not be great or conspicuous. Keeney v. Comptroller of New York, 222 U. S. 525, 536 (32 Sup. Ct. 105, 56 L. Ed. 299, 38 L. R. A. [N. S.] 1139). The State is not bound by any rigid equality. This is the rule; its limitation is that it must not be exercised in ‘clear and hostile discriminations between particular persons and classes.’ See [Quong Wing v. Kirkendall] 223 U. S. 59, 62, 63 (32 Sup. Ct. 192, 56 L. Ed. 350). Thus defined and thus limited, it is a vital principle, giving to the Government freedom to meet its exigencies, not binding its action by rigid formulas but apportioning its burdens and permitting it to make those ‘discriminations which the best interests of society require.’ ” Citizens’ Telephone Co. v. Fuller, 229 U. S. 322, 328, 329, 331 (33 Sup. Ct. 833, 57 L. Ed. 1206). Touching this phase of the law, in one of our earlier decisions it was said: “Courts cannot annul tax laws because of their operating unequally and unjustly. If they could, they might defeat all taxation whatsoever; for there never yet was a tax law that was not more or less unequal and unjust in its practical workings.” Youngblood v. Sexton, 32 Mich. 406, 414 (20 Am. Rep. 654). “Exemptions consistent with uniformity. — The principle hy which the requirement of equality or uniformity is held to prohibit exemptions from taxation is applied with varying degrees of strictness in the different jurisdictions in which it is in force, but it is nowhere enforced with literal exactness. It is almost everywhere held that the legislature may exempt property devoted to a public or semipublic use, or property of insignificant value and of such a character that it may be supposed to be owned by everyone alike, or property which is already taxed directly or indirectly in some other way. The requirement of uniformity does not compel the State to tax the instrumentalities of government, since such a tax would merely involve the payment by the same hand which was to receive the tax and would be a wholly nugatory act. * * * In most jurisdictions it is held that property devoted to a public use, for instance the property of religious and eleemosynary corporations, may be exempted from taxation, because the State is thereby relieved of a burden which it otherwise would be obliged to bear. * * * Property may be exempted by a State which has the constitutional power to tax it if it is lawfully taxed in another State.” 26 R. C. L. §§ 224, 225, pp. 253, 255. We quote the following from the syllabi of C. F. Smith Co. v. Fitzgerald, supra: “What classes of rights or property shall be assessed for taxes and what shall be exempt is a matter for legislative determination within constitutional limitations. “The State may classify property for purposes of taxation and statutes imposing taxes upon prop erty are not invalid if they operate uniformly against or upon each class or if some classes are exempted altogether.” The case last above cited is authority for holding that notwithstanding property incident to which a use tax is paid may also be subjected to the ordinary ad valorem tax, still this does not result in double taxation. Appellants’ contention to the contrary cannot be sustained. Appellants also challenge the constitutionality of Act No. 94, Pub. Acts 1937, on the ground that the title of the act “does not express its object,” and that the act “does not state the nature of the tax and the objects to which it is to be applied.” In other words, appellants assert the act is violative of the following provisions of the State Constitution. “No law shall embrace more than one object, which shall be expressed in its title. ’ ’ Article 5, § 21. “Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.” Article 10, §6. The title of the act in question reads: “An act to provide for the levy, assessment and collection of a specific excise tax on the storage, use or consumption in this State of tangible personal property; to appropriate the proceeds thereof; and to prescribe penalties for violations of the provisions of this act.” Tested in the light, of our numerous and recent decisions, the title is not defective. See Loomis v. Rogers, 197 Mich. 265; In re Lewis’ Estate, 287 Mich. 179; Baker v. State Land Office Board, 294 Mich. 587; Shivel v. Kent County Treasurer, 295 Mich. 10. Seventy-five years ago Mr. Justice Cooley, writing for the court, said: “There was no design hy this clause [Const. 1850, art. 4, § 20; Const. 1908, art. 5, § 21] to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number. * * * But this purpose [compliance with the constitutional provision] is fully accomplished when the law has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be .provided for by a separate act relating to that alone, would not only be senseless, but would actually render legislation impossible.” People v. Mahaney, 13 Mich. 481, 494, 495. In refutation of appellants’ contention that the act does not state the nature of the tax and the objects to which it is to be applied, it suffices to note that both in the title and in the body of the act the tax is definitely designated “a specific tax,” and in section 3 it is provided that it is a specific tax “for the privilege of using, storing or consuming tangible personal property,” et cetera; and further as to the disposition of taxes paid under the act, section 21 provides: “All moneys received and collected under the provisions of this act shall be deposited * * * in the State treasury to the credit of the general fund.” Appellants further assert that Act No. 94, Pub. Acts 1937, transgresses the following portion of the Federal Constitution: “The congress shall have power * # * (3) To regulate commerce with foreign nations, and among the several States.” U. S. Const, art. 1, § 8 (3). This contention is foreclosed by several recent decisions of the supreme court of the United States which are adverse to appellants’ contention. Henneford v. Silas Mason Co., 300 U. S. 577 (57 Sup. Ct. 524, 81 L. Ed. 814); Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 (59 Sup. Ct. 376, 83 L. Ed. 488); Southern Pacific Co. v. Gallagher, 306 IT. S. 167 (59 Sup. Ct. 389, 83 L. Ed. 586); McGoldrich v. Berwind-White Coal Mining Co., 309 U. S. 33 (60 Sup. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876); McGoldrich v. Felt & Tarrant Co., 309 U. S. 70 (60 Sup. Ct. 404, 84 L. Ed. 584). In the Henneford Case, supra, pp. 582, 583, the court said: “The tax (California use tax) is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end. “Things acquired or transported in interstate commerce may be subjected to a property tax, nondiscriminatory in its operation, when they have become part of the common mass of property within the State of destination. * * * For like reasons they may be subjected, when once they are at rest, to a nondiscriminatory tax upon use or enjoyment. * * * A tax upon the privilege of use or storage when the chattel used or stored has ceased to be in transit is now an impost so common that its validity has been withdrawn from the arena of debate.” We have considered other arguments and cited authorities contained in appellants’ brief, but we find they do not sustain appellants’ contention of invalidity of the act here involved. Instead, as against any of the reasons urged by appellants, we hold the act constitutional and in that respect affirm the declaratory decree entered in the circuit court. Since the foregoing opinion was written, two decisions in accord therewith have been rendered by the United States supreme court. See Nelson v. Sears, Roebuch & Co., 312 U. S. 359 (61 Sup. Ct. 586, 85 L. Ed. 888,132 A. L. R. 475); and Nelson v. Mont gomery, Ward & Co., 312 U. S. 373 (61 Sup. Ct. 593, 85 L. Ed. 897). A public question being involved, no costs are awarded. Sharpe, C. J., and Bushnell, Boyles, Chandler, and McAllister, JJ., concurred with North, J. "Section 1. This act may be cited as the ‘use tax act.’ "Sec. 2. Words and phrases when used in this aet shall be defined as follows: * * * “ (b) ‘Use’ means the exercise of any right or power over tangible personal property incident to the ownership of that property or by any transaction where possession is given. ‘‘(c) ‘Storage’ means any keeping or retention in this State for any purpose after losing its interstate character. * * * ‘‘(f) ‘Price’ means the aggregate value in money of anything, or things, paid or delivered, or promised to be paid or delivered by a consumer to a seller in the consummation and complete performance of the transaction by which tangible personal property shall have been purchased for storage, use or other consumption in this State. * * * ‘‘(g) ‘Consumer’ means the person who shall have purchased tangible personal property for storage, use or other consumption in this State. "Sec. 3. There is hereby levied upon and there shall be collected from every person in this State a specific tax for the privilege of using, storing or consuming tangible personal property in this State after June thirty, nineteen hundred thirty-seven, which tax shall be equal to three per eent. of the price of such property. For the purpose of the proper administration of this act and to prevent the evasion of the tax hereby levied, it shall be presumed that tangible personal property purchased on or after June thirty, nineteen hundred thirty-seven by any person for delivery in this State is purchased for storage, use or other consumption in this State. "Sec. 4. [Provisions for sundry exemptions]. "Sec. 6. Every person storing, using or consuming tangible personal property, the storage, use or consumption of which is subject to the tax imposed by this act, when such tax was not paid to a seller, and every seller collecting such tax from the purchaser, shall, on or before the fifteenth day of each calendar month file with the board a return for the preceding calendar month in such form as may be prescribed by the board, showing the price of each such purchase of tangible personal property during such preceding month, and such other information as the board may deem necessary for the proper administration of this act. At the same time each such person shall pay to the board the amount of tax imposed by this act with respect to the purchases covered by such return. Returns shall be signed by the person liable for the tax, or his duly authorized agent and shall be verified under oath. “Sec. 7. Each consumer storing, using or otherwise consuming in this State tangible personal property purchased for such purpose or purposes shall be liable for the tax imposed by this act, and such liability shall not be extinguished until the tax has been paid to the board. The payment to the board of the tax, interest and any penalty assessed by the board shall relieve the seller, who sold the property with regard to the storing, use or other consumption on which the tax was paid from the payment of the amount of the tax which he may be required under this act to collect from the purchaser. “Sec. 13. The board may bring an action at law to collect and recover the amount of taxes, interest and/or penalties due from any person, in addition to the other methods of collections herein provided. * * * “Sec. 20. The board shall have power to make rules and regulations for the enforcement of the provisions of this act, and the imposition and collection of the tax. * * * “Sec. 21. All moneys received and collected under the provisions of this act shall be deposited by the board, not later than thirty days after the receipt thereof, in the State treasury to the credit of the general fund, to be disbursed only by appropriations by the legislature.” For certain other provisions of the act see J. B. Simpson, Inc., v. State Board of Tax Administration, ante, 403.	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Chandler, J. The last will and testament of Joseph Hoag devised and bequeathed the residue of his estate to Grace Hoag, his daughter, now deceased. Jerome Hoag, appellant herein, is a brother of decedent and received only $50 under the provisions of the will of Joseph Hoag. The record shows that appellant was dissatisfied with the amount bequeathed to him by his father and it is claimed that Grace Hoag, prior to her death, agreed to pay him the sum of $5,000 on condition that he refrain from contesting his father’s will. After the death of Grace, appellant presented his claim in the probate proceedings involving her estate, where it was disallowed. An appeal was taken to the circuit court. At the close of appellant’s proofs, the trial court directed a verdict for defendant, and it is from the judgment entered in accordance therewith that this appeal is taken. Appellant’s wife testified as to an occasion on which Grace Hoag came to appellant’s home, at which time, in the course of an argument, it is claimed appellant told his sister that he intended to contest his father’s will. The two discussed the property involved, including’ some funds that were on deposit in closed banks, and it is claimed that Grace then agreed to pay appellant $5,000 when she got all the money out of said banks, if he would refrain from contesting the will. The foregoing is, in brief, the basis of appellant’s claim. The obligation of deceased, if one existed, was to pay appellant the sum of $5,000 when she, deceased, received the money from the closed banks. Aside from the fact that the inventory in the estate of Joseph Hoag showed assets of only $3,736.73, after deduction of expenses of administration, it is clear that appellant was not to be paid under the alleged contract until his sister had received the same from the closed banks. The proofs offered contained no evidence ■ showing that this event had occurred. There was nothing to be submitted to the jury for their consideration. Plaintiff did not make a prima facie case and the trial court was not in error in directing a verdict for defendant on this ground. After discovery of the defect in proofs, appellant moved to reopen the case to introduce additional evidence. Whether or not the motion should have been granted was discretionary with the trial judge and it does not appear that he abused his discretion in denying the same. The judgment is affirmed, with costs to appellee. Sharpe, C. J., and Bushnell, Boyles, North, Mc-Allister, Wiest, and Butzel, JJ., concurred.	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Sharpe, C. J. Ulysses Thompson died August 25, 1939. At the time of his death he was the owner of a farm in Tuscola county, Michigan. He left no will, but proceedings for the probate of his estate were begun in the probate court of Tuscola county. Roy J. Olds presented a claim against the estate as follows: “For services rendered and money furnished to said deceased at his request and on his promise to pay for such services and money so rendered and furnished, in, upon and about the farm lands, business and home of said deceased, from the fall of 1906 to the date of said decedent’s death. $7,664.10. “In the event of claimant’s inability to prove the express contract aforesaid then claimant will base his demand upon decedent’s implied promise to pay claimant the reasonable value of said services and money, with interest thereon, a bill of particulars whereof is hereto attached and marked Exhibit A. $7,664.10.” An itemized statement was filed showing a claim for services from-1907 to and including 1939 with the exception of the years 1922 and 1927. The total atnount claimed was the sum of $7,664.10. Upon appeal to the circuit court the trial judge allowed the claim in the amount of $2,500. The material facts are not in dispute. The claimant, Eoy J. Olds, came to the Thompson home about the year 1904 at the age of 14 or 15. Olds lived with and worked for Thompson from 1907 through 1921 with the exception of some months in 1918 and 1919 during the "World War and for some months in 1921. He was not paid like a hired man, but received clothes and spending money. He married about 1921 and from then on made his home elsewhere, but continued to help Thompson with his farm work until Thompson’s death in 1939. In addition to the clothes and spending money, claimant also received the sum of $50 per year for 14 years and an additional sum of $1,000 about the time of his marriage. Five disinterested witnesses testified in behalf of claimant that Thompson had told them that Eoy was to get the 40 acres of land when Thompson died. One of these statements made by Thompson was in the presence of claimant and all witnesses testified as to the high esteem in which claimant was held by deceased. The administrator of the estate appeals from the allowance of the claim and contends that there was no express contract between claimant and Thompson to pay for the services rendered. We are in accord with this claim. The record is barren of any testimony showing an express contract between claimant and Thompson that the services performed by claimant were in consideration of a promise that he would receive the farm upon the death of Thompson. It is urged by claimant that recovery may be had upon an implied contract, but the administrator urges that there may not be an implied contract where the parties stand in the relationship of father and son; and that services rendered by a member of a household are presumed to be gratuitous and no recovery can be had in the absence of an express contract. It is conceded that claimant was not in any way related to deceased and after 1921 did not make his home with decedent. “The courts regard with suspicion and disfavor claims brought against an estate for personal services rendered by relatives, especially where the latter are members of decedent’s immediate family or household, as the presumption is that such services between persons occupying such relations are intended to be gratuitous, and hence claims against the estate of a decedent made by near relatives for personal services require stronger proof to establish them than ordinary claims by strangers. The rule applies when the family relationship actually existed between claimant and decedent, although there was neither consanguinity, affinity, nor adoption.” 24 C. J. pp. 281, 282. See, also, In re Pierson’s Estate, 282 Mich. 411. In Harris v. Smith, 79 Mich. 54 (6 L. R. A. 702), we said: “"Where the services are rendered to one standing in loco parentis, there is no implied promise to pay for them, though such presumption may be overcome by the facts and circumstances of the case.” In the case at bar, a family relationship existed between claimant and decedent up to the time of claimant’s marriage and any services performed by him up to that date are presumed to be gratuitous. There is no evidence in the record supporting a contrary view, but about 1921 claimant married and made a home elsewhere. At that time claimant received $1,000 from decedent and also had received $700 representing 14 years of services at $50 per year. It appears to ns that the marriage of claimant and his living elsewhere ended the family relationship and the presumption of services rendered gratuitously no longer exists. In Miller v. Stevens, 224 Mich. 626, 632, we said: “A contract is implied where the intention as to it is not manifested by direct or explicit words between the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used or things done by them, or other pertinent circumstances attending the transaction. Where there is no express contract a contract may be implied in fact, where one engages or accepts beneficial services of another for which compensation is customarily made and naturally anticipated, and although there be no express stipulation between the parties for wages or price the law implies an understanding or intent to pay the value of the services rendered.” In Re Abel’s Estate, 173 Mich. 93, 105, we said: “If the facts and circumstances attending the performance of the work and in its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted under the understanding that they were to be paid for, the parent is liable.” See, also, In re Burg’s Estate, 282 Mich. 304. ,In the case at bar the facts and circumstances are such as would warrant the finding of an implied contract to pay for such services after the family relationship ceased to exist. The' administrator contends that the statute of limitations (3 Comp. Laws 1929, § 13976 [Stat. Ann. § 27.605]) bars claimant from receiving compensation for services rendered before a period of six years prior to the death of decedent; and limits Mm to receiving an amount not in excess of $480. In the case at bar there were statements made by Ulysses Thompson to the effect that the 40 acres were to become the property of claimant upon Thompson’s death, but there is not evidence that these statements were communicated to claimant or that claimant relied upon them. The lack of such evidence prevents the formation of an express contract, but we think the facts and circumstances in this case show that services were performed and that deceased intended to pay for them. An implied contract to pay for such services must be limited to a period of six years next preceding the death of Thompson. The claim allowed by the trial court covered a period of time much longer than that prescribed by the statute of limitations; in this there was error. The cause is remanded to the trial court to find the value of services rendered, if any, within the limits prescribed by tMs opinion. Appellant may recover costs. Bushnell, Boyles, and North, JJ., concurred with Sharpe, C. J. McAllister, J., concurred in the result.	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McAllister, J. Plaintiff filed an information in the nature of quo warranto, challenging the right of defendant to hold the office of supervisor for the township of Carp Lake in Ontonagon county. The parties were candidates for the said office in the spying election of 1940, and a recount of ballots showed defendant to be victor by a margin of five votes. Plaintiff contends that eight votes which were counted for defendant were not legal, and should not have been counted, and that he should be declared elected by a majority of three. The official ballot contained two tickets — the “Township Ticket” and the “Nomination Ticket.” Plaintiff’s name was printed on the ballot as a candidate for supervisor on the township ticket; no name appeared on the ballot as candidate for the same office on the nomination ticket. Defendant was a “slip” candidate. Plaintiff’s name, as printed upon each of the eight contested ballots, was obliterated by the pasting thereupon of a printed slip containing defendant’s name; on the contested ballots, no cross or mark appeared, either in the square before the name of the candidate for supervisor nor in the circle above the name of the party. It is the claim of plaintiff that the eight ballots in question are void under 1 Comp. Laws 1929, § 3111, as amended by Act No. 297, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 3111, Stat. Ann. § 6.400), the pertinent portion of which reads as follows: “Seo. 19. The elector shall then go directly into a booth which is unoccupied and indicate with pencil or pen on the proper ballot, the candidate or candidates for whom he desires to vote. * * * “(4) If the elector wishes to vote for a candidate not on any ticket, he may write or place the name of such candidate on his ticket, opposite the name of the office, and make a cross in the circle under the party name. ’ ’ The trial court held that inasmuch as there were no marks on the ballots indicating the party or candidate voted for on such ballots, they were void; and decreed plaintiff elected to the office. On appeal, defendant claims that the language of the statute above referred to is not mandatory by prohibitive terms; that the intent of the voters of such ballots to vote for defendant was clearly demonstrated by the affixing of stickers over the name of plaintiff; and that the court erred in holding such ballots void. It is contended that, inasmuch as courts look with disfavor on depriving a citizen of his vote because of technicalities, when his intention appears on the face of the ballot, it will not be defeated by too strict a construction of a statutory requirement, if there has been a substantial compliance with the law. Jonkman, ex rel. Shaw, v. Striplin, 255 Mich. 215. In support of defendant’s argument that the criterion is the ascertainment of the intention of the voter, her counsel rely upon Johnson v. Board of Canvassers, 101 Mich. 187, and Sawyer v. Hart, 194 Mich. 399. In the Johnson Case it was held that, where the official ballot contained the name of only one person for each and every office to be voted upon, the failure of a voter casting such a ballot to mark the same did not authorize the election officials to reject such ballot, inasmuch as such a mark did not add to the certainty of the voter’s intention or hazard the rights of anyone. In the Sawyer Case, it was held that where the name of one candidate only for any office appeared upon the ballot for a township election, a voter who pasted the name of one candidate over the name of another for a cer tain office, without making a cross at the top of the ballot, or before the name on the pasted slip, cast a legal vote for the candidate whose name he pasted, on the authority of Johnson v. Board of Canvassers, supra. In People, ex rel. Oatman, v. Fox, 114 Mich. 652, where a ballot having two tickets was voted, there was a candidate for the same office on each ticket. The name of a third candidate was pasted over the name of a candidate on one of the tickets. There were no marks on the ballot. The court held that such ballot did not express a voter’s intention to vote for the sticker candidate in the manner prescribed by statute, and that full compliance therewith required that a name not appearing on the ballot be pasted or written in the proper place, and also that it be marked with a cross. But even after placing the name of the sticker candidate on the ballot, there appeared the name of another candidate for the same office. From these adjudications we can conclude that under the statute in effect at the time of such decisions, if there was only one ticket on the ballot, even though one of the candidates thereon was a candidate whose name had been pasted over the name of another, the ballot must be counted for all candidates on the ticket, even though there were no marks at the top of the ticket or before the name of the candidates; and further that, if there were two tickets on the same ballot and the name of a third candidate was pasted over the name of one of the two candidates on the ballot for the same office, and there were no other marks on the ballot, no intention to vote for the third candidate could be said to be expressed. This case is different from any of those adjudicated by this court. Here, there were two tickets on the same ballot. Bnt the sole candidate for the office of supervisor, as printed on the ballot, was on only one of the tickets. Defendant’s name was pasted over the name of such candidate. No candidate appeared on the other ticket, and no cross was made either at the top of the ticket on which the name of defendant was pasted on or in front of her name. The remarks of the court in the Johnson Case, with reference to holding the vote valid on the ground of ascertainment of the intention of the voter, are cited in defendant’s support. Does the fact that there were two tickets on the ballot with no marks thereon, or does the present statute, distinguish this case from the Johnson Case and the Sawyer Case? There is much difference of opinion among the various jurisdictions of this country with regard to the question here involved. With regard to writing in names on a ballot, it is stated in 20 C. J. p. 160: “When an elector desires to vote for a person whose name is not on the ballot he may do so by writing his name on a line left blank in the appropriate place; and he is ordinarily required to place a cross in a space designated for that purpose, although in some jurisdictions the writing in of the name is sufficient without the addition of a cross mark.” However, the jurisdictions referred to in the above citation held that such ballots were to be counted, because a statute involved expressly required it. Do mandatory provisions of our statute require that the votes in question be held void? The general election law, after setting forth the qualification of voters, provides: ‘ ‘ Seo. 19. The elector shall then go directly into a booth which is unoccupied and indicate with pencil or pen on the proper ballot, the candidate or candidates for whom he desires to vote, as follows: “(1) If the elector desires to vote a straight ticket he may make a cross (X) in the circle under the name of his party at the head of the ballot. Nothing further need be done. * * * “(4) If the elector wishes to vote for a candidate not on any ticket, he may write or place the name of such candidate on his ticket, opposite the name of the office, and make a cross 'in the circle under the party name. “(5) A ticket marked with a cross in a circle under a party name shall be deemed a vote for each of the candidates named in such party column whose name is not erased or crossed off, except those candidates where a cross is placed in the square before the name of some opposing candidate on the opposing ticket, or when there is written or pasted on the party ticket a name which is not printed on any party ticket. * . “(6) If the name of any person who is not a candidate on any ticket is written or placed on the party ticket opposite the name of the office, and there is a cross in the circle under the party name, the name so written or placed shall be counted one vote for such person, whether the original name on the party 'ticket is erased or not, excepting cases where there is a cross in the square before the name of some opposite candidate on some other party ticket.” 1 Comp. Laws 1929, § 3111, as amended by Act No. 297, Pub. Acts 1931. , "With regard to the first paragraph of section 19 above-quoted, it is to be noted that the language thereof is part of an amendment (Act No. 297, Pub. Acts 1931) in which the words, “with pencil or pen,” were inserted in the statute in effect prior thereto. Does this provision command that the voter mark his ballot with pencil or pen under penalty of losing his vote upon failure to do so? If the cross were printed before the name of the sticker candidate, would this fact invalidate the vote, because it was not indicated by pen or pencil? Are such provisions mandatory, or must the statute, in order to void the ballot, prohibit the counting thereof in case of deviation from this provision? A review of many cases on the question indicates anomaly and a certain confusion. “Formerly, when voting was done in a less systematic fashion than at present, the rule that the intent of the voter was controlling was more generally adhered to. But under statutes adopting the official ballot, judicial consideration is in many instances confined to determining whether the marking complies with mandatory statutory require^ ments. Nevertheless, the voter’s intention frequently is important, for, as has been shown, if no mandatory provision of the election law is violated, any mark which fairly indicates the elector’s intention will be given effect and, under some statutes, a ballot will be rejected only in case a fraudulent intent is shown. The ballot is to be construed as any other writing, and the voter’s intention is to be gathered from the instrument itself, read in the light of the surrounding circumstances, extrinsic evidence of which is admissible. But extrinsic evidence is admissible only in aid of the ballot; it may not be received for the purpose of showing that the intention of the voter was in any way different from what plainly appears on the face of the ballot, nor may it be received when the ballot is too defective to express any intention whatever.” 18 Am. Jur. p. 310. ‘ ‘ Such requirements are as a general rule held to be mandatory, although they may be regarded as merely directory; and through all of the cases the general principle of construction is recognized that a voter should not be disfranchised where it is clear that he has made an honest effort to comply with the statutory requirements, although he may not have been entirely successful. * * * Except in those cases in which statutes prescribing rules to be observed by a voter in the preparation of his ballot are shown to be mandatory by prohibitive terms, inhibiting the counting of a ballot in case of deviation from the rules, the cases all recognize that the intent of the voter is the prime consideration in determining the validity of the ballot; but this intent must be determined by an inspection of the ballot itself, read in the light of surrounding circumstances.” 20 C. J. p. 154. It is further to be noted that in our election statute, while provisions are made for the writing in or placing the name of a candidate on a ticket, there is no provision for the voting for such a candidate alone, but only when a cross is placed under the party name, resulting in a vote for the entire ticket. 1 Comp. Laws 1929, § 3111, subd. (4), as amended. We have no doubt that a single candidate whose name does not appear on the ballot can be voted for. In the absence of any provisions for voting for a single candidate, where such a name is written in or placed on the ballot by the voter, it cannot be assumed, even by strict construction, or construing the provisions of the law as mandatory, that the statute here in question governs the instant case by virtue of the provisions relating to other methods of voting. A striking instance of giving effect to the intention of the voter is found in subsection (6) of the election law, above referred to, where it is provided that, when an elector votes a ticket by a cross in the circle under the party name and also writes in or places upon the ticket the name of a candidate opposite the name of an office, the vote shall be counted for such candidate, although the name of the original candidate, as printed on the ballot, is not erased therefrom. The effect of this provision of our statute is similar in principle to those adjudications which hold that, where a ballot is marked with cross marks in circles at the head of each of several tickets appearing thereon, it can be counted for no party, if all the tickets are complete, as such marks counteract each other; but that such ballots may be counted for the candidates on either of the tickets upon the other of which there are no opposing candidates. Caldwell v. McElvain, 184 Ill. 552 (56 N. E. 1012); People, ex rel. Feeny, v. Board of Canvassers of Richmond County, 156 N. Y. 36 (50 N. E. 425); 20 C. J. p. 160. We are of the opinion that the ballots in question disclosed the intention of the voters. They placed stickers containing the name of defendant over the name of the only other candidate for the office of supervisor. While there were two tickets on the ballot, the name of only one candidate for the particular office was printed on the ballot. There were no crosses made on the ballots, but neither were there any in the Johnson Case or the Sawyer Case, although the statutes in effect at the time of the decisions in these cases provided that the voter should' indicate on the ballot his choice of candidates. The voters in question apparently were interested only in this particular office. They signified no intentions with regard to any other of the candidates; they manifested their intentions with regard to this office by going to the trouble of placing a sticker containing defendant’s name on the ballot for the office of supervisor, leaving no other candidate on the ballot for the same office. It is impossible to escape the conclusion that their intention was clear and disclosed. No provisions of the election law designed for the safeguarding and purity of elections was violated; nor does the claimed nonobservance of statutory rules in this case relate to provisions to protect against fraud, the law in such cases being most strictly construed. There is no provision in the statute mandatory of the manner of voting for a single sticker candidate in an election; and the statute in none of its provisions is mandatory by prohibitive terms, inhibiting the counting of a ballot in case of deviation from the rules outlined therein. Many statutes of various States are drafted in such prohibitive terms. But in view of the fact that the legislature of this State has not seen fit so to provide, our conclusion is that the ballots in question are valid and should be counted for defendant. The judgment of ouster is reversed and set aside, with costs to defendant. Sharpe, C. J., and Bushnell, Chandler, and Butzel, JJ., concurred with McAllister, J.	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Butzel, J. Walter E. Madill and wife held title as tenants by the entirety to a theatre building in Chesaning, Michigan. On October 28, 1935, Mr. Madill entered into a written lease of the building and certain equipment therein with Fred A. Graham for a term of five years and with an option for an extension of five years and also for purchase of the equipment. Upon the death of Mr. Graham on August 27, 1937, Vera Graham, his widow and defendant herein, continued to manage the theatre and for over two years Madill accepted the rent from her without objection. On September 28, 1939, Albert R. Arrand and wife, plaintiffs herein, fully cognizant of the lease, and after being told that it would be up to them to remove defendant, purchased the property. Both Mr. and Mrs. Madill joined in the conveyance to plaintiffs. Shortly thereafter, plaintiffs served notice to quit and instituted summary proceedings to recover possession of the premises from defendant. The justice of the peace, sitting as a circuit court commissioner, found defendant “guilty” of unlawfully holding possession. IJe held that the lease was invalid because it was not signed by the wife of Mr. Madill; also that the defendant was never appointed administratrix of the estate of Fred Graham, the original lessee, and therefore could not claim rights under, the lease as a defense. On appeal by Mrs. Graham, the trial judge held the lease invalid because it was for a term of more than three years and not joined in by the wife of the lessor, one of the tenants by entirety. He relied largely upon Nurmi v. Beardsley, 275 Mich. 328, wherein it was stated that neither tenant by the entirety ‘ ‘ can alienate a moiety so as to defeat the title to the survivor.” That case, however, dealt with the necessity of notice of a mechanic’s lien to the wife as well as to the husband because the effect of the foreclosure of the lien might terminate the rights of both husband and wife in the title to the property. In the instant case both Mr. and Mrs. Madill are living, and as far as the record discloses, neither objected to the lease, nor to defendant’s tenancy. The only question appellant asks us to decide is whether the lease continued to be valid during the lifetime of Mr. Madill, who as husband would be entitled to the rents, profits, and usufruct of the property. Neither husband nor wife alone can sever the tenancy by the entirety, or convey a moiety to defeat the title of the survivor. But it does not follow that, because leases for longer than .three years are brought within the statutes relating to conveyances of real property by 3 Comp. Laws 1929, § 13309 (Stat. Ann. § 26.552), a lease for a longer term than three years executed by the husband alone is therefore invalid for the period during his lifetime. The right of the husband to control the tenancy by entirety is governed by the common law. "When the married women’s statute was enacted, 3 Comp. Laws 1929, § 13057 et seq. (Stat. Ann. § 26.161 et seq.), giving the wife a right to control and own a separate estate, the question arose whether the stat ute abrogated tbe common-law rights of the husband in respect to the tenancy. Two leading cases involving this issue under similar statutes are Hiles v. Fisher, 144 N. Y. 306 (39 N. E. 337, 43 Am. St. Rep. 762, 30 L. R. A. 305); and Pray v. Stebbins, 141 Mass. 219 (4 N. E. 824, 55 Am. Rep. 462). In Hiles v. Fisher, supra, Chief Justice Andrews held that the right of the husband to rents and profits was net an incident of tenancy by the entirety but rather the right of control which the common law gave the husband over the property of the wife. This right, he concluded, had been swept away as a necessary consequence of legislation investing her with the beneficial use of her own property, free from his control. Some States have followed this rule. Pray v. Stebbins, supra, held that the married women’s statute did not change the incidents given the tenancy at common law. Judge Field wrote (pp. 223, 224): “The rights of husband and wife in this estate must therefore be determined by the common law. By that law the right to control the possession of such an estate during their joint lives is in the husband, as it is when the wife is sole seised. ‘Neither could convey during their joint lives so as to bind the other, or defeat the right of the survivor to the whole estate;’ Pierce v. Chace, 108 Mass. 254; but, subject to this limitation, the husband has the rights in it which are incident to his own property, and the rights which by the common law he acquires in the real property of his wife. He has, during coverture, the usufruct of all the real estate which his wife has in fee simple, fee tail, or for life. By the great weight of authority, he has the right to make a lease of an estate conveyed in fee to him and his wife, which will be good against the wife during coverture, and will fail only in the event of his wife surviving him.” (Citations.) Michigan followed the rule of Pray v. Stebbins and rejected the reasoning of Hiles v. Fisher, supra, in the case of Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100). In Way v. Root, 174 Mich. 418, 424, the leading Michigan case on the subject, Judge Steere stated: “Neither a husband nor wife can alone convey or incumber the estate vested in them as tenants by entirety.” But, in regard to the husband’s right to lease the property, he further stated (pp. 429, 430): ‘ ‘ The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife’s estate, and had the usufruct, not only of real estate standing in both their names, but of that sole seised by his wife, whether in fee simple, fee tail or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of an estate by entirety. * * * He had a right to rent the property to others and collect the rent. * * * But he could lawfully collect rent from Way, and evict him in case of default, and Way could enforce a lease of the property given him by defendant alone. Pray v. Stebbins [supra]. We are well satisfied that defendant, being entitled to the rent, could maintain an action in his own name to collect it, and we think he is entitled to recover it as a counterclaim when sued by the party owing it, or his assign.” The inescapable conclusion is that when the court states that a husband cannot convey the tenancy by entirety alone, a conveyance that may divest the entire title is referred to, but it does not affect the validity of a lease during the lifetime of the husband. The anomalous character of the respective rights and liabilities of husband and wife in a tenancy by the entirety has been frequently commented upon. See American State Trust Co. v. Rosenthal, 255 Mich. 157; Marks v. Corliss’ Estate, 256 Mich. 460; Wuerth v. Wuerth, 270 Mich. 628; Dombrowski v. Gorecki, 291 Mich. 678; 1 Tiffany, Real Property (2d Ed.), § 194. While'appellees raise additional questions in their brief, they do not discuss them or the many collateral questions which must be considered in such discussion. The mere statement of a position without argument or citation of authority in support thereof is insufficient. See Dolby v. State Highway Commissioner, 283 Mich. 609 (117 A. L. R. 538) ; Court Rule No. 68, § 3 (1933). The further contention by appellees that the lease would become abrogated upon the sale of the property by the lessor to the plaintiffs is fully answered by the proviso in the lease that its covenants are binding upon the respective heirs, representatives and assigns of the parties. Judgment reversed, with costs to appellants. Sharpe, C. J., and Bushnell, Boyles, Chandler, and McAllister, JJ., concurred with Butzel, J. See, also, 3 Comp. Laws 1929, § 13278 (Stat. Ann. § 26.521). —Reporter.	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McAllister, J. Plaintiff filed his bill of complaint for construction of a written lease and an accounting. Defendant, in his answer and cross bill, asked reformation of the lease and an accounting. Defendant is the owner of a farm in Wheatfield township, Ingham county; and on February 25,1937, entered into a written agreement with plaintiff for a five-year lease of the premises. Among other stipulations, the contract of lease provided that defendant lease to plaintiff: “The following described premises, situated and being in the township of Wheatfield, county of Ingham and State of Michigan, to-wit: “The southeast % of section number 3 and the north % of the northeast % of section number 10 Wheatfield township, Ingham county, Mich. “Party of the second part is to pay $500 for the use of all of the equipment of said farm which includes the horses, tools, and the one half of all the livestock, cattle, sheep, hogs, chickens excepted party of the second part is to pay SO per cent, of all of his part of the proceeds of said farm at the time of the sale thereof with milk check exempted. “for the term of five years from and after the 1st day of March, 1937, on the terms and conditions hereinafter mentioned, to be occupied for farm purposes. “Provided, That in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, his certain attorney, heirs, representatives and assigns, to reenter into, repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out. “And the said party of the second part do hereby hire the said premises for the term of five years as above-mentioned, and do covenant and promise to pay to the said party of the first part, his representatives and assigns, for rent of said premises for said term the sum of Crop rent. . “Party of the second part is to furnish all the terms and tool? and is to do all the work, and is to have one half of all crops sown or planted. Each party is to furnish one half of all seed sown or planted, each party is to pay all the expense of all threshing bills, which includes grass seed. “Cattle: Each party is to have an equal interest in all cattle and each party is to have equal shares in all of the proceeds and increase from the above-named cattle, ‘ ‘Hogs: Each party is to have equal shares in all the hogs and is to have equal shares in all the increase and also proceeds from the hogs. “Sheep: Each party is to have equal shares in all of the sheep and each party is to have equal shares of all of the increase and wool. Each party is to pay one half of the shearing of the sheep. “Poultry: Each party is to have equal shares in all poultry and is to have equal shares in all the increase and proceeds from the same.” It is contended by plaintiff that by virtue of the lease he became entitled to the use of all of the equipment, tools, and horses on the farm and the owner of a one-half interest in all of the livestock owned by defendant, which were on the leased premises at the time the contract was made. The trial court reformed the contract “by eliminating therefrom the provision tending to indicate that plaintiff was entitled to a one-half interest in the cattle, sheep, and hogs on the farm on the 1st of March, 1937.” Plaintiff appeals, claiming the right to such an interest and contending that the contract should be construed to such effect. This is the only question before us on review. It appears from the evidence that defendant advertised in a newspaper that he had the farm for rent, and that plaintiff went out to the premises and discussed the matter with defendant. He testified that he found the livestock in poor condition and that there was no hay or grain on the premises. Plaintiff further states that at the time he had a good job at a Lansing dairy. Defendant at first wanted to sell the tools and horses to plaintiff, according to plaintiff’s account, and lease the farm. But after looking the place over, plaintiff and his wife decided not to take the farm and he thereafter wrote a letter to defendant informing him of his decision. Sometime afterward defendant came to see plaintiff. The interview is described in plaintiff’s testimony: “Q. "What was the next step in the negotiations? “A. Well, Linn came down there to my place and he said what is the reason that you were throwing it up. Well I said I have not got the finances to finance it, and I says it is a big undertaking and the stuff is in poor shape and I would have to have a good lay if I undertook it. “Q. All right. What else? “A. Well he said, I will, if you will take the stuff and build it up, he said, I am sick of it, 1 cannot maintain them, I have other business to look after, if you take it over I will give you a half interest in the cows and sheep. He said, if you will take it and take them all off of my hands he said I cannot handle them he said I am — I have other business and he said if it is money that is holding you back he said I will finance it. “Q. And the fact is that he did finance it, did he not? “A. Yes. “Q. Up until January, 1939? “A. Yes, he did. ‘ ‘ Q. What did he tell you with respect to financing it ? “A. He said I will put a two-hundred-dollar checking account in the bank as soon as you move there and he said ‘money is no object.’ And when I went there there was no hay there and no grain. I could see that and I could see that there was a lot of money to be spent right on the start, so I explained to Mr. Linn what I had, that was all set, I did not tell him. I had money because I did not have it. “Q. Now what discussion did you have regarding the half interest in the livestock, exclusive of the horses? Where did you first discuss it? Was it-when he came down to see you after your letter to him? “A.- No, we discussed that the second time I was there, the second time I was out there at the farm. “Q. Who brought up that matter first, you or Mr. Linn? “A. Mr. Linn brought it up. I told him he would have to give me a good proposition because I had a good job there and they were in poor condition and it is a lot of work and a lot more to put a herd up in shape and I could see what I was up against because it would take a lot of hard work and feed, that was what they needed more, and so Mr. Linn understood.” It would further appear from the evidence that the livestock was in a poor condition. Plaintiff testified: “Q. Now will you state briefly what the condition of the herd was and the other livestock that was there. Were there any dead animals there when you went there? “A. Yes, there was 5 or 6 dead calves laid out there and 7 or 8, or 8 or 10 sheep that were dead. “Q. Did others die after you first went there? “A. Yes. “Q. How many did you lose dead? “A. I think there was around 6 or 7, some died that spring. “Q. Calves or sheep? “A. Sheep. They were diseased and running out, it was a diseased and run out flock. ‘ ‘ Q. They had not been keeping it up — you are speaking of the sheep? “A. Yes. They never saved the lambs, they sold the lambs off and kept the same flock, the same buck.” Ezra Nealey, a brother-in-law of plaintiff, testified, without contradiction, to the following: “The barnyard looks better and clearer [cleaner?] I think. When Asher went there they were'pretty dirty. Some of the barns had not been cleaned out very recently for one thing, that is, the box stalls I mean. I helped clean them out. I presume out of the two stalls I hauled somewhere between 20 and 25 loads of manure, I could not tell exactly. ‘ ‘ The last I was in the barn and the barnyards they were pretty good, about three weeks ago. “The stock looks a good deal better than it did when we went there. When we went there the horses were not in any too good condition. They had not had care and were quite thin. I had something to do with the care of the horses. It took us quite a little while to get the horses clean, probably two or three weeks before we got some of the dirt off from some of them and it was not all off them until they shed.” Other witnesses testified that the stock was in poor condition when plaintiff went to the farm and since then there had been considerable improvement, especially in the cattle and care and condition of the premises. The trial court held that the language of the contract was ambiguous and contradictory; that there was no understanding between the parties that plaintiff would receive a one-half interest in the livestock on the farm at the time he entered upon the premises; that there was no adequate consideration for such an agreement with reference to the livestock, this last consideration, as the court indicated, having a bearing upon the probability of such an arrangement. A certain importance was attached also to the fact that the contract was drafted by a scrivener, who, as the court observed, “prepared the agreement to accord with the intention of the parties as he understood them;” and the scrivener testified that he understood that plaintiff was to have a one-half interest in the increase of the stock. But the important fact in the scrivener’s testimony is that he recalled no conversation with regard to this point. In reference to the making of the lease, he testified that he put a blank form into the typewriter. He stated: “I drew it as they directed it precisely, that they had already talked over before they came to the office and I drew it just exactly as they told me. 11Q. How did you actually draw it — did you put the blank in your typewriter? “A. Yes. “Q. And started off and they would tell you from time to time what to put down? “A. I took one paragraph and another, yes, sir. “Q. Had you talked it over fully, their entire agreement, before you started to type out the lease? “A. They talked it over, I did not have anything to do with that at all. “Q. So you started typing the lease with one or both of them telling you from time to time what to put in? “A. Yes. * * * “It was by their instruction and it was nothing that I hatched up at all.” If the scrivener only typed what the parties told him, his understanding of what they intended, especially in view of the fact that they did not discuss the matter before him or with him — other than to direct bim what to write — would be incompetent and irrelevant. Another small incident in the dealings of the parties, while not in itself conclusive, can be- said to be indicative of defendant’s understanding of the contract. A short time after plaintiff took possession of the premises, a calf, which was on the farm at the time of the execution of the lease, died. Defendant sold the carcass to a soap company and g*ave plaintiff credit for one half of the proceeds, which amounted to $1.25. Defendant’s explanation for this action was that it did not amount to much. But there had been a conversation between the parties with regard to these proceeds and it was agreed that instead of receiving one half of the money, plaintiff would receive credit. This transaction indicates a prior understanding that plaintiff had a one-half interest in the livestock on the farm when he took it over. We are of the opinion that the provisions of the contract that each party was “to have an equal interest in all cattle and that each party is to have equal shares in all of the proceeds and increase from the above-named cattle, ’ ’ together with similar provisions with reference to the sheep and hogs, entitled plaintiff to a decree awarding him a one-half interest in all such livestock on the farm at the time of the lease. This conclusion is strongly fortified by the fact that, after plaintiff had refused to take the farm, defendant came to see him and told him, “If you take it over I will give you a half interest in the cows and sheep.” This evidence is uncontradicted, and our construction of the contract, as above indicated, hardly does more than carry out what must have been defendant’s understanding and agreement, by which he, presumably, induced plaintiff to take over the farm. It is true that in another part of the lease some confusion might appear in the provision that plain tiff was to pay “$500 for the use of all of the equipment of said farm which includes the horses, tools, and the one half of all the livestock, cattle, sheep, hogs.” The use of the one half of the livestock could mean the use of defendant’s share for purposes of breeding and the production of milk and wool. Whatever obscurity may arise from this language and the testimony in regard thereto, it does not militate against the provisions of the contract above referred to, and our conclusions regarding them. The claim that defendant did not understand the contract and did not read it is without significance. He executed it and was given a copy at the time of execution of the lease. Whether defendant made a good contract or a poor one is irrelevant, as is also any discussion of the matter of consideration. The decree of the trial court is vacated and the cause remanded to the circuit court for an accounting and a decree in conformity to this opinion. Plaintiff will recover costs. Sharpe, C. J., and Btjshnell, Chandler, and Btjtzel, JJ., concurred with McAllister, J.	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Butzel, J. The loose and careless method of conducting the business of the Lapeer Farmers Mutual Fire Insurance Association and its mismanagement resulted in insolvency and the appointment of a receiver on September 17, 1935, in accordance with the petition of the commissioner of insurance. The ensuing receivership has given rise to much litigation and some has reached this court. See Simpson v. Goodrich, 280 Mich. 351; In re Dissolution of the Lapeer Farmers Mutual Fire Ins. Ass’n (Claim of Crawford), 280 Mich. 363; In re Gilliland, 284 Mich. 604; In re Dissolution of the Lapeer Farmers Mutual Fire Ins. Ass’n (Claim of Rice), 295 Mich. 218. In addition to the instant case, two additional ones involving other questions relating to. the dissolved association are pending in this court. The commissioner of insurance was appointed statutory receiver. Two different assessments were ordered. However, the first was held invalid in Simpson v. Goodrich, supra, and the second was also held defective by the lower court for failure to comply with the court’s order. After the receivership had extended over four years, John Gr. Emery was substituted as. statutory receiver and Charles R. Bowles was appointed deputy receiver. The latter presented a petition to the circuit court for the county of Ingham for instructions as to many of the problems that confronted him in making an •assessment. Appellants, members of the dissolved association, answered the petition and appeared at the hearing on April 26, 1940. Instructions-/were filed by tbe court on July 12,1940, in response to 16 questions propounded by the receiver. A petition for further instructions to the receiver was filed.by appellants and other members but dismissed by the court on August 22, 1940. On October 1, 1940, the court ratified and affirmed an order' for the 1940 assessment. The present appeal is mainly for the purpose of testing the validity of this order. Appellants’ brief presents 51 questions encompassed in 21 pages. Many of the questions are repeated a number of times with a slight rewording, and some are divided into many subdivisions. -A large number of the questions are repetitious with but a slight rewording. The first question is reasserted nine times. Stating a question nine different times with a slight rewording is not stating nine different issues. We appreciate the difficulty of counsel for appellants but the mere statement of their contentions, appearing in the questions and without any further argument except solely to reassert the contentions without proper argument in the body of the brief, will be wholly disregarded. Dolby v. State Highway Commissioner, 283 Mich. 609 (117 A. L. R. 538). An attempt to brief questions in this manner is contrary to the spirit as well as the letter of Court Rule No. 67, § 1 (1933). We, therefore, only review such questions as we believe have any merit and are properly briefed. We also exclude from present consideration questions which are raised in the two other cases concerning the association now pending in this court. Appellants contend that no valid assessment can be levied until there is another accounting and auditing of the company’s books and records. Excerpts of the testimony in this and other proceedings are incorporated into the record to prove gross mismanagement of the affairs of the company and lack of proper records. This seems to be admitted by the receiver, who, however, states that he has based his assessment on an audit of the books and accounts from 1926 to 1932 under the direction of George MaDan, certified public accountant; and audit from 1933 to the' date of the receivership in 1935 by Depuis & Ryden, certified public accountants of Flint; as well as a careful investigation conducted by the deputy receiver. From a review of the record, it appears that the receiver has carefully examined the affairs of the company and that another accounting and auditing would not serve any useful purpose. The trial court quite correctly stated, in referring to the books and records of the company, “Obviously, the receiver has no method of supplying the omission.” Appellants, in effect, oppose the assessment because officers were incompetent or neglectful in keeping proper records. This is not a tenable ground of opposition in an equity proceeding, since the petitioners herein were members of a mutual association in which they had equal voting rights. The practical result of this contention, if held valid, would be to prevent the receiver from ever 'levying an assessment to pay fire losses and creditors. We hold that the receiver had sufficient records so as to furnish adequate information upon which to base the assessment. The assessment was properly levied. One of the questions raised by appellants on appeal can be concisely stated in the question asked by the receiver in his request for instructions by the court: “A. Whether said association had authority to transact business after March 31, 1934, so that an assessment for a deficiency arising after such date should be made (1) against those persons who first became members thereof after March 31, 1934, or (2) against those who became members prior to said date bnt by payment of renewal premiums thereafter retained such membership?” Upon the revision, consolidation and classification of the laws of Michigan relating to insurance and surety business (Act No. 256, Pub. Acts 1917), commonly known as the insurance code, it is provided in part 4, chap. 4, § 10, referring to mutual fire, cyclone and hail companies (3 Comp. Laws 1929, § 12601 [Stat. Ann. § 24.451]), as follows: “No insurance company organized or operating under this chapter shall transact any business without a certificate of authority from the commissioner of insurance. All such certificates of authority shall expire on the last day of March of each year and shall be renewed annually upon full compliance with the provisions of this chapter, and such certificates of authority shall be revocable by the commissioner of insurance for violation of any of the provisions of this chapter after due notice, to such company and a hearing on the question of such violation. No insurance company hereafter organized under this chapter, except as herein otherwise provided, shall be granted a certificate of authority or shall commence business until bona fide agreements have been entered into for insurance with at least two hundred individuals covering property to be insured to the amount of not less than five hundred thousand dollars; no company hereafter organized under sections 4 or 6 of this chapter shall commence business until it shall be possessed of not less than sixty thousand dollars in premiums, upon which not less than twenty-five thousand dollars have been paid in cash, and the remainder in notes or agreements of solvent parties founded on actual bona fide applications for insurance; and no company hereafter organized under sections 7 or 8 of this chapter shall commence business until bona fide agreements have been entered into for insurance with at least two hundred individuals, covering property to be insured to the amount of not less than five hundred thousand dollars, which property in the first instance shall be located in not less than five counties, and not more than one hundred twenty-five thousand dollars of said property to be insured under such original applications shall be located in any one county. ’ ’ Part 4, chap. 2, § 2, of the insurance code (3 Comp. Laws 1929, §12568 [Stat. Ann. §24.418]) provides as follows: “All contracts of fire insurance upon property real or personal located in this State in companies not at the time of the mailing of such contracts duly authorized under the laws of this State to make such contracts are hereby declared to be void and unenforcible and no action at law or in equity shall be maintained on any such contract in any court.” Section 12574 (Stat. Ann. § 24.424), being part 4, chap. 2, § 8, of the insurance code, provides: “The provisions of this subdivision shall not apply to policies issued by mutual fire insurance companies organized or doing business under the provisions of chapter 4 of this part.” "While counsel for appellee claim that the provisions of section 12568 did not apply to mutual fire insurance companies because of section 12574, we find that section 12574 is limited to provisions of part 4, chap. 2, subd. 2 (3 Comp. Laws 1929, §§ 12572-12574 [Stat. Ann. §§ 24.422-24.424]), which does not apply to part 4, chap. 2, subd. 1 (3 Comp. Laws 1929 §§ 12567-12571 [Stat. Ann. §§ 24.417-24.421]), in which section 12568 appears. Appellee further claims section 12568 should not apply because section 12601 was adopted later and would be a duplication of section 12568. This was the view taken by the circuit judge. But even assuming that these two statutes are in pari materia and giving full force to each one of them, we nevertheless come to the same conclusion as did the circuit judge. Section 12568 holds all contracts to be void when made by companies not duly authorized to do so at the time of making such contracts. The circuit judge held that inasmuch as the formal certificate issued to the company expired on March ,31, 1934, new policies issued after that date were null and void; that the holders of such policies were not subject to assessment; and that upon due proof premiums paid by them should be returned. Neither party to the appeal questions this holding. He further held that those who had previously become members and continued as such after March 31, 1934, were liable for assessments covering the remainder of 1934 and 1935 up to the time receivership proceedings were instituted. It is true that with contracts of insurance in stock companies, a renewal operates as a new and distinct contract. Michigan Mortgage Investment Corp. v. American Employers’ Ins. Co. of Boston, 244 Mich. 72; Ladies of the Modern Maccabees v. Illinois Surety Co., 196 Mich. 27; Brady v. North Western Ins. Co., 11 Mich. 425. Renewal implies a fixed contract and the expiration of the original coverage. In a mutual company, however, there is no fixed term of membership. There is no new contract entered into or new policy issued as a matter of course from time to time. Upon the payment of membership fees, assessments and other charges, a member remains in good standing and his insurance continues in full force. Payment of such sums does not effect a new contract each year. Appellants claim that 3 Comp. Laws 1929, § 12601, automatically put the company out of business on March 31, 1934, when it failed to obtain a new cer tificate of authority, and, therefore, no assessments for the subsequent period may be made against former members. The circuit judge held that those who were insured in the company on the 31st day of March, 1934, and continued as members after that date, were members and subject to the assessment and that the language of 3 Comp. Laws 1929, § 12601, does not provide an automatic method for the cessation of all activities by the company. "While it does afford grounds for forfeiture or dissolution proceedings, the company still continues until appropriate action is taken to wind it up. The construction appellants assert would automatically put a company out of business if it were one day late in obtaining annual renewal. The case of Stamm v. Northwestern Mutual Benefit Ass’n, 65 Mich. 317, stressed by appellants, is not applicable. The company never obtained a certificate of authority to do business in this State and there was a voluntary abandonment of the field. The rule enunciated in Cahill v. Kalamazoo Mut. Ins. Co., 2 Doug. (Mich.) 124 (43 Am. Dec. 457), is still the law. It was there held that a cause of forfeiture of corporate rights could not be taken advantage of collaterally but only in a direct proceeding against the corporation for that purpose. The rule is stated in 1 Fletcher, Cyclopedia of Corporations (Perm. Ed.), p. 452, § 130, as follows: “If a corporation fails to comply with a condition subsequent, the State may institute proceedings to enjoin or oust it in the right to exercise the powers and privileges conferred upon it, but until such proceedings are instituted and a judgment of forfeiture rendered, the existence of the association as a corporation is not in any way affected.” We, therefore, hold that the acts of the association were binding in all respects upon the former members who continued as such until the appointment of the receiver in 1935. Appellants further claim that a receiver cannot levy assessments prior to exhausting “primary” assets and without proving the necessity and propriety thereof. There is no proof presented in this record that the present receiver has not been diligent in collecting the assets, nor is it necessary on the basis of the facts presented in the record herein that the receiver first bring suit against the officers and directors, and that the assessment should not be levied until the outcome of such suits and the collection of judgments, if obtained. We cannot go into the merits, if there are any, of claims against the officers and directors. The collection of the assessments and the winding up of the receivership should not be further delayed, almost six years having elapsed since the appointment of the receiver. If any moneys are so collected, proper refunds can be made, if a sufficient amount is collected through assessments to pay creditors. Appellants further contend that the receiver should be ordered to intervene in the case involving William E. Ivory’s claim. Ordinarily it is not the duty of the receiver to litigate as between adverse parties. Westgate v. Westgate, 294 Mich. 88. The attorney general is also plaintiff in the case involving Ivory’s claim and it is his duty to protect the rights of all parties.* Further claim is made that the company assumed liabilities on single hazards amounting to more than $2,500, this being forbidden unless such excess was underwritten in another comp any. No adequate proof of such violations appears on the record and we disregard the claim. Petitioners have failed to point out how, if true, this would affect the receiver’s assessments. The assessment is also assailéd on the grounds that the receiver failed to classify the risks into rodded or unrodded, and as to protected roofs under the charter of the association. The charter permits such classification upon application to the company and its approval. The record does not disclose any proof that the company failed to make such classification if there was any occasion to do so. Appellants contend that they were entitled to notice of: (a) receiver’s petition for confirmation and approval of his 1940 assessment; (b) making, filing and hearing of receiver’s 1940 assessment; and (c) the order of confirmation and approval of the assessment. It appears that the appellants did not receive notice of these proceedings until October, 1940. A receiver derives his authority from 3 Comp. Laws 1929, § 12269 (Stat. Ann. §24.46), and, while it is proper to ask the advice of the court in which he is an officer on an ex parte petition, the order confers no additional authority. He cannot act in contravention of or beyond the statute. Wardle v. Townsend, 75 Mich. 385 (4 L. R. A. 511). The petitioners received notice of the initial hearing and were represented by counsel. The lower court heard their arguments and gave consideration to the contentions of the present appellants. While, after intervening, appellants ordinarily would be entitled to notice of all further proceedings, the record shows that they had an opportunity to contest and did contest various stages of the proceeding. The error, if any, in failing to give appellants formal notice of the latter proceedings was not prejudicial. The brief of the amicus curiae presents substantially the same questions as have been heretofore discussed. It also raises the further question as to whether the form of the assessments is proper. It claims that assessments cannot be made against members who joined during the latter part of a year for losses that occurred in the earlier part of the same year and prior to their becoming members. Specific instances of where this occurred are not shown. The assessments as made were prorated, so that if a person became a member the latter portion of the year, he was assessed only for such proportion of the assessment for the year as the number of months in which he was a member bears, to the 12 months of the year. The brief does not disclose how anyone will be injured in this manner. Without any further information before the court, we have no reason to disturb the assessments on this ground. We have covered the principal questions that were presented in the brief of appellants in accordance with the rule. Others will not be considered as having any merit. The order of the trial court is affirmed, with costs to appellee. Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred. See post, 188.—Reporter. See 3 Comp. Laws 1929, § 12594 (Stat. Ann. § 24.444).— Reporter.	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Bushnell, J. This is an appeal from a decree dismissing plaintiff’s bill of complaint. Plaintiff Grace S. McClure is and has been the wife of Charles W. McClure since their marriage on January 2, 1906. Defendant Rex Oil & Gas Company is a Michigan corporation. On April 28,1909, Adoniram J. Stevens was the owner of an undivided one-half interest in lands situated in the township of Buckeye, county of Gladwin, described as the west one-half of the northeast one-quarter of the northwest one-quarter (W % of NE % of NW %) of section 11, township 18 north, range 1 west. Stevens and his wife on that date, executed and delivered to Charles W. McClure, a resident of the city of Saginaw, Michigan, a quitclaim deed to this undivided one-half of land. Plaintiff claims that she acquired an inchoate right of dower in the property by virtue of this deed. On November 12, 1915, McClure executed a quitclaim deed of his interest in this land to McClure-Stevens Land Company, a Michigan corporation of Gladwin, Michigan. This deed was recorded on November 23, 1915. Plaintiff did not join in this deed and alleges in her bill of complaint that the same was executed without her knowledge and consent and that she has not “at any time by deed, release, or conveyance of any kind, or otherwise, released or relinquished her right of dower in said land.” The record of these deeds in the office of the register of deeds was incorporated in plaintiff’s bill of complaint by reference. Plaintiff alleges that defendant has drilled one or more oil wells on the land and has taken and disposed of oil in large quantities continuously since 1936 without accounting to her and without regard to her inchoate right of dower. She claims that approximately one-half of the oil deposit has been removed and disposed of and that the land is practically without value except for the oil located thereunder. Plaintiff sought an accounting for the oil taken and that defendant be required to deposit with the clerk of the court a sum equal to one-sixth of the value of all oil taken, this sum to be impounded for the protection of plaintiff’s inchoate right of dower. Plaintiff asked that defendant be restrained from taking any more oil or that it be required to continue to deposit one-sixth of the proceeds thereof with the clerk of the court as oil is taken. Without filing an answer, defendant moved to dismiss plaintiff’s bill of complaint, setting up 10 reasons why the court should grant its motion. These reasons may be summarized as follows: That plaintiff’s husband, Charles W. McClure, took title to the land as trustee only; that he never had such title or interest in the premises to which dower could attach; that McClure is still living and that during his lifetime plaintiff has no right of action to preserve her inchoate right of dower in lands disposed of by McClure during coverture; and that an inchoate right of dower does not exist with respect to oil and gas. At the hearing on the motion to dismiss, and over plaintiff’s objections, the court received in evidence an abstract of title to the land, a certain land contract between A. J. Stevens & Company, and Staffeld Bros., and an affidavit by Theodore G. Bowler, attorney for Sun Oil Company, which is a defendant in a similar suit brought by this plaintiff. The evidence thus received shows the following: The deed from Adoniram J. Stevens and wife to Charles W. McClure, given April 28, 1909, describes the grantee as “Charles W. McClure, trustee of Saginaw, Saginaw county, Michigan.” The habendum clause reads: “to have and to hold the said above-described lands to the said parties of the second part, and to their heirs and assigns, to the sole and only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever.” On June 24, 1909, A. J. Stevens & Company, of Gladwin, Michigan, a copartnership formerly composed of Adoniram J. Stevens and 'William C. McClure, father of Charles W. McClure, entered into a land contract for the sale of the land in question to Staffeld Brothers. William C. McClure died testate on April 24,1904, A. J. Stevens was his sur viving partner. In February of 1912, A. J. Stevens, Charles W. McClure, and Clara B. McClure, a sister of Charles, formed a corporation known as McClure-Stevens Land Company. Its capital stock was issued to the incorporators as follows: Charles W. McClure, 399 shares; Clara B. McClure, 1 share; and Adoniram J. Stevens, 200 shares. The entire capital stock of the corporation was paid for in land, described in the articles of association, but the land involved in the present litigation does not appear as a part thereof. On February 28,1912, the copartnership of A. J. Stevens & Company assigned all of its interest in the Staffeld land contract to McClure-Stevens Land Company, and on March 24,1913, this corporation executed a warranty deed to Paul W. Staffeld and Reuben M. Staffeld to the land in controversy, which deed was signed by Charles W. McClure as president and Adoniram J. Stevens as secretary and treasurer. On November 12, 1915, McClure gave a quitclaim deed of this land to the corporation, describing himself therein as “Trustee, of Saginaw, Saginaw Co., Mich.” Defendant claims oil and gas rights in this land by virtue of a lease from a successor in title to the Staffeld brothers. Under the facts thus produced at the hearing on defendant’s motion to dismiss, the trial judge held that the seizin of McClure was merely transitory; that he was but an instrument to effectuate the transfer from the corporation to the Staífelds; that there was no merger of legal and equitable titles in McClure, and that he was not seized of an estate of inheritance in the land to which dower would attach. Plaintiff questions the propriety of the trial court’s action in granting defendant’s motion to dismiss and renews in this court her objections to the admissibility of the abstract of title, the land contract, and the affidavit on the hearing of the motion. The inquiry on this motion to dismiss, in so far as it is in the nature of a demurrer, is confined to charged infirmities which appear on the face of the bill of complaint. Otto v. Village of Highland Park, 204 Mich. 74. Those allegations of the motion which raise questions dehors the bill must be treated as in the nature of an answer to which reply may be made. Court Rule No. 24 (1933). On a motion to dismiss “the court should regard the allegations in the bill of complaint as true and in the most favorable light to plaintiff.” Marble v. Butler, 249 Mich. 276. Plaintiff alleged that a fee simple title became vested in her husband by the 1909 deed to him from Stevens and wife. There is nothing on the face of plaintiff’s bill to indicate that her husband’s interest was a bare legal title except the word “trustee” in each of the two deeds that were incorporated in the bill by reference. The designation “Charles W. McClure, trustee,” may be merely descriptio personae. Sanborn v. Loud, 150 Mich. 154 (121 Am. St. Rep. 614), Pungs v. Hilgendorf, 289 Mich. 46, and see 1 Bogert, Trusts and Trustees, § 45, and page 246. On the other hand, admissible testimony may show that McClure actually held title as trustee only. The issue as to the existence of a trust is the crux of plaintiff’s case. Such an issue cannot be fairly decided on a motion to dismiss, and determination of this issue cannot rest upon the type of evidence here submitted, viz., the abstract of title, land contract, and affidavit of counsel for a defendant in another cause involving similarly claimed rights of plaintiff. (McClure v. Sun Oil Co., post, 261, submitted at the same term as the instant case.) Where a doubtful question of this nature is raised in a bill of complaint to which no answer is filed, the court should not, on a motion to dismiss, subject the bill to an overcritical or minute analysis, but should require the cause to be brought to issue and proof. Justice is better served by reserving determination of the existence of the trust until after a trial on the merits. We confine decision to the propriety of determination of this issue on the motion to dismiss. The question whether plaintiff is entitled to relief must abide decision of whether she has an inchoate right of dower. The decree entered below is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. Costs to appellant. Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.	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North, J. Defendants are the executors of the estate of Elizabeth Miller, who died on December 10, 1937, and who was the vendor of the premises involved herein, plaintiff Sweitzer being the land contract vendee. These premises mil hereinafter be described as lot No. 240. On August 27, 1938, defendants commenced summary proceedings before a circuit court commissioner to regain possession of lot No. 240 from plaintiff, who was in default in payments due on the land contract. At that time plaintiff herein was in Florida, and service was made by publication under 3 Comp. Laws 1929, § 14978 (Stat. Ann. § 27.1989). See, also, Act No. 208, Pub. Acts 1939. On November 10, 1938, there was a hearing before the circuit court commissioner. No appearance having been made on behalf of Mr. Sweitzer, judgment by default was taken, and the commissioner found the amount of $838.26 to be due and unpaid. Writ of restitution was issued on February 14, 1939, and the same was executed on February 20, 1939. Plaintiff states that at the time the writ of restitution was executed he was still in Florida, and that the first actual notice to him of the summary proceedings was the receipt of a letter from defendants ’ attorney, dated March 8, 1939, and forwarded from Detroit, which requested him to vacate said premises. Plaintiff claims that as soon as his health permitted, he returned from Florida, employed counsel, and a petition for leave to make a delayed appeal from the judgment of the circuit court commissioner was presented to the circuit court. . This petition was filed on July 19, 1939, and the circuit judge, on July 24, 1939, granted leave to appeal, conditioned, however, upon plaintiff’s repaying to defendants $522.37 with interest within 30 days, the stated sum being the amount paid by defendants on back taxes on the lot after they had taken possession. This condition was not fulfilled; and on September 14, 1939, plaintiff filed the instant bill, praying that the judgment of the circuit court commissioner be set aside, that the land contract be decreed to be a mortgage and subsisting lien on the premises, that a warranty deed of this lot from plaintiff to Elizabeth Miller, to which reference will subsequently be made, be cancelled, and that possession be restored to plaintiff. Plaintiff’s bill alleges: That in 1921 he accepted from Elizabeth Miller a loan of $1,450 for use in his business, said sum to be repaid in five years with interest at 6 per cent, per annum; that to secure the loan, plaintiff executed a warranty deed to lot No. 240, and that the terms of repayment were set forth in an instrument purporting to be on its face a land contract, but which was in fact a real-estate mortgage. Plaintiff further alleges that on May 20,1932, the land contract above mentioned was surrendered, and at that time, since Elizabeth Miller did not feel secure as to the $1,450 loan, it was agreed that $1,000 of said loan be transferred to another loan secured by other property under a similar arrangement, and that as a result of such transfer there remained due only the sum of $508, the repayment of which was secured by a new land contract involving lot No. 240. By the terms of this land contract, the money was to be repaid within three months of the date thereof. The bill of complaint further states that a second land contract was executed on the same date, the purpose of which was to secure the $1,000 previously mentioned, that this second contract covered lots Nos. 292, 293, and 294, and that in 1934 Elizabeth Miller commenced summary proceedings to recover possession of lots Nos. 292, 293, and 294; that the proceedings were dismissed because the land contract was held in effect to be a mortgage, and shortly thereafter Elizabeth Miller filed a bill in equity asking that the land contract involving the three last-mentioned lots be decreed to be a mortgage, and that the same be foreclosed; and further that this relief was granted on March 23, 1935, the period of redemption thereafter expired, and Sweitzer was dispossessed. It is further alleged that the proceedings before the circuit court commissioner to regain possession of lot No. 240 were irregular, and that when the motion for delayed appeal was filed as above noted, it was granted on conditions which could not be performed by plaintiff within the time limited. The claim is also made that after defendants took possession of lot No. 240 under the circuit court commissioner’s judgment, they removed or caused to be torn down a building which was worth in excess of $700. Defendants answered the bill of complaint, denying the irregularity of the proceedings before the circuit court commissioner, admitting the removal of the building after they had gone into possession under the writ of restitution, but denying that it was worth over $700, and stating its value to be in the neighborhood of $50; and defendants disavowed sufficient knowledge to answer plaintiff’s allegation that the purported land contract was in fact a mortgage, and left plaintiff to his proofs. Defendants also filed a written motion to dismiss the bill of complaint. In support of the motion they assigned the following reasons: (1) that the bill of complaint does not make a case which warrants the intervention of the court of chancery, (2) that the plaintiff, who seeks equitable relief, does not offer to do equity, and (3) plaintiff has had an adequate remedy at law of which he neglected and refused to avail himself. This motion was heard and denied. Thereafter defendants filed a “further and additional” answer whereby the defenses of res judicata and laches were raised. Ample notice was given plaintiff of this proposed modification of the answer prior to the day of hearing. When the case was called for hearing in the circuit court defendants orally renewed their motion to dismiss. The court granted the motion and decree was entered accordingly. This appeal followed. Notwithstanding appellant’s contention to the contrary, we are of the opinion that the' proceedings before the circuit court commissioner, which resulted in a judgment in favor of the plaintiffs in that case, were regular. Plaintiff in the instant case asserts that the instrument upon which plaintiffs proceeded before the circuit court commissioner, notwithstanding it purported to be a land contract, was in fact a mortgage. Other than this, plaintiff in the instant case has not alleged any specific defect in the proceedings before the circuit court commissioner. The commissioner had jurisdiction of the subject matter set forth in the complaint filed in his court; and he obtained jurisdiction of the person of plaintiff herein by substituted service. At least plaintiff herein did not allege any-fatal defect in service. 'Further, by filing a motion for a delayed appeal in those proceedings, without having entered a special appearance for that purpose, defendant in the summary proceedings became a party to that suit. Thereafter he was bound by the order of the circuit court which granted him conditional leave to appeal. Granting leave was in the sound discretion of the court and the condition imposed was not an abuse of discretion. Failure to comply with the condition imposed resulted in the defendant in the summary proceeding's being bound by the judgment theretofore rendered in such proceedings. Nor was it an abuse of discretion on the part of the trial judge inferentially to permit defendants in the instant case to file a further and additional answer at the time the case was brought’ on for hearing and before any testimony was taken, especially since plaintiff had been given ample notice of defendants’ intentions so to do. A specific order or ruling allowing the amendment does not appear to have been made, but obviously the trial court thereafter considered the case as though the motion to amend had been granted. We consider this tantamount to a formal order permitting amendment. Further, it was within the power of the circuit court thereafter to entertain a renewal of defendants’ motion to dismiss, and to consider in connection therewith the additional issues of res judicata and laches which were raised by the amended answer. Lau v. Pontiac Commercial & Savings Bank, 260 Mich. 73; State Mutual Rodded Fire Ins. Co. v. Engel, 269 Mich. 348; Szostak v. Chevrolet Motor Co., 279 Mich. 603. Aside from the foregoing, we think dismissal of the bill of complaint can be and should be sustained on the ground, as was held by the circuit judge, that plaintiff has wholly failed to tender or to do equity. In part the trial court said: “Plaintiff has failed to tender or offer to pay the amount due and secured by the land contract alleged to be an equitable mortgage * * * and has failed to offer to do equity.” As bearing upon the above-quoted statement of the circuit judge, it may be noted this record discloses, and without contradiction, that there was past due and payable' from plaintiff to defendants upwards of $1,350; and we are of the opinion that the record fairly discloses the value of the property involved in the summary proceedings was less than the amount admittedly due from plaintiff to defendants. In open court before the circuit judge defendants offered to convey the premises in question to plaintiff upon payment of the amount due from him to defendants, provided plaintiff would waive any claim of liability on the part of defendants for the removal of the small building from the premises after defendants were placed in possession. The building referred to was old and decidedly of small value, apparently not to exceed $50. Plaintiff indicated no desire to work out an equitable adjustment along the lines above indicated. Neither has he made any tender of payment of the debt he owes defendants. After decree plaintiff made a motion for rehearing which was denied, but he made no offer to do equity in conjunction with this motion. Viewed as a whole, there is no equity whatever in plaintiff’s case. The trial judge was fully justified in dismissing plaintiff’s bill of complaint on the ground, among others, that notwithstanding he was in a court of equity he refused to do equity, and therefore was not entitled to relief. In an equity case involving in general somewhat similar circumstances, we said: “No actual tender is alleged or shown prior to filing this bill, nor into the court since, nor is ability to carry out the terms of the contract shown. Early in the hearing counsel for defendant stated during a discussion in open court that if plaintiff would pay the money into court they would terminate the suit right there, to which no direct reply was made. In the absence of any tender or some satisfactory assurance to the court of ability to at least promptly pay all then due and fully carry out the terms of the contract, the court was justified in the decree rendered [dismissing the bill of complaint].” William F. Nance Realty Co. v. Wood-Wardowski Co., 242 Mich. 110, 119. In view of the above it is not essential that we should consider here other grounds urged by defendants in justification of dismissal, among which are that the judgment rendered by the circuit court commissioner is not subject to collateral attack by a bill in equity, but instead the remedy is on the law side of the court by appeal; that the judgment in the circuit court commissioner’s court was controlling and res judicata of the rights now asserted in this equity suit by plaintiff; and that plaintiff has been guilty of laches which bar plaintiff from right to equitable relief. The decree entered in the circuit court is affirmed. Costs of this appeal to appellees. Sharpe, C. J., and Bushnell, Boyles, Chandler, McAllister, Wiest, and Butzel, JJ., concurred. Amending the seetion eited.—Reporter.	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Boyles, J. This is a proceeding instituted by the prosecuting attorney of Genesee county, under Act No. 389, Pub. Acts 1925 (2 Comp. Laws 1929, § 9093 et seq. [Stat. Ann. § 18.901 et seq.l), to have certain premises, in which defendant Lela Mae Carter has an equity, declared to be a nuisance. The circuit judge entered a decree declaring the nuisance and requiring the house to be closed and padlocked for a year on the ground of its use for vice and prostitution. The appealing party, Lela Mae Carter, seeks reversal on the ground that the decree imposes a penalty or forfeiture to which she cannot be constitutionally subjected because of having been subpoenaed and compelled to testify before a grand jury investigating the same house. For this immunity defendant relies on the provisions of section 453 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-453, Stat. Ann. § 28.708). This section is a part of the chapter in the penal code referring to prostitution and the use of premises for that purpose, and provides in part that no person shall be subjected to any penalty or forfeiture on account of any matter or thing concerning which he may so testify before a magistrate upon an investigation. Passing the question whether this case can be considered as subjecting the defendant to a “penalty or forfeiture,” the defendant has not brought herself within the immunity granted by the act. The only reference in the record concerning the appearance of the defendant before the grand jury is in the direct examination of the defendant testifying in her own behalf as follows: “Q. Were you subpoenaed to appear before the grand jury investigation in connection with your house at 313 W. 7th Street? “A. I was. “Q. Was that before or after this bill of complaint or suit was filed? “A. It was before. “Q. I wish you would state to the court whether you testified at that hearing as the result of a subpoena? “A. I did. “Q. And who ashed you the questions? “A. Mr. Roach, I believe. “Q. And did it involve this house? “A. Yes.” There is nothing in this testimony or in the record to indicate what questions were asked the defendant before the grand jury, whether any material questions were asked, or any questions tending to incriminate the defendant; or whether there was any compulsion to answer. The record merely shows that defendant was subpoenaed to appear before the grand jury and testified. Under defendant’s contention, every person who is subpoenaed and testifies before a grand jury in such an investigation would ipso facto be immune from prosecution or from subjection to any penalty or forfeiture. This contention would render nugatory the provisions of chapter 7 of the code of criminal procedure (Act No. 175, Pub. Acts 1927 [3 Comp. Laws 1929, § 17215 et seq. (Stat. Ann. §28.941 et seq.)1). Under the provisions of this chapter, a witness who is subpoenaed and compelled to testify before a grand jury may be granted immunity by the magistrate, but the questions and answers must be reduced to writing and entered upon the journal of the court. In order to obtain immunity, the witness must object to answering any question tending to incriminate. The witness can be compelled to answer such questions only upon receiving immunity. The record before us does not disclose that the defendant objected to answering any questions that might have been asked her before the grand jury. Under these circumstances and the decisions of this court, she is considered to have waived the privilege of immunity and to have been a volunteer witness. “No doubt the witness might have declined to answer under the acknowledged rule, that no one can be compelled to criminate himself. But this is matter of personal privilege which a witness may waive, and is not a ground of objection by the people, and here the witness did not object, and we cannot assume but that he was not only willing, but desirous to answer.” People v. Arnold, 40 Mich. 710, 713. In People v. Lauder, 82 Mich. 109, the defendant, indicted for bribery, interposed a plea in abatement asking that the indictment be quashed because he had appeared before the grand jury investigating the matter, in obedience to a subpoena, and had been required to give testimony. The defendant claimed immunity because his constitutional privilege had been invaded in compelling Mm to testify against himself. This court said (pp. 118-121): “The second ground for quashing the indictment, namely, that the grand jury violated Lauder’s constitutional right in compelling him to attend before them and testify against himself, presents a question of gravest importance, and is the only one upon which I have entertained any doubt. It has been presented to this court with great force and ability; but, upon mature consideration, I am obliged to hold that the plea does not make a case for quashing the indictment. The question presented is, does the fact that Lauder was subpoenaed to attend before the grand jury, was sworn, and gave testimony relative to the charge of bribery, which the grand jury was then investigating, and upon his and the other testimony the jury found a true bill, vitiate the indictment? * # # “This brings me to a consideration of the claim of a violation of a constitutional right or privilege. And, first, it may be premised that being subpoenaed and appearing before the grand jury was not a violation of his constitutional right, nor being sworn before that body, nor testifying upon any matter that did not criminate himself. All these the law compelled him to do under pains and penalties. But the law did not compel him to give testimony that would criminate himself. The fundamental law expressly declared that he should not be compelled to do so. It was therefore a personal privilege, and Mr. Lauder could claim it or not as he chose. If he gave such criminating testimony voluntarily, it is doubtful if it could be used against him upon the trial. If it was not voluntarily given, it could not be used against him upon the trial. In all cases where a personal privilege exists for a witness to testify or not, if such witness does testify without objection he will be deemed to have done so voluntarily. * * * “A party may waive personal rights, although secured to him by law or by the Constitution.” The same question was again before this court in People v. Willson, 205 Mich. 28. The precise question before this court in the instant case was there answered (quoting from pages 43 and 44) as follows: “But what questions were ashed respondent when a witness at that investigation or what answers, incriminating or otherwise, he may have made are not disclosed. His counsel’s assumption in that particular would seem to be based either on matters de hors the record, or a presumption that having been a witness at this investigation for discovery of crime, analogous to a grand jury inquiry, and after-wards prosecuted as the result of information discovered, he must have given incriminating testimony against himself. No such presumption obtains in law, or upon the facts in this case. * * * Counsel’s claim as to respondent’s constitutional and statutory rights resolves itself upon this record into the proposition that a person who is summoned to testify before a court of inquiry, or called as a witness in an authorized proceeding for the discovery of crime under Act No. 196, Pub. Acts 1917, and there gives testimony, whatever its nature, is thereafter immune from a prosecution based on information obtained during such inquiry, from whatever source it came. Such construction of the act or the constitutional rights of the accused cannot be entertained.” We have examined the other questions raised by appellant and find they are without merit. The denial of defendant’s demand that the bill of complaint be made more definite and certain, which was presented to the court after answer and at the opening of the hearing, was within the discretion of the court. We find no error in receiving or excluding testimony, and the record discloses ample proof upon which the court might well base the decree entered. We are not inclined to disturb the conclusion reached by the trial judge. Decree affirmed, with costs. Sharpe, C. J., and Bushnell, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.	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Wiest, J. This suit in equity, to have an account taken of the amount due on a note, secured by chattel mortgage, and foreclosure, was rendered necessary by the dealings of the parties and the claims set up by defendant. The circuit judge found the amount due and decreed foreclosure. Defendant reviews by appeal. Defendant company, prior to 1937, was in financial difficulties. Its president filed a petition in bankruptcy, and reorganization was sought under section 77B of the bankruptcy act. Under the reorganization plan, a creditors’ committee was appointed to take charge of affairs and operations until creditors were paid in full. Charles I. Stainton, Clair H. Scott, and John Turner were elected a creditors’ committee, with power of custody and control of all assets of the company, power to borrow money in the name -of the company, pledge its assets as security and appoint a general manager. The creditors’ committee elected John Turner general manager, with authority to carry on the business and to that end borrow money and give security. John Turner took over such management in February, 1937, and so continued until July 31, 1939, when all creditors, except three, had been paid. During John Turner’s management money was needed, financial institutions were loath to extend credit, and funds were obtained from Homer Turner, brother and partner of John. December 14, 1938, John Turner, as such manager of defendant company, executed a demand note for $58,513.84, payable to Homer Turner, bearing interest at six per cent, per annum payable semiannually, secured by chattel mortgage of even date and tenor covering the personal property of defendant company and here sought to be foreclosed. In answer to the bill, and upon the issue of amount due, defendant averred payment, want of authority on the part of John Turner to execute the note and mortgage, recoupment, set-off by reason of mismanagement, excess charges for supplies, negligent extension of credit, failure to make collections, improper charges for interest and expenses, excessive salary, and settlement of the obligation. Proofs were taken in open court. The court found $15,579.26 due plaintiffs and granted foreclosure. Under the evidence John Turner had authority to execute the note and chattel mortgage. Interest stipulated therein was legal and interest upon advances made in the course of transacting the business was proper. The grape crop, one season, had been injured by early frost and John Turner made the best possible use of the grapes, just like other wine makers did, and is not chargeable with mismanagement. Excess charges for claimed supplies cannot be found. Other claims in the nature of set-off and recoupment have been examined and do not command extensive statement. We agree with the findings made by the circuit judge relative thereto. The alleged settlement was a question of fact, with the burden of proof on defendant and, upon this issue, the trial judge had the advantage of seeing the witnesses and measuring the weight to be accorded their conflicting testimony, and found the claim not established. The record does not lead us to a different conclusion. The salary of John Turner, as manager, was fixed by proper authority and cannot be held excessive. We agree with the following holding of the circuit judge: “The execution of the mortgage was authorized and the salary of the manager was fixed by the committee and later by the stockholders. Measured by responsibility and results obtained the salary was fair and reasonable. The corporation was insolvent. It was in Federal Court for reorganization. The plaintiffs and the committee took over the management when the situation was desperate. They carried on, paid the debts, made improvements, increased the capacity of the plant, established credit, opened a market for the product, were diligent, faithful, and resourceful and placed the business on a sound financial footing and are entitled to the commendation of the creditors and the stockholders.” The decree in the circuit court is affirmed, with costs to plaintiffs. Sharpe, C. J. and Bushnell, Boyles, Chandler, North, McAllister, and Butzel, JJ. concurred. Now chapter 10 of the act, 52 Stat. at L. 840, 11 USCA, § 501 et seq.—Reporter.	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WHITBECK, C.J. I. OVERVIEW A. DOCKET NO. 259839 In Docket No. 259839, intervening defendant, the Wayne County Airport Authority (the Authority), appeals as of right the November 1, 2004, order granting summary disposition in favor of plaintiff, Wayne County (the County), and entering judgment for the County in this cause of action for a declaratory judgment and injunctive relief. We affirm. B. DOCKET NO. 259883 In Docket No. 259883, defendants, the Wayne County Retirement Commission (the Retirement Commission), the Wayne County Employees’ Retirement System Election Commission (the Election Commission), and the Wayne County Employees’ Retirement System (the Retirement System), appeal as of right the November 1, 2004, order granting summary disposition in favor of the County and entering judgment for the County in this cause of action for a declaratory judgment and injunctive relief. We affirm. II. BASIC FACTS AND PROCEDURAL HISTORY A. CREATION OF THE AUTHORITY On March 26, 2002, the Michigan Legislature enacted 2002 PA 90 (Act 90) to transfer the management and operation of qualifying airports from local government to a “public airport authority.” Act 90 defined a nonmilitary airport that has ten million or more enplanements within a twelve-month period as a “qualified airport.” At the time of the statute’s enactment, the Detroit Metropolitan Wayne County Airport (Detroit Metro) and Willow Run Airport were under the operation of the County and were the only two “qualified airports” in the state. Act 90 essentially combined the two airports into the Authority. The Authority was empowered by statute “to manage and operate” the qualified airports and their facilities. B. TRANSFER OF EMPLOYEES Act 90 gave Wayne County employees working at Detroit Metro and Willow Run Airport the option to transfer their employment to the Authority or to remain county employees and be reassigned within the county government. The majority of Wayne County employees working at those airports chose to become employees of the Authority. Under Act 90, an individual who chose to transfer employment to the Authority or who becomes a new employee of the Authority “shall remain or become a participant in the local government retirement system until the authority has established its own retirement system or pension plan.” About 714 employees of the Authority remained participants in the Retirement System because the Authority had not yet established a retirement system or pension plan. Under Act 90, the Authority was obligated to make employer contributions to the Retirement System on behalf of those employees who transferred employment to the Authority but remained participants in the Retirement System. Act 90 also required the Authority to assume the obligations of any collective bargaining agreements covering employees who transferred employment from Wayne County to the Authority. C. THE RETIREMENT SYSTEM Wayne County’s charter and enabling ordinances established the Retirement System to provide “retirement income to eligible employees and survivor benefits.” Wayne County Charter, § 6.111. The Retirement Commission is the administrative body responsible for overseeing the operational and administrative functions of the Retirement System. Pursuant to § 6.112 of the charter and § 141-35 of the Wayne County ordinances, the Retirement Commission consists of eight trustees, including the chairperson of the county board of commissioners, the county executive, and six other members who are elected to their seats. The Retirement Commission created the Election Commission to supervise the elections. Generally, nominations for office must be filed with the director of Wayne County’s Department of Personnel/Human Resources, who is responsible for certifying the eligibility of candidates. D. ELECTIONS TO THE RETIREMENT COMMISSION The term for one of the elected seats on the Retirement Commission represented by active members of the Retirement System was due to expire on December 31, 2004. On July 27, 2004, the Director of Retirement, Ronald Yee, posted a notice to all members of the Retirement System regarding an upcoming election for the open trustee seat. The notice informed the members that a primary election would be held on November 1, 2004, followed by a general election on December 13, 2004. Robert E. Murphy and Raymond J. Lambert, former Wayne County employees who transferred employment to the Authority, were two of five nominees for the active member seat. Murphy was an elected trustee of the Retirement Commission at that time. On September 27, 2004, Yee sent a letter to Pamela Travis, the chairperson of the Election Commission, certifying the names of the five individuals who filed satisfactory nominating petitions. Subsequently, the Election Commission approved the five candidates for incorporation on the primary election ballot. Lisa Laginess, a department executive in Personnel Information Services, then sent the original petitions, along with a letter containing information about the nominees, to Yee. Laginess also mailed letters to the nominees, including Murphy and Lambert, advising them that their names were to be placed on the primary election ballot. However, Timothy Taylor, director of the Department of Personnel/Human Resources for Wayne County, subsequently sent a letter to Yee rescinding Laginess’s letter and explaining that his office “inadvertently forwarded the original nominating petitions” to Yee’s office before the mandatory petition review process had been conducted. Taylor requested that Yee return the nominating petitions for completion of the review process. Taylor also mailed letters to Murphy and Lambert rescinding Laginess’s letters and advising that their names could not be placed on the ballot for the primary election because they were ineligible candidates since they were no longer Wayne County employees. Taylor further sent a letter to Travis requesting that she schedule an Election Committee meeting to approve the ballot for the primary election after completion of the mandatory review process. Taylor explained, “I have determined that two candidates are ineligible to participate in the election process because they are no longer Wayne County employees. .. . [T]he nominating petitions submitted by Mr. Lambert and Mr. Murphy are invalid and their names cannot appear on the ballot.” Yee responded to Taylor’s letter by e-mail, explaining that the Election Commission had already certified all five names for the ballot and that a legal review of the matter was pending. Yee refused to return the nominating petitions. Apparently, the Retirement Commission, with the Election Commission’s oversight, intended to continue with the primary election using ballots naming Murphy and Lambert as candidates. E. THE COUNTY’S COMPLAINT On October 12,2004, the County filed a complaint for a writ of mandamus, declaratory judgment, and injunctive relief against defendants. The County alleged that Authority employees who remained in the Retirement System were ineligible to vote in an election for and seek election to the Retirement Commission because they were not “active members” as defined under the Wayne County Charter, retirement ordinance, and election rules, and only names of “active members” may be placed on the ballot for elections to the Retirement Commission. The County also filed a motion for a temporary restraining order, show cause order, and preliminary injunction based on the irreparable harm that would result if the names of Murphy and Lambert remained on the ballots for the primary and general elections. Defendants opposed the County’s request, contending that the Retirement Commission had the authority to establish the rules and regulations guiding the elections of member representatives and that it was acting within its authority in seeking to conduct the contested elections. On October 12, 2004, the trial court entered an order temporarily restraining defendants from placing the names of Murphy and Lambert, or the names of any other individuals not certified as active employees by the Wayne County Department of Personnel/Human Resources, on the primary or general election ballots, printing the ballots, and holding the elections until the trial court ruled on the motion for declaratory judgment. The trial court also ordered defendants to show cause why a preliminary injunction should not be ordered and a writ of mandamus should not be issued in this matter. F. INTERVENTIONS On October 15, 2004, the Authority filed a motion to intervene, contending that, as the employer for approximately 750 employees participating in the Retirement System, it was interested in ensuring the rights, privileges, and benefits of its employees under Act 90. Also on October 15, 2004, Patrick Melton, one of the other nominees for the trustee seat, filed a motion to intervene as a defendant. Melton requested that the trial court dismiss the County’s claim and permit the election to proceed as scheduled. Moreover, the American Federation of State, County and Municipal Employees (AFSCME), the union representing several of the former Wayne County employees who transferred employment to the Authority, filed a motion to intervene as a defendant. AFSCME contended that, under collective bargaining agreements with the County that the Authority assumed, employees represented by AFSCME were designated and remained members of the Retirement System with the rights to fully participate in the Retirement System that included the ability to vote and seek election. After a hearing and oral arguments, the trial court granted the Authority’s motion to intervene as a defendant. However, the trial court denied Melton’s motion to intervene after finding that Melton failed to assert a position on the main legal issue of this case and “intervention would then serve no purpose.” The trial court also denied AFSCME’s motion to intervene after finding that the employees it represented lacked legal standing and that their interests were aligned with the interests of the Authority. The trial court also ordered that the temporary restraining order remain in effect until further order. G. THE TRIAL COURT’S DECISION On October 20, 2004, the trial court heard oral arguments on the County’s motion for a preliminary injunction. At the hearing, the trial court determined that the issue was a matter of law and that there were no operative facts in dispute. The trial court stated that it would “adjudicate this matter as a motion for summary disposition pursuant to MCR 2.116(I).” On October 25, 2004, the trial court issued an opinion. The trial court found that Authority employees were ineligible to seek election to the Retirement Commission and indicated that it intended to grant the County’s request for declaratory relief. Specifically, the trial court concluded: Based on the foregoing, this Court will grant the County’s request for declaratory judgment to the extent that the Court finds that, only active employees of the County are eligible to be on the ballot for the election for the Commission. Hence, in general, Airport Authority employees, and in particular, Murphy and Lambert, are not eligible to seek a seat on the Commission. Further, the Court will issue a writ of mandamus or an injunction that enjoins the defendants from placing on the ballot for election to the Commission the names of Airport Authority employees, specifically the names of Murphy and Lambert. On November 1, 2004, the trial court entered an order in accordance with its prior opinion, granting summary disposition in favor of the County pursuant to MCR 2.116(I)(1) and entering judgment for the County by granting its requests for a declaratory judgment, mandamus, and injunctive relief. Regarding the declaratory judgment, the trial court ordered that only active employees of the County of Wayne axe entitled to have their names placed on the ballot for the election for the Wayne County Retirement Commission, and specifi cally that former employees of the County of Wayne who are now employees of the Wayne County Airport Authority, including Raymond J. Lambert and Robert E. Murphy, are not eligible to have their names placed on the ballot for the election for the Wayne County Retirement Commission[.] Regarding mandamus and injunctive relief, the trial court ordered that the defendants, including their officers, agents, representatives and/or employees, are permanently restrained and enjoined from placing any names on the ballot for the primary and election of persons who are currently employees of the Wayne County Airport Authority, including Raymond J. Lambert and Robert E[.] Murphy. H. POST-DECISION PROCEEDINGS On November 1, 2004, the Authority filed a motion for clarification of the trial court’s opinion, contending that the trial court’s opinion failed to “fully address the rights of the Wayne County Airport Authority and its employees to participate in the Wayne County Retirement System.” The Authority requested that the trial court issue an opinion answering the following questions: (a) Can Wayne County Airport Authority employees vote in the election of the active trustee position on the Wayne County Retirement Commission? (b) Can retired Wayne County Airport Authority employees seek election and vote in the election of the retired trustee position on the Wayne County Retirement Commission? (c) Are Wayne County Airport Authority employees “members” of the Wayne County Retirement System entitled to receive the rights, privileges and benefits of membership in the Retirement System? (d) Can the Airport Authority and Airport Authority employees continue to make contributions to the Retirement System? On November 11, 2004, the trial court entered an order staying the proceedings pending appeal. The order provided that the judgment was stayed and the temporary restraining order continued pending this Court’s decision on the motions for expedited appeal and for immediate consideration. The order further provided that if these motions were granted, “then the stay shall remain in effect pending the final judgment of the Michigan Court of Appeals.” The order also provided that “[s]hould the term of the active employee trustee seat on the Retirement Commission expire on December 31, [2004], without a final judgment of the Michigan Court of Appeals, then the seat shall remain vacant until a superseding order is rendered by the Michigan Court of Appeals.” However, the order provided that if this Court denied the motion for expedited appeal, the stay would be vacated and the defendants must schedule primary and general elections according to the terms in the order. On November 15, 2004, defendants filed a motion for reconsideration. Defendants contended that they were not afforded the opportunity to file supporting documentation and offer appropriate evidence to support their arguments, and that there was recent, additional support for their position that would have changed the outcome of the case. On November 18, 2004, after hearing oral arguments on the matter, the trial court entered an order granting in part and denying in part the Authority’s motion for clarification of the opinion. The trial court clarified its prior order as follows: [T]he intervening defendant’s employees are not eligible to vote in the election for the active trustee position on the Wayne County Retirement Commission. . . . [Retired employees of the intervening defendant are not eligible either to seek election or to vote in the election of the retired trustee position on the Wayne County Retirement Commission. . . . [E]xcept as otherwise provided for by pertinent Michigan statutes, including MCL 259.119, for purposes of the Wayne County Retirement Ordinance, the intervening defendant’s employees are not members of the Wayne County Retirement Commission who are entitled to receive the rights, privileges and benefits of membership in the Wayne County Retirement System. The trial court refused to address the Authority’s request for clarification of whether the Authority and its employees may continue contributing to the Retirement System. On November 30, 2004, the trial court entered an order denying defendants’ motion for reconsideration. On December 20, 2004, defendants filed a claim of appeal from the trial court’s order granting summary disposition in favor of the County and entering judgment for the County. On December 21, 2004, the Authority filed a claim of appeal from the trial court’s order granting summary disposition in favor of the County and entering judgment for the County. On December 21, 2004, the Authority filed motions for peremptory reversal, immediate consideration, stay, and expedited appeal. On December 22, 2004, defendants filed motions for peremptory reversal, immediate consideration, and expedited appeal. On February 3, 2005, this Court entered an order granting the Authority’s motions for immediate consideration and for expedited appeal, but denying its motion for peremptory reversal pursuant to MCR 7.211(C)(4). Also on Febru ary 3, 2005, this Court entered an order granting defendants’ motions for immediate consideration and for expedited appeal, but denying their motion for peremptory reversal pursuant to MCR 7.211(C)(4). On its own motion, this Court ordered consolidation of the appeals in Docket Nos. 259883 and 259839. III. PARTICIPATION BY AN AUTHORITY EMPLOYEE IN THE RETIREMENT SYSTEM A. STANDARD OF REVIEW We review de novo a trial court’s decision to grant or deny summary disposition. This Court also reviews de novo a trial court’s decision concerning summary disposition in an action for declaratory judgment. Moreover, the interpretation and application of a statute is a matter of law that is subject to review de novo. B. STATUTORY INTERPRETATION When interpreting statutory language, the primary goal is to discern and give effect to the legislative intent that may reasonably be inferred from the language of the statute. When the language of the statute is certain or unambiguous, judicial construction is unnecessary, and a court must merely apply the terms of the statute as written to the circumstances of the given case. A court will not read into a clear statute that which is not within the manifest intention of the Legislature as derived from the statute itself. The appropriate standard for discerning if a statute is ambiguous is not whether reasonable minds could differ regarding the meaning of the statute. Rather, “a provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with another provision,... or when it is equally susceptible to more than a single meaning.” Under this traditional standard, “only a few provisions are truly ambiguous” and “a diligent application of the rules of interpretation will normally yield a ‘better,’ albeit perhaps imperfect, interpretation of the law . . . .” In construing a statute, courts must give the words of the statute their common and ordinary meaning. Moreover, a court must “give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.” When enacting legislation, the Legislature is presumed to have knowledge of existing laws and to have considered the effect of new laws on the existing laws. The rules of statutory construction apply to ordinances and city charters. C. THE ENACTMENTS AT ISSUE 1. ACT 90 The claim at issue requires consideration of three distinct but related legal authorities. The first is Act 90, which permits transferring employees to remain “participants” in the Retirement System. The statute provides in relevant part: (2) Local government employees employed at an airport from which operational jurisdiction will be transferred to an authority may agree to transfer to the employment of the authority on or before a date established by the authority. The date established by the authority shall not be later than the approval date. Local government employees, who do not agree to transfer to the employment of the authority, shall be reassigned within the local government. The local government shall not, as a result of the creation or incorporation of an authority for a period of not more than 1 year, layoff [sic] or reduce the pay or benefits of any employee of the local government into whose position a local government employee who was previously employed at the airport is reassigned. The authority shall consider any person hired by the authority to fill a position that had been previously filled with a local government employee who did not agree to transfer to the employment of the authority to be under the collective bargaining agreement covering, and to be represented by the collective bargaining representative of, the local government employee who did not agree to transfer to the authority. The authority shall accept the transfers without a break in employment, subject to all rights and benefits held by the transferring employees under a collective bargaining agreement. Transferring employees shall not be placed in a worse position by reason of the transfer for a period of 1 year after the approval date, or any longer period as may be required in connection with the assumption of any applicable collective bargaining agreement, with respect to wages, workers’ compensation, pension, seniority, sick leave, vacation, or health and welfare insurance or any other term and condition of employment that a transferring employee may have under a collective bargaining agreement that the employee received as an employee of the local government. ... Employees who elect to transfer shall not by reason of the transfer have their accrued local government pension benefits or credits diminished.... (3) If a local government employee described in this section elects to transfer to an authority or if a person is hired by the authority as a new employee after the date on which the authority assumes operational jurisdiction over an airport, the employee shall remain or become a participant in the local government retirement system until the authority has established its own retirement system or pension plan. During this period the employee remains or is a participant in the local government system, the employee’s post-transfer service with the authority during this period and his or her post-transfer compensation from the authority during this period shall be counted in determining both eligibility for and the amount of pension benefits that the employee will be eligible to receive from the local government system or plan. (4) If a local government employee described in this section elects to transfer to the authority, then the transferred employee may elect to remain a participant in the local government retirement system in lieu of participation in any retirement system or pension plan of the authority. By electing to remain a participant in the local government system, the employee’s post-transfer service with the authority and his or her post-transfer compensation from the authority shall be counted in determining both eligibility for and the amount of pension benefits that the employee will be eligible to receive from the local government system or plan... . Employees eligible to make the election described in this subsection shall be those employees who immediately before their transfer date were participating in the local government system and who agree to make any employee contributions required for continuing participation in the local government system and also agree to meet all requirements and be subject to all conditions which, from time to time, apply to employees of the local government who participate in the local government system. 2. THE WAYNE COUNTY CHARTER Second, Wayne County Charter, § 6.112 pertains to the structure of the Retirement Commission and the election of individuals to the Retirement Commission, and provides: The Retirement Commission is composed of 8 members: The CEO or the designee of the CEO, the chairperson of the County Commission, and 6 elected members. The members must be residents of Wayne County. Four members shall be active employees elected by active employees of the County in the manner provided by ordinance and 2 members shall be retired employees elected by retired employees of the County in the manner provided by ordinance. The term of the elected members is 4 years. The Retirement Commission shall administer and manage the Retirement System. The costs of administration and management of the Retirement System shall be paid from the investment earnings of the Retirement System. [Emphasis added.] 3. THE WAYNE COUNTY ORDINANCE Third, Wayne County Ordinance, § 141-35(a)(1)c, describing the composition of the Retirement Commission, states that it includes [flour members of the retirement system, who are residents of the county, to he elected by the members of the •retirement system [sic]. Each member trustee shall he from a different county department. .. : [several county departments are listed]. Employees of all other county agencies shall be considered collectively to be employees of one additional county department for the purposes of this provision. D. THE PLAIN LANGUAGE OF ACT 90 We conclude, as did the trial court, that it is unnecessary to look beyond the language of Act 90 to determine whether Authority employees and retirees are eligible to vote for and be elected as trustees to the Retirement Commission. Generally, courts must construe provisions of the law on the same subject or sharing a common purpose as harmonious. Because subsections 119(3) and 119(4) of Act 90 both relate to the retirement benefits of an employee who elects to transfer employment from Wayne County to the Authority, we must read them so that they harmonize. The plain language of the two subsections provides that those employees opting to transfer employment to the Authority and remain in the Retirement System, whether before the Authority creates its own retirement system or after such an event, do so as “participants” in the Retirement System. In addition, the transferring employees who remain in the Retirement System are to be subject to the “conditions” of that system. Act 90 therefore does not guarantee employees of the Authority the same rights and privileges they possessed while employees of Wayne County or the same rights as those enjoyed by current employees of Wayne County. A general principle of statutory construction is the doctrine of expressio unius est exclusio alterius, which means the express mention of one thing implies the exclusion of another. Act 90 enumerates certain rights protected, including “wages, workers’ compensation, pension, seniority, sick leave, vacation, or health and welfare insurance or any other term and condition of employment. . . .” Regarding a transferring employee’s pension, Act 90 specifically protects the employee’s right to have “post-transfer service” and “post-transfer compensation” counted toward eligibility for and the amount of pension benefits to be received from the local government retirement system. Act 90 also provides that transferring employees shall not have their “accrued local government pension benefits or credits diminished.” Therefore, Act 90 clearly protects transferring employees’ financial benefits. It does not provide transferring employees the right to vote in elections for the Retirement Commission or to seek and hold a position on the Retirement Commission. Similarly, Act 90 grants Authority employees the right to participate in “the local government retirement system.” However, it does not reserve the right to administer or manage that system through election to the Retirement Commission. Self-evidently, the rights of Authority employees regarding participation in the Retirement System exist only to the extent that Act 90 clearly grants them. Because the Legislature was silent regarding the voting and election rights under the Retirement System, it would be entirely improper for this Court to read into the statutory language a provision guaranteeing Authority employees such rights. Moreover, this Court is precluded from creating a provision that is not present in a statute merely because it may have made sense for the Legislature to do so. Accordingly, the participatory rights of transferring employees are governed by the local laws governing the local retirement system or, in this case, by the charter and the retirement ordinance for Wayne County. Because the statute does not contain provisions directly conflicting with the local law as provided in the charter and the retirement ordinance, the doctrine of preemption is inapplicable. E. APPLICATION OF THE CHARTER AND THE RETIREMENT ORDINANCE Pursuant to the Wayne County Charter, § 6.112, membership on the Retirement Commission for the open seat is explicitly restricted to “active employees... of the County.” Under the substantive provisions of Act 90, employees of Wayne County may elect to transfer employment to the Authority or remain employees of Wayne County. Accordingly, Authority employees are no longer employees of Wayne County and, under the charter, are ineligible to seek membership on the Retirement Commission. We note, as did the trial court, that the retirement ordinance defines the composition of the Retirement Commission in broader terms than the charter. According to the retirement ordinance, any “member” of the Retirement System may be elected to the Retirement Commission. According to the charter, membership on the Retirement Commission is expressly limited to “active employees ... of the County” and the election is to be conducted in “the manner provided by ordinance.” Although, in general, provisions of the law on the same or similar subject must be construed as harmonious, where an ordinance and a charter conflict, the express terms of the charter take precedence. Because the charter explicitly restricts eligibility to seek election to the Retirement Commission to employees of Wayne County, the retirement ordinance cannot provide for greater or lesser rights than those expressed in the charter. Therefore, we construe the two provisions to mean, with respect to election to the Retirement Commission, that membership in the Retirement System is synonymous with active employment with Wayne County. We note that, contrary to the Authority’s assertion, the charter and the retirement ordinance envision more than two classes of persons, that is, members and retirees. We further note that even before enactment of Act 90, the Retirement System contained participants without voting and election privileges. Both the charter and the retirement ordinance preclude participants who are not residing in Wayne County and who are spousal beneficiaries from voting in elections for or seeking election to the Retirement Commission. Therefore, the Retirement System can contain both employee members and nonemployee participants. Moreover, the trial court’s judgment and postjudgment orders do not prohibit the participation expressly provided under Act 90. The trial court refused to clarify its ruling by addressing whether Authority employees were permitted to continue making contributions to the Retirement System. The trial court reasoned that the issue of continued contributions was not raised before it and did not necessarily follow from its analysis of this case. The trial court further reasoned that the issue “is directly dealt with by the statute” and needed no clarification. Thus, the trial court allowed the “participation” expressly provided for in Act 90 while — properly, in our view — declining to rule on matters not before it. IV LACHES A. STANDARD OF REVIEW We review a trial court’s application of the doctrine of laches for clear error. “A decision is clearly erroneous where, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” B. APPLYING THE DOCTRINE “The doctrine of laches is a tool of equity that may remedy ‘ “the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.” ’ ” This doctrine applies to cases in which “there is an unexcused or unexplained delay in commencing an action and a corresponding change of material condition that results in prejudice to a party.” “Generally, ‘ “[w]here the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot ... be recognized.” ’ ” The basis for defendants’ claim of laches was that the County contested neither Murphy’s eligibility to remain a trustee on the Retirement Commission nor the voting rights of Authority employees who participated in the Retirement System immediately after the enactment of Act 90. The County, however, contended that the reason it brought this action at this time was that a controversy arose because of the impending opening of a trustee seat and the certification of a ballot for the related election with what the County deemed were candidates ineligible under Act 90. The trial court rejected defendants’ claim that the doctrine of laches precluded the County from filing this action because “defendants have not come forward with any showing that the delay of the County in asserting its position that Airport Authority employees may not seek to be elected to the Commission in any way prejudiced the defendants, the Airport Authority employees or those who presently sit on the Commission.” Even assuming that the County’s delay in filing this action was unacceptably lengthy, we conclude that the trial court properly refused to apply the doctrine of laches to bar the County’s lawsuit because there was no showing of prejudice to defendants. The County claimed that only employees of Wayne County were eligible to vote and seek election to the Retirement Commission under the applicable rules governing the Retirement System. As we have concluded above, the limitations on participation expressed in Act 90, the charter, and the retirement ordinance did not deny employees transferring their employment from Wayne County to the Authority the right to participate in their prior pension plans. Rather, these enactments made the participation of such transferring employees subject to the conditions of the Retirement System. One of the conditions of the charter, which was in existence at the time that the employees could elect to transfer their employment, precluded individuals not employed by Wayne County from seeking election to the Retirement Commission. Therefore, we conclude that seeking to apply this preexisting condition to Authority employees did not subject them to any new restrictions. It necessarily follows that transferring employees cannot claim prejudice from any delay in bringing this action. Affirmed. MCL 259.108 et seq., chapter VIA of the Aeronautics Code of the State of Michigan. MCL 259.109; MCL 259.110. See also Wayne Co Bd of Comm’rs v Wayne Co Airport Auth, 253 Mich App 144; 658 NW2d 804 (2002) (upholding the constitutionality of Act 90). MCL 259.109(n). MCL 259.110(2). MCL 259.119(2). MCL 259.119(3). MCL 259.117(1)(d). MCL 259.119(1). Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Breighner v Michigan High School Athletic Ass’n, Inc, 255 Mich App 567, 570; 662 NW2d 413 (2003), aff'd 471 Mich 217 (2004). Veenstra, supra at 159. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d681 (1995). Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). Lansing Mayor v Pub Service Comm, 470 Mich 154, 165-166; 680 NW2d 840 (2004). Id. at 166, quoting Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003) (emphasis in Lansing Mayor). Lansing Mayor, supra at 166. State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). Id. Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). Gora v City of Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). Detroit v Walker, 445 Mich 682, 691; 520 NW2d 135 (1994). 23 MCL 259.119 (emphasis added). See Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 648; 227 NW2d 736 (1975) (Williams, J., dissenting). MCL 259.119(3). MCL 259.119(4). Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997). MCL 259.119(2). MCL 259.119(3) and (4). MCL 259.119(2). MCL 259.119(3) and (4). Omne Financial, supra at 311. Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 152-153; 662 NW2d 758 (2003). MCL 259.119. Bivens v Grand Rapids, 443 Mich 391, 400-401; 505 NW2d 239 (1993). Id. City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 492; 608 NW2d 531 (2000). Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d 245 (2002), citing In re Attorney Fees & Costs (Septer v Tjarksen), 233 Mich App 694, 701; 593 NW2d 589 (1999). Dep’t of Public Health v Rivergate Manor, 452 Mich 495, 507; 550 NW2d 515 (1996) (citations omitted). Id. Kuhn v Secretary of State, 228 Mich App 319, 334; 579 NW2d 101 (1998) (citation omitted).	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Owens, P.J. Petitioner appeals as of right a judgment entered by the Michigan Tax Tribunal that resolved seven cases petitioner filed in 1993 and 1996, which were consolidated in 1997. The cases concern the assessment of fifty-three parcels in four “parent” parcels containing approximately 325 total acres, which petitioner bought in 1990, annexed, and then sold for various purposes, including private development. We affirm. The tribunal’s overview of the case summarizes the facts of the dispute: In 1990, Petitioner purchased 300 plus acres for City development. The parcels of property were not physically located within the boundaries of the City until they were purchased and annexed. From the time of purchase until the present, Petitioner has platted and marketed the parcels for development. The City Assessor, after requesting guidance from the Michigan State Tax Commission, placed the Bellows Place Subdivision and Preston Place Subdivision on the assessment roll for 1993. Petitioner argued that the properties were exempt from taxation pursuant to the provisions of MCL 211.7m; MSA 7.7(4j). Petitioner appealed to the local Board of Review, which affirmed the assessor’s decision. The Board of Review determined that Petitioner was not exempt from taxation on Bellows Place and Preston Place subdivisions, which Petitioner owned and developed for sale as residential property. Petitioner filed a Petition ... with the Tribunal on June 24, 1993 and alleged that the parcels held by Petitioner were tax exempt. Since then other properties have been added to the tax roll and other cases have been filed with this Tribunal, all of which have been consolidated in this proceeding. Petitioner first argues that land being assembled and marketed for future private development is land presently “used for public purposes” within the meaning of the tax exemption statute, MCL 211.7m, and that the tribunal erred as a matter of law in holding that petitioner’s land was not exempt. We disagree. Absent fraud, this Court’s review of a Tax Tribunal decision is limited to determining whether the tribunal made an error of law or adopted a wrong legal principle. The tribunal’s factual findings are upheld unless they are not supported by competent, material, and substantial evidence. Substantial evidence must be more than a scintilla of evidence, although it may be substantially less than a preponderance of the evidence. Failure to base a decision on competent, material, and substantial evidence constitutes an error of law requiring reversal. [Meijer, Inc v Midland, 240 Mich App 1, 5; 610 NW2d 242 (2000) (citations omitted).] Tax exemptions are construed narrowly. Skybolt Partnership v City of Flint, 205 Mich App 597, 602; 517 NW2d 838 (1994). MCL 211.7m provides, “Property owned by... a city... used for public purposes ... is exempt from taxation under this act.” If a public purpose use is a prospective use rather than a present use, it will not be tax exempt. Municipal Employees Retirement Systems of Michigan v Delta Charter Twp, 266 Mich App 510, 513; 702 NW2d 665 (2005), citing Traverse City v East Bay Twp, 190 Mich 327, 330-331; 157 NW 85 (1916). Nevertheless, petitioner argues that marketing property for sale to private purchasers is a current use for public purposes. It is true that economic development is a public purpose. Wayne Co v Hathcock, 471 Mich 445, 462; 684 NW2d 765 (2004). The Legislature offers several economic development programs that provide property tax exemptions. Petitioner claims that the programs define economic development as a public purpose and asserts it is entitled to the same exemption that these statutory programs provide, even though it did not engage in economic development under the state programs. Nevertheless, the existence of the specific economic development programs providing property tax exemptions suggests that the exemptions only exist under the terms of their enabling statutes. Accepting petitioner’s argument that it was entitled to the exemption for carrying out economic development activity would amount to a holding that portions of these enabling statutes were needless because MCL 211.7m would provide the necessary exemption. Thus, the issue becomes whether petitioner’s property was currently used for public purposes after petitioner bought it and during the period in which petitioner was marketing the land. The Kansas Supreme Court in In re City of Wichita, 255 Kan 838, 847; 877 P2d 437 (1994), considered the meaning of the word “use” in the context of the public purposes exemption and held that an owner must do more than market a property for sale to say that it is “used,” even where the sale revenue will unquestionably be used for a public purpose: “[T]he property at issue was not used in the sense that term normally is understood. Although ‘use’ also can mean purpose or end, the term ‘use’ typically contemplates some active, actual utilization of the property.” Id. Because the property here was not actively, actually used by petitioner, we conclude that the tribunal did not make an error of law or apply a wrong legal principle in holding that petitioner’s land was not exempt from ad valorem taxes while being marketed to private users. Petitioner next argues the tribunal incorrectly applied a legal principle when it found that petitioner omitted the property from the tax rolls by listing it as exempt and concluded that respondent was entitled to correct the tax roll for the challenged year and the two prior years pursuant to MCL 211.154. We disagree. At the time petitioner challenged the orders, MCL 211.154(1) stated in relevant part: If it shall be made to appear to the state tax commission at any time that as a matter of fact any property liable to taxation has been incorrectly reported or omitted for any previous year, but not to exceed the current assessment year and 2 years immediately preceding the date of discovery and disclosure of the incorrect reporting or of the omission, the state tax commission shall place the corrected assessment value for the appropriate years on the then current assessment roll. Relying on City of Ann Arbor v State Tax Comm, 393 Mich 52; 223 NW2d 1 (1974), this Court has suggested that MCL 211.154 applies to this kind of case. Detroit v Norman Allan & Co, 107 Mich App 186, 191-192; 309 NW2d 198 (1981). We find this reasoning persuasive. Moreover, we note that the plain language of the statute is not limited to incorrectly omitted property; it also includes incorrectly reported property. Petitioner next argues that respondent’s failure to act in 1992 signified approval of petitioner’s exemption claim, which precluded correction in 1996 of the tax roll under MCL 211.154, and the tribunal’s finding — that there was no evidence suggesting respondent was advised of the claim — was unsupported by substantial, material, and competent evidence. Because petitioner has not cited any cases from Michigan or elsewhere that support its conclusion that the failure to act signified approval or precluded respondent’s ability to take action under MCL 211.154 in 1996, we decline to address this issue. “It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.” [Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).] Affirmed. Petitioner also argues that the project was for a public purpose because it was intended to enhance its tax base so that it could continue to provide municipal services. Petitioner’s argument highlights the paradox created by its claim, which is that taking property off the tax rolls serves a public purpose because the property will then be sold for private uses that will enhance the property tax base. Thus, petitioner claims, a municipality is entitled to claim the exemption given for lands used for public purposes while it is marketing land to improve the tax base, although the beneficial use — the enhanced tax base — will not occur, if ever, until after the land is sold to private interests. We are not persuaded by this argument. MCL 211.154(1) was amended by 1996 PA 476, to read in relevant part: If the state tax commission determines that property hable to taxation... has been incorrectly reported or omitted for any previous year, but not to exceed the current assessment year and 2 years immediately preceding the date of discovery and disclosure to the state tax commission of the incorrect reporting or omission, the state tax commission shall place the corrected assessment value for the appropriate years on the appropriate current assessment roll. This amendment became effective two weeks after petitioner filed its challenges. However, the amendment does not affect our analysis.	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Per Curiam. These consolidated cases arise out of an audit by the Department of Treasury of plaintiffs records and subsequent assessment of taxes under the General Sales Tax Act (GSTA), MCL 205.51 et seq., and the former motor fuel tax act (MFTA), MCL 207.101 et seq. Plaintiff distributes and sells at retail gasoline and diesel fuel in St. Clair County and other eastern Michigan counties. Rex Pierce supervised and David Wagg conducted the audit, which began in May 1996. The audit culminated in the department issuing orders of determination on April 15, 1999. One order finalized a deficiency assessment for diesel motor fuel tax and interest of $46,249.22 for the period of January 1994 to the end of September 1996. Another order finalized an adjusted deficiency assessment for sales tax of $4,714 for the period of February 1994 through September 1996. Plaintiff paid these assessments under protest and commenced these proceedings. The trial court granted summary disposition for defendants, dismissing all of plaintiffs claims for tax refunds in the Court of Claims and for damages as well as declaratory and injunctive relief in the circuit court. Plaintiff appeals by right. We affirm. I. SUMMARY OF FACTS AND PROCEEDINGS Plaintiff filed a complaint in the St. Clair Circuit Court on July 1, 1999, seeking declaratory and equitable relief. Plaintiff also sought money damages and injunctive relief, alleging that Pierce and Wagg violated 42 USC 1983 (count I) by denying plaintiff its right to due process under the Fifth Amendment and the Fourteenth Amendment. Plaintiff further alleged (count II) that it was deprived of property without due process of law as guaranteed by Const 1963, art 1, § 17. In addition, plaintiff asserted in count II that defendants’ conduct during the audit, the department’s enforcement of its Revenue Administrative Bulletin 1991-12 (RAB 91-12), and the use of a “block sampling” auditing procedure, deprived it of “fair and just treatment,” for which plaintiff sought injunctive and “other relief.” Plaintiff also sought declaratory and injunctive relief in counts III, iy and V. It asserted that § 22 of the MFTA, MCL 207.122 was unconstitutionally vague and unlawfully delegated to the department the authority to specify necessary requirements for invoices that § 22 mandated for diesel fuel sales. Plaintiff also claimed that because RAB 91-12 was not adopted pursuant to the Administrative Procedures Act (APA), MCL 24.201 et seq., it was unenforceable. In addition, plaintiff contended that the department’s use of “block sampling” to determine an error rate to apply to plaintiffs tax returns over the entire audit period was not “fair and just treatment” and was in violation of Const 1963, art 1, § 17. On July 13,1999, plaintiff filed a suit in the Court of Claims in which it sought a refund of taxes, interest, and penalties it had paid under protest. Plaintiff asserted the same arguments it raised in the circuit court case. Specifically, plaintiff again alleged that § 22 of the MFTA did not provide reasonably precise standards and therefore unlawfully delegated legislative authority to the department; that the application of RAB 91-12 was unfair, unjust and unlawful; and that the department’s use of the “block sampling” technique was also unfair, unjust, and unlawful. Plaintiff added a claim that the department interpreted § 6a of the GSTA, MCL 205.56a (regarding prepayment credits) in an arbitrary, capricious, and, therefore, unlawful manner. After a series of motions in each court, and after appeals to this Court, plaintiffs circuit court action was transferred by an order changing venue to the Ingham Circuit Court, where it was heard with the Court of Claims action. Defendants subsequently moved for summary disposition in each case under MCR 2.116(C)(4), (7), (8) and (10); the trial court granted the motions and dismissed all of plaintiffs claims in each case. The trial court ruled with respect to the circuit court action that plaintiff had failed to plead a valid claim for damages and injunctive relief pursuant to 42 USC 1983 against the individual defendants for alleged violations of federal due process; that plaintiff had failed to plead a valid claim against defendants for injunctive relief for alleged violations of state due process rights under Const 1963, art 1, § 17; that § 22 of the MFTA does not unlawfully delegate authority to the department contrary to state due process of law requirements and the separation of state governmental power doctrine; that § 22 of the MFTA directly authorized the department’s adoption and enforcement of RAB 91-12 so that compliance with rule promulgation requirements of the APA was unnecessary; that the auditing method used by the department was fully authorized by the GSTA and not in violation of state due process rights; and that plaintiff failed to plead a valid claim for declaratory relief by alleging that § 22(2) of the MFTA, the RAB 91-12, and the “block sampling” auditing method were unlawful and unenforceable. In the Court of Claims action for a refund, the trial court ruled that plaintiff failed to state a valid claim because § 22 of the MFTA was a constitutional delegation of legislative authority to the department; that RAB 91-12 was not an unlawful enforcement of § 22; that the “block sampling” audit method did not unconstitutionally deprive plaintiff of state due process rights; and that the department’s interpretation of the “prepayment credit” provisions in § 6a of the GSTA was neither arbitrary nor capricious but, in fact, was consistent with and thus authorized by the statute. II. STANDARD OF REVIEW The interpretation, application, and constitutionality of statutes are questions of law that this Court reviews de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001). We also review de novo issues of constitutional construction and a trial court’s ruling on a motion for summary disposition. Carmacks Collision, Inc v Detroit, 262 Mich App 207, 209; 684 NW2d 910 (2004). The trial court dismissed plaintiffs claims under MCR 2.116(C)(7), (8), and (10). A motion for summary disposition under MCR 2.116(C)(7) asserts that a claim is barred by immunity granted by law; a C(8) motion asserts that the pleading fails to state a claim on which relief can be granted, and summary disposition under C(10) is proper where there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. A motion under MCR 2.116(C)(7) may be supported or opposed by affidavits, depositions, admissions, or other documentary evidence; the substance or'content of the supporting proofs must be admissible in evidence. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The allegations of the complaint are accepted as true unless contradicted by documentary submissions. Id., citing Patterson v Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994). A trial court properly grants a motion for summary disposition under MCR 2.116(C)(7) when the undisputed facts establish that the moving party is entitled to immunity granted by law. Poppen v Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003); MCR 2.116(I)(1). A motion brought under MCR 2.116(C)(8) tests the factual sufficiency of the complaint on the basis of the pleadings alone. MCR 2.116(G)(5); Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). The trial court must grant the defendant’s motion if no factual development could justify the asserted claim for relief. Id.; Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A C(10) motion tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley, supra at 278. The moving party must specifically identify the undisputed factual issues and support its position with documentary evidence. MCR 2.116(G)(4); Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). The trial court is required to consider the submitted documentary evidence in the light most favorable to the party opposing the motion. Corley, supra at 278. If the moving party satisfies its burden of production, the motion is properly granted if the opposing party fails to proffer legally admissible evidence that demonstrates that a genuine issue of material fact remains for trial. Maiden, supra at 120-121. III. DOCKET NO. 251201 We begin by reviewing the trial court’s rulings with respect to plaintiffs circuit court case for two reasons. First, that is the order in which the trial court proceeded. Second, plaintiffs circuit court case raises almost all the same issues that plaintiff asserts in its Court of Claims complaint as a basis for a refund and it names all defendants. A. 42 USC 1983 Plaintiff claims that the individual defendants violated state law and regulations governing the department’s conduct when auditing taxpayers and, therefore, they violated its federal right to due process of law. On this basis, plaintiff asserts that the individual defendants are liable pursuant to 42 USC 1983 for violating its federal rights under color of state law. Specifically, plaintiff alleges that the individual defendants violated its right to due process of law by failing to provide plaintiff a Taxpayers Rights Handbook, being “visibly unhappy” and expressing dissatisfaction while abiding plaintiff’s request that the audit be conducted through and at the office of plaintiffs accountant, failing to keep plaintiff or its accountant apprised of the audit’s progress, pressuring plaintiff to execute a waiver of the period of limitations to permit review of the audit results before the department issued its formal notice of intent to assess, and initially determining an amount of claimed tax deficiencies that contained errors. Plaintiff does not allege that it lacked notice or an opportunity for a meaningful hearing, and plaintiff does not contest that both predeprivation and postdeprivation remedies were available to it. The trial court rejected plaintiffs contention that allegations of noncompliance with state laws and regulations, standing alone, can support a federal claim of deprivation of property without due process of law. Noting that plaintiff failed to support its position with authority, the trial court quoted Harrill v Blount Co, Tennessee, 55 F3d 1123, 1125 (CA 6, 1995): “A state statute cannot ‘create’ a federal constitutional right.” In Harrill, the plaintiff sued police officers after being found not guilty on a charge of concealing stolen property. The Harrill court recognized that state law may create a liberty or property interest protected by the Due Process Clause, but a “violation of a right created and recognized only under state law is not actionable under § 1983.” Id., citing Sweeton v Brown, 27 F3d 1162, 1165 (CA 6, 1994) (en banc). “If states could vary... federal constitutional rights by statute or local ordinance, the federal constitutional law... would vary from state to state and from city to city.” Harrill, supra at 1125. Thus, principles of federalism discourage constitutionalizing state regulatory procedures. Sweeton, supra at 1165. Both the Michigan Constitution and the United States Constitution preclude the government from de priving a person of life, liberty, or property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17; Hinky Dinky Supermarket, Inc v Dep’t of Community Health, 261 Mich App 604, 605-606; 683 NW2d 759 (2004). The principle of fundamental fairness is the essence of due process. In re Adams Estate, 257 Mich App 230, 233-234; 667 NW2d 904 (2003). Due process is a flexible concept, however, and determining what process is due in a particular case depends on the nature of the proceeding, the risks and costs involved, and the private and governmental interests that might be affected. Genesco, Inc v Dep’t of Environmental Quality, 250 Mich App 45, 56; 645 NW2d 319 (2002). Generally, “[d]ue process in civil cases requires notice of the nature of the proceedings and an opportunity to be heard in a meaningful time and manner by an impartial decisionmaker.” Hinky Dinky, supra at 606, quoting Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995) (citation deleted). Because the collection of a tax constitutes a deprivation of property, a state must provide sufficient procedural safeguards to satisfy due process requirements. McKesson Corp v Div of Alcoholic Beverages, 496 US 18, 36; 110 S Ct 2238; 110 L Ed 2d 17 (1990). But states “are afforded great flexibility in satisfying the requirements of due process in the field of taxation.” Nat’l Private Truck Council, Inc v Oklahoma Tax Comm, 515 US 582, 587; 115 S Ct 2351; 132 L Ed 2d 509 (1995). Due process is satisfied when a taxpayer has “a fair opportunity to challenge the accuracy and legal validity of their tax obligation [and] a ‘clear and certain remedy’ for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one.” McKesson, supra at 39, quoting Atchison T & S F R Co v O’Connor, 223 US 280, 285; 32 S Ct 216; 56 L Ed 436 (1912). The Michigan statutory scheme at issue provides taxpayers with notice and an opportunity for meaningful hearings both predeprivation and postdeprivation. MCL 205.21; MCL 205.22; Kostyu v Dep’t of Treasury, 147 Mich App 89, 92; 382 NW2d 739 (1985). Plaintiff was accorded “a fair opportunity to challenge the accuracy and legal validity of [its] tax obligation” and was provided a meaningful, clear, and certain remedy to correct any unlawful tax collected. McKesson, supra at 39. As noted already, plaintiff has alleged no conduct by defendants that deprived it of notice or of an opportunity to be heard at a meaningful time and in a meaningful manner by an impartial decision maker. In re Adams Estate, supra at 234. Consequently, plaintiff has failed to sufficiently allege a violation of its federal constitutional right to due process of law. US Const, Am V, Am XIV Further, 42 USC 1983 is not itself an independent source of substantive rights; rather it merely provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes, and because plaintiff has failed to sufficiently allege a violation of its federal constitutional right to due process, plaintiff failed to state a claim for which relief maybe granted. MCR 2.116(C)(8); Spiek, supra at 337-338. The trial court properly granted defendants’ motion for summary disposition on plaintiffs § 1983 due process claim. Because plaintiff failed to state an actionable claim for a violation of a federal right under 42 USC 1983, it follows that plaintiff failed to state a claim for attorney fees pursuant to 42 USC 1988. Moreover, because adequate remedies are available under state law to aggrieved taxpayers, declaratory or injunctive relief is not available through federal district courts under § 1983. 28 USC 1341; Nat’l Private Truck Council, supra at 588 (“[I]t is clear that [federal courts] may not award damages or declaratory or injunctive relief in state tax cases when an adequate state remedy exists.”). This same rule applies to state courts hearing § 1983 claims because “Congress did not authorize injunctive or declaratory relief under § 1983 in state tax cases when there is an adequate remedy at law.” Id. Thus, irrespective of “[w]hether a suit is brought in federal or state court, Congress simply did not authorize the disruption of state tax administration in this way.” Id. at 590. In addition, MCL 205.28(1)(b) applies to the GSTA and the MFTA and provides: “An injunction shall not issue to stay proceedings for the assessment and collection of a tax.” Consequently, the trial court did not err in dismissing all of plaintiffs 42 USC 1983 claims for failing to state a claim upon which relief may be granted. For the reasons already discussed, the trial court also properly dismissed all of plaintiffs § 1983 claims against the individual defendants on the ground of qualified or “good faith” immunity. MCR 2.116(C)(7). See Harlow v Fitzgerald, 457 US 800, 818; 102 S Ct 2727; 73 L Ed 2d 396 (1982), and Guider v Smith, 431 Mich 559, 568; 431 NW2d 810 (1988). “If the undisputed facts show that the defendant’s conduct violated no clearly established constitutional standards, qualified immunity applies as a matter of law.” Id. Here, even were we to accept plaintiffs complaint as true, at best it alleges violations of state law that do not constitute violations of clearly established federal due process rights. B. CONST 1963, ART 1, § 17 The trial court concluded that plaintiffs circuit court complaint failed to allege a violation of either proce dural or substantive due process and also failed to state an actionable claim under the “fair and just treatment” clause of Const 1963, art 1, § 17. We agree. 1. PROCEDURAL DUE PROCESS Const 1963, art 1, § 17 provides, in pertinent part: No person shall... be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed. On appeal, plaintiff cites Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81; 141 NW2d 722 (1966), which held, “When an administrative agency promulgates a rule for the benefit of litigants and then deprives a litigant of this right, it is a violation of the due process clauses of both the 1908 and 1963 Michigan Constitutions.” Bohannon was a worker’s compensation claimant for whom the appeal board “inadvertently did not grant a hearing” contrary to the board’s own rules of procedure. Bohannon, supra at 82. The Bohannon Court engaged in no legal analysis beyond that stated above in reaching its constitutional conclusion, which this Court is not bound to follow. MCR 7.215(J)(1). In contrast, both our Supreme Court and this Court have held that this state’s Due Process Clause provides protection coextensive with its federal constitutional counterpart. People v Sierb, 456 Mich 519, 523; 581 NW2d 219 (1998); English v Blue Cross Blue Shield of Michigan, 263 Mich App 449, 459-460; 688 NW2d 523 (2004). “The ‘fundamental requirement of due process’ is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Id. (citation deleted). To the extent Bohannon correctly found a violation of due process rights, it was because there was no meaningful opportunity to be heard. Here, the statutory scheme accords constitutional due process, Kostyu, supra at 92, and plaintiff does not allege that it was in fact denied notice or an opportunity to be heard at a meaningful time and in a meaningful manner. The trial court correctly ruled that plaintiff failed to state a claim for which relief could be granted based on the department’s alleged failure to accord plaintiff with state procedural due process. MCR 2.116(C)(8). 2. SUBSTANTIVE DUE PROCESS Plaintiff next asserts that the trial court erred by dismissing its substantive due process claims under Const 1963, art 1, § 17 for injunctive (count II) and declaratory relief (counts III and V). Plaintiff contends that § 22 of the MFTA, MCL 207.122, unconstitutionally delegated legislative authority because it permitted the department to specify required details of invoices for diesel fuel sales without reasonably precise standards; therefore, the department could not enforce RAB 91-12. “One of the requirements of substantive due process is the existence of reasonably precise standards to be utilized by administrative agencies in the performance of delegated legislative tasks.” State Hwy Comm v Vanderkloot, 392 Mich 159, 169-170; 220 NW2d 416 (1974). The Vanderkloot Court held that the Legislature provided constitutionally sufficient standards to the highway commission to condemn private property for highway purposes in the single word “necessity.” Likewise, here, the trial court found the Legislature provided standards “as reasonably precise as the subject matter requires or permits,” Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956), in the single word “invoice.” The trial court therefore dismissed plaintiffs substantive due process claims pursuant to MCR 2.116(C)(8). Although the trial court reached the correct result, we find that the Legislature provided the department standards beyond the word “invoice” to guide its exercise of delegated discretion. Section 22(1) provides a discount of six cents a gallon of the tax imposed on diesel motor fuel pursuant to the MFTA “if the diesel motor fuel is delivered into the fuel supply tanks of a commercial motor vehicle licensed under the motor carrier fuel tax act [MCL 207.211 et seq.].” Plaintiff rests its constitutional argument on the language of § 22(2) that reads in pertinent part: The tax on diesel motor fuel sold and delivered in this state by the retailer into the fuel supply tanks of motor vehicles shall be collected by the supplier and paid over monthly to the department except that the retail dealer shall pay over monthly to the department 6 cents of the tax imposed. .. for each gallon sold for delivery into or supplied into the fuel supply tanks of a motor vehicle that is not a commercial motor vehicle... and eligible for discount allowed under subsection (1). Each diesel motor fuel retailer shall invoice sales of diesel motor fuel as prescribed by the department. .. . [MCL 207.122(2) (emphasis added).] The department exercised the delegated authority in the emphasized language by approving RAB 91-12 on October 10, 1991. The RAB stated the department’s belief that the advent of computerized card pump and key pump systems allowed abuses of the commercial motor carrier discount because the discount was “often being given to anyone with access to a card or a key.” To address these concerns, RAB 91-12 requires minimum invoice record keeping for retail sales of diesel motor fuel as follows: 1. Seller’s name, address, and account number. 2. Date of sale. 3. Name of purchaser. 4. Serial number of the current-year license fuel decal or serial number of the 5-Day Fuel Tax Permit in the driver’s possession. 5. Product sold. 6. Number of gallons. 7. Total price per gallon, including the current full Michigan motor fuel tax. 8. Indication of the 6 cent discount, shown as a separate item. RAB 91-12 requires additional details for card pump systems. It also provides that the “[f]ailure to meet any of these requirements will result in the disallowance of any discount given at the time of the sale.” Plaintiff contends that these invoicing requirements are arbitrary and capricious, especially the requirement of the forfeiture of the discount upon noncompliance. Therefore, plaintiff argues, RAB 91-12 violates substantive due process under Const 1963, art 1, § 17. In Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 51; 367 NW2d 1 (1985), our Supreme Court noted that it had earlier stated the criteria for evaluating a claim that the Legislature unconstitutionally delegated its authority in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). The Seaman Court set forth the following “guiding principles”: First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. .. . Third, if possible the statute must be construed in such a way as to “render it valid, not invalid, as conferring administrative, not legislative” power and as vesting discretionary, not arbitrary, authority. [Seaman, supra at 309 (citations and punctuation deleted).] The trial court began its analysis with the third criterion and the “well-established rule that a statute is presumed to be constitutional unless its unconstitutionality is clearly apparent.” McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999). “This presumption is especially strong where tax legislation is concerned.” Kostyu, supra at 93. Plaintiff faults the trial court for misapplying the standard of review by requiring plaintiff to prove the statute unconstitutional “beyond a reasonable doubt.” Although the trial court may have strayed into the lexicon of the criminal law, it surely captured the essence of our Supreme Court’s longstanding teaching regarding the judiciary’s duty of deference to statutes the Legislature enacts. A court must “exercise the power to declare a law unconstitutional with extreme caution, and ... never exercise it where serious doubt exists ... .” Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004), citing Sears v Cottrell, 5 Mich 251, 259 (1858). Furthermore, “ ‘[e]very reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.’ ” Phillips, supra at 423, quoting Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). The trial court ruled that plaintiff failed to overcome the presumption that § 22 is constitutional. We agree. With regard to the second Seaman criterion, that “the standard should be as reasonably precise as the subject matter requires,” the trial court reasoned that although “many aspects of sales taxation in general can be highly complex, the same is surely untrue of the specific power delegated by section 22(2) to Treasury, to prescribe departmental requirements for the invoicing of sales by diesel fuel retailers.” Thus, the trial court found that the single, well-known word “invoice,” having a generally understood meaning, provided adequate standards for the department to specify the details for the standardized form and content of invoices to be used by all diesel fuel retailers. The trial court likened “invoice” to the one- or two-word standards upheld as sufficient to satisfy due process, citing Vanderkloot, supra (“necessity” in the context of condemnation), G F Redmond & Co v Michigan Securities Comm, 222 Mich 1; 192 NW 688 (1923) (“good cause” to revoke a securities dealer’s license), and Klammer v Dep’t of Transportation, 141 Mich App 253; 367 NW2d 78 (1985) (the statute permitted a waiver of mandatory retirement from state service when “necessary”). We concur in the trial court’s reasoning, but also find additional reasons for concluding that the Legislature provided constitutionally sufficient standards to guide the department in the exercise of its discretion. Specifically, applying the first and third Seaman principles to § 22, we conclude that the legislative purpose of requiring that diesel fuel sales be invoiced is to ensure that the discount of § 22(1) is granted to only those sales that qualify, i.e., when “diesel motor fuel is delivered into the fuel supply tanks of a commercial motor vehicle licensed under the motor carrier fuel tax act. . . MCL 207.122(1). Thus, the purpose for which the invoice is required also provides standards to guide the department in exercising the authority delegated to it to “prescribe” the details required in the invoice by § 22(2). Furthermore, plaintiff concedes in its brief that the standards would be constitutionally sufficient if the Legislature had provided that the invoice the department prescribes required information reasonably necessary to determine the amount of tax due. Plaintiffs concession is fatal to its argument. Although the language plaintiff suggests is not found in § 22 of the MFTA, similar language is found in § 11(2) of the MFTA, MCL 207.111(2). At the relevant time, that section provided: Each supplier, exporter, wholesale distributor, carrier, terminal operator, liquid fuel carrier, and retail dealer shall maintain and keep, for a period of 4 years, suitable books, records, and accounts of all gasoline and diesel motor fuel received, manufactured, stored, used, sold, or delivered within this state, sold for export from this state, or exported from this state, together with all invoices, delivery tickets, bills of lading, and other pertinent records and papers as may be required by the commissioner for the reasonable administration of this act. [MCL 207.111(2) (emphasis supplied).] In sum, the Legislature provided constitutionally sufficient standards for the department to implement the invoice requirement of § 22(2). Accordingly, the trial court did not err by ruling that plaintiff failed to state a claim for either injunctive or declaratory relief on the basis of its assertion that the Legislature’s delegation of authority to the department to prescribe the details of the invoice required by § 22(2) violated state substantive due process. MCR 2.116(C)(8). 3. FAIR AND JUST TREATMENT Plaintiff next contends that the trial court erred by dismissing its claims for injunctive relief (count II) and declaratory relief (count V), alleging that RAB 91-12 and the department’s use of a “block sampling” technique during the audit violated the “fair and just treatment” clause of Const 1963, art 1, § 17. The trial court, citing Johnson v Wayne Co, 213 Mich App 143, 155; 540 NW2d 66 (1995), concluded that plaintiff failed to state a claim upon which relief could be granted because the “audit by an executive department implicated neither an investigation nor a hearing” within the meaning of Const 1963, art 1, § 17. We agree. “The primary objective in interpreting a constitutional provision is to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). Although technical or legal terms should be ascribed their technical or legal meanings, in general this Court’s task is to ascertain and give effect to the common understanding of the text at the time of ratification. Id. at 468-469; Carmacks, supra at 209. We must “attempt to give effect to the language in the Constitution as the ‘popular mind’ would have understood it at the time it was adopted.” Id.; People v Dean, 14 Mich 406, 417 (1866). “A collateral rule ‘is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered.’ ” Comm for Constitutional Reform v Secretary of State, 425 Mich 336, 340; 389 NW2d 430 (1986), quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). The text at issue in Const 1963, art 1, § 17 provides, “The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.” The plain text conveys that the protection of “fair and just treatment” applies only “in the course of,” or “during,” either a “legislative” or “executive” “investigation” or “hearing.” Johnson, supra at 155. Further, the historical context in which this clause was adopted suggests that it was intended to protect against the excesses and abuses of Cold War legislative or executive investigations or hearings. See Jo-Dan, Ltd v Detroit Bd of Ed, unpublished opinion per curiam of the Court of Appeals, issued July 14, 2000 (Docket No. 201406), slip op at 10-14. We doubt that the “common understanding” or “popular mind” at the time of ratification regarded this provision as a protection against the adverse consequences of a run-of-the-mill tax audit. Nevertheless, we examine the conduct that plaintiff alleges comes within its ambit to determine whether it might fit within the plain meaning of the constitutional text. Carmacks, supra at 211. First, plaintiff offers no argument or authority about how the department’s adoption of RAB 91-12 could possibly constitute unfair and unjust “treatment.” The word “treatment” clearly connotes some active conduct during the “course of” a hearing or investigation. An administrative agency’s interpretation or implementation of a statutory provision can hardly amount to a violation of the “fair and just treatment” clause simply because plaintiff disagrees with the agency’s interpretation or implementation. In any case, because plaintiff has not adequately briefed or argued this issue, it has abandoned it. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). The department referee who presided over the “informal conference” process pursuant to § 21 of the revenue act, MCL 205.21, explained the nature of the “block sampling” dispute and the parties’ positions in her report of January 29, 1999: The motor fuel tax audit involves a disallowance of less than 2% [1.76%] of the motor fuel discount claimed on returns filed. The disallowance is based on review of invoices for discounted sales made during the month of July 1994. A total of 825,625 gallons of discounted sales were [sic] reported for that month. The audit disallowed a discount on sales of 14,535 gallons. The department states that the discount was reduced because some invoices did not include the purchaser’s name, other invoices reflected an incomplete decal number while still other invoices reflected an invalid decal number. An error rate was projected over the total audit time period. The taxpayer objects to the auditor’s test sample with the contention that it was not conducted in accordance with widely recognized sampling methods. The auditor made mistakes during the audit as well. An error rate of less than 2% should be acceptable. The taxpayer implemented a computer system specifically for compliance purposes. Inaccurate discount slips were reported by one employee who left after the test month. Inclusion of exceptions which were caused by this one employee distort the test period. The State of Michigan has not implemented a system which allows sellers to verify decal numbers given by customers. The taxpayer has no way of knowing if a number accepted is correct. * The department issued RAB 91-12 in response to [MCL 207.122(2)]. The RAB lists six requirements which must be met with each sales invoice in order to become eligible for the discount. Two of the criteria require that the invoices include the name of the purchaser and the serial number of the current-year license fuel decal or the serial number of the 5-day Fuel Tax Permit in the driver’s possession. Schedule 6 of the audit workpapers lists approximately 60 sales per page. The schedule is made up of 116 pages. Approximately 6,960 sales were reviewed as part of the department’s test period. Approximately 120 were disallowed. The taxpayer’s argument does not connect general sampling principles with the specific amount of sales reviewed or with the specific amount of sales disallowed. The law does not provide an exemption for an “acceptable” error rate. The trial court ruled that plaintiff has no right to choose the audit method employed by the department. We agree that the Legislature has granted the department wide discretion in the selection of auditing methods. MCL 205.21; Vomvolakis v Dep’t of Treasury, 145 Mich App 238, 244-245; 377 NW2d 309 (1985). The Vomvolakis Court observed that the department “is to make assessments only when it has reason to believe that a return does not supply sufficient or accurate information or when proper records are not maintained by a taxpayer. The state’s power to tax would be greatly eroded if [the department] could not make assessments on available information in situations where taxpayers do not maintain proper records.” Id. at 245. Although plaintiff proffered opinion testimony that the audit method used by the department was not the most reliable and should have been verified with test samples chosen from throughout the period audited, plaintiff failed to offer any evidence that the error rate determined by the “block sampling” method was actually inaccurate. Thus, plaintiff failed to demonstrate as a factual matter that any unfairness or injustice occurred. Further, we agree that the trial court correctly rejected plaintiff’s argument that the audit method the department selected violated the “fair and just treatment” clause of Const 1963, art 1, § 17. Because plaintiff contends the violation occurred during the department’s audit rather than during a “hearing,” the audit must be considered an “investigation” to come within the protection of the “fair and just treatment” clause. Carmacks, supra at 212. But defendants did not engage in a searching inquiry to ascertain facts. Id. at 210-211, citing Messenger v Dep’t of Consumer & Industry Services, 238 Mich App 524, 532-533; 606 NW2d 38 (1999). Rather, defendants conducted an administrative review of business records that plaintiff was statutorily obligated to maintain to substantiate its GSTA and MFTA tax returns and its claim to the six cents a gallon discount allowed by § 22(1) of the MFTA. MCL 207.111(2); MCL 207.122(2). An “audit” is defined as “an official examination and verification of financial accounts and records.” Random House Webster’s College Dictionary (2001). An “audit” is what occurred here, not an “investigation” within the meaning of the “fair and just treatment” clause. Carmacks, supra at 212; Johnson, supra at 155. Plaintiff's “fair and just treatment” claim fails. MCR 2.116(C)(8). C. THE ADMINISTRATIVE PROCEDURES ACT Plaintiff also argues that the trial court erred by not finding that RAB 91-12 was a “rule” as defined in § 7 of the APA, MCL 24.207, and therefore invalid and unenforceable because it was not promulgated according to the procedure dictated by the APA. MCL 24.243(1); Clonlara, Inc v State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993). Pertinent to plaintiffs position, MCL 24.207 provides: “Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency. Plaintiff contends that RAB 91-12 is more than an agency’s interpretative statement because it was strictly applied in plaintiffs case, resulting in the disallowance of certain discounts plaintiff had claimed. Accordingly, plaintiff argues, the RAB had the effect of law and must be a “rule” under the APA that is unenforceable because required procedures were not followed. The department asserts that it was granted specific Legislative authority, independent from the APA, to adopt RAB 91-12. It points to § 3(f) of the revenue act, MCL 205.3(f), which provides that “[t]he department may periodically issue bulletins that index and explain current department interpretations of current state tax laws.” Further, the department asserts that the Legislature granted direct authority for the RAB in § 22(2) of the MFTA, MCL 207.122(2), which provided in part: “Each diesel motor fuel retailer shall invoice sales of diesel motor fuel as prescribed by the department.” Even if RAB 91-12 would otherwise be considered a “rule” under the APA, the department argues § 7 of the APA provides a number of exceptions, two of which apply. After defining “rule,” § 7 of the APA continues: Rule does not include any of the following: * (h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory. * (j) A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected. [MCL 24.207.] Relying on Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App 563, 582-584; 609 NW2d 593 (2000), Auto Club Ins Ass’n v Sarate, 236 Mich App 432, 435-436; 600 NW2d 695 (1999), and Faircloth v Family Independence Agency, 232 Mich App 391, 403-404; 591 NW2d 314 (1998), the trial court determined that “[c]ertain portions of RAB 91-12 are clearly explanatory and interpretive, expressing Treasury’s position on its standardization of invoices as to form and content [and those] portions of the document are within the § 7(h) exclusion from the APA” rule promulgation require ments. We agree. The Legislature, not RAB 91-12, established the criterion that to qualify for the § 22(1) discount, diesel fuel had to be “delivered into the fuel supply tanks of a commercial motor vehicle licensed under the motor carrier fuel tax act...." Further, the Legislature, not RAB 91-12, established the requirement that diesel fuel retailers “invoice sales of diesel motor fuel as prescribed by the department ....” MCL 207.122(2). Our Supreme Court explained in Clonlara, supra at 240: Agencies have the authority to interpret the statutes they are bound to administer and enforce. Legislative rules have the force of law. Interpretive “rules” state an agency’s interpretation of a statute. Legislative rules are enforceable in and of themselves. But an agency must rely on the underlying statute to support its reading of a statute set forth in an interpretive “rule.” We find that RAB 91-12 comes within the narrow exception of § 7(h) of the APA because it is an “interpretive statement,” or a “guideline” that merely explains the requirements of MCL 207.122 that a taxpayer claiming the diesel fuel discount must satisfy. Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Services, 431 Mich 172, 184; 428 NW2d 335 (1988); Faircloth, supra at 403. In this case, plaintiff failed to qualify for a portion of the diesel fuel discount it claimed, not because it failed to comply with the department’s revenue bulletin but because it failed to maintain adequate invoices to substantiate that it satisfied the criteria of § 22(1) of the MFTA. Thus, RAB 91-12 is not a “rule” within the meaning of the APA and is not subject to the procedural requirements of that act. See, e.g., Catalina Marketing Sales Corp v Dep’t of Treasury, 470 Mich 13, 21; 678 NW2d 619 (2004) (RAB 95-1 was interpretive and could not adopt a rule conflicting with the applicable statutes). Moreover, we must also reject plaintiffs argument that because the department strictly applied RAB 91-12, it has the “force and effect” of law and must be a “rule” under the APA. The trial court also found that RAB 91-12 was exempted from the rule-making procedures of the APA by § 7(j) because the authority granted by § 22(2) of the MFTA to “prescribe” the invoice required by that section was a “permissive statutory power.” Again, we agree. Subsection 7(j) excepts administrative action from the APA’s definition of “rule” when the Legislature has either explicitly or implicitly authorized the action in question. Detroit Coalition, supra at 187-188. See also Michigan Trucking Ass’n v Pub Service Comm (On Remand), 225 Mich App 424, 430; 571 NW2d 734 (1997) (§ 7[j] applied to the agency’s action because a statute explicitly authorized it), and Village of Wolverine Lake v State Boundary Comm, 79 Mich App 56, 59; 261 NW2d 206 (1977) (§ 7[j] applied because the agency’s policy was the same as the statutory scheme’s implicit policy). Here, § 22(2) of the MFTA explicitly required the department to “prescribe” the invoice required by that section and did not mandate the department to do so pursuant to the procedural requirements of the APA. Compare Detroit Coalition, supra at 188 (in which the statute required that “rules” be promulgated) with Michigan Trucking Ass’n, supra at 430 (in which the statute permitted the adoption of a rule or order). Consequently, we conclude that § 7(j) of the APA exempted the department from the need to comply with the rule-making procedures of that act before adopting RAB 91-12 to “prescribe” the invoice required by § 22(2) of the MFTA. IV DOCKET NO. 251200 Plaintiffs complaint in the Court of Claims mirrored the claims it raised in the circuit court case discussed in part III. Plaintiffs Court of Claims case on these issues fails for the same reasons as the identical circuit court claims. The trial court correctly granted summary disposition for the department pursuant to MCR 2.116(C)(8). 1. SECTION 6a OF THE GSTA Plaintiffs last claim is that the department arbitrarily, capriciously, and unlawfully interpreted § 6a of the GSTA, MCL 205.56a. That section requires gasoline retailers to prepay sales tax to their supplier at the time of “purchase or shipment,” MCL 205.56a(1), but then permits the retailer to “claim an estimated prepayment credit... for prepayments made during the month for which the return is required” for the tax on sales by the retailer. MCL 205.56a(3). Plaintiff contends that the time of its purchase of gasoline supplies is when it pays its supplier’s invoice and that it is simply using cash basis accounting. The department argues that § 6a requires plaintiff to claim the prepayment credit in the month it actually receives gasoline from its wholesaler, i.e., that the statute implicitly requires accrual basis accounting of the prepayment credit. MCL 205.56a provides in pertinent part: (1) At the time of purchase or shipment from a refiner, pipeline terminal operator, or marine terminal operator, a purchaser or receiver of gasoline shall prepay a portion of the tax imposed by this act at the rate provided in this section to the refiner, pipeline terminal operator, or marine terminal operator for the purchase or receipt of gasoline. ... * (3) A person subject to tax under this act who makes prepayment to another person as required by this section may claim an estimated prepayment credit on its regular monthly return filed pursuant to section 6. The credit shall be for prepayments made during the month for which the return is required and shall be based upon the difference between prepayments made in the immediately preceding month and collections of prepaid tax received from sales or transfers. [Emphasis added.] The trial court upheld the department’s interpretation of the statute by reasoning as follows: The GSTA states plainly that the tax accrues at the end of the month in which the sales transaction takes place, not the month in which the purchaser or receiver makes payment to the supplier. That is also when a return to Treasury is required and, therefore, when the prepayment of tax must be made for the claimed credit. The accrual method of accounting, as required by Treasury in its forms and instructions for claiming prepayment credits, is implicit in the GSTA and therefore lawful. Plaintiffs contentions to the contrary are without merit and must therefore be dismissed under MCR 2.116(C)(8). Our primary goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). We first attempt to ascertain the Legislature’s intent from the specific language of the statute. Roberts v Mecosta Co Gen Hasp, 466 Mich 57, 63; 642 NW2d 663 (2002). When the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). But, if reasonable minds could differ about the meaning of a statute, judicial construction is appropriate. Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). When judicial construction of a statute is permitted, we must construe the statutory language reasonably, mind ful of the purpose of the act. Draprop Corp v City of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001), citing Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1987). Unless defined in the statute or possessing special technical meaning, we must accord every word or phrase of a statute its plain and ordinary meaning, considering the context of its placement and purpose in the statutory scheme. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999); City of Kalamazoo v KTS Industries, Inc, 263 Mich App 23, 33; 687 NW2d 319 (2004). Pertinent to this case, an administrative agency’s longstanding, consistent interpretation of a statute within the agency’s responsibility is entitled to great weight and should not be overruled unless that interpretation is clearly erroneous. Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467, 471; 673 NW2d 95 (2003). Of course, an administrative agency’s interpretation of a statute cannot overcome the statute’s plain meaning. Catalina, supra at 23-24, citing Ludington Service Corp v Ins Comm’r, 444 Mich 481, 505; 511 NW2d 661 (1994). Applying these principles to the statute at issue, we conclude that the trial court reached, the correct result, although we do not agree completely with the court’s reasons. The GSTA imposes a tax on “all persons engaged in the business of making sales at retail... .” MCL 205.52(1). At the time pertinent to this case, “sale at retail” meant “a transaction by which the ownership of tangible personal property is transferred for consideration, if the transfer is made in the ordinary course of the transferor’s business and is made to the transferee for consumption or use, or for any purpose other than for resale ... .” MCL 205.51(1)(b); Univ of Michigan Bd of Regents v Dep’t of Treasury, 217 Mich App 665, 668; 553 NW2d 349 (1996). It is true, as the trial court noted, that § 6(3) of the GSTA, MCL 205.56(3), provides: “The tax imposed under this act shall accrue to this state on the last day of the month in which the sale is incurred.” But the question presented here is when does the statute require a retailer to prepay this tax to its supplier of gasoline. The answer is found in the text of § 6a(1), not § 6(3). MCL 205.56a(1) fixes the mandatory time when a retailer must prepay sales tax to its supplier that the retailer will subsequently collect upon ultimate sale of gasoline to consumers. “The word ‘shall’ is unambiguous and is used to denote mandatory, rather than discretionary, action.” STC, Inc v Dep’t of Treasury, 257 Mich App 528, 537; 669 NW2d 594 (2003). Under plaintiffs interpretation of the statute, the word “purchase” in the phrase “[a]t the time of purchase or shipment” must be the equivalent of “payment. ” But the plain and ordinary meaning of the word “purchase” conveys a much broader concept than mere “payment.” Rather, “purchase” means “to acquire” either by contemporaneous payment of money or promise of future payment or equivalent exchange. See Random House Webster’s College Dictionary (1992), which defines “purchase” as “to acquire by the payment of money or its equivalent; buy.” This broad definition of “purchase” is also consistent with its legal meaning. “Black’s [Law Dictionary (6th ed)] defines ‘purchase’ as ‘To own by paying or [by] promising to pay an agreed [. . . ] price which is enforceable at law. . . . The term ‘purchase’ includes any contract to purchase or otherwise acquire.’ ” Graves v American Acceptance Mortgage Corp (On Rehearing), 469 Mich 608, 616 n 5; 677 NW2d 829 (2004) (emphasis added). In Graves, the Court used this broad meaning of “purchase” to support its “finding that, upon signing a contract to purchase property and acquiring equitable title therein, the [land contract] vendee has purchased that property.” Id. Moreover, this broad definition of the word “purchase” is consistent with its placement in the broader statutory scheme of the sales tax. Under the GSTA, “to sell,” the mirror image of “to buy” or “to purchase,” means a transaction by which the ownership of tangible personal property is transferred for consideration, which “includes a conditional sale, installment lease sale, and other transfer of property if title is retained as security for the purchase price but is intended to be transferred later.” MCL 205.51(1)(c), before 2004 PA 173 deleted that subsection. We also find it appropriate to examine the Legislature’s use of the word “purchase” in the Use Tax Act (UTA), MCL 205.91 et seq. When statutes relate to the same subject or share a common purpose they are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998), citing Detroit v Michigan Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660 (1965). “ ‘A sales-use tax scheme is designed to make all tangible personal property, whether acquired in, or out of, the state subject to a uniform tax burden. Sales and use taxes are mutually exclusive but complementary, and are designed to exact an equal tax based on a percentage of the purchase price of the property in question.’ ” Catalina, supra at 19 n 3, quoting 85 CJS 2d, Taxation, § 1990, p 950. The UTA broadly defines “purchase” as “to acquire for a consideration, whether the acquisition is effected by a transfer of title, of possession, or of both, or a license to use or consume; whether the transfer is absolute or conditional, and by whatever means the transfer is effected; and whether consideration is a price or rental in money, or by way of exchange or barter.” MCL 205.92(e); see Kal-Aero, Inc v Dep’t of Treasury, 123 Mich App 46, 52; 333 NW2d 171 (1983). Because the Legislature, by adopting a sales-use tax scheme, intended to impose a uniform tax, whether from the perspective of the retail seller (sales tax) or the buying consumer (use tax), we conclude the word “purchase” was intended to have the same broad meaning in each act. In summary, the plain and ordinary meaning of the word “purchase” in § 6a(1) of the GSTA is to acquire possession of or legal or equitable title to gasoline, regardless of when payment is actually made to the gasoline supplier. This interpretation is also consistent with the other time-marker in § 6a(1), “shipment,” which likewise does not require actual payment to the supplier or shipper before giving rise to the mandatory requirement that “a purchaser or receiver of gasoline shall prepay a portion of the tax imposed by this act....” Because § 6a(1) establishes the mandatory time to prepay the tax as “at the time of purchase or shipment,” which may precede the time of actual prepayment, the statute implicitly requires accrual accounting when retailers calculate the “estimated prepayment credit” permitted by § 6a(3). Thus, the plain meaning of § 6a supports the department’s longstanding interpretation rather than plaintiffs view. Moreover, even if the statute is considered ambiguous, allowing judicial construction, we would still reach the same conclusion under the principles already discussed. The department’s longstanding, consistent in terpretation of the statute within its responsibility to enforce is entitled to great weight and should not be overruled unless clearly erroneous. Schmaltz, supra. Because the department’s interpretation of the statute is not overcome by the statute’s plain meaning, the interpretation has not been shown to be clearly erroneous. Catalina, supra at 23-24. Further, the department’s interpretation of the statute implicitly requires retailers to calculate estimated prepayment credits by using the accrual method of accounting for their acquisition of gasoline supplies and is both reasonable and consistent with the purpose of the sales-use tax scheme. Accordingly, the trial court correctly ruled that plaintiff failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). V. CONCLUSION For the reasons discussed, the trial court correctly granted defendants’ motion for summary disposition and dismissed all of plaintiffs claims in each case. We affirm. 2000 PA 403, MCL 207.1169, repealed this section and all of the MFTA, effective April 1, 2001. See unpublished opinion per curiam issued May 22, 2001 (Docket No. 230731), and unpublished order, entered June 6, 2001 (Docket No. 232733). This Court will affirm the lower court decision when that lower court reaches the correct result even if it does so for the wrong reason. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 150; 624 NW2d 197 (2000); Webb v First of Michigan Corp, 195 Mich App 470, 472; 491 NW2d 851 (1992). See MCL 205.4 and 205.5. See MCL 205.21(2)(b) and 205.27a(3). The department initially found an MFTA deficiency of $225,000 and a GSTA deficiency of $30,384. During plaintiffs review of the audit results before the department issued its notice of intent to assess, these initial findings were reduced to $36,116 and $24,268, respectively. Plaintiff contends the errors resulted from Wagg’s fading to review certain documents that he had been provided and basic math errors; defendants contend the errors resulted from plaintiffs not providing the documents during the audit. See York v Detroit (After Remand), 438 Mich 744, 757-758; 475 NW2d 346 (1991), citing Graham v Connor, 490 US 386, 393-394; 109 S Ct 1865; 104 L Ed 2d 443 (1989). This Court later held that providing oral argument before the Worker’s Compensation Appeal Board, at issue in Bohannon, was not required as a matter of either federal or state constitutional due process of law. Leonardi v Sta-Rite Reinforcing, Inc, 120 Mich App 377, 382-383; 327 NW2d 486 (1982). Likewise, in English, supra at 460, this Court held that “an oral hearing is not necessary to provide a meaningful opportunity to he heard.” Like the rest of the MFTA, this section was repealed, effective April 1, 2001. See n 1. In light of our conclusion that plaintiffs procedural and substantive due process claims lack merit, we agree with the trial court that “no matter how unpleasant or inconveniencing [the conduct of the department’s employees] may have been in other respects,” such conduct did not deny plaintiff “due process guarantees during the course of their tax audit.” Although plaintiff viewed the department’s agents’ conduct as arbitrary or rude, plaintiff “failed to identify and allege with specificity any unlawful conduct of constitutional magnitude that could support the claim that its state rights to due process had been violated.” Neither party addresses, nor do we opine, whether MCL 24.243(2) affects plaintiffs right to challenge the department’s 1991 revenue bulletin on the basis of noncompliance with the APA. That subsection provides, “A proceeding to contest a rule on the ground of noncompliance with the requirements of sections 41 and 42 shall he commenced within 2 years after the effective date of the rule.” This latter subsection was designated § 6(4) between the effective dates of 1998 PA 265 (July 17,1998) and 2004 PA 173 (September 1, 2004).	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Fitzgerald, J. In this action under the Michigan no-fault automobile insurance act, MCL 500.3101 et seq., plaintiffs no-fault insurer, defendant State Farm Mutual Automobile Insurance Company, appeals by leave granted the order granting defendant’s motion for a medical examination of plaintiff, subject to several conditions, pursuant to MCR 2.311. We affirm. FACTS AND PROCEDURAL HISTORY Plaintiff was involved in a motor vehicle accident on May 15, 2002. Defendant initially paid personal injury protection (PIP) benefits to plaintiff, but subsequently refused to pay benefits. Plaintiff filed the present action on February 11, 2003, alleging that defendant “unreasonably refused” to pay PIP benefits to which she, is entitled under the no-fault act, notwithstanding that “reasonable proof has been submitted.” In its affirmative defenses, defendant stated in part that plaintiff “is not presently entitled to any no-fault benefits as she has failed to supply the Defendant with reasonable proof of her claims and proof of the fact and amount of the loss sustained as required under the Michigan No-Fault Act, MCL 500.3142(1).” On July 10, 2003, defendant filed a motion to compel independent medical examinations pursuant to MCL 500.3151 of the no-fault act. Defendant alleged that it had “made many attempts to schedule the Plaintiff to undergo medical examinations, but the Plaintiff declined unless the Defendant agreed to enter into a Stipulation with numerous limitations that are contrary to the pertinent provisions of the Michigan No-Fault Act and prejudicial to the Defendant’s ability to investigate the Plaintiffs claims.” Defendant claimed that it had a statutory right under MCL 500.3151 to examine plaintiff and that the no-fault act did not authorize the imposition of conditions on the medical examinations. Plaintiff responded by arguing that MCR 2.311 allows the trial court to impose conditions on medical examinations and that the conditions plaintiff sought to impose were reasonable and did not prejudice defendant. The trial court allowed the medical examinations, but imposed several conditions, citing MCR 2.311. Of import to this appeal are the conditions that allow plaintiffs counsel to be present at the examinations, allow videotaping of the examinations, and preclude plaintiff from giving defendant’s examiners an oral account of the accident or her medical history. i Defendant argues that MCL 500.3151 gives an insurer a substantive right to examine a claimant and that a court has no authority to impose conditions on the medical examination under MCR 2.311 if the insurer’s request is reasonable. This case presents issues regarding statutory interpretation of the Michigan no-fault automobile insurance act. This Court reviews de novo as questions of law issues involving the interpretation and application of a statute or court rule. People v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003). The primary rule of statutory construction is that, where the statutory language is clear and unambiguous, the statute must be applied as written. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997). Similarly, where contract language is neither ambiguous nor contrary to the no-fault statute, the will of the parties, as reflected in their agreement, is to be carried out, and thus the contract is enforced as written. Cruz v State Farm Mut Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002). Michigan’s no-fault act is designed to regulate the insurance of motor vehicles in this state and the payment of benefits resulting from accidents involving motor vehicles. Cruz, supra at 595. PIP benefits are payable as loss accrues. MCL 500.3142(1). The claimant is obligated to provide “reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2); see Cruz, supra at 596. In furtherance of the obligation to provide reasonable proof of the fact and of the amount of loss sustained, MCL 500.3151 provides that a claimant shall submit to a medical examination if the claimant’s condition is material to a claim for past or future benefits. MCL 500.3151 states: When the mental or physical condition of a person is material to a claim that has been or may be made for past or future personal protection insurance benefits, the person shall submit to mental or physical examination by physicians. A personal protection insurer may include reasonable provisions in a personal protection insurance policy for mental and physical examination of persons claiming personal protection insurance benefits. MCL 500.3151 refers to a “mental or physical examination by physicians,” not to an independent mental or physical examination by a physician of defendant’s choice. The basis of defendant’s motion for an independent medical examination by a physician of defendant’s choice is the following contractual provision in the insurance policy: The person making claim also shall: a. under the personal protection injury protection. .. coverages: * (2) be examined by physicians chosen and paid by us as often as we reasonably may require. This type of provision in an insurance policy falls within the ambit of discovery devices that enable an insurer to discover and eliminate fraud. See, generally, Cruz, supra at 597-599. Such contractual discovery devices are precluded only when they clash with the rules that the Legislature has established for mandatory policies. Id. at 598. In Cruz, supra at 598-601, the Court found that a policy that conditioned the payment of PIP benefits on the plaintiff submitting to an examination under oath (EUO) was void as against public policy to the extent that it imposed a greater obligation on the plaintiff than required by the no-fault act. But the inclusion of the EUO in the insurance policy was not itself deemed inappropriate, even though the no-fault act is silent with respect to EUOs. An EUO was characterized as a “prelitigation, complementary process to that allowed by [MCL 500.3159] during litigation.” Cruz, supra at 601 n 16. The Court did not find MCL 500.3159 of the no-fault act controlling with regard to whether the EUO requirement in the insurance policy could be enforced. Rather, the Court explained: EUOs, or other discovery methods that the parties have contracted to use, are only precluded when they clash with the rules the Legislature has established for such mandatory insurance policies. However, when used to facilitate the goals of the act and when they are harmonious with the Legislature’s no-fault insurance regime, EUOs in the no-fault context should be viewed no differently than in other types of policies. In light of this reasoning, we conclude that an EUO that contravenes the requirements of the no-fault act by imposing some greater obligation upon one or another of the parties is, to that extent, invalid. Thus, a no-fault policy that would allow the insurer to avoid its obligation to make prompt payment upon the mere failure to comply with an EUO would run afoul of the statute and accordingly be invalid. However, an EUO provision designed only to ensure that the insurer is provided with information relating to proof of the fact and of the amount of the loss sustained — i.e., the statutorily required information on the part of the insured — would not run afoul of the statute. [Cruz, supra at 598.] The present case also involves a provision in an insurance policy that provides a discovery device to evaluate plaintiffs claim. Defendant did not establish any substantive right under MCL 500.3151 to have a physician of its choice examine plaintiff. Defendant established only a contractual right that can be upheld if it does not contravene the no-fault act. Because MCL 500.3151 authorizes the insurer to include “reasonable provisions” for a medical examination of persons claiming PIP benefits, the touchstone for upholding the provision is one of reasonableness. No Michigan case addresses what constitutes a reasonable provision. But in Cruz, supra at 600 n 15, the Court approved the reasoning in Morris v Aetna Life Ins Co, 160 Ga App 484; 287 SE2d 388 (1981). In Morris, an insured brought suit against the insurer for failure to timely pay benefits under Georgia’s no-fault insurance law. The insurer delayed payment because the insured refused to submit to an independent medical examination and the insurance policy gave the insurer a right to request a medical examination as part of its investigation of the claim. The Georgia Court of Appeals held that the contractual right to request the medical examination was valid, notwithstanding the lack of statutory authorization for the medical examination, because it was reasonable and, accordingly, did not limit the insured’s right to collect a valid claim or violate either the public policy or Georgia’s no-fault act. Id. at 485. In a later case, the Maryland Court of Special Appeals addressed an insured’s claim, against the same defendant as in this case, that a similar contractual provision that allowed defendant to require a person making a claim to be “ ‘examined by physicians chosen and paid by [State Farm] as often as [it] reasonably may require’ ” was invalid under the state’s no-fault law. Huntt v State Farm Mut Automobile Ins Co, 72 Md App 189, 191; 527 A2d 1333 (1987). In Huntt, defendant had reimbursed the insured for medical expenses until October 1985, when it advised the insured that it would not pay any farther benefits unless she submitted to a medical examination by a physician that it selected. The insured’s benefits ended after she refused to submit to the medical examination. The insured then filed suit against defendant, arguing in part that Maryland’s PIP statute did not require an insured to submit to an examination by a physician chosen and paid for by the insurer. The Maryland court held: The statutory language requiring construction in this case is found in Md. Code, supra, Art. 48A, § 544(a), which provides in part: “All payments of benefits prescribed under § 539 shall be made periodically as the claims therefor arise and within 30 days after satisfactory proof thereof is received by the insurer....” (Emphasis supplied). .. . Section 539(a) permits an insurer providing loss of income benefits to require, as a condition of receiving such benefits, “that the injured person furnish the insurer reasonable medical proof of his injury causing loss of income.” Section 544(a)(2) permits an insurer to require “reasonable medical proof” when an injured person who received benefits under the coverage(s) described in § 539 seeks additional benefits after a lapse in the period of disability or in medical treatment.... * . . . While § 539 was enacted in order to assure prompt payment of PIP benefits without regard to fault, this does not mean that PIP coverage was intended to provide a PIP claimant with a blank check. Maryland’s no-fault statute, like those of other states, places a control on inflated or spurious claims by limiting the insurer’s obligation to payment of “reasonable” expenses for “necessary” services arising from the accident in question. 5 M. Minzer, et al., Damages in Tort Actions § 47.12[2][b] (1987). In our view, it would be impossible in many cases for an insurer to determine whether a PIP claimant’s expenses were “reasonable” and for “necessary” services if the insurer could not require that the claimant be examined by a physician of its choice. Therefore, we hold that a policy provision permitting an insurer to require that a PIP claimant submit to a physical examination as a condition precedent to payment of benefits is consistent with the statutory mandate in § 544(a) that payment shall be made after the insurer receives “satisfactory proof” of the claim. [Id. at 192-194.] We are persuaded by the rationale of these cases and conclude that a contractual provision allowing defendant to require an insured making a claim to submit to a medical examination “by physicians chosen and paid by us as often as we reasonably may require” is permissible within the meaning of MCL 500.3151. The fact that the contract is silent concerning certain details of performance means only that a standard of reasonableness should be applied in a manner that would not clash with Michigan’s no-fault act. “[W]here contract language is neither ambiguous, nor contrary to the no-fault statute, the will of the parties, as reflected in their agreement, is to be carried out. . . .” Cruz, supra at 594. “So long as the essentials [of an agreement] are defined by the parties themselves, the law supplies the missing details by construction.” Nichols v Seaks, 296 Mich 154, 159; 295 NW 596 (1941); cf. Walter Toebe & Co v Dep’t of State Highways, 144 Mich App 21, 31; 373 NW2d 233 (1985) (holding that when a written contract is silent regarding the time of performance, a reasonable time is presumed without reference to parol evidence, and what constitutes a reasonable time under the circumstances is a question of fact). Our conclusion does not validate defendant’s claim that the trial court erred by applying MCR 2.311. The Legislature clearly has authorized reasonable provisions for medical examinations in insurance policies. MCL 500.3151. The right to include such reasonable provisions in an insurance policy is a substantive right. But the right created by the statute plainly is not intended to give the parties a right to determine how to proceed with discovery in a civil action. To the contrary, the Legislature has expressed a plain intent in MCL 500.3159 to give the trial court authority to issue a discovery order. MCR 2.311 is consistent with MCL 500.3159: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be présent at the examination. [MCR 2.311(A).] Because the discovery rule in MCR 2.311 and the contract rights authorized by MCL 500.3151 do not conflict, we reject defendant’s claim that MCL 500.3151 alone is controlling. It is only where there is an inherent conflict between a statute and a court rule that a court is required to decide if a statute is a legislative attempt to supplant our Supreme Court’s authority to control practice and procedure in the courts. McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999). In the context of plaintiffs cause of action, the trial court correctly treated the motion as one for a discovery device subject to MCR 2.311. ii Defendant argues that even if MCR 2.311 allowed the trial court to impose conditions on the independent medical examinations, plaintiff did not show good cause (1) to allow plaintiffs counsel to be present at the examinations, (2) to allow videotaping of the examinations, and (3) to preclude plaintiff from giving defendant’s examiners an oral account of the accident or her medical history. With regard to the first two conditions, defendant waived any challenge to the conditions because its attorney agreed to these conditions if the court rule applied. Error requiring reversal must be that of the trial court, and not error to which an aggrieved party contributed by plan or negligence. Phinney v Perlmutter, 222 Mich App 513, 537; 564 NW2d 532 (1997). A party waives an issue by affirmatively approving of a trial court’s action. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). With regard to the third condition, defendant challenges paragraphs 14 and 15 of the trial court’s order, which provide: 14. That Plaintiff will not be required to give any oral history of the accident. 15. That Plaintiff will not be required to give any oral medical history not related to the areas of injuries claimed in this lawsuit. This Court reviews a trial court’s decision with regard to a discovery order for an abuse of discretion. Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 224; 663 NW2d 481 (2002). A trial court may limit discovery to relevant issues. See Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 35-36; 654 NW2d 610 (2002). At the time of defendant’s motion for the medical examinations, defendant’s attorney argued that an oral history would assist the examiner to form an opinion whether any injuries were presented and related to the accident. The injuries in this case were broadly characterized as involving closed-head and psychiatric injuries. Plaintiffs attorney expressed concern that defendant’s ex aminer would conduct a de facto deposition. The trial court provided in condition 14 that “[p]laintiff will not be required to give any oral history of the accident,” and pronounced that the court considered impermissible under condition 14 questioning such as “who ran the red light, who ran the stop sign,” and “who had the right-of-way....” By its inclusion of condition 14, the court recognized that defendant, through the normal course of discovery, could obtain information regarding the accident itself. Contrary to defendant’s argument, there is nothing in condition 14 that suggests that the condition would preclude inquiries into plaintiffs mental or physical condition at the time of the accident, how the injuries occurred, or such matters as whether plaintiff suffered a memory loss in conjunction with the closed-head injury. The final condition, number 15, does not preclude plaintiff from giving an oral medical history related to the “areas of injuries” claimed in the lawsuit. Although the “areas of injuries” might be difficult to analyze when a psychiatric injury is in controversy, defendant has not explained why the stated condition constitutes an abuse of discretion. To the extent that defendant suggests that the examiner would be totally precluded from orally asking plaintiff about her medical histoiy, the language in condition 15 does not support this claim. Defendant has failed to establish that the trial court abused its discretion, by including conditions 14 and 15 in the August 25, 2003, order. Affirmed. SMOLENSKI, J., concurred. The trial court denied defendant’s motion for rehearing. Defendant did not allege in its answer or affirmative defenses that plaintiff refused to submit to an independent medical examination under MCL 500.3151 of the no-fault act. The accuracy of this allegation is suspect in light of evidence in the lower court record that plaintiffs attorney sent letters to defendant on December 16, 2002, January 10, 2003, and January 22, 2003, requesting defendant to schedule plaintiff for independent medical examinations. The letters make no mention of any conditions to be placed on the independent medical examinations. Contrary to the dissent’s assertion, no evidence was presented that plaintiff did not have a medical examination before submitting a proof of loss. 5 There is no language in MCL 500.3151 that supports plaintiffs view that the statute applies only to prelitigation medical examinations. The only stated condition in the first sentence of MCL 500.3151 is that the mental or physical condition of the person be material to the claim for PIP benefits. The second sentence authorizes the insurer to include “reasonable provisions” for the examination when the person claims PIP benefits, but likewise does not indicate that it is dependent on whether litigation commenced. MCL 500.3159 states: In a dispute regarding an insurer’s right to discovery of facts about an injured person’s earnings or about his history, condition, treatment and dates and costs of treatment, a court may enter an order for the discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest, and shall specify the time, place, manner, conditions and scope of the discovery. A court, in order to protect against annoyance, embarrassment or oppression, as justice requires, may enter an order refusing discovery or specifying conditions of discovery and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requires. Moreover, we note that defendant has not shown that it properly-presented any contract claim in the trial court. Neither defendant’s answer to the complaint nor its affirmative defenses raise this contract issue. Rather, it was raised only by motion. Defendant cites no authority for the proposition that an insurer can enforce a contract right by motion in a no-fault action brought by the insured in which the insured alleges that the insurer breached the insurance policy for a reason that does not involve any request to submit to a medical evaluation. Defendant cannot circumvent contract principles by bringing a contract action in the form of a motion under MCL 500.3151. Although defendant, through new counsel, later challenged the trial court’s decision in a motion for rehearing, defendant’s appellate brief fails to address the standards for rehearings. Defendant’s failure to brief this necessary issue precludes appellate review. Roberts & Son Contracting, Inc v North Oakland Dev Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987). Therefore, defendant may obtain plaintiffs version of the accident, and her medical history, through means such as interrogatories or deposition. Further, defendant had access to plaintiffs medical records. Consequently, defendant has not been precluded from obtaining the relevant, necessary information for the examiner.	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V. J. Brennan, J. In December of 1973, the Michigan Legislature amended the act regulating dentistry, MCL 338.201, et seq.; MSA 14.629(1), et seq., by adding § 9a, MCL 338.209a; MSA 14.629(9a), relating to dental assistants, dental hygienists and others. Pursuant to § 9a(3), defendant, the Michigan State Board of Dentistry (hereafter, the Board) was required to prescribe rules for the training and education of personnel covered under § 9a. In February of 1976, plaintiffs, Michigan Dental Assistants Association, et al., filed a writ of mandamus in the Court of Appeals seeking to compel the Board to promulgate rules pursuant to § 9a. This Court dismissed the action, whereupon application for leave to appeal was filed with the Michigan Supreme Court. In April of 1977, the Supreme Court in lieu of granting leave to appeal ordered: "[T]hat this action in the nature of mandamus be remanded to the Ingham Circuit Court to afford the Michigan State Board of Dentistry the opportunity to promptly complete and promulgate rules and procedures for training, certifying and delineating the duties of dental assistants. Upon that board’s failure to do so, complainants may propose such rules and procedures to the circuit court and the board shall be required to show cause why such proposed rules should not be adopted.” 399 Mich 886 (1977). At the time of entry of the above order the Board was engaged in the process of promulgating the rules in question pursuant to the Administrative Procedures Act, MCL 24.201, et seq.; MSA 3.560(101) et seq. A public hearing was held June 16, 1977, and the rules were certified by the legislative service bureau on October 27, 1977, as required by § 45 of the Administrative Procedures Act, MCL 24.245; MSA 3.560(145). The rules were certified by the joint committee on administrative rules on December 13, 1977. The rules were filed with the Secretary of State’s Office on February 8, 1978, and were officially considered promulgated on February 23, 1978. See 1978 AACS R 338.4101-R 338.4698. Plaintiffs then filed an action in Ingham County Circuit Court contending that the Board had failed to comply with the above Supreme Court order since the promulgated rules did not fully implement § 9a. The plaintiffs allege that the rules failed to provide for training and accreditation of office-trained dental assistants, described in § 9a(1), and thus did not discharge the Board’s duties under the act and according to the Supreme Court order. In a February 27, 1978, order Ingham County Circuit Court Judge Ray C. Hotchkiss concluded in part: "The Michigan State Board of Dentistry SHALL BE AND HEREBY IS ORDERED to adopt rules governing the training and accreditation of dental assistants not included in current rules, specifically including office-trained dental assistants, either by adopting the rules suggested and proposed by Plaintiffs-Appellants and placed of record in this cause, or, alternatively, by adopting other rules which will indicate the training and accreditation required for office-trained dental assistants.” It is from this order that defendants appeal. The case at bar concerns the interpretation of § 9a of the dentistry act, supra, which provides in pertinent part: "Sec. 9a. (1) A person may assist in rendering dental care to a patient under the supervision of a licensed dentist, excluding the diagnosing or prescribing for a disease, pain, deformity, deficiency, injury or physical condition, or the cutting of the human teeth, alveolar process, gums, jaws or attendant tissue, the removal of accretion and stains including calcareous deposits, deep scaling, root planing, restoration of hard or soft tissue and the independent administration of anesthesia, analgesia or acupuncture and other procedures prohibited by rules promulgated by the board. The provisions of this subsection shall become effective upon promulgation of the rules by the board. "(2) A licensed dentist may delegate certain dental procedures prohibited by subsection (1) which the board finds would not jeopardize the dental health of the patient to a person authorized by a certifícate of the board to perform such procedures except that the removal of calcareous deposits, deep scaling, or root planing shall not be delegated to a person other than a dental hygienist. The certificate shall be issued to a person who has satisfactorily completed a program designed to train him to perform these procedures in a school approved by the board and who has passed an examination that may be given by the board. If a program of training for dental hygienists provided for in section 9 qualifies a dental hygienist to perform any of the functions which the board authorizes a person to perform under this subsection, the board shall authorize and grant a certificate to a dental hygienist to perform those functions without further training. "(3) The board shall prescribe by rules * * * the training and education required to qualify for authorization to perform the procedures for which the applicant may apply. The board may prescribe which procedures shall be under the supervision and which shall be under the direction of a licensed dentist. If a person who has beén issued a certificate to perform certain delegated procedures applies for authorization to perform additional delegated procedures, the board shall determine what additional training shall be satisfactorily completed for an expanded certificate.” MCL 338.209a; MSA 14.629(9a). (Emphasis added.) The rules as promulgated by the Board are comprehensive and quite detailed with repetition here unnecessary. However, a summary of the rules as they apply to this controversy is in order. Under the rules, personnel performing the procedures under § 9a(1l) are described as "dental assistants”. Their functions are quite limited with supervision clearly defined. The personnel per forming the procedures under § 9a(2) are described as "licensed dental assistant” and "dental hygienists”. Each respectively perform wider functions (in relation to "dental assistant”) with less supervision. The rules set forth the requisite training, certification and accreditation for "licensed dental assistants” and "dental hygienists”. However, no formal training of "dental assistants” is necessary to perform the procedures allowed under § 9a(1). It is this latter deficiency which plaintiffs contend constitutes nonconformance with the Supreme Court order. We disagree. The rules as established by the Board are in accordance with the subject statutory scheme. Section 9a(1) does not express any requirement for education or training for persons who assist in rendering care under the direct supervision of a licensed dentist. Sections 9a(2) and 9a(3) contemplate certification by the State Board of Dentistry for persons to perform duties designated by licensed dentists. These duties would otherwise be prohibited under § 9a(1). Had the Legislature intended to require training and accreditation for all personnel assisting dentists, it could have expressed its intention. However, § 9a does not express such an all-embracing requirement. Instead, the Legislature expressed its intention that assistants performing limited functions under § 9a(1) need not obtain certificates indicating they had completed specialized training and education. To hold, as plaintiffs argue, that the Supreme Court order required the Board to establish a certification procedure for office-trained dental assistants would be contrary to the most fundamental rule of statutory construction, that statutory language be given a reasonable construction in order to implement the Legislature’s intent. King v Director of the Midland County Dep’t of Social Services, 73 Mich App 253; 251 NW2d 270 (1977). While the statutory language here is somewhat involved, its meaning is clear. The circuit court erroneously concluded that the Supreme Court’s order required the Board to promulgate rules prescribing training and certification for the persons described in § 9a(1) of the dentistry act. We hold that the Board has fully complied with the Supreme Court order of April 22, 1977, and with the requirements under § 9a regarding the promulgation of the rules in question. The lower court order is reversed. We retain no further jurisdiction. No costs, a public question being involved.	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Talbot, P.J. In this class action involving plaintiffs’ statutory employment rights, plaintiffs appeal as of right an order granting defendant’s motion for summary disposition. We affirm the trial court’s grant of summary disposition in favor of defendant. I. FACTS AND PROCEDURAL HISTORY Defendant, Wayne-Westland Community Schools, operates the public school system in the city of Wayne, parts of three other cities, Westland, Inkster, and Romulus, and part of Canton Township. Flaintiffs are various employees in defendant’s In School Suspension (ISS) program. Their position is referred to in school documents using various titles, such as “ISS facilitator,” “ISS supervisor,” and “suspension room teacher,” but each must be qualified as a “substitute teacher” under the program as it was adopted in 1993. The purpose of the ISS program is to keep suspended students in school and assure that they are supervised during the school day. Although each school has its own rules or description of its ISS program, in general, a student receives full credit for his or her schoolwork in the ISS program. The assignments are provided by, and eventually returned to, the student’s classroom teacher. ISS employees assist students with assignments and are encouraged to tutor the students. Plaintiff Dennis A. Wolfe filed this action on behalf of himself and other similarly situated ISS employees. Wolfe alleged that he worked each school year, commencing in the 1995-1996 school year, as a substitute teacher in the ISS program and was compensated at the prevailing rates for a substitute teacher. Wolfe claimed entitlement to the higher salary and other benefits paid to a regular teacher pursuant to MCL 380.1236(1) of the Revised School Code (formerly the School Code), MCL 380.1 et seq., alleging that he worked in excess of sixty days in the same specific teaching assignment. The trial court certified the class, which was defined as, “All persons presently or previously employed in the In School Suspension Program of the Wayne-Westland Community Schools who may have been employed for more than 60 days in the same assignment and who may not have been provided with the compensation and other benefits provided by M.C.L.A. 380.1236.” The trial court’s order identified twenty-one potential class members. Before the class certification, Wolfe, on behalf of himself and other potential class members (plaintiffs), moved for partial summary disposition under MCR 2.116(0(10) with respect to liability and, specifically, (1) whether ISS employees are substitute teachers within the meaning of MCL 380.1236 and (2) whether defendant had a purposeful practice of moving ISS employees between buildings before sixty days elapsed to avoid paying statutory benefits. Defendant opposed plaintiffs’ motion and moved for summary disposition under MCR 2.116(1) on the grounds that (1) ISS employees were not substitute teachers for purposes of MCL 380.1236, and (2) even if ISS employees were substitute teachers, the statute did not apply unless they worked sixty consecutive days in a single work assignment. The trial court determined that ISS employees were substitute teachers, but MCL 380.1236(1) did not apply unless they served in the position at one school for more than sixty days. The trial court rejected defendant’s claim that ISS employees did not work enough hours to count as a whole day, given that they were paid for a whole day, but it determined that the work must be consecutive, and that “absences from work,” including days missed because of sickness and “intervening assignments,” break up consecutiveness. The trial court granted summary disposition in favor of defendant. Plaintiffs moved for reconsideration with respect to the trial court’s determination that consecutive days were required, but the trial court denied the motion. Plaintiffs now appeal, arguing that they are entitled to the benefits provided under MCL 380.1236(1) because: (1) they were employed in the same assignments for more than sixty days and (2) they were employed as substitute teachers. We find that the trial court erred in determining that plaintiffs were employed as substitute teachers. Because this issue is dispositive in determining whether plaintiffs are entitled to benefits pursuant to MCL 380.1236(1), we do not address the issue of whether plaintiffs were employed in the same assignments for more than sixty days. II. PLAINTIFFS WERE NOT EMPLOYED AS “SUBSTITUTE TEACHERS” PURSUANT TO MCL 380.1236 We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Questions of statutory interpretation are also reviewed de novo. Id. When interpreting statutes, our primary goal is to give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). In doing so, our first step is to review the language of the statute itself. Id. The words used by the Legislature are given their common and ordinary meaning. Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643 (2002); MCL 8.3a. If the statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed, and further construction is neither required nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). As set forth in the current version of the statute, the disputed provision states: Subject to subsection (3), if a teacher is employed as a substitute teacher with an assignment to 1 specific teaching position, then after 60 days of service in that assignment the teacher shall be granted for the duration of that assignment leave time and other privileges granted to regular teachers by the school district, including a salary not less than the minimum salary on the current salary schedule for that district. [MCL 380.1236(1) (emphasis added).] Defendant does not dispute that plaintiffs are “teachers,” as used in subsection 1 above, or the trial court’s decision that this term does not require a properly certified or credentialed person. Rather, plaintiffs present questions regarding how to construe the statutorily required terms of their employment and, in particular, the “substitute teacher” and “teaching position” language. Plaintiffs suggest that subsection 1 can be broadly applied to a variety of situations, while defendant argues that it requires that a particular teacher be replaced. We find no irreconcil able conflict or equal susceptibility of meaning that would render the statutory language ambiguous. Mayor of Lansing v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). “[Statutory language must be read and understood in its grammatical context. ...” Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App 711, 720; 265 NW2d 711 (2005). The common and approved usage of the language is applied, absent a technical meaning or one that has acquired a peculiar and appropriate meaning in the law. MCL 8.3a. Effect must be given to the context or setting of a word in determining its meaning. Koontz v Ameritech Services, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002). Although determining whether a person is qualified to teach in a school plainly requires consideration of various statutory provisions, the common and approved usage of the word “teacher” is simply “a person who teaches.” Random House Webster’s College Dictionary (1997). The modifying word “substitute” has a number of meanings, but examined in the context of the setting in which a teacher is employed, the relevant definition is “a person. . . serving in place of another.” Id. The person for whom the substitute teacher acts is further modified by the phrase “with an assignment to 1 specific teaching position.” The only specific position that could apply to the facts of this case is the ISS position in each school building. Determining whether ISS positions are teaching positions requires a consideration of the specific terms of the employment contracts for the positions. Here, there is evidence that ISS employees are expected to at least help suspended students with assignments. But even assuming that ISS positions are “specific teaching positions,” ISS employees plainly are not assigned to the positions as substitute teachers, as the phrase is commonly understood, because they do not serve in place of anyone. The trial court adopted a strained interpretation of the phrase “substitute teacher” to conclude that ISS employees replace the student’s regular teacher. The regular teacher, or perhaps a substitute teacher if the regular teacher is absent, continues in the specific teaching position. Neither the ISS program nor its employees replace any specific teaching position. It is the suspended student, not the teacher, who is absent from the classroom. The fact that defendant chose to hire ISS employees who satisfy the qualifications of a substitute teacher is not dispositive of whether they were “employed as substitute teachers with an assignment to 1 specific position” within the meaning of subsection MCL 380.1236(1). Any doubt regarding the Legislature’s intent in subsection 1 can be resolved by considering the definition of “day” in subsection 5, renumbered from subsection 3 by 1995 PA 289. The contextual setting in which words and phrases are given meaning requires that they be assigned such meaning as is in harmony with the whole statute. Shinholster v Annapolis Hosp, 471 Mich 540, 570; 685 NW2d 275 (2004). Here, the definition of “day,” i.e., “the working day of the regular, full-time teacher for whom the substitute teacher substitutes,” plainly contemplates that the substitute teacher will act in place of another, rather than work in a distinct position, as in this case. The other authority cited by plaintiffs on appeal does not support a different result. Plaintiffs’ reliance on Detroit Federation of Teachers v Detroit Bd of Ed, 396 Mich 220; 240 NW2d 225 (1976), is misplaced. As conceded by plaintiffs, that case was decided before the effective date of MCL 380.1236, as established by 1976 PA 451. In Detroit Federation of Teachers, the defendant was following a resolution to fill all new teaching positions with emergency substitutes in regular positions (ESRPs). Id. at 222-223. The teacher’s union filed a class action on behalf of ESRPs working without a written individual contract. The teacher’s union argued that ESRPs were entitled to probationary contracts. Our Supreme Court concluded that ESRPs were entitled to written contracts under the now-repealed School Code, MCL 340.569, but the kind of contract was to be determined by agreement of the parties. Id. at 224. Specifically, it was covered by the collective bargaining agreement, which spelled out the possible kinds of contracts, i.e., tenured, probationary, and substitute, the teachers may receive. Id. at 227. The holding in Detroit Federation of Teachers is not material to how the specific substitute teacher provision in MCL 380.1236 should be construed because the statute does not permit parties to spell out the terms and conditions of employment. Rather, the statute mandates certain benefits for “teachers employed as substitute teachers” when the statutory conditions are satisfied. Although the terms of plaintiffs’ employment contract are relevant in applying the statute, this Court has the responsibility of interpreting and applying the law. See Hottmann v Hottmann, 226 Mich App 171, 179; 572 NW2d 259 (1997). Another question raised by the parties concerns the effect of the State Board of Education administrative rules. In their appeal brief, plaintiffs correctly argue that, under a longstanding rule, a person employed in a “secondary school with instructional responsibilities shall hold a certificate, permit or vocational authorization valid for the positions to which he is assigned.” 1999 AC, R 390.1105. But whether plaintiffs have instructional responsibilities as ISS employees within the meaning of this rule, and, if so, had the appropriate certificate, permit, or vocational authorization, is not at issue in this appeal. The more significant issue addressed in the parties’ appeal briefs, and the trial court’s decision, is the state board’s rule for substitute permits, which defines teaching on a substitute basis. The state board has long had rules governing substitute and other special permits. See 1999 AC, R 390.1141 et seq. In 1989, the state board modified the rule for substitute teaching permits to state: (1) An application for a substitute permit shall contain evidence that the candidate has completed not less than 120 semester hours of satisfactory credit in an approved teacher preparation program, which shall include a minimum of 6 semester hours of professional education credit. Persons who are currently enrolled in an approved teacher preparation program will be considered to have met the 6-semester-hour requirement. (2) A substitute permit is valid for teaching on a substitute basis for a maximum of 150 days during any school year. Teaching on a substitute basis means teaching when the regular certificated teacher is temporarily absent. Such permit is not valid for any regular or extended teaching assignment. (3) A substitute permit is renewable each year. [1989 AACS, R 390.1143 (emphasis added).] Before the 1989 change, Rule 390.1143 lacked a definition of “teaching on a substitute basis.” It also contained different educational requirements for a substitute permit. See 1979 AC, R 390.1143. On appeal, plaintiffs challenge the state board’s authority to define “teaching on a substitute basis” on the ground that the Legislature amended MCL 380.1233 in 1995 to specify that only ninety hours of college credit were necessary for a substitute teacher. The state board has two sources of authority to promulgate rules. Under MCL 380.1531(17), the state board (the superintendent of public instruction, 2000 PA 497), is authorized to promulgate rules to implement regulations pertaining to its duties to issue licenses and certificates for teachers. Under MCL 388.1015, the state board is authorized to prescribe rules and regulations to carry out provisions regarding its powers and duties under MCL 388.1001 et seq. Plaintiffs cite no authority to support their claim that the Legislature’s action in modifying the educational requirements for a substitute teacher invalidates a promulgated rule on a different point, especially when the general rule, Rule 390.1141, mandates issuance of a permit when statutory qualifications are satisfied. A properly promulgated rule has the force of law. Danse Corp v Madison Hts, 466 Mich 175, 181; 644 NW2d 721 (2002). Because plaintiffs have failed to cite any authority in support of their claim that the definition in Rule 390.1143 is invalid, plaintiffs have abandoned this claim on appeal. “A party may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, or give issues cursory treatment with little or no citation of supporting authority.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) (citations deleted). In any event, the only relevancy of the definition in Rule 390.1143 is that it reflects the state board’s understanding of the phrase “teaching on a substitute basis” for the purposes of its issuance of substitute permits. The trial court apparently considered the state board’s definition, giving deference to the state board’s construction of an act that it is charged to administer. But the rule at issue in this case does not attempt to construe MCL 380.1236. Further, “while an agency’s construction generally deserves deference, it is not controlling and cannot be used to overcome the statute’s plain meaning.” Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 544; 565 NW2d 828 (1997). Because the statutory language in this case is clear, it is unnecessary to consider the state board’s definition. Moreover, the trial court’s application of the administrative rule’s “temporarily absent” language was incorrect for the same reason that the trial court misapplied the statutory language. The trial court unreasonably evaluated the regular teacher’s absence from the point of view of the student suspended from the classroom. The fact that defendant established a program that requires suspended students to do school work, and makes an ISS employee available to assist him or her, does not render the regular teacher temporarily absent. III. CONCLUSION We conclude that plaintiffs were not employed as substitute teachers within the meaning of MCL 380.1236(1). Because MCL 380.1236 is the only statutory provision under which plaintiffs claim entitlement to benefits, the trial court’s decision to grant summary disposition in favor of defendant and dismiss the case is affirmed. Affirmed.	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N. J. Kaufman, J. This case involves the application of the "labor dispute” disqualification of the Employment Security Act, MCL 421.29(8); MSA 17.531(8), to locked-out employees. From a circuit court affirmance of an adverse determination by the Michigan Employment Security Commission (MESC), plaintiffs appeal as of right. We reverse. In May and June of 1975, plaintiffs, employees of Imerman Screw Products Company and members of UAW Local 212, were engaged in bargaining with the employer regarding a new contract to replace the old contract, which was to expire at 12:01 a.m. on June 22, 1975. Negotiations broke down in the evening of June 22, 1975. The company then informed the union that it was not willing to work without a contract and that the employees would be locked out the next day. Testi mony was undisputed that the union members, unlike the employer, were willing to work without a formal contract and to continue bargaining. The lockout began on June 23, 1975, and continued until July 28, 1975, when a new contract was ratified and became effective. During the lockout there had been no picketing by union members, and the union had made overtures to the company to have its members return to work pending ratification of a new contract. Also during this time period, some work had been carried out in the factory by supervisory and management personnel. Defendant’s general manager denied that the lockout was a layoff due to lack of work; he stated that there had been a possibility, but "nothing planned”, regarding a plant shutdown around the Fourth of July holiday, when such a shutdown had occurred the previous year. Based on these facts, the MESC denied plaintiffs’ applications for unemployment compensation benefits. The referee made a finding that plaintiffs’ unemployment from June 23-July 28 had been due to a labor dispute in active progress in which plaintiffs were directly involved. On appeal to the Michigan Employment Security Appeal Board, the referee’s determination was upheld, and this ruling was then affirmed by the circuit courts. The dispositive issue in this appeal is whether plaintiffs’ unemployment resulted from a "labor dispute in active progress”. The statute, MCL 421.29(8); MSA 17.531(8), provides in pertinent part: "An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by that labor dispute, in the establishment in which he is or was last employed, or to a labor dispute, other than a lockout, in active progress, or to shutdown or start-up operations caused by that labor dispute, in any other establishment within the United States which is functionally integrated with the establishment and is operated by the same employing unit.” In order for claimants to be disqualified from receiving unemployment compensation because of a labor dispute, a causal connection between the dispute and the unemployment must be established. Scott v Budd Co, 380 Mich 29; 155 NW2d 161 (1968). The employer bears the burden of proving that it is entitled to the labor dispute exception. Salenius v Employment Security Comm, 33 Mich App 228, 237; 189 NW2d 764 (1971). The trend is to construe narrowly the disqualification provisions of § 29 and to limit the definition of "labor dispute”, Salenius, supra, p 238, in light of the act’s remedial purpose to provide temporary assistance to workers who become unemployed through no fault of their own. MCL 421.2; MSA 17.502, Park v Employment Security Comm, 355 Mich 103, 123; 94 NW2d 407 (1959), I M Dach Underwear Co v Employment Security Comm, 347 Mich 465, 472; 80 NW2d 193 (1956). A number of other jurisdictions, in construing language similar to that in the Michigan Employment Security Act, have found "labor dispute” to include a lockout. See Anno: Unemployment compensation: application of labor dispute disqualiñcation for beneñts to locked out employees, 62 ALR3d 437, § 10. Courts in Indiana have asked whether the negotiations have reached an "impasse” prior to the lockout, while courts in California and Utah have employed a "volitional test” which asks whether the claimants were unemployed through some voluntary conduct on their part which precipitated the lockout. 62 ALR3d 437, §§ 10(b), 11. In Michigan, it is clear that a lockout is not entitled to automatic designation as a labor dispute in active progress. Salenius, supra, Michigan Tool Co v Employment Security Comm, 346 Mich 673; 78 NW2d 571 (1956). Michigan Courts have not confronted the precise issue presented in this case: whether locked-out employees who have not refused to work, but rather have indicated their willingness to continue in peaceful negotiations and to work without a contract, are disqualified from receiving unemployment compensation benefits pursuant to MCL 421.29(8). We think the better view in this situation is that expressed in National Gypsum Co v Administrator, Louisiana Dep’t of Employment Security, 313 So 2d 230, 233 (La, 1975): "In view of the strong public policy of the act designed to avoid crushing hardship on unemployed workers and their families, we think the more reasonable interpretation of the disqualification to be that unemployment due to 'a labor dispute in active progress’ includes only unemployment resulting from labor disputes in which the employee himself actively engages by refusing to work. "[T]he act was not intended to enforce a lock-out by the employer by denying unemployment benefits to employees who are available for work, but who are denied it by their employer. To deny compensation under such circumstances would not only be to deny benefits to employees unemployed through no fault of their own, but would be to add a sanction not contemplated by law to conduct by the employer designed to withhold subsistence from his workers and their families in order to force them to accept the employer’s terms. "We thus do not believe that a labor dispute is in active progress, insofar as disqualification for unemployment benefits is concerned, when the employees are exercising their legal right through peaceful negotiation to bargain for what they deem to be better working conditions. "The correct interpretation of the unemployment compensation act, in the light of its express policies and in the light of the general public policy in favor of peaceful bargaining negotiation, should not permit either party to provoke the award or denial of unemployment benefits in order to enforce the effect of a strike or of a lockout.” We agree with the above reasoning. The decision of the trial court upholding the appeal board’s denial of unemployment benefits is reversed and the case remanded to the trial courts for orders awarding such benefits to plaintiffs.	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D. F. Walsh, J. Plaintiff appeals the February 14, 1978, order denying its motion to amend its complaint and granting accelerated judgment for all defendants. On December 1, 1974, defendant Jacob Beitner, employee of plaintiff Drapefair, Inc., sustained an injury while visiting Irving’s Original Restaurant & Deli. Defendant Great Scott Supermarkets operated a retail food store near Irving’s. Defendants Congress Management and R. R. G. S. Management were owners or general managers of this commercial property. Because the injury arose in the course of Jacob Beitner’s employment, worker’s compensation benefits were paid to him totalling $15,852.70. In its July 27, 1977, complaint plaintiff alleged that defendants Irving’s, Great Scott, Congress and R.R.G.S. had breached their respective duties by failing to remove excessive accumulation of ice and snow, directly resulting in defendant Jacob Beitner’s falling and sustaining a broken leg. In Count I of its complaint plaintiff asked for judgment in the amount of $25,000, citing its "statutory lien and * * * statutorily prescribed right to pursue an action against and recover compensation benefits paid or payable from” the defendant tortfeasor. MCL 418.827; MSA 17.237(827). In Count II plaintiff alleged that, despite the June 2, 1975, notice to the parties of plaintiff’s asserted statutory lien, defendant Jacob Beitner, by and through his attorney defendant Elliot Beitner, "engineered a settlement with” the defendant tortfeasors. It was alleged that all defendants had wrongfully converted the settlement money rightfully belonging to plaintiff pursuant to its statutory lien. A judgment in the maximum amount of $15,852.70 was requested. Among the various answers filed in response to plaintiffs allegations was the claim by defendants Beitner that, if a lien existed in plaintiffs favor, it did not exist as to them but only as to the defendant third-party tortfeasors. The allegation that there was a settlement between Jacob Beitner and defendants Irving’s and Great Scott was admitted. In response to an affirmative defense raised by defendant Irving’s, plaintiff filed, on December 16, 1977, a motion to amend its complaint to include plaintiffs worker’s compensation insurance carrier as a party plaintiff. It was defendant Irving’s allegation that plaintiff Drapefair was not the real party in interest. Plaintiff also requested that a constructive trust be imposed upon defendants Beitner to the extent of money received in settlement of any claims arising out of the December 1974 incident and received after payment of compensation benefits. On December 19, 1977, defendants Beitner filed an "Amended Motion for Accelerated Judgment of Dismissal”, challenging Drapefair’s status as the proper party plaintiff. Attached to this motion was the affidavit of Joseph Merin, Drapefair’s president and chief stockholder, stating that he had never authorized the bringing of this lawsuit in Drape-fair’s name. Nor had he been informed that the lawsuit had been brought in Drapefair’s name. He concluded, "I specifically do not authorize such a lawsuit being filed on my behalf and do not wish the suit to continue.” In plaintiffs original complaint, Mr. Merin was referred to as Jacob Beit ner’s employer, owner and operator of Drapefair, Inc. On February 14, 1978, the order denying plaintiffs motion to amend and granting accelerated judgment for defendants was entered. The court found that the worker’s compensation insurance carrier was the real party in interest and that the action had been commenced on behalf of Drapefair without that company’s authorization and that the action was being continued against Drapefair’s wishes. The complaint was dismissed. In discussing the correctness of the trial court’s entry of accelerated judgment for all defendants we will address the two counts separately. Count I (claims against defendant third-party tortfeasors only) As to these defendants and Count I what is at issue is proper application of § 827 of the Worker’s Disability Compensation Act: "(1) Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and carrier. Any party in interest shall have a right to join in the action. "(2) Prior to the entry of judgment, either the employer or carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor. "(3) Settlement and release by the employee is not a bar to action by the employer or carrier to proceed against the third party for any interest or claim it might have. "(4) If the injured employee or his dependents or personal representative settle their claim for injury or death or commence proceedings thereon against the third party before the payment of workmen’s compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided. "(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or déath only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” MCL 418.827; MSA 17.237(827). Under paragraph 2 of this section, the right of an injured employee to settle his claim against third-party tortfeasors is recognized. Paragraph 3 provides that an employee’s settlement with a third-party tortfeasor does not extinguish the em ployer’s or insurance carrier’s right, as set forth in paragraph 1, to proceed against the third-party tortfeasor. Under paragraph 1, if an injured employee does not sue a potentially liable third party within one year from the date of injury, the employer or insurance carrier may sue to enforce the liability of the third party in the employee’s name. The substantive right to recover from a third-party tortfeasor in the name of an injured employee belongs to the employer or compensation insurance carrier who has paid compensation benefits; that is, the party who has paid benefits to the employee is the real party in interest in a suit brought in the name of the employee against a tortfeasor. Detroit v Spivey, 68 Mich App 295, 299-300; 242 NW2d 561 (1976). In the instant case it was plaintiff Drapefair’s workers’ compensation insurance carrier who paid benefits to defendant Jacob Beitner. The carrier, therefore, was the real party in interest. Under GCR 1963, 201.2, the action against the third-party tortfeasors should have been brought by the carrier. See Sinai Hospital v Sivak, 88 Mich App 68; 276 NW2d 518 (1979). It was in response to the contention that Drape-fair, who had not paid compensation benefits to Jacob Beitner, was not the real party in interest that the motion for leave to amend the complaint was made on December 16, 1977. Amendment of a complaint more than 15 days after an answer has been filed requires leave of the court or written consent of the adverse party. Leave to amend is to be freely given when justice so requires. GCR 1963, 118.1. The grant or denial of a motion to add a party is governed by the same standard as applies to motions to amend pleadings. Such motions are always addressed to the sound discretion of the trial court. Matson v Soronen, 57 Mich App 190, 193; 226 NW2d 52 (1974), lv den 394 Mich 762 (1975). We find that the trial court did not abuse its discretion in denying plaintiffs motion to amend its complaint as to Count I. On the contrary, a contrary ruling would have been improper. The injury which gave rise to the carrier’s right to recover from the third-party defendants under the theory set forth in Count I occurred on December 1, 1974. The provision of the Worker’s Disability Compensation Act which establishes the substantive right asserted in Count I incorporates the statute of limitations "prescribed by statute”. MCL 418.827(1). Since the carrier’s position vis-á-vis the third-party defendants, in Count I, is as subrogee of the employee’s right to recover for personal injury, the applicable statute of limitations is three years. MCL 600.5805; MSA 27A.5805. At the time the request to allow the real party in interest to join in the suit was made, the three-year limitations period governing Count I had run. GCR 1963, 118.4 controls relation back of amended pleadings: "Except for the purpose of demanding a trial by jury under sub-rule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” In Plowman v Satkowiak, 22 Mich App 425; 177 NW2d 641 (1970), the plaintiff, by her administrator, brought a dramshop action against one of the defendants. At the pretrial conference this defendant argued that the plaintiff’s action was not proper under the liquor control act and moved for summary judgment. In response, the plaintiff moved to add her parents as parties plaintiff. The trial court held that the plaintiff’s administrator had no right of action against the defendant and denied the motion to add the parents as plaintiffs. Summary judgment was entered for the defendant. On appeal this Court noted the trial court’s error in considering the administrator as the plaintiff. On the contrary, suit had been brought by the decedent through her administrator. The Court found that a clear right of action belonged to the plaintiff by her administrator. In addition, the Court discussed the denial of the motion to add the plaintiff’s parents as parties plaintiff: "The trial court denied plaintiffs motion to add new parties, having found that the administrator was not the proper party to bring an action in the present case. The trial court concluded that new parties could not be added as the two-year statute of limitations on actions brought under the liquor control act had run. This conclusion would have been correct had plaintiff’s administrator had no right of action against defendant Dropek. It is not true under the holding made here today.” Id. at 429. (Emphasis added.) The Plowman court cited Doan v Chesapeake & Ohio R Co, 18 Mich App 271; 171 NW2d 27 (1969). In discussing the grant of leave to amend pleadings so as to enable plaintiffs who have brought suit in the wrong capacity to sue in the proper capacity, the Doan court approved the following limitation found in 63 Harvard L Rev 1177, 1239 (1950): " 'However * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of suit, an interest in the subject matter of the controversy.’ (Emphasis supplied.)” 18 Mich App at 279. Under this limitation, accelerated judgment was properly entered on Count I for the defendant third-party tortfeasors. Plaintiff Drapefair paid no compensation benefits to defendant Jacob Beitner and, therefore, had no interest in the subject matter of the controversy. The affidavit of the president of Drapefair, which underscores the company’s lack of interest in the subject matter of this controversy, indicates that suit was perhaps actually begun by the legal representatives of the insurance carrier but in the name of the employer. Since the named plaintiff had at no time any interest in the controversy and since the limitations period had expired, the original action was void and the motion to amend was properly denied as to Count I. Count II (claims against all defendants) Under § 827(4), any money recovered by an in jured employee in settlement with a third-party tortfeasor is to be applied as provided in the Worker’s Disability Compensation Act. The following paragraph 5 describes the method in which settlement proceeds are to be disbursed: "Any recovery against the third party for damages * * * shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery * * MCL 418.827(5). In Gamble v American Asbestos Products Co, 381 Mich 105; 159 NW2d 839 (1968), the Supreme Court, in holding that a compensation carrier was entitled to a credit against future compensation benefits from the proceeds of the settlement received by the injured employee from the third-party tortfeasor, stated: "Plaintiff says the statutory requirement that the settlement moneys or recovery shall be used to reimburse the insurance carrier refers only to recovery through judgment for the employee in its action against the third party and not to recovery by way of settlement before judgment in such action. We find no language in the statute whatsoever that leads permissibly to such conclusion. In fact, the language that in the event the employee shall settle his claim any money so recovered shall be applied as in the act provided, coupled with the further provision that any such recovery shall first reimburse employer or its insurance carrier, means the very converse. "The statute says the employee may sue, settle with, and release the third party before judgment. The statute also says that any moneys so recovered shall be applied as therein provided, and thereafter provides that any recovery against the third party shall first reimburse the employer and its insurance carrier. We can see no lawful alternative to compliance with the express language of the statute by affirming, as we do, the decisions below.” Id. at 112. The right of reimbursement from settlement proceeds was also discussed by the Supreme Court in Transamerica Freight Lines, Inc v Quimby, 381 Mich 149; 160 NW2d 865 (1968), where the Court affirmed judgment against the injured employee who had settled with the third-party tortfeasors. In ruling against the employee; the trial court had stated that the compensation insurance carrier’s right to reimbursement from the settlement recovery did not depend on whether the carrier had intervened in a suit instituted by the employee against the tortfeasors. The Supreme Court agreed, citing the plain language of § 827(4) that any money recovered by the employee in settlement of his claim for injury or death must first be applied to reimbursement of the employer or insurance carrier. Id. at 160. Also see Arnett v General Motors Corp, 22 Mich App 658; 177 NW2d 704 (1970). Examination of the record convinces this Court that the trial court would not have abused its discretion in allowing plaintiff to amend its complaint as to Count II. The complaint and amended complaint clearly stated causes of action against all defendants. The foregoing cases conclusively establish the insurance company’s substantive right to proceed against defendant Jacob Beitner. And see the Supreme Court’s discussion in Quimby, supra, at 160-164 for a demonstration of the possibility of liability on the part of an injured employee’s attorney. With respect to the defendant third-party tortfeasors, it was alleged that, despite plaintiffs statutory lien, they "did wrongfully convert and disburse money rightfully belonging to the plaintiff, Drapefair, Inc., pursuant to said statutory lien”. Without expressing an opinion as to the merits of the carrier’s claims against each of the defendants in Count II, we note that, unlike those in Count I, these claims were not governed by the three-year statute of limitations for actions to recover damages for injury to persons and property. MCL 600.5805; MSA 27A.5805. Rather the general six-year statute of limitations applied to the claims set forth in Count II. MCL 600.5813; MSA 27A.5813. Although we conclude that the claims in Count II, if brought by the real party in interest (i.e., the insurance carrier), would not have been barred by the running of the applicable limitations period, we nonetheless affirm the trial judge’s denial of plaintiffs motion to amend its complaint to add the insurance company as a party plaintiff. The judge was presented with the affidavit of Drape-fair’s president which clearly indicated that company’s dissatisfaction with the bringing of suit in its name. Denial of the motion to amend was based on this affidavit. In light of the affidavit, the judge properly exercised his discretion in determining that amendment would not serve the ends of justice. On the contrary, justice dictates that the insurance company, the sole real party in interest, bring suit in its own name. The insurance company’s bringing of suit in the name of the employer, without the authorization of and against the apparent wishes of the employer, cannot be condoned. Accelerated judgment for all defendants as to Counts I and II is affirmed. Costs to appelles. Settlement between defendant Jacob Beitner and the defendant third-party tortfeasors was reached without Mr. Beitner filing suit against the tortfeasors. Plaintiff Drapefair’s claim that it is a real party in interest due to its interest in securing a credit against possible future liability to defendant Jacob Beitner is not persuasive. Worker’s compensation benefits were paid to Jacob Beitner pursuant to a redemption agreement. MCL 418.835; MSA 17.237(835). Jacob Beitner agreed, in exchange for a lump sum payment, to forego any right to proceed against Drapefair or its insurance carrier for further compensation benefits. The redemption agreement was a final settlement of Drape-fair’s liability under the Worker’s Disability Compensation Act. White v Weinberger Builders Inc, 397 Mich 23; 242 NW2d 427 (1976), aff'g 49 Mich App 430; 212 NW2d 307 (1973), Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 364 fn 2; 258 NW2d 227 (1977). The holding in Gamble, supra, in light of the time sequence there involved clearly indicates the inapplicability of the three-year statute of limitations. Also see Quimby, supra, at 172 (opinion of Black, J.). The conversion claim is also governed by the six-year statute of limitations. See Miller v Green, 37 Mich App 132; 194 NW2d 491 (1971).	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Per Curiam. Defendant was tried before a jury on a charge of negligent homicide, MCL 750.324; MSA 28.556. The jury found defendant guilty. The court sentenced defendant to 16 to 24 months imprisonment. Defendant appeals. In the late afternoon on December 8, 1974, defendant attempted to pass another vehicle on M-60 in Homer, Calhoun County. His automobile collided with an oncoming automobile driven by Gail Vroman. Gail’s sister Kathryn Jo Vroman was her passenger and died from injuries she received in the accident. The prosecution’s theory was that defendant was intoxicated and driving at an excessive speed. The defense contended that the Vroman automobile did not have its headlamps on and that defendant exercised due care in attempting to pass the vehicle in front of him. Testimony about defendant’s intoxication and his rate of speed conflicted. Also conflicting was testimony whether the headlamps on the Vroman automobile were illuminated. On appeal, defendant challenges only the court’s instructions to the jury. The court refused to give several instructions- that defendant requested, including one instructing the jury that in order to convict they must find that defendant’s driving was the sole and only proximate cause of Kathryn Jo Vroman’s death. The court did instruct the jury that a conviction required that they must find that Gail Vroman’s driving was not a proximate cause of the fatal accident. The court then defined proximate cause: "When I use the words 'proximate cause,’ I mean, first, that there must be a connection between that conduct of the defendant which the prosecution claims was negligent, careless or reckless, and the death of Kathryn Vroman, and, second, that the occurrence which is claimed to have produced that death was a natural and probable result of such conduct by the defendant, and the same definition of proximate cause also applies to the conduct of Gail Vroman, the driver of the other vehicle.” The court then attempted to explain further to the jury how their assessment of Gail Vroman’s conduct should affect their verdict. It is as to this explanation that defendant now assigns error. The court pointed out that there can be more than one proximate cause to an accident. If the jury found "that the defendant is guilty of negligent homicide as defined herein, and that his conduct was a proximate cause of the accident and therefore of the death of Kathryn Vroman”, they were told then to consider the conduct of Gail Vroman. If the jury found her "guilty of conduct for which you could find her guilty of negligent homicide, as defined herein”, and also found that her conduct was a proximate cause of the accident, then they could not return a verdict of guilty. A finding of two proximate causes of the accident, the court told the jury, prevented a verdict of guilty against defendant. In telling the jury that proximate cause was to be considered if they determined that defendant was guilty of negligent homicide and if they determined Gail Vroman "was guilty of conduct for which you could find her guilty of negligent homicide”, the court appeared to suggest circular reasoning. The court had earlier made clear to the jury, however, that causality must be shown before there can be guilt. Defense counsel did not request a clarification from the court. We think it proper to assume that he, as well as the jury, understood the court to mean that a finding of negligent driving, not negligent homicide, must precede a determination of proximate cause. Defense counsel did not object to the instruction on the basis that it unnecessarily asked the jury to make a difficult decision about Gail Vroman’s criminal culpability for the death of her sister. He himself had said, in closing argument, that "[TJhere is no reason why they couldn’t have prosecuted her just as well”. Review of the entire instructions indicates that where they were erroneous, the error was in defendant’s favor. It is possible that the Vroman vehicle was a cause of the accident and yet Gail Vroman’s operation of the vehicle might not be considered negligent. For example, an unexpected mechanical malfunction may have had something to do with the accident. But, in instructing the jury that if they found her negligent driving was a proximate cause of the accident, they must find defendant not guilty, the court provided defendant with a legally unwarranted basis for avoiding guilt. The notion that a defendant’s negligent driving must be "the sole and only proximate cause” of a fatal accident in order for him to be found guilty of negligent homicide is legally unsupportable. People v Scott, 29 Mich App 549, 558; 185 NW2d 576 (1971), initiated the recent view that for conviction of negligent homicide, defendant’s negligence must be "the only direct and proximate cause of the ensuing homicide”. People v Jeglum, 41 Mich App 247; 199 NW2d 854 (1972), and People v Buck, 71 Mich App 28; 246 NW2d 351 (1976), express approval for this "principle” found in Scott. But Jeglum and People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976), cases in which it was alleged that the deceased was contributorily negligent, reveal the error in Scott. Jeglum and Ebejer both recognized that contributory negligence of the deceased is no defense to a charge of negligent homicide. People v Clark, 295 Mich 704; 295 NW 370 (1940), People v McMurchy, 249 Mich 147; 228 NW 723 (1930), People v Fredericks, 30 Mich App 357; 186 NW2d 376 (1971). If the existence of another proximate cause of the fatal accident precludes a verdict of guilty against defendant, contributory negligence would be a good defense. In holding that reversible error occurred when the jury was told that conviction did not require that defendant’s conduct was the only proximate cause of the fatal accident, Scott placed heavy reliance on Commonwealth v Root, 403 Pa 571; 170 A2d 310; 82 ALR2d 452 (1961). Root, while unwilling to apply in criminal cases the attenuated causal connection that often sufficed for civil liability, certainly did not announce a rule that in negligent homicide cases the defendant’s conduct must be the sole proximate cause of the fatal accident. Chief Justice Jones wrote: "Of course there can be more than one proximate cause of death just as there can also be more than one direct cause of death.” 403 Pa at 578-579. Root requires that defendant’s conduct be the direct cause of the death in issue for a conviction; it is not necessary that a jury find defendant’s conduct to be the only direct cause. What Root rejects is the notion of proximate cause found in civil cases. The imprecise concept of proximate cause does not become precise by qualifying it with "sole” or "only”. Such qualification produces a phrase that, if not senseless, is at least extremely difficult to comprehend and utilize. It is sufficient to inform the jury that conviction for negligent homicide requires a finding that defendant’s negligence caused the fatal accident. People v Paulen, 327 Mich 94, 99; 41 NW2d 488 (1950). Defendant was deprived of no substantial right because of the court’s instructions. The instructions, instead, provided the jury with an unnecessary ground for finding him innocent. Affirmed.	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N. J. Kaufman, J. Appellants appeal from Wayne County Circuit Court Judge Harry Dingeman’s determination that six-year-old Eugene Siwik, Jr., should be in the custody of his mother instead of in the custody of his paternal grandparents. Eugene Siwik, Jr., was born on August 23, 1972. In September of 1976, his mother brought him to the Reppenhagen’s with the understanding that he would stay there until she "got her head together”. On November 10, 1977, the Wayne County Circuit Court granted plaintiff, who is not a party to the present dispute, a default judgment of divorce. The judgment also granted custody of the minor child to the Reppenhagens. Defendant filed a petition to modify the divorce judgment on February 3, 1978. A custody hearing was held on June 16 and 19, 1978, and the trial judge’s June 20, 1978, order changed custody to the defendant. The Reppenhagens appealed and, after reviewing the record, appellants successfully petitioned this Court to stay the proceedings and remand the case for a more complete record. Pursuant to this Court’s order, Judge Dingeman held a second hearing on September 11, 12 and 13, 1978. On September 28, 1978, the trial judge reaffirmed his earlier findings of fact and conclusions of law. The next day, this Court vacated the stay which it had ordered. Mrs. Frye attained custody of her son and took him to Kansas where he now lives with her and her new husband. Thereafter, appellants’ motion for a rehearing before this Court was denied and they now appeal. We affirm. Appellants raise three issues on appeal but each issue relates to the central question: Did the trial court properly interpret and apply the Child Custody Act in determining that the child’s best interests required a change in custody? These cases are not easy. The trial judge in the present case indicated that he "spent an uncomfortable weekend reviewing the testimony and reexamining the law”. We sympathize with the trial judge and recognize that "[a] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders”. Fritts v Krugh, 354 Mich 97, 101; 92 NW2d 604 (1958) (footnote omitted). We also note that our task is no easier than that of the trial judge. A reviewing court is obligated to consider a child custody case de novo and appraise the evidence apart from the trial judge’s findings. In so doing, it is important for us to remember that each case must be judged on its unique facts. As stated in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86 NW2d 166 (1957): "We have stressed, heretofore, in these zoning cases, the principle that each case must be judged on its own facts. Some confusion may have arisen from its frequent repetition. The statement is merely a truism in the law, applicable to all cases, from arbitration to zoning.” Additionally, in a custody case, we are bound by MCL 722.28; MSA 25.312(8), which provides that: "* * * all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” The guiding factor in all child custody matters is the child’s best interests as outlined in MCL 722.23; MSA 25.312(3): " 'Best interests of the child’ means the sum total of the following factors to be considered, evaluated and determined by the court: "(a) The love, affection and other emotional ties existing between the competing parties and the child. "(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any. "(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs. "(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. "(e) The permanence, as a family unit, of the existing or proposed custodial home. "(f) The moral fitness of the competing parties. "(g) The mental and physical health of the competing parties. "(h) The home, school and community record of the Child. "(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference. "(j) Any other factor considered by the court to be relevant to a particular child custody dispute.” In the present case, the trial court was also faced with two apparently contradictory legal presumptions. MCL 722.25; MSA 25.312(5) provides: "When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” The competing statutory presumption is contained in MCL 722.27(c); MSA 25.312(7)(c), which states in relevant part: "* * * The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” However, this apparent conflict has been resolved properly in Stevens v Stevens, 86 Mich App 258, 264-269; 273 NW2d 490 (1978), and Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). In each of those cases, our Court concluded that the basic inquiry must be into the best interests of the child. Further, the presumptions in MCL 722.25 and MCL 722.27(c) should be recognized equally, with the best interest of the child as the overriding concern, a concern sufficient to overcome any of the rebuttable presumptions in the statute. In the present case, the trial judge carefully considered each of the factors in MCL 722.23. Additionally, the judge recognized the presumptions in MCL 722.25 and MCL 722.27(c) and compared the existing home and the proposed alternative. It does not appear that he gave improper weight to one presumption over the other. In any event, in his September 28, 1978, opinion, the court specifically concluded: "* * * [I]t is the finding of this court that proper cause has been shown, and that clear and convincing evidence indicates that the best interest of Eugene Paul Siwik will be served by a change of the custodial environment of the child from the extended family relationship in which he now lives to that with his natural mother.” After a painstaking review of the entire record, we cannot say that the trial judge was in error. Appellants argue that the trial judge improperly ignored the child’s wishes by determining, after an interview, that the child was "not of sufficient age to express a meaningful preference in this matter”. We disagree. MCL 722.23(i) leaves this determination to the sound discretion of the trial judge and we find no abuse of discretion here. Even if the child stated that he wished to remain with his grandparents, the trial judge was not required to accede to that request. MCL 722.23 lists the child’s preference as one factor among many to be considered in determining the best interests of the child. Appellants also claim that the trial judge gave inadequate consideration to the testimony of the child psychologist. Again, we disagree. The psychologist testified against changing the custodial environment but also admitted that an extended family is not the best atmosphere in which to raise a child and that a major factor in mitigating the trauma of a change in custody would be the mother’s future behavior. MCL 722.27(d); MSA 25.312(7)(d) specifically permits a circuit judge to utilize "community resources in behavioral sciences” in determining a custody matter. But the statute plainly indicates that the decision to use such information is a matter of trial court discretion. Further, the weight to be given to the information is best left to the trier of fact. In the instant case, the trial judge heard the testimony of the psychologist and gave it some consideration. We cannot say that he erred in either respect. Finally, we note that the previous behavior of both parents leaves much to be desired. The father at the time of the divorce was imprisoned for a felony and was staying with his parents while on parole when the hearings for modification of custody were conducted. The mother had used alcohol to excess at times and was seen using controlled substances. At the hearings, however, Mrs. Frye stated under oath that she changed her mode of living, no longer abused alcohol or drugs, was happily married and wanted her child back. The court further stated: "As has been pointed out by counsel in final arguments this is the natural mother seeking custody of her child and the present custodians are third persons. She’s 24 years of age. The grandparents are 51, and 62 respectively. In another 10 years, the child in its early teens if it is to continue living with the grandparents would have a male figure head in the house in his 70’s, and a mother in her 60’s. Can this be construed as being in the best interests of the minor child, or would he be better off with younger parents. This Court believes the latter.” It is only natural for the grandparents to remember the mother as she was when she brought the child to them. And we commend them for taking the child and giving him love when it was necessary to do so. But the trial judge has concluded that the mother has changed her lifestyle and now is able to properly care for her child. We find no error in that determination. Affirmed. No costs.	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D. C. Riley, P.J. Defendant was arrested on September 2, 1977, and charged with possession of heroin in violation of MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). The undisputed facts show that on the evening in question, police officers stopped to investigate a parked car which appeared to contain two sleeping men. The vehicle’s passenger door was open and the inside dome light was functioning. As the police approached, the men roused themselves, at which time defendant removed a tinfoil packet from his pocket and dropped it to the floor of the automobile. One of the officers, familiar with the use of such packets as a method of drug dispersal, seized and opened the packet, which contained an off-white powdery substance later determined to be heroin. Defendant was immediately arrested and taken into custody. Following the preliminary examination, defendant brought a motion to quash the information and dismiss the case on the grounds that the police officer lacked sufficient probable cause to confiscate and open the tinfoil packet. The trial court granted this motion and the people appeal as of right. Initially, we observe that the expropriation of the packet cannot be sustained by reference to the "plain view” doctrine, which holds that the seizure of objects within the plain view of a police officer, in a place where he has a lawful right to be, is not constitutionally proscribed for lack of a valid war rant. People v Hunter, 72 Mich App 191, 199; 249 NW2d 351 (1976), People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976), lv den 397 Mich 842 (1976) . However, this exception is subject to the further limitation that only objects which the officer has probable cause to believe are evidence or implements of a crime may be seized and examined. People v Ridgeway, 74 Mich App 306, 311-312; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977) . Here there is no dispute that, under the circumstances at bar, the officers’ investigation of the vehicle was proper. The occupants of the automobile could have been in need of assistance for any of a number of reasons. Hence, the crucial question thus becomes not whether the officer was lawfully in a place to observe, but rather, did what he observe constitute probable cause to believe that the object seized was evidence or an implement of crime. At this juncture we reach plaintiffs contention that probable cause is no longer required for a limited search and seizure of the kind conducted by the police in this case, but that such an investigation may be premised upon a lesser standard of "reasonable grounds”. Plaintiff argues, erroneously, that the facts of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and United States v Martinez-Fuerte, 428 US 543; 96 S Ct 3074; 49 L Ed 2d 1116 (1976), indicate that, consistent with the Fourth Amendment, the police may, in cases such as this, conduct limited investigatory searches and seizures based upon grounds less than probable cause in the absence of any individualized suspicion. Terry involved the validity of a surface search or "frisk” of the outer clothing of a defendant with whom the officer had contact where the officer reasonably believed that he was dealing with an armed and dangerous person. In authorizing a limited intrusion to search for weapons, the holding in Terry was specifically premised upon, and limited to, the concern for the safety of law enforcement agents. Here it cannot be argued that any solicitude for the officers’ safety because of hidden weapons could justify opening the packet. United States v Martinez-Fuerte, supra, is also wholly inapposite as it deals with the dramatically different conditions relevant to a border search where a more relaxed Fourth Amendment standard has been held to apply. Nor does a review of the case law and remaning authority cited by plaintiff warrant imposition of a lesser standard than probable cause in the present case. Next, the state broadly urges us to hold that the time has come (in the evolution of the law) for the courts to realize that the use of tinfoil packets to facilitate drug trade is so widespread and well known among policemen that the mere sighting of such packets is sufficient to establish the requisite probable cause. We decline such a historical invitation. Defendant correctly points out that tin and aluminum foil have a vast number of legitimate and common uses; these commodities permeate American society resulting in almost daily contact with them in one form or another. Any inference of criminal activity derived from their mere possession is too expansive for purposes of the Fourth Amendment. We acknowledge that this Court has previously used language ostensibly favoring the people’s position. In People v Ridgeway, supra, at 314, where a police officer observed a tinfoil packet on the floor of defendant’s car, the Court stated: "We now consider the strongest support for a finding of probable cause, viz., the officer’s knowledge that tinfoil packets like the one on the floor of the car often contain narcotics. Given the officer’s experience in narcotics law enforcement, his suspicion that the packet contained some controlled substance must be respected. The question is extremely close, but we believe that the officer did have probable cause to believe that the packet contained a controlled substance.” However, in that case the officer also detected the odor of marijuana when defendant was stopped. The inference that marijuana users would be in possession of narcotics may be entitled to some weight according to the Court. The additional circumstance of marijuana smoke in Ridgeway renders it inadequate precedent for plaintiffs position. See also People v Falconer, 76 Mich App 367, 369; 256 NW2d 597 (1977), lv den 402 Mich 816 (1977), holding that a police officer’s suspicion that manila coin envelopes, being exchanged by a defendant for money, contained narcotics, did not by itself constitute probable cause for either arrest of the defendant or a search of the defendant’s car. Lastly, the people contend that the additional circumstances present in this case, taken in combination, are sufficient to establish probable cause, to wit: the officer’s prior experience with tinfoil packets, defendant’s furtive gesture, and the exigent circumstances of a potentially mobile vehicle. The latter ground merits only brief discussion. The exigent circumstances allowing immediate search of a movable vehicle is an exception to the Fourth Amendment’s warrant requirement. It does not serve to discharge the antecedent necessity of probable cause. Only where there is probable cause to believe that contraband will be found at the time the search occurs will the exception catalyze permissible investigation of the auto’s contents without the procurement of a warrant. People v Strong, 77 Mich App 281, 284-285; 258 NW2d 205 (1977), People v Daniels, 50 Mich App 754, 758; 213 NW2d 780 (1973), lv den 391 Mich 828 (1974). See generally, 1 Wharton, Criminal Procedure (12th ed), § 151, p 321. The remaining facts, however, are more troubling. Although insufficient standing alone, the use of tinfoil packets may be considered in combination with other elements in determining the existence of probable cause. One such factor is an evasive or "furtive” gesture by one aware that he is under police observation. As in the case of tinfoil packets, a mere furtive gesture, standing alone, does not create probable cause to search a vehicle. People v Howell, 394 Mich 445, 447; 231 NW2d 650 (1975), People v Boudah, 61 Mich App 563, 566; 233 NW2d 84 (1975), People v Obadele, 58 Mich App 139, 143; 227 NW2d 258 (1975), People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), lv den 388 Mich 791 (1972), People v Reeves, 23 Mich App 183, 188; 178 NW2d 115 (1970). See also Anno: Search & Seizure: Furtive Movement or Gesture as Justifying Police Search, 45 ALR3d 581. The rationale behind this rule was considered in People v Hall, 40 Mich App 329, 335; 198 NW2d 762 (1972), quoting People v Superior Court of Yolo County, 3 Cal 3d 807, 817-818; 478 P2d 449; 91 Cal Rptr 729 (1970): " 'The difficulty is that from the viewpoint of the observer, an innocent gesture can often be mistaken for a guilty movement. He must not only perceive the gesture accurately, he must also interpret it in accordance with the actor’s true intent. But if words are not infrequently ambiguous, gestures are even more so. Many are wholly nonspecific, and can be assigned a meaning only in their context. Yet the observer may view that context quite otherwise from the actor: not only is his vantage point different, he may even have approached the scene with a preconceived notion—consciously or subconsciously—of what gestures he expected to see and what he expected them to mean. The potential for misunderstanding in such a situation is obvious. " It is because of this danger that the law requires more than a mere "furtive gesture” to constitute probable cause to search or to arrest. ’ ” In People v Nelson Pitts, supra, police officers stopped the defendant’s car because it had no license plate light and saw a small prescription bottle in the defendant’s hand which he dropped between the seat and door as they approached. A search of the car revealed it to contain heroin. The Court held that the circumstances did not justify the search, stating that the movement by the defendant was not so obviously evasive that the police could infer criminality. The circumstances, said the Court, established no more than mere suspicion. In the instant case, the furtive gesture consisted of the defendant putting his hand in his pocket and either dropping or throwing a tinfoil packet to the floor of the vehicle. Such a gesture would seem to be closely akin to that in Pitts which was found to establish no more than mere suspicion. This gesture, combined with the suspicion aroused by the tinfoil packet, may have been sufficient to establish probable cause. Nevertheless, we refuse to overturn the decision of the lower court for the following reasons. First, we note that the record fails to supply us with an adequate description of the "tinfoil packet”. We are, therefore, left to speculate as to its bulk and configuration—whether large enough to hold a sandwich, or perhaps the size of a gum wrapper. Absent such evidence, we have no basis, apart from the officer’s naked allegation, for considering the argument that they are so readily identifiable as a means of drug conveyance. In the same vein, the extent of defendant’s "furtive gesture” is not apparent. Defendant either "dropped” or "threw” the packet to the floor of the vehicle. No other circumstances helpful to us are given surrounding the incident. As this Court noted in People v Strong, 77 Mich App 281, 286; 258 NW2d 205 (1977): " 'Furtive gestures’ have been defined as 'obviously evasive actions’. People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), People v Evans, 3 Mich App 1, 7; 141 NW2d 668 (1966). An inference of criminality may be drawn from circumstantial evidence only if it follows 'as an impelling certainty’. People v Davenport, 39 Mich App 252, 257; 197 NW2d 521; 56 ALR3d 942 (1972).” We are not constrained to say that, in light of the record before us, an inference of criminality follows "as an impelling certainty”. The similar facts holding of People v Nelson Pitts, supra, supports this conclusion. Further, we do not reverse a trial court’s ruling at a suppression hearing unless that ruling is found to be "clearly erroneous”. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), People v Ulrich, 83 Mich App 19, 21; 268 NW2d 269 (1978), People v Robertson, 81 Mich App 446, 449; 265 NW2d 365 (1978), People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977), People v Triplett, supra, at 535, People v Stewart, 25 Mich App 204, 206; 181 NW2d 14 (1970), People v Smith, 19 Mich App 359, 367; 172 NW2d 902 (1969). As the question in the present case is a close one, this standard does not mandate reversal of the court below. Affirmed. MacKenzie, J., concurred.	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Bronson, J. Defendant pled guilty to the crime of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and was sentenced to a prison term of 4 to 15 years. He now appeals as of right. Defendant was 17 years old at the time of the offense. Prior to trial, he was placed on two-years probation pursuant to the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. Less than one year later, the probation department alleged that defendant had violated the terms of his probation and petitioned the court for an order terminating defendant’s trainee status. The trial court granted the petition, revoked defendant’s trainee status and reinstated the criminal case against him. No hearing was held prior to the time defendant’s probation was revoked. Three months later, defendant pled guilty. The prosecution rightfully concedes that before a defendant’s probation status under the Holmes Youthful Trainee Act can be revoked a hearing must be held. People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The sole question on appeal is whether defendant’s subsequent guilty plea waived his objection to the failure to hold the revocation hearing. The question of what constitutional defects are waived by a guilty plea has undergone considerable revision in recent years. In Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973) , defendant sought to have his plea-based conviction overturned because he pled guilty to an indictment returned by an illegally constituted grand jury. The Supreme Court reaffirmed the traditional test set forth in the Brady trilogy and denied defendant relief stating that a guilty plea could only be attacked on the grounds that it was not voluntarily and intelligently made, thus precluding attacks based on constitutional defects not related to this issue. The rather narrow test set forth in Tollett was broadened, however, in the case of Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974) . In this case defendant challenged his plea-based conviction on the ground that the offense to which he pled guilty was barred by the double jeopardy clause. The Supreme Court reversed his conviction holding that a guilty plea did not waive defects which "went to the very power of the State to bring the defendant into court to answer the charge brought against him”. Blackledge at 20. Since a defendant could no more be brought into court on an invalid indictment (as in Tollett) than on an indictment barred by double jeopardy, the Court distinguished Tollett by stating the defect in that case could have been cured by a properly selected grand jury, while the constitutional defect in Blackledge was incurable. The Blackledge incurable jurisdictional defect test, however, has not been the final word from the Supreme Court on this issue. In Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975), the Supreme Court further expounded upon the meaning of Blackledge. The Court stated that a guilty plea was a reliable admission of factual guilt and removes this issue and alleged constitutional defects concerning factual guilt from subsequent attack. A guilty plea does not, however, constitute a waiver for those constitutional defects which are irrelevant to defendant’s factual guilt of the crime charged. Accord, Journigan v Duffy, 552 F2d 283 (CA 9, 1977). Applying this test to the present case it would seem that defendant’s guilty plea did not preclude him from attacking his conviction based on the failure to afford him a revocation hearing. A defendant has a constitutional right to a hearing prior to the termination of his trainee status and in the absence of a hearing, the criminal case against him cannot be reinstated. See People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The purpose for the revocation hearing is to give the defendant notice of the charges against him and make a determination, based on reliable information, of whether he has committed a probation violation. See Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). The hearing has nothing to do with determining defendant’s guilt on the underlying charge. Since the defect in failing to hold the hearing is totally irrelevant to the question of defendant’s factual guilt on the underlying charge to which he pled guilty, it was not waived by the guilty plea. Defendant’s conviction is reversed, and the case is remanded to the trial court for a hearing on the revocation of defendant’s trainee status. C. W. Simon, Jr., J., concurred. Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970). This same result could probably have been reached by using the Michigan Supreme Court’s decision in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). However, since the Federal cases concisely show the progression of the law in this area and Alvin Johnson contains much dicta which is unnecessary to the decision of this case and which we feel no need to address at this time, it was not used as the basis for this decision. MCL 762.12; MSA 28.853 (12).	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J. H. Gillis, J. Plaintiff appeals from a decision upholding his discharge from the Traverse City Fire Department. Defendant cross-appeals, claiming the Civil Service Commission improperly awarded plaintiff back pay for the period between his discharge by the city manager and the issuance of the commission’s opinion upholding the discharge. Plaintiff commenced work as a firefighter for the city in 1965. In 1969 he was convicted of reckless driving which resulted in the accumulation of 12 points on his driving record. He was thereupon suspended from driving all departmental vehicles. A second instance in which discipline was imposed occurred in 1972 when plaintiff was reprimanded for his involvement in an alleged assault at the "Abbey”. In 1973 plaintiff was convicted of assault and battery following an altercation at Bill’s Dills Cafe. He was again disciplined by the city and warned that any future violation of a criminal law or ordinance would result in his discharge. The incident giving rise to plaintiff’s discharge occurred on the evening of October 18, 1975. Plaintiff was on a weekend maneuver with his Army reserve unit when he and four other men, including his commanding officer, went to purchase some beer. On the way back to their bivouac area they decided to "shine deer”. A conservation officer stopped the pickup truck in which they were riding and all of the men, including plaintiff, were subsequently charged with illegally hunting deer with the aid of an artificial light. MCL 312.10; MSA 13.1339. Plaintiff initially pled guilty to the charge but was subsequently allowed to withdraw his guilty plea and, upon trial, was acquitted. Plaintiff argues that the discharge was not for "just cause” because the basis for it was unrelated to his duties as a fireman. There was sufficient evidence from which the commission could conclude that plaintiff had engaged in illegal activity. Plaintiff admitted possess ing a rifle and live ammunition while in the vehicle while one of his friends used a spotlight to look for deer. Furthermore, when apprehended by the conservation officer, plaintiff disposed of incriminating evidence by throwing the ammunition in his possession into the bushes. He later conspired to fabricate a false story and lied to the conservation officers until confronted with the previously disposed-of ammunition. We agree with plaintiff’s contention that, to be removed for cause, there must be some relationship between the charged misconduct and the plaintiff’s position. In Carroll v City Comm of Grand Rapids, 265 Mich 51; 251 NW 381 (1933), the Court, although dealing with the civil service provisions of the Grand Rapids charter, stated the following: "As noted above, appellant was in office under civil service provisions. He could not be captiously removed on trivial or technical grounds. If he was to be removed at all it must be removal for cause and that which is charged as a reason or justification for removing one-from office for cause must relate to and affect the administration of the office. It must be something which in a material way affects the rights and interests of the public.” Id., p 58. See also Isaman v Antrim County Supervisors, 348 Mich 84; 81 NW2d 426 (1957). The provision of the firemen and policemen civil service act under which plaintiff was disciplined reads as follows: "The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure to good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” (Emphasis supplied.) MCL 38.514; MSA 5.3364. The last clause clearly manifests an intent by the Legislature that the reason for discipline relate to plaintiff’s duties as a fireman. This is not to say that a person may not be disciplined for off-duty conduct. In Righter v Adrian Civil Service Comm, 1 Mich App 468, 470; 136 NW2d 718 (1965), a policeman was discharged for visiting a woman "at such hours and in such a manner as to bring discredit upon the police department”. In Kryvicky v Hamtramck Civil Service Comm, 18 Mich App 344; 170 NW2d 915 (1969), a policeman was discharged for creating a disturbance in a bar. Plaintiff’s actions in the instant case demonstrated at the very least disregard for the laws of this state as well as serious dishonesty which could be veiwed as obstruction of justice. There was also some testimony that plaintiff’s activities had damaged the prestige of the department and could interfere with plaintiff’s leadership abilities. Finally, due to the incident plaintiff missed some work while spending three days in jail. This evidence was sufficient to conclude that there was a relationship between plaintiff’s misconduct and his employment. Firefighters enter people’s homes under emergency conditions. Hence, public trust in the members of the fire department is essential for its efficient operation. Plaintiffs actions were detrimental to that trust and he could properly be disciplined for them. Plaintiff, secondly, argues that there was insufficient evidence to support the decision of the civil service commission upholding his discharge. The nature of a court’s review of the decision of a municipal civil service commission is to determine whether the decision is supported by competent, material and substantial evidence. The court is not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975), Werner v Macomb County Civil Service Comm, 77 Mich App 533; 258 NW2d 549 (1977). From our review of the evidence we find sufficient support for the commission’s determination that plaintiff had engaged in the activities for which he was disciplined. Plaintiffs own testimony indicates that he had a gun and live ammunition while his friend shined the light. In addition, he admitted conspiring to fabricate a story and lying to the officers. Plaintiff also argues that in determining punishment the commission improperly considered evidence of prior misconduct. In Konyha v Mount Clemens Civil Service Comm, 393 Mich 422; 224 NW2d 833 (1975), the Supreme Court held that prior uncharged conduct cannot be considered in determining the propriety of punishment for a current charge of misconduct. In the instant case the commission considered three prior incidents. The first incident involved plaintiffs conviction for reckless driving and subsequent suspension from driving departmental vehicles. The testimony indicates that plaintiff was not given written notice of the charge. While plaintiff was apparently aware of the driving suspension, the notice provisions of MCL 38.513; MSA 5.3363 were not satisfied. As was stated in Konyha, supra, p 428, "A written statement of [the] charges and the reasons for the disciplinary action must be furnished”. Since the misconduct was not properly charged, the commission erred in taking it into consideration. The other two prior incidents were not improperly taken into consideration. There is ample evidence that plaintiff was given written notice of the charges and that a copy was timely filed with the civil service commission. Moreover, contrary to plaintiffs argument, we see no reason why the charges and discipline may not be imposed by way of a single letter. Had plaintiff disputed the validity of these charges he had ample recourse under MCL 38.513; MSA 5.3363. Plaintiff cites Niazy v Utica Civil Service Comm, 45 Mich App 303; 206 NW2d 468 (1973), in support of his position. In that case the plaintiff was given a letter charging him with neglect of duty and discharging him. He requested a hearing. On the day of the hearing, he was furnished with charges of three other incidents of neglect of duty. The Court held that notice on the day of hearing does not comply with MCL 38.513; MSA 5.3363. However, there is no indication that there was any inadequacy in the method by which plaintiff was furnished with notice of the original charge, which was the same method used in the instant case. Plaintiff’s final claim is that "failure of good behavior” is an unconstitutionally vague standard. Examination of the context of these words indicates that the rule of construction known as ”ejusdem generis” is applicable. Where, in a statute, general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and be construed as restricted by the particular designation and as including only things of a similar kind, class character or nature as those specifically enumerated. People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975). While this rule is not to be invoked in every case where general words follow specific words, In re Mosby, 360 Mich 186; 103 NW2d 462 (1960), we believe it has application here. The statute provides: "[A]ny such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” (Emphasis supplied.) MCL 38.514; MSA 5.3364. We conclude that "failure of good behavior” is restricted to misconduct of the same nature as that specifically enumerated, and, as noted above, it must have some relationship to the position held by the employee. When so construed, the standard is, therefore, not unconstitutionally vague. The final issue before us concerns the award of compensation from the date the city manager discharged plaintiff until the date the commission ultimately confirmed that discharge, less 30 days. Relying upon § 13 of the act, the commission held that the city manager was without authority to terminate pay to plaintiff for a period in excess of 30 days. The circuit court upheld the commission’s decision. This issue was addressed by the Attorney General in a 1976 opinion wherein he stated: "Section 14 prescribes the manner in which an employee may be discharged from employment, or otherwise disciplined as therein provided. Such sanction must be for cause; the employee must be furnished a written statement of the charges and the reasons for such actions; the statement of charges must be filed within 90 days of the date of violation, with an exception for probationary employees; the employee may file an answer to the charges within 5 days after service; and if the employee demands it, a hearing must be held within 10 days from the filing of the charges. Section 14 expressly provides: " '* * * and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, * * "Throughout the section, reference is made to 'the person sought to be removed * * ’ [emphasis supplied]. Finally, the Legislature has expressly included the mandatory provision: " ' * * Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission the member shall remain in office * * V "The foregoing language contemplates that, although the appointing authority may initiate charges for removal, discharge, etc., it is the civil service commission which renders the final administrative decision, and the employee remains in his position until such decision is made, by express statutory requirement. The only language in the section that appears to be at variance with the foregoing is as follows: " '* * * In event that the civil service commission fails to justify the action of the removing officer then the person sought to be removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment, * * .’ "Reference to reinstatement with full pay for a period in which the employee might have been prevented from performing his duties, suggests that the employee has been removed, which appears contrary to the requirement that the employee remain in office. However, the latter requirement is subordinated to a § 13 suspension in the following language: " ' * * Nothing in this act contained shall limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee or subordinate for a reasonable period, not exceeding 30 days: * * [Emphasis supplied.] "Such a circumstance was discussed by the Court of Appeals in Hunn, supra. Therefore, notwithstanding the requirement that the employee remain in office, the appointing officer may suspend for a reasonable period up to 30 days.” OAG, 1975-1976, No 4,960, pp 366, 367-368 (April 6, 1976). As the above opinion indicates, the member remains in office until the decision of the commission is rendered, although he can be suspended without pay for 30 days. Had the Legislature intended to disallow all pay pending the commission’s decision they could have inserted language comparable to that contained in MCL 51.362; MSA 5.1191(112): "Pending the period between the making of the charges as a basis for removal and the decison thereon by the commission, the member shall remain in office, but shall be suspended from duty without pay.” (Emphasis supplied.) In light of the Legislature’s failure to insert similar language in the statute under consideration here, we conclude that the Civil Service Commission acted properly in awarding plaintiff back pay for the time prior to the commission’s determination, less 30 days. Conclusion Since we are unable to say that the commission would have upheld plaintiffs discharge had they not considered the 1969 reckless driving incident, we must remand the case. The commission is to render its decision without taking that conduct into account. Remanded for proceedings consistent with this opinion. No costs, a public question being involved. “In all cases of reductions, layoff, or suspension of an employee or subordinate, whether appointed for a definite term or otherwise the appointing authority shall furnish such employees or subordinate with a copy of reasons for layoff, reduction, or suspension and his reasons for the same, and give such employee or subordinate a reasonable time in which to make and file an explanation. 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Allen, P.J., Do the provisions of MCL 418.351(1); MSA 17.237(351X1) limiting workmen’s compensation benefits to two-thirds of the injured party’s average weekly wage at the time of the injury place an absolute ceiling on differential benefit payments by the second injury fund resulting from increases in maximum benefits payable under MCL 418.355; MSA 17.237(355)? What method of calculation should be used to compute the 5% benefit reductions required by MCL 418.357; MSA 17.237(357) for the recipient of a total and permanent diability award who attains age 65? These questions, the second of which is of first impression, are raised on return of this case from the Workmen’s Compensation Appeal Board pursuant to remand in this panel’s unpublished per curiam opinion released August 9, 1978. In proceedings which are no longer disputed, plaintiff was found totally and permanently disabled from a work-related injury occurring on November 4, 1968. At the time of the injury, plaintiff’s average weekly wage was $150.80. Two-thirds of that amount is $100.53. The statutory maximum benefit limit then in effect was $69. Because of that limit, the initial award to plaintiff was $69 per week, payable in full by his employer’s insurance carrier. Between 1968 and 1973, the maximum benefit limit was increased on several occasions pursuant to MCL 418.355; MSA 17.237(355). These increases were absorbed by defendant second injury fund pursuant to MCL 418.521; MSA 17.237(521). During calendar year 1973, the total payment to plaintiff was $99 per week — $69 from the insurance carrier and $30 from defendant second injury fund. The statutory maximum benefit was again increased to $106 effective January 1, 1974. With this new increase, plaintiff’s total benefits reached (actually exceeded) the ceiling imposed by the two-thirds of average weekly wage limitation in MCL 418.351; MSA 17.237(351). Because of that ceiling, the imposition of which is contested by plaintiff in Issue I of this opinion, payment to plaintiff during calendar year 1974 was in the weekly sum of $100.53, i.e., two-thirds of his average weekly wage when he suffered the compensable injury. In 1975, 1976, and 1977, the maximum was increased to $112, $120 and $132 respectively but, because Of the two-thirds limitation, payments to plaintiff remained at $100.53. Then, on January 1, 1978, the maximum was raised to $147 and the minimum to $108. Because the minimum then exceeded the two-thirds limitation, plaintiff’s payments were raised. Meanwhile, on January 12, 1974, plaintiff reached age 65. At that point, the age 65 reduction provisions in MCL 418.357; MSA 17.237(357) — as interpreted by the WCAB — called for a 5% reduction in benefits. At that point a dispute arose as to whether differential benefits were subject to the 5% age reductions and, if so, which of several methods of calculation should be employed; The dispute came before the WCAB which, on December 21, 1976, issued the opinion referred to in footnote 1, and which was affirmed in part arid remanded in part to the WCAB by the unpublished per curiam opinion of this panel on August 9, 1978. The WCAB entered its opinion on the remand on August 25, 1978, and returned the cause to this panel. Issues posed by the August 25, 1978, opinion are the subject of this opinion. I. Does the Provision in MCL 418.351(1); MSA 17.237(351)(1) Limiting Beneñts to Two-Thirds of a Recipient's Average Weekly Wage at the Time of Injury Provide an Absolute Ceiling on Differential Beneñt Payments by the Second Injury Fund Resulting from Increases in the Maximum Beneñts Pursuant to MCL 418.355; MSA 17.237(355)? Plaintiff contends that § 351(1) only limits the employer’s contribution to two-thirds of the recipient’s average weekly wage at the time of injury, and that the section does not apply to the differential benefits required to be paid from the second injury fund. On remand, all WCAB members rejected plaintiff’s construction, saying: "Unresolved, and returned to this Board for an expression of its opinion, is the question of whether the provision in Section 351 [MCL 418.351(1)] limiting benefits to two-thirds of an injured employee’s average weekly wage is an absolute ceiling on both employer and Second Injury Fund payments (an absolute ceiling, that is, until such time as minimum rates for total disability exceed the two-thirds average weekly wage, at which time said mínimums become the floor beneath which total payments may not fall, per Jolliff v American Advertising Co, 49 Mich App 1; [211 NW2d 260 (1973)], and Vrahamdedes v McDonald's of Ann Arbor, 1978 WCABO 1624, No. 312, dated June 14, (1978). Believing the Court to have (correctly) answered this question in the affirmative on the only occasion the question was before the Court [Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974)], we answer 'yes’. Interestingly, both here and in Kunde, supra, the parties declined to raise the issue before the Board and introduced it instead at the Court.” The obligation of the second injury fund to pay differential benefits first appeared in § 9(a) in 1955 PA 250. Section 9(a) was amended by 1956 PA 195 to read that payments should be made "according to the full rate provided in the schedule of benefits”. This language was repeated verbatim when the statutue was amended by 1965 PA 44. The question of whether the statute as so worded required the second injury fund to pay in excess of the two-thirds limitation first arose in King v Second Injury Fund, 382 Mich 480; 170 NW2d 1 (1969). In June, 1966, the hearing referee held the limitation applied. That decision was affirmed in a 4-3 decision by the Workmen’s Compensation Appeal Board in 1967. 1967 WCABO 941. Bypass of the Court of Appeals was granted by the Supreme Court which, in September, 1969, reversed, holding that the two-thirds limitation did not apply because to hold otherwise would disregard the statutory words "according to the full rate provided in the schedule of benefits”. King v Second Injury Fund, supra. Within a few months following the split decision of the WCAB in King, legislation was introduced to amend the statute. In the amendment process, the words "according to the full rate provided in the schedule of benefits” were deleted. That legislation became law in 1968 PA 227, effective July 1, 1968. Elimination of the quoted words caused the fund trustees to request an opinion from the Attorney General as to whether the fund was still required to pay differential benefits without regard to the two-thirds limitation for injuries occurring after July 1968 (the effective date of the act). The Attorney General concluded that, as so amended, the two-thirds limitation would apply: "The King decision is no longer applicable where the injury occurred subsequent to June 30, 1968 because the statutory language that provided for payments from the second injury fund 'according to the full rate pro vided in the schedule of benefits’ was deleted by Act 277, PA 1968. Therefore, in respect to employees who are or become disabled because of an injury occurring on or after July 1, 1968, they shall receive differential benefits in accordance with the two-thirds limitation.” OAG, 1969-1970, No. 4711, p 187 (November 9, 1970). We agree with the Attorney General. Any other conclusion would disregard the basic rules of statutory construction. The constitutionality of the statute as interpreted by the Attorney General’s opinion was challenged on grounds of violation of equal protection of the laws in Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974). Our Court held that there were legitimate legislative purposes served by application of the two-thirds limitation to differential benefit payments for injuries occurring after June 30, 1968. We do not believe Kunde decided that the 1968 amendment imposed a two-thirds limitation on payments for employees injured subsequent to June 30, 1968. In this respect we disagree with the WCAB and agree with plaintiff. Kunde assumed that the Attorney General’s construction of the statute was correct and, based on that assumption, decided only the question of the law’s constitutionality. But our agreement with plaintiff on this narrow point is more than offset by the striking fact that although four years had elapsed since the Attorney General’s opinion no one, not even the claimants, challenged the construction given the statute. Only the constitutionality of the statute was questioned until the instant suit was commenced. The WCAB, the second injury fund and claimants have all accepted the two-thirds limitation on differential benefits for post-June 30, 1968, injuries. The interpretation given a statute by those charged with the statute’s administration is given great weight and is not to be overruled without the most cogent of reasons. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968), Miller v Dunn Paper Co, 47 Mich App 471, 478; 209 NW2d 519 (1973). The main thrust of plaintiffs claim that the Attorney General erred in ruling that the 1968 amendment reversed King is that to so conclude is inconsistent with the then legislative intent to increase benefits. Why should the Legislature create a plan to provide additional benefits for totally and permanently disabled persons — obviously to cope with rising prices — and then proceed to limit the amount to two-thirds of the injured person’s wage at the time of the injury. The argument is flawed in three respects. First, it is not true that the injured person’s benefits are held at two-thirds of the average weekly wage at the time of injury. Under the statute, the Director of the Bureau of Worker’s Disability Compensation establishes minimum weekly rates of compensation. Whenever the minimum rate as so established exceeds the two-thirds limitation, the minimum rate prevails. Stein v Director, Bureau of Workmen’s Compensation, 77 Mich App 169; 258 NW2d 179 (1977). In 1977, the minimum rate was $93 for a disabled employee with one dependent. In 1978, it was raised to $108. Immediately, the second injury fund increased its differential payment to plaintiff to $39 per week which is the difference between the employer’s basic weekly rate of $69 per week and the 1978 minimum benefit rate of $108. Second, plaintiff errs in construing § 521(2) as automatically allowing him the present-day maximum rate. Section 521(2) provides that a permanently and totally disabled person shall receive differential benefits equal to the difference between what he is now receiving from his employer under the provisions in effect at the time of his injury "and the amount now provided” by the act. No provision of the act allows a present-day applicant to receive the maximum benefit rate if it exceeds two-thirds of his average weekly wage. The present-day applicant is limited to two-thirds of the average weekly wage. Thus, if plaintiff were allowed to receive the present maximum rate without regard to the two-thirds limitation, he would receive more than is provided for a present-day applicant. While it is true that a present-day applicant’s average weekly wage generally would be greater than that of an applicant from previous years, the adjustment of the minimum rate, as explained above, remedies this situation. If the Legislature had intended so major a change we believe it would have clearly so stated. Third, sound policy reasons exist for imposing the two-thirds limitation. The limitation avoids the unfairness in giving all recipients the same yearly wage. In the absence of any limitation a party, who at the time of injury was earning less than the then average weekly wage, would receive the same increase as a party who was earning more than the average weekly wage at the time of injury. The two-thirds limitation avoids this unfairness. Further, as the Kunde Court pointed out, budgetary and other reasons may well have led the Legislature to impose the two-thirds limitation. "There are potentially many rational reasons why the Legislature constructed the classification it did. It may have anticipated the King, supra, ruling and its effects, and thus sought to equalize the compensation responsibility owed by employers and the Second Injury Fund. It may have felt that any added burden placed on the Second Injury Fund by requiring it to pay the full rate as set out in the schedule of beneñts might damage the fund, and thus destroy its effectiveness.” (Emphasis supplied.) Kunde, supra, at 557. This Court’s request in its opinion on remand that cost data be supplied was made for the purpose of possibly identifying legislative intent. The data so furnished in response to our request, and summarized in footnote 2, provides a sound basis for the Legislature to conclude that continuation of payments "at the full rate” would impose an excessive drain on the fund. II. Given the Following Sequence of Events, How Should Differential Beneñt Payments by the Second Injury Fund be Calculated? (1) Award for Total and Permanent Disability, (2) Increase in Maximum Rates Causing Differential Beneñts by the Second Injury Fund, (3) Recipient Reaches Age 65, (4) Maximum Rates are Further Increased and Minimum Rate Exceeds the Two-Thirds Limitation. Five proposed methods of calculating differential payments to a recipient who has attained age 65 were submitted for this Court’s consideration in its opinion August 9, 1978. The respective methods are labeled A, B, C, D, E. In our August 9, 1978, opinion we rejected method B as totally inconsistent with the statutory language and remanded the other proposals to the appeal board for further consideration. In its opinion on remand, the WCAB retained its separate positions on method C (board panel majority) and D (board panel minority). Plaintiffs method E was calculated on the assumption that the two-thirds limitation did not apply. In view of our discussion in Issue I, supra, that the limitation does apply, method E is rejected. This leaves only methods A, C and D as the viable alternatives for our consideration at this time. Under method A, the method supported by the second injury fund, the compensation payable by the employer on the claimant’s 65th birthday, and the compensation payable by the fund on the same date, are set down in separate columns. In the instant case, the respective totals are $69 and $31.53, or a total of $100.53, which is two-thirds of plaintiff’s average weekly wage of $150.80. On January 12, 1974, (the day after plaintiffs 65th birthday) the $69 is reduced by 5% ($3.45) and the $31.53 is reduced by 5% ($1.58). Thereafter, for nine consecutive years, the employer’s share is each year reduced by $3.45, and the fund’s share is each year reduced by $1.58. Thus, on the 10th year following plaintiffs 65th birthday, payments by both the employer and the fund will have been reduced by 50%. The differential benefit increases made prior to the 65th birthday continue to be paid by the fund but any such increases made after the 65th birthday are not included. However, if the total amount then actually paid by the employer and the fund combined, falls below the statutory minimum, the difference between that total and the minimum rate must be paid by the fund. In January, 1978, the minimum rate was raised from $93 to $108, an amount which for the first time exceeded two-thirds of plaintiff’s average weekly wage of $100.53. However, as will be discussed later, the fund claims that under method A the differential rate should be increased by the difference between the employer’s basic rate before the first 5% discount was taken ($69) and the minimum rate of $108 rather than the difference between the amount actually being paid by the fund, viz — the employer’s rate as then discounted ($55.20) — and $108. Method C, the method espoused by the appeal board majority, is the same as method A except that all incremental increases made during the 10-year period and to which plaintiff would be entitled had he not attained age 65, are added to the fund’s payment, with no reduction in those increases. Under method C, the injured party receives the incremental increases between ages 65 and 75, whereas under method A they are not paid. Method D was proposed by the appeal board minority. The total amount of benefits to which the claimant is entitled had his 65th birthday not intervened, is first determined. Of this total, the employer pays no more than the employer would have paid on the 65th birthday and is entitled to a 5% reduction each year. The difference between the employer’s amount and the total sum due if claimant’s 65th birthday had not occurred is added to the fund in a percentage equal to 100% minus 5% times the number of birthdays after age 64. Under method D, the claimant receives the incremental increases less 5% of the total amount the first year, 10% the second, etc. Thus, on his 75th birthday, the claimant receives 50% of the compensation which he would have received had he not become 65, rather than 50% of the amount to which he was entitled on his 65th birthday. The difference between the three methods may be summarized as follows. Under method A, the claimant receives no part of differential benefits paid while claimant is between age 65 and age 75. Under method C, the claimant receives such differential payments in full but the differential benefits due before age 65 are reduced 5% each year. Under method D, the claimant receives the differential payments, less 5% of the total payment the first year had the 65th birthday not occurred, 10% the second year, etc. The respective weekly payments due plaintiff in 1978 under each method is set forth below. The question posed is which of the three methods complies with the statute. The statutory authority for age 65 reductions is found in MCL 418.357; MSA 17.237(357) which reads: "Sec. 357. When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-ñfth birthday the weekly payments shall have been reduced by 50%; after which there shall be no further reduction for the duration of the employee’s life. In no case shall weekly payments be reduced below the minimum weekly benefit as provided by this act.” (Emphasis supplied.) Method D is conspicuously incompatible with the provisions of § 357 — an incompatibility noted in the appeal board majority’s analysis of method D: "Sec. 357 of the Act states in part: 'payments for each year following his 65th birthday shall be reduced by 5% of the weekly payment paid or payable at age 65.’ (Emphasis added.) It does not state that payments for each year following his 65th birthday shall be reduced by 5% of the total weekly payment payable in a year subsequent to the claimant’s 65th birthday. The statutory reduction is clearly a ñxed sum and is 5% of the payments paid or payable at age 65.” (Emphasis in original.) Method C is only slightly less conspicuously inconsistent with § 357. That section provides for a fixed sum reduction (viz — the same dollar amount reduction per year) calculated on the weekly payments "paid or payable at age 65”. If differential benefit increases under § 355 are paid after age 65, weekly payments will not have been reduced by 50% at age 75. Only method A complies with the express provisions of the statute. Accordingly, we find that the WCAB erred in applying a different formula in the instant case. Having approved method A as we have described it we nevertheless find an error in the way it has been calculated by the second injury fund. At page 321, and again in footnote 3, of this opinion we noted that when the minimum rate was raised to $108 in 1978, the fund immediately increased its differential payment to $39 per week, this being the difference between the employer’s basic rate before the first 5% discount was taken ($69) and the 1978 minimum benefit rate of $108. The language in the last sentence of § 357(1) "In no case shall weekly payments (emphasis supplied) be reduced below the minimum weekly benefit as provided in this act” is clear and unambiguous. To us, "weekly payments” means payments actually being made rather than weekly payments made at an earlier date years back when the employee first attained age 65. We believe that a proper application of the statute, and consequently method A, requires the fund to increase its payment by $52.80 — this being the difference between what the employer was actually paying on January 1, 1978, ($55.20) and $108. The employer’s actual payment of $55.20 plus a fund contribution of $52.80 (rather than $39) would total $108. This brings us to the question of retroactivity which, in our former opinion, we asked the parties and the WCAB to address on remand. At that time we did not know that when the case returned to us we would be approving method A, the method which has always been applied by the fund. Because the fund’s method has been approved except for the fund’s error in computing the amount due in cases where the injured party has attained 65, and since only 31 cases are being reduced, the fiscal problem of correcting past error is de mini mis. Legally, there is no question of retroactivity since this is the first case to construe the method of age-65 reductions required under MCL 418.357; MSA 17.237(357). This is not a case of further development of an old injury or an application for further compensation, thus neither the one-year back rule, MCL 418.833(1); MSA 17.237(833)(1), nor the two-year back rule, MCL 418.381(2); MSA 17.237(381)(2), apply. In Summary As to Issue I, we hold that the two-thirds provision of § 351(1) provides an absolute ceiling on differential benefit payments by the second injury fund resulting from increases in the maximum benefits made pursuant to § 355. We do so for the reasons set forth by the WCAB in the opinion on remand. We reject the argument that our holding is totally incompatible with the purpose for which differential benefits were authorized. When the minimum rates exceed the two-thirds limitation, the mínimums become the floor beneath which total payments may not fall. When minimum rates are properly applied, the increase in benefits is substantial. On Issue I the WCAB is affirmed. As to Issue II, we hold that method A is the only correct formula for calculating benefits for persons who attain age 65, with the correction that the fund is liable for the full dollar difference between the actual benefits then being paid by the employer and the established minimum weekly benefit rate. On Issue II, the WCAB is reversed and the cause remanded for payment by the fund in accordance with this opinion. Affirmed in part, reversed in part and remanded in accordance with this opinion. No costs, neither party having prevailed in full. The unpublished August 9, 1978, opinion affirmed in part and remanded in part a Workmen’s Compensation Appeal Board (WCAB) opinion dated December 21, 1976. As to three issues the WCAB was affirmed: (1) that under MCL 418.357(1); MSA 17.237(357X1) the 5% reduction in benefits commences on the recipient’s 65th birthday, and not on the 66th birthday; (2) differential benefit payments made by the second injury fund before the recipient reaches age 65 are subject to later 5% annual reduction under MCL 418.357(1); MSA 17.237(357X1); (3) Section 357(1) is not unconstitutional as violative of equal protection of the law as to recipients over age 65, or as to totally and permanently disabled recipients over age 65. Plaintiff filed leave to appeal these three issues to the Michigan Supreme Court. The application for leave was denied 405 Mich 835 (1979). On two issues, viz: — the two questions appearing above — the Court remanded to the WCAB which issued its opinion on remand August 28, 1978. This Court retained jurisdiction. In our opinion August 9, 1978, ordering remand, request was made that the fund advise the Court as to the number of cases which would be affected by the Court’s eventual decision. In response to this request, the fund stated that as of August 31, 1978, the fund was paying benefits on 1208, of which 721 involved injuries prior to July 1, 1968, and 487 cases involving injury after July 1, 1968. The 721 case claimants are receiving benefits "at the full rate” in accordance with King, supra, and the remaining 487 case claimants are paid subject to the two-thirds limitation until such time as the minimum rate for total disability exceeds the two-thirds limitation. Of the 487 cases, 101 are presently being increased each year to keep the claimant at the § 355 minimum rates. Only 31 cases are being reduced under the § 357 age 65 reduction. Without the § 351(1) two-thirds limitation, the fund estimated that for calendar 1978, the fund’s payments to present claimants would be increased by $360,262.24. Prior to plaintiffs 65th birthday, six incremental increases totaling $37 had been made. Plaintiff received all of these, subject to the two-thirds limitation which in plaintiffs case was $31.53. From 1975-1978, incremental increases of $6, $8, $12 and $5 were announced. Under method A none of the 1975-1978 increases are chargeable to the fund. On January 13, 1978, the fifth reduction of 5% was made on the compensation payable by the employer ($69) and the compensation payable by the fund ($31.53) on the claimant’s 65th birthday, January 12, 1974. On January 1, 1978, the minimum rate had been raised from $93 to $108. Since the minimum rate of $108 exceeded the total sum which otherwise would be due plaintiff, the minimum rate prevails. See footnote 2, supra.	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R. B. Burns, J. Defendant was charged with the first-degree murder of his wife. MCL 750.316; MSA 28.548. Defendant presented an insanity defense at his bench trial. The trial court found him guilty of second-degree murder, MCL 750.317; MSA 28.549, but mentally ill, MCL 768.36; MSA 28.1059. Defendant appeals. Evidence presented at trial indicates that defendant stabbed his wife to death, and then attempted suicide by stabbing himself three times. From defendant’s testimony and corroborating evidence it could be inferred that defendant believed his wife was possessed by a demon and that, when he stabbed her, he believed that she was already dead, and that he was attempting to cut the demon out and restore her to life. A psychiatrist who testified for the defense concluded that defendant was suffering from acute schizophrenia at the time of the incident and had been insane. Two psychia trists, called by the prosecution in rebuttal, expressed contrary opinions. The primary thrust of defendant’s argument on appeal is factual: that the trial court erred in finding defendant sane at the time of the homicide. The argument rests in part on several erroneous arguments concerning the law, raised in related issues. Thus, we will first discuss the related issues before reaching the primary issue on appeal. Defendant argues that he was prejudiced in the presentation of his defense by the trial court’s failure to grant his pretrial motion to dismiss the charge of first-degree murder because the trial court was inclined thereby to reach a compromise verdict. Defendant relies upon the preliminary examination and trial transcripts to argue that the evidence of mental illness was compelling and asserts that a person who is mentally ill is incapable of "wilful, deliberate and premeditated killing”. MCL 750.316; MSA 28.548. The issue of whether there was sufficient evidence to hold defendant for trial for first-degree murder was one addressed to the magistrate’s, discretion and is reviewable only for abuse of discretion. People v Karcher, 322 Mich 158, 162-163; 33 NW2d 744, 746 (1948). Review is limited to the preliminary examination transcript; testimony taken at trial cannot be considered. People v Charles D Walker, 385 Mich 565, 572; 189 NW2d 234, 237 (1971). While there was evidence presented at the preliminary examination from which it could be inferred that defendant was mentally ill at the time of the offense, there was also, evidence from which it could be inferred that the killing was willful, deliberate and premeditated. It does not necessarily follow that a person with a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”, MCL 330.1400(a); MSA 14.800(400a), is incapable of deliberation and premeditation. We find no abuse of discretion. Defendant argues that he should have been acquitted of second-degree murder because the trial court found that he was mentally ill at the time of the offense. The incorrect premise underlying this argument is that one who is mentally ill is incapable of forming the mens rea of murder. Mental illness and malice aforethought are not mutually exclusive mental conditions. While mental illness may factually negate a finding of malice aforethought in a particular case, see People v Lynch, 47 Mich App 8; 208 NW2d 656 (1973), it does not follow as a matter of law that a finding of mental illness necessitates a finding of not guilty of murder. Defendant contends that MCL 768.36; MSA 28.1059, creating the "guilty but mentally ill” verdict, is unconstitutional. First, defendant argues that the definitions of mental illness, MCL 330.1400(a); MSA 14.800(400a), and insanity, MCL 768.21a; MSA 28.1044(1), are so vague and overlapping as to confer upon the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. See People v Howell, 396 Mich 16, 20; 238 NW2d 148, 149 (1976). A reading of the statutes refutes defendant’s argument. Second, defendant argues that the evaluation and treatment provisions of the statute are illusory. This Court has previously held that such an argument is premature. People v McLeod, 77 Mich App 327; 258 NW2d 214 (1977), lv granted, 402 Mich 927 (1978). It would be inappropriate for this Court to possibly confuse the law by re-examining the correctness of the holding in McLeod where the issue is pending in the Supreme Court. We therefore do not reach the merits of the issue raised by defendant. In an extensive review of the facts presented at trial, defendant argues primarily regarding the insanity issue that the trial court’s findings of fact were clearly erroneous. GCR 1963, 517.1. Defendant also raises a collateral issue, arguing that the trial court’s findings of fact are inadequate to aid review. GCR 1963, 517.1, People v Jackson, 390 Mich 621, 627; 212 NW2d 918, 921 (1973). Plaintiff, equating the scope of review of bench trial findings of fact with jury verdicts, asserts that, because there was conflicting evidence on the sanity issue, the trial court’s conclusion may not be disturbed. See, e.g., People v Palmer, 392 Mich 370; 220 NW2d 393 (1974), People v Szymanski, 321 Mich 248; 32 NW2d 451 (1948), but see, People v Beath, 277 Mich 473, 482-483; 269 NW 238, 242 (1936). Additionally, plaintiff argues that the trial court’s opinion indicates it was aware of the insanity-mental illness issue, resolved it, and a remand is not necessary to facilitate review. People v Jackson, supra. Thus, the parties raise two procedural issues which we must resolve prior to reaching the substantive issue of sufficiency of evidence: the scope of review, and the degree of specificity required of the trial court’s findings of fact to aid review. GCR 1963, 517.1 requires the trial court, in actions tried without a jury, to "find the facts specially and state separately its conclusions of law thereon”. Fact findings are sufficient if "the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts”. In addition to requiring findings of fact, the court rule sets forth a standard of review of those facts: "Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.” Construing the court rule in the civil context, the Supreme Court has held that a finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). Under this standard of review, the evidence in a nonjury case is subjected to a more rigorour review than that in a jury case. Id., Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405, 408 (1957). Under GCR 1963, 517.1, as construed in Tuttle, this Court could be required to reverse even where there is conflicting evidence, if left with a definite and firm conviction that a mistake has been committed. Thus, the standard of review under GCR 1963, 517.1 is broader than that stated in People v Szymanski, supra, and advocated by plaintiff. It is unclear whether the Supreme Court has held that the clear error standard of GCR 1963, 517.1 applies in criminal cases. In People v Thomas, 387 Mich 368; 197 NW2d 51 (1972), the Supreme Court split over whether GCR 1963, 517.1 applied through GCR 1963, 785.1(1) to criminal cases. The primary focus of the plurality opinion taking the negative view was upon whether the fact finding portion of GCR 1963, 517.1 should apply to criminal cases, and there was no discussion of whether the scope of review in criminal cases ought to be expanded. However, the opinion did equate the scope of review in bench cases with jury cases, in discussing the lack of need for findings of fact. In People v Jackson, supra, the Court referred to People v Thomas, supra, stated that it was not binding under stare decisis, and held that in criminal cases, as well as civil cases, a judge who sits without a jury is obligated to articulate the reasons for his decision in findings of fact. The rationale for the holding was that findings of fact facilitate review by revealing the law applied by the fact finder. It could be inferred that the Supreme Court in Jackson did not hold that the clear error standard of GCR 1963, 517.1 applies in criminal cases. The Court did not explicitly tie the fact finding requirement to the court rule. The court rule addresses two issues — fact finding, and review, while Jackson addresses only the issue of fact finding. The rationale advanced for the rule is narrow — to reveal the law applied, rather than to reveal whether the trial court’s findings of fact are clearly erroneous. Nonetheless, we believe Jackson held GCR 1963, 517.1 applies in entirety to criminal cases. The reference to Thomas indicates the Court was addressing the same issue presented in Thomas— whether GCR 1963, 517.1 applies through GCR 1963, 785.1(1) to criminal cases. This Court has assumed that Jackson held that the court rule does apply in criminal cases. People v Brooks, 75 Mich App 448, 450; 254 NW2d 926, 927 (1977). Justice Levin, who authored the Jackson opinion, understood that to be the holding of Jackson, and has asserted that the clear error standard, as explained in Tuttle, applies in criminal cases. People v Garcia, 398 Mich 250, 271; 247 NW2d 547, 556 (1976) (Levin, J., dissenting). The majority in Garcia did not contradict Justice Levin’s interpretation of his opinion in Jackson. The rationale for a more exacting standard of review in bench cases than in jury cases enunciated in the civil context, that a jury is more likely to be right than a judge alone, Schneider v Pomerville, supra, applies with equal force to criminal cases. Finally, it would be hard to justify a lesser standard of review in a case in which a person’s liberty is at stake than in cases where only property is at stake. Since GCR 1963, 517.1 applies to criminal cases, we have a duty to review for clearly erroneous findings of fact, despite the presence of conflicting evidence in this case. However, we find we are unable to make that review, due to inadequate findings of fact. After concluding upon a review of the evidence that the prosecution failed to establish beyond reasonable doubt first-degree murder, the trial court stated: "However, I do find the Defendant guilty of second degree murder and I find him guilty but mentally ill of that charge. I do not find him legally insane. I find, based upon the testimony of all three psychiatrists, that he may have had a number of problems and he may have been agitated but that he was not legally insane.” Findings of fact serve two purposes. First, they demonstrate how the trial court resolved credibility issues and conflicts in evidence. Unless the trial court elucidates what it found to have happened, we cannot give regard to the court’s resolution of credibility issues, nor can we determine whether what the trial court found to be fact is clearly erroneous. GCR 1963, 517.1. Second, the findings of fact are necessary to reveal the law applied by the trial court. People v Jackson, supra. The trial court’s findings of fact do not suit either purpose. One might infer from the trial court’s statement that the psychiatrists were in agreement as to defendant’s mental state. They were not. Additionally, the validity of their various opinions necessarily turn upon a determination of accuracy of the facts relied upon in the formation of their opinions. This in turn depends upon an assessment of the credibility of the lay witnesses who testified as to defendant’s mental state. The trial court’s opinion is woefully inadequate to aid review. Besides insanity, defendant raises fact issues on appeal concerning proof of malice aforethought, diminished responsibility, and lack of concurrence between the mens rea and actus reas of the crime. The trial court’s opinion does not address these issues. Finally, the trial court has not stated with sufficient clarity the law applied in this case. Remanded for findings of fact. We retain jurisdiction. The majority resolved the sufficiency of evidence issue through application of the maxim that deference should be given the trial court’s assessment of credibility, a principle applicable to review under GCR 1963, 517.1. The standard of review stated by the majority opinion was a tautology — there was sufficient evidence to sustain the verdict if there was ample evidence to warrant a verdict of guilty. Garcia, supra, at 263; 247, NW2d at 552. It is unclear whether this tautology was intended as a statement of a lesser standard of review than that required by GCR 1963, 517.1.	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Per Curiam. While on bond awaiting disposition of other unrelated felony charges, defendant was arrested and charged with two separate offenses of breaking and entering an occupied dwelling. One of the offenses occurred on April 7, 1976. The other happened on May 8, 1976. The complaint as to the former was not sworn out until May 10, 1976. Defendant was sentenced on the previous felony charges to a term of from 5 to 15 years imprisonment. Subsequently, he pled guilty to the two breaking and entering charges and was sentenced to two terms of from 3 years and 9 months to 15 years imprisonment. The judge ordered each term to run consecutively, not only to the sentences for the prior unrelated felonies, but to each other as well. Defendant appeals as of right. He claims two errors in the court’s imposition of consecutive sentences. The issues raised by defendant’s appeal are framed by the following law in this state. A court lacks authority to order consecutive terms of imprisonment absent statutory authority. In re Carey, 372 Mich 378; 126 NW2d 727 (1964). Section 7b of the Code of Criminal Procedure for Trials provides: "When a person, who, has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.” MCL 768.7b; MSA 28.1030(2). "The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed.” People v Bonner, 49 Mich App 153, 158; 211 NW2d 542 (1973). The statute should be construed liberally to achieve the deterrent effect intended by the Legislature. People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977). Defendant concedes the trial judge had authority under § 7b to order the sentences for his April 7 and May 8 felonies to run consecutively to his sentence for the prior unrelated felonies. He submits, however, the trial judge had discretion under § 7b to make the sentences run concurrently. The court’s failure to exercise that discretion is alleged to be in violation of the policy of tailoring sentences to fit each case and each offender. Defendant further contends the trial court erred in ordering the sentences for his April 7 and May 8 offenses to run consecutively to each other. He argues that § 7b does not authorize those sentences to run consecutively, since the May 8 felony was committed before the April 7 felony had been charged. In response to defendant’s first claim, the state maintains that the transcript shows the trial court did recognize and exercise its discretion under § 7b. In answer to defendant’s second claim, the state contends that defendant’s construction of § 7b would thwart the statute’s purpose. "Under defendant’s interpretation,” the people argue, "he would have the security of knowing he could receive only one consecutive sentence, no matter how many crimes he committed while on bond.” We find defendant’s first claim to be without merit. No extended discussion of the issue is necessary. Taken as a whole, the record shows that the trial judge exercised his discretion. Defendant’s second claim, however, is valid and necessitates a remand for resentencing. We agree the trial judge lacked authority under § 7b to order the sentences for the April 7 and May 8 offenses to run consecutively to each other. The sentence for a subsequent felony cannot run consecutively to the sentence for an earlier felony unless the earlier felony is charged before the second is committed. This rule obtains even when both felonies are committed pending disposition of a third felony charge. Our construction of § 7b is supported by the statute’s clear language. Before a judge can impose consecutive sentences, it must be shown that the defendant committed a felony when he had been charged with another felony, and when disposition of the other felony charge was pending. Upon that showing, the statute provides that the sentences imposed for conviction of the prior charged felony and any subsequent offense may run consecutively. It does not further provide that the sentences for any subsequent offense may run consecutively to each other simply because they were all committed pending disposition of the first charge. Our construction of § 7b is also consistent with the statute’s purpose. Our interpretation does not achieve the greatest deterrent effect, but does achieve what we believe to be the intended deterrent effect. The intended effect of § 7b can best be seen by analyzing the deterrence situation that exists before and after a felony has been charged. In general, once a criminal defendant has been charged with a felony, the level of deterrence against his commission of a second felony drops. Section 7b restores the level of deterrence to its pre-charge plateau. It does not, however, raise the level of deterrence above that plateau. When a person has committed a felony for which he has not yet been charged, he has the security, under In re Carey, supra, of knowing that the sentence for any subsequent felony will run concurrently with the sentence for his first crime. The primary deterrent against his commission of a second felony at that point is the risk of being "caught”. The further risk of receiving an additional concurrent sentence is minimal. Logically, the risk of another consecutive sentence would heighten the deterrence against his commission of the second felony. For countervailing reasons, nevertheless, the Carey Court chose not to impose that added risk, except in legislatively proscribed situations. Once a person has been "caught” or charged with the commission of a felony, the threat of being "caught again” would have minimal deterrent effect, unless at that point it carried the additional risk of a consecutive sentence. Thus, § 7b authorizes consecutive sentences under the conditions specified above. Until the defendant is charged with a subsequent felony, however, he remains secure in the knowledge that the sentences for any subsequent felonies will run concur rently with each other. That is the security he enjoyed before he was charged with the first felony. It is the type of security In re Carey allows. Logically again, it can be argued that § 7b would achieve a greater deterrent effect if read the way the state would have us read it. That argument, however, is an indictment against the general rule favoring concurrent sentences rather than an indictment against our construction of § 7b. Under our interpretation of § 7b, a defendant does not have the security of knowing he will receive only one consecutive sentence, no matter how many crimes he commits while out on bond. Once a second felony is charged, the sentence therefor and the sentences for all offenses committed pending its disposition may run consecutively. Remanded for resentencing.	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D. F. Walsh, P.J. Plaintiffs, Richard and Sandra Green, appeal the entry of judgment for defendants, Robert and Pauline Ingersoll, in the amount of $5,758.51, plus 6% interest from July 20, 1977. The judgment was awarded on defendants’ counterclaim against plaintiffs; plaintiffs’ complaint was dismissed with prejudice. Defendant, Robert Ingersoll, a residential builder since 1951, purchased 14 parcels of property in Kent County. On November 4, 1970, the township issued a building permit to him for construction of a house on the lot at 7660 Hessler Drive, Rockford, Michigan. Construction was completed in May 1971, at which time a certificate of occupancy was issued. Mr. Ingersoll built a total of 13 houses on the 14 lots. The house at 7660 Hessler Drive was used by the Ingersolls as a model home. The garage of the house was used as a storage place for equipment and other items owned by defendants. Mr. Ingersoll and his son spent two nights in the house to protect it against Halloween vandalism. The house was at all times open for sale to the general public. During construction and after completion there were offers to purchase which did not result in sale of the house. In June 1972, plaintiffs and defendants entered into a buy-sell agreement for the house at 7660 Hessler Drive. The purchase price was $41,400. Plaintiffs assumed an existing mortgage and made a down payment of approximately $5,000. They also agreed to execute a second mortgage in favor of defendants in the amount of $6,400. This amount was reduced to $5,758.51 due to agreed-upon work done by Mr. Green on the house. It is undisputed that Mr. Ingersoll did not have a residential builders license during construction of the house or at the time of sale. Within a few months plaintiffs began to experi ence problems with the house. Mr. Ingersoll visited the house in an attempt to remedy the problems. On July 16, 1974, defendants filed an affidavit of lien with the Kent County Register of Deeds. In the affidavit they stated that plaintiffs had failed to execute the note and mortgage in accordance with their 1972 agreement. The affidavit’s purpose was to notify subsequent purchasers that defendants claimed a lien on the property in the amount still owing to them for the home. On July 11, 1977, plaintiffs sold the house to third-party defendants, Roy and Sharon Bennett. Because of the recorded affidavit of lien the title insurance company involved in the sale required delivery of $8,900 into an escrow account until the issue of liability on the mortgage mentioned in the affidavit was settled. Plaintiffs filed a complaint against defendants on July 20, 1977. They claimed, inter alia, that defendants could not enforce their claim against plaintiffs because Mr. Ingersoll did not have a residential builders license when the house was constructed and sold. MCL 338.1516; MSA 18.86(116). Plaintiffs asked the circuit judge to declare defendants’ lien illegal and void and to set aside the cloud on the title; to release the escrow funds to plaintiffs; to order defendants to pay the attorney fees and costs incurred by plaintiffs in removing the cloud from the title; to order defendants to release to plaintiffs all right, title and interest claimed by defendants in the property and to declare that defendants had no rights, title or interest therein; to bar defendants from maintaining any action against plaintiffs for money due on the home; and to grant such further relief as would accord with equity and good conscience. Defendants counterclaimed for the balance due on the agreed-upon but unexecuted second mortgage. After hearing the testimony of Mrs. Green and Mr. Ingersoll, the trial court found that Mr. Ingersoll had built the house "for sale but also for his own use and occupancy until that sale could be accomplished”. The judge found that the house had been "used and occupied by him [Mr. Ingersoll] as an office, storage facility and showcase for open houses; also overnight on two occasions”. The trial judge concluded that the transaction between plaintiffs and defendants was exempt from the requirements of the residential builders licensing act, MCL 338.1501 et seq.; MSA 18.86(101) et seq., for the reason that defendants came within the statutory exemption from the licensing requirement for "owners of property, with reference to structures thereon for their own use and occupancy”. MCL 338.1503(b); MSA 18.86(103)(b). Accordingly, the court ruled that § 16 of the act did not bar defendants’ counterclaim for a money judgment against plaintiffs. MCL 338.1516; MSA 18.86(116). On appeal defendants, in support of the result reached by the trial court, argue that, since they did not enter into a construction contract with plaintiffs, the residential builders licensing act does not apply to them. The act’s definition of residential builder, however, expressly includes a "person who erects a residential structure except for his own use and occupancy on his own property”. MCL 338.1502(b); MSA 18.86(102)(b). To come within the act’s purview, a builder need not enter into a contract for construction with a particular buyer. Unless one of the statutory exemptions applies, defendants are precluded from seeking a money judgment against plaintiffs in connection with the sale of the house. As noted above, the trial court relied on the statutory provision which exempts from the licensing requirement owners of property who build structures thereon for their own use and occupancy. MCL 338.1503(b). It is undisputed that defendants "used” the house. What is at issue is whether it was also "occupied” by them so as to remove them from the § 16 prohibition against suit by unlicensed builders. The trial judge adopted the following broad definition of occupancy: "to take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in”. Black’s Law Dictionary (4th ed 1968), p 1231. In construing the term "occupancy” as used in another section of the residential builders licensing act, the Attorney General, noting the significance of the act’s purpose to protect consumers, expressed approval of the following definition from American & Foreign Ins Co v Allied Plumbing & Heating Co, 36 Mich App 561, 565; 194 NW2d 158 (1971), lv den 387 Mich 753 (1972): "ordinarily a building is not * * * 'occupied’ until it is put to a practical and substantial use for which it was designed * * *.” OAG 1975-1976, No. 4782, p 70 (April 30, 1975). The Legislature hás described the purpose of the residential builders licensing act as the protection of homeowners and persons undertaking to become homeowners. MCL 338.1501; MSA 18.86(101). The provisions of the act must be construed with this legislative purpose in mind. Tracer v Bushre, 381 Mich 282, 290; 160 NW2d 898 (1968), Artman v College Heights Mobile Park, Inc, 20 Mich App 193, 199; 173 NW2d 833 (1969). According to the act, residential builders do not include those persons who erect residential structures "for [their] own use and occupancy on [their] own property”. MCL 338.1502(b). Construing the exemption section together with this definitional provision, it is clear that the Legislature intended to exempt only those builders who actually build residential structures on their own property for the purpose of personally using and occupying the structures. In view of the legislative directive that the act is to protect homeowners, we adopt the Attorney General’s approach and require the unlicensed builder claiming exemption under MCL 338.1503(b) to present evidence of his own practical and substantial use of the building for the purpose for which it was designed. The sole reasonable interpretation of the evidence presented by the instant parties is that Mr. Ingersoll built the house at 7660 Hessler Drive for the purpose of sale as a dwelling and not for his own use and occupancy. The two nights he and his son spent in the house cannot reasonably be interpreted as substantial use of the building for the residential purpose for which it was designed. Nor do the storage of equipment and other items and the use of the house as a model home constitute the "occupancy” clearly contemplated by the Legislature. Because Mr. Ingersoll was not licensed during the construction or sale of the house, the act divested him of the power to seek (by way of complaint or counterclaim) a money judgment against plaintiffs. Charles Featherly Construction Co v Property Development Group, Inc, 400 Mich 198, 203; 253 NW2d 643 (1977). Proper disposition of this case, however, does not end with reversal of the entry of judgment in defendants’ favor. The Supreme Court recently discussed the significance of the equitable nature of the plaintiff home-buyer’s suit as it relates to the defendant seller’s concurrent right to be treated equitably. In Kirkendall v Heckinger, 403 Mich 371; 269 NW2d 184 (1978), the plaintiffs filed suit requesting equitable relief in the form of either conveyance of a parcel of property, on which defendant Carl Heckinger had built a home at plaintiffs’ direction, provided plaintiffs pay a certain sum of money to defendants, or alternatively a money award from defendants to prevent unjust enrichment. The defendant builder, who was unlicensed, counterclaimed for a sum representing, inter alia, the cost of his labor and materials. Citing § 16 of the residential builders licensing act, the trial court dismissed the counterclaim. The Supreme Court concluded that the trial court correctly dismissed the counterclaim but nonetheless remanded to the circuit court for a determination of the amount of reasonable expenses the plaintiffs (Kirkendalls) were to pay defendants (Heckingers) on conveyance of the property: "Heckinger, whether a plaintiff or as here a counter-claimant, could not seek a money judgment against the Kirkendalls because of the statute. The trial court was consequently correct in dismissing the counterclaim. "That does not end our inquiry, however. " 'It is a cardinal principle that equity will not aid a party in doing that which is not equitable. He who seeks equity must be prepared to do equity.’ Goodenow v Curtis, 33 Mich 505, 509 (1876). "See, also, Bonninghausen v Hansen, 305 Mich 595; 9 NW2d 856 (1943). "The plaintiffs sought an equitable remedy. Before ordering the conveyance to Dennis Kirkendall, the trial court was obliged to determine the amount the plaintiffs were required to pay the defendants in order to do equity. As the equitable mortgagee, Heckinger was entitled as a condition to reconveyance to reasonable expenditures for improvements on the property made with the Kirkendalls’ consent (and in fact with Dennis Kirkendall’s active participation) while Heckinger had title to the property. Osborne, Mortgages, §§ 169-170; 4 Pomeroy’s Equity Jurisprudence (5th ed), § 1217.” Id., at 374. So too in this case, as noted by the trial judge, it was plaintiffs who first invoked the equity powers of the court. Although we disavow the trial judge’s definition of "use and occupancy” and hold that the court was precluded, under the statute, from granting defendants any relief on their counterclaim, he was bound to determine the relative equitable rights of all parties in fashioning the appropriate relief. We therefore reverse the judgment entered for defendants and remand this case to the circuit court for a determination of the equitable rights of the parties. If the court determines that plaintiffs are entitled to the equitable relief which they seek, it shall also determine what plaintiffs must pay defendants in order to do equity. Reversed and remanded for proceedings consistent with this opinion. No costs, each party having partially prevailed.	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Per Curiam. Plaintiff brought suit against defendant, a police officer, claiming personal injuries in the police station after his arrest for a traffic violation. Defendant filed a motion for summary judgment and then an amended motion for summary judgment, the gist of which is that defendant police officer is immune from tort liability under the Michigan statutes which reinstated such immunity. Although accompanied by defendant’s affidavit, the amended motion is, by its terms, brought under GCR 1963, 117.2(1). Plaintiff’s response to the motion asserted that the governmental immu nity applied only to municipal corporations and their agencies, e.g., police departments, and not individual police officers. In addition, plaintiff asserted that the common-law immunity of police officers (as distinguished from statutory governmental immunity which, by its terms, extends to "all government agencies”), extended only to acts within the scope of their authority. Plaintiff says that when defendant allegedly "assaulted, battered and falsely imprisoned” plaintiff, he exceeded his authority and, thereby, lost the common-law immunity he would otherwise enjoy as a police officer. The trial judge filed a written opinion, holding that, when making an arrest, police officers are performing a governmental function and that when performing a governmental function a police officer enjoys governmental immunity under the statute. The trial judge concluded that defendant arrested and charged plaintiff with driving a motor vehicle while under the influence of intoxicating liquor, that in so doing defendant performed a governmental function that rendered him immune from tort liability and, therefore, granted defendant’s motion for summary judgment. Plaintiff appeals as of right. The recent history of the law regarding the tort liability of police is said to be characterized by shifting sands and obscured pathways. While the citation is from a Federal case, certainly the characterization fits the Michigan events. After the Michigan Supreme Court undertook to outlaw prospectively the general, common-law doctrine of governmental immunity or sover eign immunity, insofar as it extended to municipal corporations, the Legislature undertook, by statute, to reinstate governmental immunity. By governmental immunity, we mean that immunity from tort liability enjoyed by the state, its agencies, counties, municipal corporations and other political subdivisions when engaged in the exercise or discharge of governmental functions. It should be noted that this statute is not limited to law enforcement departments or agencies, but is a governmental immunity statute of general application to all governmental agencies. These statutes have been interpreted to extend only to governmental agencies as defined in the statute and not to individual public officials acting in the line of duty. In Cole v Rife, plaintiff claimed damages for personal injuries in an automobile collision on the theory that the proximate cause of the collision was the negligence of a police officer in establishing a road block and directing traffic around it. This Court reversed the granting of a directed verdict in favor of the police officer at the conclusion of plaintiff’s proofs, holding that the statutory sovereign immunity did not extend to a claim that a police officer was negligent in performing his official duty. Of similar import is Lee v Utica. However, this general governmental immunity from tort liability enjoyed by governmental agencies is to be distinguished from the freedom from tort liability possessed by law enforcement officers when acting within the scope of their official du ties. Sometimes, this rule is cast as being conditioned upon acting in good faith with probable cause. For example, a police officer, acting in good faith with probable cause within the scope of his authority, is not liable for false arrest or false imprisonment even though the arrest is subsequently found to be baseless. Examination of the record in this case, with particular reference to plaintiffs complaint, does not indicate a factual basis that would support a claim of false arrest or false imprisonment against defendant police officer. Consequently, we affirm the grant of summary judgment in favor of defendant on that part of plaintiffs claim that seeks recovery on a theory of false arrest or false imprisonment. In short, we treat defendant’s petition as a motion to dismiss and find that, as a matter of law, plaintiffs complaint does not state a cause of action predicated upon false arrest or false imprisonment. The claim that defendant assaulted, battered and used excessive force upon plaintiff in the police station after arrest enjoys no such common-law freedom or immunity from tort liability. Insofar as the trial court granted summary judgment as a matter of law with respect to plaintiffs claim of assault and battery (excessive force), we find error, reverse the order for summary judgment and remand for trial. Affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this opinion. Defendant accompanied his amended motion for summary judgment with his affidavit indicating the arrest of plaintiff was for driving while under the influence of intoxicating liquor. MCL 691.1407; MSA 3.996(107). MCL 691.1407; MSA 3.996(107). See, Jones v Marshall, 528 F2d 132, 141 (CA 2, 1975). For a full historical exposition, see Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187 (1973). Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). The last or present such statute being MCL 691.1407; MSA 3.996(107). MCL 691.1401-691.1415; MSA 3.996(101)-3.996(115). 77 Mich App 545; 258 NW2d 555 (1977), also, Sherbutte v Marine City, 374 Mich 48; 130 NW2d 920 (1964). 83 Mich App 679; 269 NW2d 267 (1978). See, Manion v State Highway Comm’r, 303 Mich 1, 19-22; 5 NW2d 527 (1942), for careful delineation of distinction between sovereign immunity from suit and sovereign immunity from liability. 35 CJS, False Imprisonment, § 22, citing, Hammitt v Straley, 338 Mich 587, 594; 61 NW2d 641 (1953). In so ruling, we note that we are assigning a different basis for grant of summary judgment than that apparently expressed by the trial court.	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Cavanagh, J. This attorney discipline case requires us to decide whether respondent Underwood’s delayed petition for review was timely under MCR 9.118(A)(3). That rale directs the Attorney Discipline Board (adb) to treat the one-year limitation period in MCR 7.205(F) as a guideline, rather than as an absolute deadline. Because we hold that under the circumstances of this case, the adb did not abuse its discretion in considering respondent’s petition despite the one-year “guideline,” we must determine the appropriate sanction for Underwood’s misconduct. In light of our recent decision in Grievance Administrator v Lopatin, 462 Mich 235; 612 NW2d 120 (2000), adopting new guidelines for sanctions in attorney discipline cases, we remand this case for a determination of the appropriate sanction. i On July 15, 1991, David Underwood was admitted to the State Bar of Michigan. While he was working as a sole practitioner, two complaints were lodged against him with the Attorney Grievance Commission (AGO). The complaints alleged that Underwood misappropriated the proceeds of a client’s worker’s compensation award, and that he had failed to pursue another client’s cause of action. In response, the AGC began to investigate the allegations. It sent inquiry letters to Underwood, but he responded only to the letters about the alleged misap propriation. The AGO then subpoenaed Underwood to appear before it, but he failed to appear. As a result, Underwood was ordered to show cause why he should not be held in contempt for failing to comply with the subpoena. However, he failed to appear at the show cause hearing. These events culminated in the ago filing a formal complaint against Underwood on October 14, 1996. In five counts, the complaint charged Underwood with misappropriating $3,269.76 in client funds, neglecting a client matter, making false statements to the AGC during the investigation, failing to answer letters and comply with the subpoena, and failing to appear at the show cause hearing. Underwood did not respond to the formal complaint, and did not appear at the December 9, 1996, hearing on the complaint. Therefore, a default was entered against him. On February 7, 1997, the ADB entered an order revoking Underwood’s license to practice law. Later that year, Underwood retained counsel to represent him in this disciplinary matter. On November 20, 1997, counsel sent a letter to the adb requesting it to reconsider its decision and grant a stay of discipline until further judgment. The Adb Executive Director replied, but the content of that reply is not a matter of record. Counsel again contacted the adb by letter on February 13, 1998, inquiring about the status of the delayed petition for review, which he believed was initiated by the November 20, 1997, letter. On February 16, 1998, the Executive Director again replied, and apologized if he gave counsel the impres sion that the November 20, 1997, letter would be treated as a delayed petition for review. The Executive Director went on to clarify the filing requirements for a delayed petition for review, and advised that “[u]pon receipt of such a pleading, it will be forwarded to the Board chairperson for consideration in accordance with MCR 9.118(A)(3).” On March 6, 1998, Underwood filed a formal delayed petition for review. The AGC opposed the petition, arguing that it was untimely because the deadline for filing a delayed petition for review was one year after the revocation order’s effective date, which had passed. On April 6, 1998, however, the adb granted the petition. It noted that through the November 20, 1997 letter, the ADB was on notice that Underwood was seeking review, and that “[u]nder the circumstances, neither the public, the courts, the legal profession [nor] the [AGC] are prejudiced by a delayed review.” After considering Underwood’s responses to the misconduct charges, the adb vacated the revocation of Underwood’s license, suspended his license for three years, and imposed conditions upon his reinstatement. The agc appealed the adb’s decision, and this Court granted leave. 461 Mich 1212 (1999). n The Michigan Constitution grants to this Court the power to “establish, modify, amend and simplify the practice and procedure in all courts of this state.” Const 1963, art 6, § 5. Pursuant to that power, this Court has established rules to regulate and discipline members of the state bar, In re Schlossberg, 388 Mich 389, 395; 200 NW2d 219 (1972), which are incorporated into the Michigan Court Rules. Chapter 9.100 of our rules governs professional disciplinary proceedings, and provides: (A) Authority of Board. The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys. * * * (E) Powers and Duties. The board has the power and duty to (4) on request of the respondent, the administrator, or the complainant, review a final order of discipline or dismissal by a hearing panel .... [MCR 9.110.] The adb’s review of a hearing panel order is governed by MCR 9.118. Generally, petitions for review .must be filed within twenty-one days after the hearing panel’s order is served, MCR 9.118(A)(1), but delayed petitions for review are permitted under MCR 9.118(A)(3). That subrule provides that “[a] delayed petition for review may be considered by the board chairperson under the guidelines of MCR 7.205(F).” In turn, MCR 7.205(F)(3) provides that “if an application for leave to appeal is filed more than 12 months after entry of the order or judgment on the merits, leave to appeal may not be granted.” a When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with the plain language of the court rule. When that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Similarly, common words must be understood to have their everyday, plain meaning. See MCL 8.3a; MSA 2.212(1); see also Perez v Keeler Brass Co, 461 Mich 602, 609; 608 NW2d 45 (2000). We conclude that the plain language of MCR 9.118(A)(3) provides that MCR 7.205(F)’s one-year limitation period serves as a guide to the adb’s decision to hear a delayed petition, rather than as an unbending rule governing that decision. MCR 9.118(A)(3) provides that when the adb considers a delayed petition for review, it should do so under the “guidelines” of MCR 7.205(F), which provides for a one-year limitation period. The plain meaning of “guideline” is “an indication or outline of policy or conduct.” Merriam-Webster’s Collegiate Dictionary (10th ed), p 517. Thus, the rule directs the adb to consider the one-year limitation period as an “outline” or “indication,” rather than directing it to consider delayed petitions for review under the “mandate,” “regulation,” or “stricture” of MCR 7.205. Indeed, construing MCR 9.118 to simply incorporate the one-year limitation period would be contrary to the canons of construction. The maxim that every word of a court rule should be given meaning, and that courts should not render any part of a court rule surplusage, is well settled. See In re MCI, 460 Mich 396, 414; 596 NW2d 164 (1999). If we read MCR 9.118(A)(3) to do nothing more than direct the adb to follow the one-year limitation period, the word “guidelines” would become surplusage, because the rule would then effectively provide that “[a] delayed petition for review may be considered by the board chairperson under . . . MCR 7.205(F).” This Court will not ignore this maxim and read “guidelines” out of the court rule. Therefore, although recognizing that MCR 9.118(A)(3) incorporates the one-year limitation period of MCR 7.205(F)(3) as a guiding principle, we acknowledge that it does not set an absolute deadline for delayed petitions for review that must be followed without exception. B Because the one-year limitation period is a guide rather than a mandate, the adb has discretion to hear delayed petitions for review filed later than one year after the hearing panel’s order became effective. In determining whether to hear a delayed petition for review, the adb may take into account myriad relevant equitable considerations. Here, it considered that it had notice of Underwood’s intention to file a delayed petition for review, along with whether hearing the delayed petition would be prejudicial to the public, the courts, the legal profession, or the Grievance Administrator. Those are relevant considerations, and were appropriately considered by the adb. An additional factor favoring the adb’s decision to hear the delayed petition in this case was the Executive Director’s first reply to Underwood’s counsel, which created confusion about whether Underwood’s delayed petition was pending after counsel’s Novem ber 20, 1997, letter. Thus, the ADB appropriately exercised its discretion under MCR 9.118(A)(3) when it considered Underwood’s delayed petition under the guidelines of MCR 7.205(F). m Our holding that the adb was correct to hear Underwood’s petition for delayed review requires us to consider the appropriate sanction for his misconduct. As we noted in Grievance Administrator v Lopatin, supra, Michigan has not historically had a uniform system for determining sanctions in attorney discipline cases. Rather, “[o]nly our occasional opinion has provided guidance to the public, the disciplinary body, and the legal profession . . . .” Id. at 238. Otherwise, the AGC and adb were left to their own designs when imposing sanctions on miscreant attorneys. Because we decided that “a written set of principles will provide guidance during the process of fixing discipline for lawyer misconduct,” we directed the adb and hearing panels to use the American Bar Association Standards for Imposing Lawyer Sanctions until this Court could take final action adopting a uniform system of sanctions. Id. at 238-239. In the wake of our decision in Lopatin, rather than initially applying the aba standards to Underwood’s actions ourselves, we remand this case to the adb for that application. On remand, the adb is to follow the analytical framework of the aba standards, first identifying the misconduct involved by considering the ethical duty Underwood breached, his mental state, and the actual or potential injury caused. It then is to determine the recommended sanction under the aba standards, and account for any aggravating or mitigating circumstances when it imposes discipline. IV For the reasons stated in this opinion, we affirm the adb’s decision to entertain the delayed petition for review. We remand this case to the ADB to determine the appropriate sanction under the ABA standards. Weaver, C.J., and Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred with Cavanagh, J. The only information provided to this Court about the response is that the director advised counsel that a petition for review “filed in accordance with MCR 9.118(A)(3)” would be referred to the board’s chairperson.	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Kelly, J. This is an appeal by the Grievance Administrator of a decision by the Attorney Discipline Board (ADB). The adb affirmed a hearing panel’s finding that there had been misconduct but that there be no discipline. We remand to the adb for reconsideration in light of our adoption of the Aba Standards for Imposing Lawyer Sanctions. BACKGROUND Petitioner filed a three-count formal complaint against respondent for alleged misconduct that occurred when he represented Mr. Horace Sheffield and Mrs. Joyce Sheffield, husband and wife. The underlying causes of action were a personal injury claim on behalf of Mr. Sheffield and a loss of consortium claim on behalf of Mrs. Sheffield. Count I of the complaint against respondent alleged that he (1) failed to advise Mrs. Sheffield of alternatives to the contingent fee agreement they entered into, (2) failed to provide Mrs. Sheffield with a copy of that agreement, (3) failed to obtain Mrs. Sheffield’s consent before settling her claim, and (4) failed to witness Mrs. Sheffield’s signature on the final release, although signing the release as a witness. Count n alleged that respondent improperly directed his secretary to notarize Mrs. Sheffield’s signature on the final release, although neither had seen her sign it. Count m alleged that respondent (1) signed Mrs. Sheffield’s name to a settlement check without her authorization, (2) failed to inform Mrs. Sheffield when he received the settlement money, and (3) distributed Mrs. Sheffield’s settlement proceeds to Mr. Sheffield without her authorization. A hearing panel considered this case on March 4, 1998. It found that respondent (1) failed to advise Mrs. Sheffield regarding alternate methods of computing attorney fees and failed to obtain a signed contingency fee agreement, (2) directed his secretary to notarize the release, even though he knew she had not seen Mrs. Sheffield sign the document, (3) endorsed the settlement check for Mrs. Sheffield without her permission, and (4) failed to protect her interests when he distributed all the funds to Mr. Sheffield. The hearing panel concluded that respondent had violated MRPC 1.4(a), 1.15(b), and 8.4(a) and (c). The panel reconvened to consider the appropriate discipline to mete out to respondent. It concluded: [I]t is in the best interest of justice that, due to the following circumstances: (1) sincerity and candor of the Respondent; (2) no evidence having been shown of actual economic harm to the complainant; (3) no malice; and (4) the complainant testified to an openly harmonious and trusting relationship with Horace Sheffield [her husband], a well-regarded figure in both the civil rights and labor relations communities in Detroit, discipline would serve no purpose for it is believed Respondent will not repeat such actions, and the fact of the findings of misconduct are a matter of record. The panel cited Grievance Administrator v Deutch, and entered an order finding misconduct, but imposing no discipline. It assessed costs of $1,126.43 against respondent. The ADB affirmed the hearing panel’s order in all respects. This Court granted petitioner’s application for leave to appeal to consider two issues. The first is whether Deutch, supra, applies to cases commenced by a formal complaint. The petitioner in Deutch commenced proceedings by filing with the adb a copy of a criminal conviction. The second is whether the finding of misconduct in this case warrants discipline. ANALYSIS I We first consider whether the adb may enter an order of no discipline when misconduct is found following the filing of a formal complaint. This Court, in Deutch, supra, held that an order of no discipline could be entered when the complaint is initiated by filing a criminal conviction. Initially, the Deutch Court held that the filing of a criminal conviction requires a hearing panel to enter an order of misconduct. Id. at 162. Then the Court stated: In so holding, however, we note that while a panel has no authority to dismiss an action during the misconduct hearing when the administrator files a valid judgment of conviction, the requisite check on the administrator’s prosecutorial authority occurs at the second stage of hearing, where the panel determines the appropriate level of discipline. MCR 9.115(J)(3) does not require discipline where misconduct is established; rather, MCR 9.115(J)(3) requires a second hearing to determine the appropriate level of discipline, given all aggravating and mitigating factors. After considering such factors, the panel must then enter an order of discipline on a finding of “misconduct.” MCR 9.115(J)(3). Again, it should be noted that the order of discipline may, in fact, order no discipline at all. MCR 9.106 echoes the language in MCR 9.104, which states that a finding of “misconduct” is only “grounds for discipline,” not that a finding of misconduct requires the imposition of discipline in every case. Where notions of justice and fairness require, we hold that the order of discipline, required under MCR 9.115(<T)(1) and (3), could include an order that effectively imposes no discipline on an attorney. [Id. at 162-163.] While the complaint in Deutch arose from the filing of a criminal conviction rather than a formal complaint, that fact is not dispositive here. In Deutch, this Court observed that the option of entering an order of “no discipline” operated as part of a system of checks and balances. It provided a means of attenuating the authority of the Grievance Administrator. Id. However, petitioner points out that, when the Grievance Administrator commences a proceeding with a formal complaint, an order of no discipline as a “check” on the administrator’s authority is unnecessary. A “check” already exists when the hearing panel determines whether evidence supports the grievance. Thus, petitioner asserts that we should not recognize the option of an order of no discipline in this situation. We conclude that the distinction identified by petitioner generates no difference. This Court, in Deutch, did not rely solely on its theory of checks and balances to hold as it did. It also found that the language of the rules supported the position that discipline was not required upon a finding of misconduct. See id. Its focus was not on the procedural mechanism by which the administrator commenced a complaint. Accordingly, we hold that the filing of a formal complaint does not make discipline mandatory upon a finding of misconduct. ii We now address whether the adb properly determined in this case that respondent’s misconduct did not deserve a sanction. In Grievance Administrator v Lopatin, we adopted the Aba Standards for Imposing Lawyer Sanctions to “further the purposes of attorney discipline, help to identify the appropriate factors for consideration in imposing discipline and establish a framework for selecting a sanction in a particular case, and promote consistency in discipline.” At the time the adb made its decision, it did not have the benefit of our guidance in Lopatin. The standards we adopted in Lopatin “establish an analytical framework to guide the disciplinary body in determining the appropriate sanction in a case.” Lopatin, 462 Mich 239. Accordingly, we remand this matter to the adb for application of the Aba Standards. We also provide additional guidance for the adb in reconsidering its decision on remand, because this case is among the first in which the Aba Standards will apply. We draw the adb’s attention to Aba Standards 4.13, 4.63, and 6.12, which state: Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. [Aba Standard 4.13.] Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client. [Aba Standard 4.63.] Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. [Aba Standard 6.12.] These standards appear to apply to the misconduct involved in this case. After determining the recommended sanction, the adb must consider the relevant aggravating and mitigating factors identified in Aba Standards 9.1-9.4. Lopatin, supra at 239-240. Generally, a finding of misconduct should result in a sanction. See Aba Standard 1.3 comment. However, in the rare case where the mitigating factors clearly outweigh the aggravating factors as well as the nature and harm of the misconduct, an order of no discipline may still be appropriate. See Deutch, supra at 163, n 13. On remand, the ADB shall list both the aggravating and mitigating factors present here and explain their influence on its recommended action. CONCLUSION We hold that, in rare cases, the adb is not required to discipline an attorney upon a finding of misconduct. We remand this case to the adb for reconsideration of the order of no discipline. On remand, the adb is to apply the Aba Standards to determine whether discipline is warranted and, if so, the appropriate sanction to impose. Weaver, C.J., and Cavanagh, Taylor, Corrigan, Young, and Markman, JJ., concurred with Kelly, J. Mr. Sheffield is now deceased. “A lawyer shall notify the client promptly of all settlement offers, mediation evaluations, and proposed plea bargains.” MRPC 1.4(a). “Upon receiving funds ... in which a client . . . has an interest, a lawyer shall promptly notify the client .... [A] lawyer shall promptly deliver to the client . . . any funds . . . that the client ... is entitled to receive . . . .” MRPC 1.15(b). “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . .” MRPC 8.4(a). “It is professional misconduct for a lawyer to:... (c) engage in conduct that is prejudicial to the administration of justice . . . MRPC 8.4(c). 455 Mich 149; 565 NW2d 369 (1997). 461 Mich 1213 (1999). The Grievance Administrator can initiate proceedings in two ways. The administrator can file with the adb a copy of a criminal conviction under MCR 9.120(B)(3), or file a formal complaint under MCR 9.114(A)(2). MCR 9.115 identifies the procedure that a hearing panel must follow-in an attorney grievance proceeding. Most relevant to our discussion is subsection (J), which provides requirements for decision making. 10 MCR 9.106 is entitled: “lypes of Discipline; Minimum Discipline; Admonishment.” It provides that “[mjisconduct is grounds for: . . . revocation . . . suspension . . . reprimand . . . probation . . . restitution . . . or . . . admonishment.” (Emphasis added.) 11 MCR 9.104 is entitled: “Grounds for Discipline in General; Adjudication Elsewhere.” It provides that “[tjhe following acts or omissions by an attorney . . . are misconduct and grounds for discipline . . . .’’(Emphasis added.) 462 Mich 235, 238; 612 NW2d 120 (2000). An example of aggravating factors might be the allegation that additional probate proceedings were made necessary by respondent’s conduct. We endorse the following statement made by the adb: “The fact that a ‘no-discipline’ option exists does not mean that it should be employed often. . . . [The] option should ... be exercised quite sparingly by panels and the Board.” Grievance Administrator v McFadden, No. 95-200-GA (March 16, 1998).	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Campbell, J. Hartsig obtained judgment against Enright before a justice of the peace in Macomb county for overflowing his lands by stopping up a ditch that had been dug many years before by plaintiff and previous owners of the adjacent lands by common consent, and used ever since. The case was appealed to the circuit court where he prevailed again. It is now brought up on error. An objection is made to the declaration as not full enough. We think it contains every substantial allegation necessary to show tbe plaintiff’s cause of action, and that the objection has no force. If demurred to it could only have been on technical grounds, which would not affect its sufficiency in matters of substance. The testimony concerning the amount of damage was largely matter of opinion, and could only be got at by the good judgment of those acquainted with the premises and surroundings. In actions for damage to crops and similar injuries such opinions, based on sufficient facts, are always admitted, and there was no error, after the witnesses had shown the extent of mischief and their examinations of the premises, in receiving their several-estimates. It is difficult to see how else any light could be given to the jury on-matters not capable of such a description as would enable them to tell anything about the losses of plaintiff without such opinions. None but eye-witnesses could have made any safe estimate. It is lastly insisted that the case should have been taken from the jury for want of evidence that defendant had any hand in the mischief. It appears that his wife and young son were the persons seen in the act of filling up the ditch. But it appears that when plaintiff opened small trenches to let off the water into the main ditch below the obstructions, defendant not only filled them up again, but threatened the persons who were sent to re-open them. It also appears that he asserted his purpose not to allow the main ditch to be cleared out.for less than $1500. ~We think there was enough to go to the jury on the question whether liis wife and child were acting independently. The rules of law protecting the confidences of husband and wife make it difficult to determine such questions as arose here except by circumstances. There was some evidence that he knew where she was when she was at work. There was evidence that he approved the work and was unwilling to have it undone. There was evidence that he actively prevented plaintiff from, draining into the same ditch by filling np his trenches. We think the jury had testimony which entirely justified their finding. The judgment must be affirmed with costs. The other Justices concurred.' in justice’s court. ‘ County of Macomb, ss. William Hartsig, plaintiff, complains of James Enright, the defendant herein, in a plea of trespass on the case. Eor that whereas the defendant on to wit, the 14th day of July, at the township of Warren, and county aforesaid, dammed up, or caused to be dammed up and stopped a certain ditch upon a road or way situate and being on the southwest quarter of section ten, township of Warren, county of Macomb. Said road or way was laid out by the commissioners of highway of the tpwnsliip of Warren, they'causing the same to be surveyed, recorded or filed in tbe office of the clerk of said township of Warren, more tlian twenty years before tbe commencement of this suit, as a reference to tbe survey and books of tbe clerk will more fully appear to tbis court, and are evidence thereof. Said road is open or opens on tbe center line road, or highway; thence running east by or adjoining lands now occupied by the plaintiff upon the south and northeast, and on tbe north by lands occupied by the defendant, in section ten, in both instances for farming purposes. On said road a ditch was dug, part of the way on tbe south side of said road, thence crossing said road to tbe north side, and emptying into center line road ditch. The lands on this road, adjoining where said ditch is located, are flat, low lands. Said ditch was made more than twenty years before tbe commencement of this suit, to take tbe surface water off from the lands of tbe plaintiff, and lias been in use for that purpose more than twenty years last past. Said road and ditch are a necessity to the plaintiff; without the road the plaintiff cannot get to the lands east and north of said road, and without the ditch he cannot till and crop said lands. Yet the. said defendant, well knowing the facts in the premises, has wrongfully and unjustly dammed, or caused to be dammed or stopped, said ditch upon said road, or way; and by so damming, or procuring the same to be dammed to be done, said surface water has flooded the land of the plaintiff on the south and northeast of said road, to the great injury, loss and damage of wheat and grass, and increase of work and labor to crop the same. Damage of wheat, thirty dollars. • Damage of grass, forty dollars. Damage of work and labor, fifteen dollars. And whereas at the time of the commencement of this suit and before, plaintiff had the right and did use said right to the road and ditch more than twenty years before the commencement of this suit; and others used and enjoyed said right and use of said road and ditch, even before said plaintiff. And whereas, also, the said defendant gives out and insists before and since the commencement of this suit, that the plaintiff shall not take or run water along said road in said ditch above set forth, he, the said defendant, well knowing that the plaintiff has no other way to get said surface water from said lands, also well knowing that the plaintiff cannot got to and from said lands only by and upon said road; also, well knowing that without the use of said ditch the plaintiff cannot crop said lands; the defendant well knowing all the facts and circumstances in the premises, yet the said defendant interrupts the plaintiff in the use of said road and ditch aforesaid, to the great annoyance of the plaintiff, and in the loss, injury, destruction of wheat and grass, rotting and spoiling upon said lands, through the flowing of said lands by the outrageous conduct of the defendant in interrupting a personal right and use of both road and ditch which was enjoyed by the plaintiff and by others before the plaintiff, and also, before said defendant came into the township of Warren, or the county of Macomb. Yet the said defendant, well knowing the premises, has wantonly and without cause or provocation of any kind repeatedly and at divers times, both before and since the commencement of this suit (and it must be out of ill-will) injured, obstructed and otherwise interfered with the personal rights of the plaintiff. Wherefore the plaintiff saith that he is injured and hath sustained damage to the amount of one hundred dollars or under, and therefore he brings suit. WILLIAM HARTSIG-, Plaintiff. Dated at Warren this 21st day of July, A. D., 1880.	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Marston, C. J. The plaintiff in error was sued upon a promissory note given by it in its corporate name. The principal defence relied upon was that the company, by mistake, was not, at the time of giving the note, properly organized under any law of this State; that afterwards, upon ascertaining this fact, the corporation was dissolved and a new corporation formed under a different name. This corporation was one that could have been legally organized under laws existing at the time of its formation. The business for which it was organized, that of manufacturing, was one authorized, and having attempted to organize in good faith, and having, in the course of its business, given negotiable paper in its corporate name, it could not afterwards repudiate the transaction or evade responsibility when sued thereon, by setting up its own mistake, affecting its original organization. Merchants' etc., Bank v. Stone 38 Mich. 779. The dissolution would not deprive the creditors of still following and looking to the old organization for payment. Our statute allows three years after dissolution, for certain purposes, in winding up the affairs. 1 Oomp. Laws § 3435. The execution of the note sued upon was not denied at the time of joining issue, but it was still insisted that this did not admit or dispense with proof of the endorsements' thereon. Proof of the endorsements was given and the only question relates to the sufficiency of the same. The evidence introduced was competent for such purpose. A more stringent rule, is not required for the protection of the defendant. As we discover no error in the record the judgment must be affirmed with costs. The other Justices concurred. And the attorney for the plaintiff then called Abram S. Hall, as a witness for the said plaintiff, who being sworn on the part of the plaintiff, testified as follows, the stenographer being present and reporting the ease: (Examined by Mr. Sweet.) Q. Mr. Hall, look at that note (handing witness note) and state to the court, whether you have computed the amount of interest upon it? A. I have. Q. What is the amount? A. The amount of interest is $5.89. Q. The principal is $167.86? A. Yes, sir. Q. This is figured from what time, the maturity of the note, or the date of it? A. From the maturity of the note. It was drawn up for three months. It was figured at 7 per cent. • (Note read.) Q. Mr. Hall, are you acquainted with the handwriting of Henry H. Dennis, of the Farmers’ and Mechanics’ Bank, by correspondence or seeing his writing? A. I am to some extent. Q. Do you know what position he has as an officer of the bank? A. Assistant cashier. Q. What bank? A. The Farmers’ Mechanics’ Bank. Q. Look at that endorsement and state whether in your opinion it is his endorsement? Objected to on the ground that the witness is not proved to be an expert. The CourtI suppose the witness can state whether or not he knows the handwriting of Dennis. The Witness: — Yes, sir; I do. Q. State whether the endorsement is by him? A. Yes, sir; it looks just like his writing. Q. In your opinion it is his writing? A. Yes, sir. Q. State whether from correspondence and papers you are acquainted with the handwriting of J. S. & M. Peckham? A. I have seen letters that,came from their office. Q., You have had correspondence with them so you would know their signature? A. Yes, sir; Ido. Objected to as incompetent; objection everruled; exception taken. Q. State whether that is their endorsement? A. I think it is in their handwriting.	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Graves, J. The plaintiff having taken passage on a street car of tbe defendant fell from tbe car and tbe wheels crushed bis elbow. He was between forty and fifty years ■old, a butcher and dealer in fat cattle, bad lived many years in Detroit, was familiar with street cars and with that which injured bim. He brought this action to recover for tbe injury and when tbe evidence was closed, tbe learned judge being of opinion that it was too obvious to be questioned that tbe plaintiff’s own negligence was tbe material if not tbe exclusive cause of bis being hurt directed a verdict for defendant. It is now urged that in view of the state of tbe evidence tbe plaintiff was entitled to bave tbe sense of tbe jury on it. Tbe facts of negligence alleged as tbe cause of injury are claimed to present two separate grounds of recovery; and viewing tbe declaration under this theory, and as favorably as possible for tbe plaintiff, they may be stated substantially as — -first, assigning the plaintiff to a seat from which there was danger he would be thrown and injured in ease of a sudden jerk of the car and then causing such jerk by starting up the horse by a blow of the driver’s whip; and second, negligently running over the plaintiff after he had been thrown from the car to the track. Whatever color is found in the case for the claim made by the plaintiff’s counsel for a submission to the jury on the ground first mentioned, is confined to the plaintiff’s own testimony. He entered the car at the rear end, passed right through to the front platform where the driver stood, and sat down, with his back out, on the driving-bar, a thin iron rail not exceeding an inch in thickness. The car Was moving at a moderate pace, and when it had gone a short distance only, the plaintiff fell off backward and the wheels passed over his arm. There was no conductor except the driver and fare was paid at a box placed at the front door. Both doors were standing open, and the plaintiff, as he testified, went forward to pay his fare, at which the driver called him out and invited him to be seated on the bar and he seated himself accordingly. That there was abundance of unoccupied seating room inside the car and that he was not hindered by any one from sitting there. That the car had moved about one block when the driver struck the horse and “tipped” plaintiff over. That the blow caused the car to “jump him right off.” There is no evidence that the driving of the car was not according to the usual and proper mode. This part of the case is not much pressed; but the point is understood as being, that granting the driving bar to have-been, as the plaintiff knew, a dangerous seat, and also admitting that the fact of his occupying it was a proximate contributory cause of his injury; yet as his sitting there was on the driver’s invitation it ought not to be reckoned as contributory negligence. There is no doubt that it has been laid down as a rule that an assignment of the passenger by the carrier to a position of danger may in case of injuryestop the carrier from setting up the occupation of that position as contributory negligence. But the rule is plainly not one of universal application. Regard must be had to the passenger’s capacity to look out for himself ; to the opportunity there may be to get a safer position; to the distinctness, certainty and extent or degree of the peril, and so on. Take the case of a child, and the case of a man every way qualified to take care of himself; the case where the position given seems tolerably safe and no better one is perceived; and the case where it is manifestly one full of danger and a safe one is known which is equally accessible. It would be very unreasonable to apply the rule equally to all. May the ■ordinary passenger, with his eyes open and with abundant accommodations before him which are safe, accept an invitation from the carrier to ride on the cow-catcher, and then, if injury arise from it, be allowed to set up the invitation .as a legal answer to the charge of contributory negligence ? To conclude that he might would be to permit a person of full capacity to exempt himself from the duty and responsibility appertaining to him as a moral being and in substance to stultify himself in order to cast a liability on another. “ Judges cannot denude themselves of the knowledge of the incidents of railway traveling which is common to us all.” Siner v. Great W. Ry. Co. L. R. 4 Ex. 123 ; Dublin, Wicklow & Wexford Ry. Co. v. Slattery 3 App. Cas. 1155 : 24 Eng. 713; Lake S. & M. S. R. R. Co. v. Miller 25 Mich. 274. And in the example put the negligence would be so obvious and its commission so palpably and certainly inexcusable that a court would not be justified in treating the question of the. passenger’s responsibility as an open one. A direct charge would be called for. Other cases may be supposed where from the nature of the circumstances a blind acceptance of the carrier’s suggestion, however hazardous, would not so clearly reveal the passenger’s disregard of that primary .duty which rests on every one to exert his own will and judgment to guard against needless perils, as to justify the judge in taking the matter from the jury. No doubt the riding on a cow-catcher, would, to ordinary apprehension if not in fact, be an exposure to consequences more serious than any at all probable to arise from riding on the driver’s bar of a street car in the way in which the plaintiff rode on this occasion; but the unfitness of the situation and the fact that it involves great risk of some injury more or less severe and is therefore one of extreme danger, is just as conspicuous in the one case as in the other. Indeed the proposition is a plain one that different exposures • to material bodily injury may be equally great, whilst the severity of the injuries threatened by the exposures may be entirely different. Was there any proper case to be submitted on the second ground? The position taken here is that supposing the plaintiff’s fall to have arisen from his own carelessness, yet that the defendant w'as then bound to use ordinary care to avoid hurting him, and that there was evidence before the jury tending to show that he did not. The argument for this view concedes that the evidence given for the plaintiff affords no basis for it, and that the record contains nothing to countenance it except the testimony of IVIr. Whiting, a witness for the defendant. The various witnesses had different opportunities for seeing what took place, some noticing one incident and some another, and each has explained in his own style how matters looked to him, in his position and under his state of mind and attention. But as to the point under consideration the testimony of no one derogated from the current tendency. We shall not pause to examine the right of a trial judge to step aside from the plaintiff’s evidence and take up .and put to the jury as an account on which a finding for the plaintiff would be regular the statements of a witness on the other side who assumes to give only a part of the transaction and shows that he was not in a situation to see the rest and did not see it and whose testimony as far as it goes is reconcilable with the other evidence for the defence. The inquiry is unnecessary because the case may be well disposed of on the theory of plaintiff’s counsel. What were the circumstances so far as indicated by Mr. Whiting ? He sat on the front seat next to the platform and with his back towards it and on the same side from which the plaintiff fell. He was engaged in conversation with Mr. Dyer. His position enabled him by a “side glance” -to look out the window. The plaintiff fell backward from the rail and a noise occurred and the witness made a “side glance” and looking through the window saw the plaintiff clinging with both hands to the “ dash-board.” He was dragging on the ground nearly under the car and was so dragged about ten feet. The witness did not look towards the platform and did not see the attempt by the driver, as explained by other witnesses, to extricate or save the plaintiff. What he saw was by looking through the window and he did not see the driver. He says the car was going quite slow and when he discovered the plaintiff clinging to the “ dash-board” the brake was on and the car under check and he thought the car was stopped as quick as possible. When we consider that the plaintiff was a heavy man, that he fell off backwards, that the driver had his horse and the brake to attend to, and actually caught hold of the plaintiff and tried to rescue him, and that the space of time between the fall and the injury could not have exceeded five seconds, it is impossible to say that there were any facts on which the jury could find that the defendant, after the plaintiff’s fall, omitted to do, anything which a street railway company of ordinary care would have done in the like circumstances. I think the judge committed no error in ordering a verdict for the defendant, and that the judgment should be affirmed with costs. The other Justices concurred.	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Campbell, J. Plaintiffs sued upon a policy of insurance-issued to them jointly on a dwelling and personal property-contained in it, both of which were destroyed by fire. The house was occupied by both — being mother and son — but each occupied separate portions, and the son owned the fee subject to his mother’s life interest. The personal property was also owned in severalty, the son’s property being the largest part. The fire caught from a dry-house near the dwelling, as was shown by plaintiffs. The defense urged on the trial was — -first, that the property was not joint; second, that the policy was destroyed or suspended by default on assessments; and third, that the dry-house increased the risk, and was not described in the application. The circuit court ruled in favor of defendant on the question of joint interest, and did not decide the other points; but defendant claims that if any of these were well taken,, the judgment cannot be reversed. It appears from the record that after proof of loss, which in regard to the personal property, at least, showed a separate-title in Mrs. Castner to a part of it, the company refused to-pay on two grounds: first, failure to pay assessments; and. second, the use of a stove in a room without a chimney. The objection, therefore, that there had been an undue-concealment of the proximity of the dry-house cannot be-relied on, for the proof of loss showed its position, and the company by the notice seem to have treated it as part off the property insured, but as not properly heated. There- may be some question how far they were informed concerning the title. We do not think the objection based on the condition of the title is valid. It is quite common to require the insured to explain the exact state of the title, and of course where this is required it may become or be made material. But in the absence of such a requirement we think the law has not required so minute accuracy. The chief reason for looking to ownership is to prevent wager policies, and to confine the insurance to an indemnity. But it has always been competent for parties to insure property in their custody for the benefit not only of other present owners, but also notwithstanding changes of ownership. Factors, agents and consignees do this without objection. Rogers v. Traders’ Ins. Co. 6 Paige 583; DeForest v. Fulton Fire Ins. Co. 1 Hall (N. Y.) 84. Neither does it seem necessary that the precise nature of the interest should appeal’ in the application or policy, unless distinctly required. And if insurance is made for various parties, and they have several as well as joint interests, the policy is good for all. Foster v. U. S. Ins. Co. 11 Pick. 85. There was a time when it was of very little consequence what interest an insured party had. It is no doubt against public policy to allow mere gambling in insurance. But when the entire property belongs to the persons insured, it can make no necessary difference to the insurer in what way their interests are apportioned. If they deem it material they should inform the applicant before accepting his money. There is nothing in the record which would enable us to determine that there was anything wrong about the dry-house, even if the objection that its position was concealed had not been waived. Our attention has not been called to any provision of the corporation agreement or rules which binds a party by notice of assessments not brought home to him. But we could not properly pass upon a question of fact not submitted to the jury, and not admitted by the plaintiffs. Tlie judgment must be reversed with costs, and a new trial granted. Tlie other Justices concurred.	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Cooley, J. The defendants in error sued the plaintiffs in error in justice’s court and recovered judgment, which was afterwards removed to the circuit court by certiorari and there affirmed. It is assigned for. error that the justice erred in receiving in evidence a certain deposition which had been taken in New York, the purpose of which was to prove that plaintiffs in that court composed the firm of J. Moss & Co., in whose favor the claim sued upon appears to have been made. It may be that the justice erred in receiving the deposition in evidence; but if' the plaintiffs were identified as owners of the claim without the aid of the deposition, the judgment ought not to be reversed for that error. We should give judgment as the right of the matter may appear: Cheney v. Russell 44 Mich. 620; and the right is entirely plain in this case if the plaintiffs are identified. We think there is evidence that meets the requirements of the case. Mr. Chittenden, a witness for the plaintiffs, says he learned of a claim belonging to the plaintiffs as being in the hands of defendants, and he was sent to look after it and had conversations with the defendants about it. Their admissions were sufficient to establish their liability. Now there was no cross-examination of this witness to ascertain what his knowledge of the plaintiffs was, but the case on that branch of it was suffered to go by default, while the plaintiffs’ witnesses were particular to give full evidence of the acts and admissions of defendants. Surely such a general statement is sufficient pri/ma facie ; and there was no attempt whatever to disprove it, the defendants refusing to put in any evidence. The judgment should be affirmed with costs. Marston, C. J. and Campbell, J. concurred. Graves, J. The justice admitted in evidence against the objection of plaintiffs in error the deposition of Joseph Moss; and the principal question is whether the deposition was competent. It was taken in the city of New York, and the authority to take it is referred to the act of March 29, 1818 (Comp. L., p. 1699) as amended by Act 210 of the Laws of 1879, p. 191. The point of primary importance relates to the competency of the person who took it. lie is a commissioner of deeds appointed by the governor of this State under the act of March 19, 1815, which was continued in force and amended by later statutes (Comp. L., pp. 220-222) and whatever capacity he possessed to conduct the proceeding and certify it depended on the effect of the regulations referred to. On recurring to the last-mentioned provisions it will be seen that they authorize the commissioner to take and certify acknowledgments and proofs of the execution of certain instruments to entitle them to registry. They also confer power upon him to administer oaths and affirmations to any persons who are wilhng and desirous to make such oaths or affirmations before him, and they further provide that such affidavits or affirmations shall be as good and effectual, to all intents and purposes, as if taken by any officer authorized to administer oaths resident in this State. No other power is conferred. Nothing is said about taking depositions, and the inference is natural that the Legislature in framing this statute did not contemplate giving to these non-resident commissioners the power to examine witnesses and report the testimony. At that time the expedient of taking depositions as subsequently authorized had not been adopted. The practice in taking testimony beyond the State was by commission. The act of 1848 provided for taking depositions not only within the limits of the State but in other states also; but no notice was taken of these commissioners. They were not made use of as existing agencies qualified to serve in the taking of depositions under the act. It is very certain the Legislature did not recognize them as empowered to officiate in taking testimony. They were looked upon as provided to discharge other duties. The first purpose of this act of 1848 was -to prescribe a method for talcing depositions within the State, and it required in every case that the person to act should be a judicial officer. Comp. L. § 5892. In respect to depositions out of the State the provisions were brief and general, and instead of specifying in terms the kinds of officers to conduct the proceeding it was merely declared that the depositions should be taken in the “ same manner and under the same regulations, as near as may be, as are prescribed in this act * * for taking depositions of witnesses residing in this State.” But it was also provided that in such cases a certificate under the official seal of the county clerk of the county or of the clerk of the principal court of record for the county or of some other proper county officer should be attached to the deposition, showing the official capacity in which the person acted before whom the deposition was taken. § 5906. The amending act of 18Y9 sought to make the regulation more precise in regard to the persons to have authority to act in other States and it provided that depositions might “ be taken by and before any officer authorized by the lams of the place where the same may be taken to admvwister oaths.” But no change was made in regard to the certificate of official capacity, and the showing in that respect is the same now that it always has been. And there is no exception. In every case there must be a certificate, and no one whose official capacity is incapable of being certified by the local certifying officers mentioned, is authorized to act, and if in taking a deposition he is simply an official of this State his capacity cannot be so certified, as he is not one of the class of officers designated and is not competent. But the amending act has introduced a further condition. The person empowered to act must be one who is authorized by the local laws to adminster oaths, and it is obvious enough that no official qualification derived from the laws of this State can embrace that authority. The validity of depositions depends on the statute. There is no common-law authority for them, and they can have no validity unless they comply substantially with the provisions enacted by the Legislature. Whether a different statute or a different practice would not be better is immaterial. The method prescribed it that which is alone applicable. It seems clear that no one is authorized to take a deposition in another State under the act of 1848 who is not an officer of that State and empowered by its laws to administer oaths, and therefore that a commissioner of deeds under our statute of 1845 is not competent. The deposition admitted by the justice was hence invalid and its admission was error, and in my judgment- this is fatal. The evidence was material and it seems impossible to say that the result on the facts would have been the same had the deposition been excluded, and I cannot see how the judgment can be supported unless we assume to pass upon the weight of evidence.	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Cooley, J. The plaintiff in this case seeks to recover of the township for an injury sustained by him in consequence of a bridge on one of its public highways being out - of repair when he was lawfully passing over the same. The allegation of injury is that being traveling and passing along said highway on horseback, and in the act of passing across the bridge in a careful and prudent manner, the plaintiff’s horse, without any fault of the plaintiff, became entangled in loose planks of the bridge, and thereby tripped, stumbled, and became frightened and unmanageable, and threw the plaintiff violently to the ground, etc. The duty of the township to keep the bridge in repair is averred, and also that it had notice of the want of repair, and reasonable time and opportunity to repair it, but tbat it neglected to do so. Also that the highway had been ton years in use. A plea ■of the general issue was interposed, but on the trial the defendant objected to any evidence on the part of the plaintiff, on the ground that the declaration disclosed no ■cause of action, and the court sustained the objection. The case comes up on writ of error after judgment for defendant. It was held in Commissioners of Highways v. Martin 4 Mich. 557, that in this State townships were not liable at ■common law for injuries occasioned by neglect to keep highways in repair, and also that no existing statute had imposed the duty. The ground of the decision was that the duty to keep the highways in repair was not a township duty, but one which the statute had imposed upon certain highway officers. In 1861 the Legislature with a view, perhaps, to change this rule passed an act, the first section of which declared “that any person or persons sustaining bodily injury upon any of the public highways in this State, by reason of neglect to keep in repair any bridge or culvert by .any township or corporation whose duty it is to keep such bridge or culvert in repair, such township or corporation ■shall be liable to, and shall pay to the person or persons ■so injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent jurisdiction.” The second section extended the remedy to the cases of injury to horses and other property, and made provision for the levy of taxes to pay judgments against townships. Comp. L. §§ 1323, 1324. In Leoni v. Taylor 20 Mich. 148, the act of 1861 was held to be ineffectual so far as townships were concerned, for the reason that as yet no statute had imposed upon townships the duty to keep in repair the highways, bridges and culverts. That duty remained as it was before, the duty of certain highway officers, and not a township duty. The attention of the Legislature was again called to the subject in 1879, and a statute more careful and particular in its provisions was enacted. The first section provides, “ That any person or persons sustaining bodily injury upon any of the public highways or streets in this* State, by reason of neglect to keep such public highways or streets, and all bridges, cross-walks and culverts on the same in good repair, and in a condition reasonably safe and fit for travel, by the township,- village, city or corporation whose corporate authority extends over such public highway, street, bridge, cross-walk or culvert, and whose duty it is to keep-the same in good repair, such township, village, city or corporation shall be liable to, and shall pay to the person or persons-so injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent, jurisdiction.” The second section extends the right of action to the case of injury to animals or other property; the third makes provision for the payment of judgments; and the-fourth declares “ It is hereby made the duty of townships, villages, cities or corporations to keep in good repair, so that, they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-walks, and culverts that are within their jurisdiction and under their care and control, and which are open to public travel.” Also-that “ Highway commissioners, street commissioners, and all other officers having special charge of highways, streets, bridges, cross-walks or culverts, and the care or repairs thereof,, are hereby made and declared to be officers of the township, village, city, or corporation wherein they are elected or appointed, and shall be subject to the general direction of such township, village, city, of corporate authorities, in the discharge of their several duties.” The fifth section apparently limits the remedy to cases of injuries on highways-which have been in use for ten years. General Laws-1879, pp. 223, 224. It is said on behalf of the defendant that notwithstanding these broad provisions the duty in townships to keep highways in repair is not a township duty, but still remains as it was before, the duty of the highway commissioners. Indeed this fact is recognized and declared by the same Legislature which passed the act last mentioned — see General Laws 1879, p. Ill — and it must be admitted that highway commissioners are constitutional officers — Const, art. 11, § 1 — and that no provision has been made by law whereby these officers can be made subject to the general direction of the township, as this statute seems to contemplate. There can be no question, however, of the power of the Legislature to make the municipalities liable for such injuries, independent of any question where the duty to keep in repair is located, or upon whom it is imposed. The question is one of policy, not of power. And directing our .attention to this act of 1879, the question resolves itself into this: Has the Legislature by this act clearly evinced its intent that the townships shall be liable ? On this question we think there is no room for reasonable doubt. The duty of the township to keep its public ways in repair is declared in plain and positive terms for the very purpose of covering the defect in the previous legislation. In effect the fourth section of the act declares that the neglect of the highway officers shall be imputed to the corporation by whose people they are chosen and within whose limits they exercise their .authority. It follows that the judgment must be reversed, with costs, and the case remanded for trial. The other Justices concurred.	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Graves, J. "Wagner brought this action to recover damages on account of Eggleston’s alleged failure to convey his interest in certain real and personal property in pursuance, as claimed, of a contract therefor between the parties. The case was brought to trial last February before a jury in the circuit court for the county of Kalamazoo and under the rulings on points of law a verdict was given in favor of Wagner for $9000. Several objections were taken on the part of Eggleston during the trial and he asks a re-examination on writ of error and bill of exceptions of a portion of them. Before touching any of the questions of law some preparatory reference is expedient to certain facts and circumstances immediate and surrounding and many of which are not disputed. The parties in the latter part of the year 1878 formed a partnership at Kalamazoo for the purpose of carrying on what is called in the record the “ Kalamazoo-Spring & Axle Works.” The style of the firm was “Eggleston, Wagner & Oo.,” but the seat of business together with the enterprise were distinguished by the trade-name of the “Kalamazoo Spring & Axle Works.” A considerable-amount of real and personal property was invested, but the capital put -in by Wagner was somewhat less than what. Eggleston furnished. The business soon expanded into pretty large proportions and turned out profitable. The parties were also partners in a business at Mishawaka in Indiana. May 19, 1879, Eggleston delivered to Wagner the-following proposition in writing: “Kalamazoo Spring & Axle Works. Office of Eggleston, Wagner dc Go. L. Eggleston, (Established 1870.) J. K. Wagner. Kalamazoo, Mich., May 19, 1879. Office and Works on Portage Street. Mr. J. K. Wagner: Sir — -I will sell you my entire-rights, title and interest in the lands, buildings, stock, cash and accounts, and all assets whatever, belonging to the business of the Kalamazoo Spring & Axle Works, or standing-in my name, and bought for the use of said business, for the sum of forty-two thousand dollars ($42,000) — I will say-forty thousand. Provided, that you shall assume all liabili ties and all warrants, orders, contracts, and guarantees made in the name of Eggleston, Wagner & Co., and all liabilities made in my name and for the use of skid business. Lorenzo Eggleston. T.” This paper with the exception of the paragraph “ I will say forty thousand,” was in ink and was written at Eggleston’s personal dictation and in his presence by Mr. Tuthill, a clerk of the firm. The excepted passage was interlined in pencil by Mr. Eggleston. At this time and during the succeeding forty-two days or up to July 1st, the subject-matter referred to in this paper was variable. The parties kept the business going, and considerable changes were necessarily incident to any progress in it. June 9, 1819, it was mutually agreed that Wagner should retire from the firm, he being paid by Eggleston the money he had put in with interest at eight per cent., his salary $125 per month, and so much of the assets of the Mishawaka business as had been collected. The amount was then, figured up by McCamly, a clerk of the firm, and he swears that the amount on the account of the business at Mishawaka was $323.12, and that to be paid on account of “ spring business with interest and salary and Mishawaka business ” made a total of $13,126.65 and that this sum was immediately paid by check. ■ -Wagner admits that this “composed his whole interest in the business here ” (at Kalamazoo) “ and so much of the Mishawaka business as had then been collected in.” On the same day, McOamly, by Eggleston’s personal direction and in his presence, endorsed on the paper of May 19th the following writing: “ This offer is hereby confirmed and extended until July 1st, 1879. Business hereafter transacted to be upon this basis. Kalamazoo, Mich., June 9, 1879. L. Eggleston, per M.” In regard to the actual circumstances under which this endorsement originated the evidence is discordant. Wagner swears that it formed a part of the agreement for his retirement and the relinquishment of his interest to Eggleston and was a part of the consideration he, Wagner, exacted. Eggleston and 'McCamly, however, testify that it was a distinct transaction. Their explanations are materially different. Wagner testifies that Eggleston informed him on the 6tb of June that if he would withdraw the money he had in the firm and eight per cent, interest and $125 per month, that he would extend the time to July 1st, and would sell his interest in the business for $40,000. That the subject was renewed on the 9th of June and that he, Wagner, then inquired of Eggleston if he would include in his proposition a settlement of the Mishawaka business so far as the assets had been collected, to which he replied affirmatively, and that the extension was made in the same interview and before he, Wagner, left the office, and that the paragraph in pencil was still in the original paper. Eggleston testifies that up to the time of ascertaining and deciding on June 9th what sum was t.o be paid to Wagner for going out, nothing had been said about extending the time in case he would take out his money. That the subject was not mentioned until Wagner had received his check and .had started to go out of the room. That he, Eggleston, then said he was sorry it had turned out as it had as he was in hopes Wagner would take the property, and asked him if it would do any good to extend the time. That Wagner replied that he did not know as it would as he had tried about everybody to get the money, and he asked if he, Eggleston, would make the price any less, to which the latter said he would not, but if Wagner would pay him $42,000 by July 1st he might have it. That Wagner went away and some time afterwards returned, but on the same day, and inquired of Eggleston if he would put that agreement on the back of the contract; to which the latter replied that he would, and immediately dictated to McCamly the matter contained in the endorsement. That he, Eggleston, did not himself sign it and that McCamly had no authority in writing to sign his name. When produced on the trial the paper of the 19th of May had undergone some alteration. The paragraph in pencil had been rubbed out and the statement in ink of the sum to be paid had been reduced from $12,000 to $10,000. 'Wagner testifies that Eggleston made the change on June 2Jth at his request, and that he explained the object to be to remove a seeming ambiguity. Eggleston swears that some time after the 9th of June Wagner called and asked him if he would not make the price $10,000. and he refused, and that Wagner then requested him to rub off the pencil marks as it was rather ambiguous as it was ; and he thereupon “ rubbed it off partially and then Mr. Wagner took the rubber and rubbed it some more.” That no change was made at that time in the amount specified in ink, and that the alteration from 12,000 to 10,000 in that part of the paper set down in ink was not done by him, Eggleston, or in his presence or by any one with his authority. The testimony of McCamly tends to corroborate Eggleston in regal’d to these disputed matters. But under the charge given by the com! it is to be inferred that the jury gave credence to Wagner’s version. June 30, 1819, Wagner called on Eggleston at his office and informed him that he “ had come there with $10,000< in greenbacks to close up the trade” and produced the money and offered to count it but Eggleston waived it. At the same time Wagner produced a blank bill of sale from Eggleston to himself ready to be executed and delivered and three full covenant deeds running to himself from Eggleston and wife and ready to be executed, acknowledged and delivered. He held also and offered to execute and deliver his personal covenant-to Eggleston assuming and agreeing to pay “all liabilities and all warrants, orders, contracts and guarantees made in the name of Egglestop, Wagner & Co. and all liabilities made in the name of said party for the use of said business of said Eggleston, Wagner & Co.” All the papers bore date June 30, 18^9. The'deeds covered three separate parcels of land, one containing the shop buildings, and being on Portage street, north-west of the portage, the second not far distant on Jasper street, and the third further south and being on Portage street. There being no diagram, the want of uniformity in the references to these lands in the testimony prevents any separate tracing of them throughout the record. The specified consideration in the respective deéds was '$40,000, $1800 and $1500; that is to say, each deed contained one of these sums as the consideration. The bill of sale expressed $40,000 as the consideration and purported to transfer to Wagner “all and singular all rights, titles and interest in and to the lands, buildings, stock, cash, (in hand and in bonds) and all accounts, notes and drafts on hand or in course of collection, also my undivided one-half interest in and to the patent for the Ií. J. Gage' bolster spring, and all dioses m, action and assets whatever belonging to the business of the Kalamazoo Spring & Axle Works, (Eggleston, Wagner & do., proprietors,) or standing in my name and bought for the use of said business, and also all machinery, tools, coal, wood and each and every article used in and about the Kalamazoo Spring Works.” A covenant' to warrant and defend against all persons was inserted. Wagner testifies that he displayed the money and these papers and told Eggleston he “ wanted to close up the matter.” That he handed the deeds to Eggleston who took them and laid them on the table and observed that “ if there was only $40,000 we could not buy it,- — could not do anything. It will take $60,000, certainly, nothing less.” Wagner proceeds to explain what followed in these terms : “ I said what shall we do ? This is the last day. I came here with the money expecting to close it up. Eggleston said he did not expect to do anything; said he, you must bring $60,000; I don’t want any sharp business. I asked him whether he refused it or not. Tie said he did not refuse it, neither did he accept it. This he repeated several times, and he said that he did not want to be caught in the matter; and I told him that I did not intend to play sharp. I insisted to know what he wanted to do, and he said, I want the debts paid, and I said I will assume them by signing that paper; and he said that isn’t paying them. Eggleston said he shouldn’t sign any papers. I offered expressly to sign the paper assuming all liabilities of the concern. JHe said, Wagner, bring $60,000 and I think we can trade. I asked him if he wasn’t going- to accept the paper, and he said no, he couldn’t do it, but if I would bring $60,000 we might trade. He said he would not sign the deeds. I offered to sign this paper to. assume the debts.” The evidence of Mr. Wykoff who went with Wagner, is substantially to the same effect. Eggleston relates what occurred in this way: “When they came in Wykoff said something like this: Here is your filthy lucre;’ and they laid a bundle done up in a lap-robe on the table and Wagner said it was $10,000 and wanted me to count it, and I said it did not make much difference if it was $10,000 or $6,000. I said if they would add $20,000 to $25,000 we could probably fix it up. Wykoff said to Wagner, ‘I thought this fixed it all up,’ and 1 said it would take more than that. Wagner then produced some papers which he said were deeds, and I did not look at the deeds or papers, but said I did not want to sign them until we fixed up the other matters. Wagner said, I will assume them,’ and I said, assuming them and paying them are two different things. I shan’t refuse to sign the deeds when you come with money enough.’ I told Wagner that since we had had the talk before, I had paid Stockbridge, Eggleston & Co. considerable on a liability to them, and that he, Wagner, must pay back the $13,000 which I had paid him when we settled. I had paid Stockbridge, Eggleston & Co. .some $11,000 after the extension was made. He asked me how much of the liability had been paid, and I told him I couldn’t tell without looking over the books, but if he would come down in the morning we would look them over. He was there about ten minutes.” It will be acknowledged that the papers of May 19th and June 9th, assuming that they emanated from Eggleston, amounted to nothing more than a proposal to sell and that if any contract of sale was ever perfected on their basis it was not until June 30th. It maybe, and Wagner’s evidence tends that way, that on June 9th the parties did contract that the existing proposal should not be withdrawn prior to July 1st and that Wagner’s option might continue until that time. But if such was the fact it was a separate matter and subject to its own incidents and not the contract of purchase to arise on an acceptance of the proposal and which could be made only by such acceptance, and not by a continuance, or agreement to continue the proposal. The ground on which the action is laid is that by putting-together the papers of May 19th and June 9th and Wagner’s proceedings on June 30th in relation thereto, a contract of sale was immediately concluded between the parties, and that Eggleston by his conduct on the same occasion committed a breach of it. The point first noticeable relates to Eggleston’s connection with the writings of May 19th and June 9th. It is objected that he did not himself sign either of them; and that although they were in fact signed in his name and in his-presence and by his order, yet as the authority of the person who performed the manual act of writing the name was-only by parol and not in writing, the signature was not that of defendant in point of law and was not binding, and 2: Comp. L. § 4694 is cited. This position stands positively refuted by decisions of this court. Just v. Wise 42 Mich. 513; Johnson v. Van Velsor 43 Mich. 208-218. It is true that the mechanical act of signing was the act of another ; but it is equally true that it was the immediate dictate of the will of Eggleston and was performed under Ids actual personal supervision. The penman was as much Ms instrument in respect to the fact of' signing as the pen itself would have been had he actually held it. The signature was substantially his own. A further objection is that the proposal did not sufficiently describe the real estate to satisfy the statute of frauds. The general principle is not questioned. The degree of certainty with which the premises must be denoted is-defined in many books, and the cases are extremely numerous in which the subject has been illustrated. They are not all harmonious. But they agree in this, that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature; but they must be sufficient to fit and comprehend the property which is the subject of the transaction; so that with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended and to the exclusion of all other property. The circumstance that in any case a conflict arises in the-outside evidence cannot be allowed the force of proof that the written description is in itself insufficient to satisfy the statute. "Whether the description answers the requirement of the statute is a question which occurs on the face of the papers and is naturally preliminary to the introduction of testimony to connect the contract with the property, and the decision of it would regularly seem to be required on an inspection of the documents and before the arrival of opportunity for any conflict of the kind referred to. Moreover, it would hardly be deemed reasonable to allow the validity of the written description to depend on the ability of a party to bring about a conflict in the outside testimony. In my judgment the proposal was not open to this objection. A few cases are cited as examples of the view which other courts have taken of the subject: Tallman v. Franklin 14 N. Y. 584; Hurley v. Brown 98 Mass. 545; Scanlan v. Geddes 112 Mass. 15; Mead v. Parker 115 Mass. 413; Slater v. Smith 117 Mass. 96; White v. Hermann 51 Ill. 243; Nichols v. Johnson 10 Conn. 192 ; Colerick v. Hooper 3 Ind. 316; Waring v. Ayres 40 N. Y. 357; King v. Ruckman 20 N. J. Eq. 316; Ogilvie v. Foljambe 3 Meriv. 53-60; Bleakley v. Smith 11 Sim. 150; Owen v. Thomas 3 Myl. & K. 353; White v. Bradshaw 13 E. L. & E. 296 : 16 Jurist 738; Stuart v. London & N. W. Ry. Co. 10 E. L. & E. 57; Commims v. Scott L. R. 20 Eq. Cas. 11: 13 Eng. 576; Barry v. Coombe 1 Pet. 640; Dobson v. Litton 5 Coldw. 616. Thus far the case is with the defendant in error. But a more formidable objection is now reached and it involves a question which is independent of the point just considered. The case does not distinguish it in a very clear way, but the exceptions cover it and an opinion upon it is necessary. The question is whether on the facts stated by Wagner and not controverted by Eggleston a contract of sale was actually constituted; or in other words whether the acts of Wagner on June 30th were in any such sense responsive to the offer from Eggleston as to bring the parties into the alleged contract relation. The existence of a contract is a question independent of circumstances which may excuse its performance, and as no contract could come into existence without ■an agreement of minds it becomes a vital consideration whether the proposal made by Eggleston and the acts of Wagner relied on as acceptance had reference to the same ■thing or things in the same sense. If in answer to a proposal to grant Black Acre a person replies that he is ready to close the matter and will take White Acre there is no acceptance. Neither is there an acceptance where executory proceedings on each side are involved in the proposal and the party professing to accept intro dtices a variance and formulates his adoption of the offer with conditions and qualifications which essentially alter some of the constituents or materially vary the effect. In such cases no contract is brought into existence. Kyle v. Kavanagh 103 Mass. 356; Suydam v. Clark 2 Sandf. 133; Nat. Bank v. Hall 101 U. S. 43; Jordan v. Norton 4 Mees. & W. 155 ; Hussey v. Horne-Payne 8 Ch. Div. 610; 25 Eng. 561; Tilley v. County of Cook 103 U. S. 155. In order to convert a proposal into a promise the constituents of the acceptance tendered must comply with and conform to the conditions and exigencies of the proposal. The acceptance must be of that which is proposed and nothing •else and must be absolute and unconditional. Whatever the proposal requires to fulfil and effectuate acceptance must be accomplished and the acceptance must include and carry with it whatever undertaking, right or interest the proposal •calls for, and there must be an entire agreement between the proposal and acceptance in regard to the subject-matter and extent, of interest to be contracted. If the parties do not refer to the same things in the same sense the transaction is simply one of proposals and counter proposals. Pollock’s Principles of Contract cli. 1; Bisliop on Contracts cli. 14; 1 Parsons Cont. b. 2 cb. 2 sec. ii. The transactions relied, on as amounting to a contract of sale must be tested by these principles. What would have-been the effect if Wagner on June 30th had merely assented to the proposal is a question we are not required to consider. It may be that in that event the transactions would have been too uncertain to create any binding contract relations-Indeed it is probable that the parties failed to see and appreciate the incongruities which would naturally arise from any attempt to apply the scheme as drawn by the proposal, to-new objects and interests and changed conditions. We are to assume however for the purpose of the question which is presented, that a legitimate accession to the offer in accordance with its true sense, would, though given subsequent to material changes of interests and of circumstances, have brought into existence a practicable arrangement and one possessing the mutuality and certainty necessary for a valid contract. The first step is to identify the subject-matter with which the proposal dealt and to which it must be confined. -The surrounding circumstances have been noticed. The parties were partners. Each owned an interest and each was accountable for liabilities. In this-state of things Eggleston proposes to sell his interest to Wagner for $40,000, on the terms of an assumption by Wagner of all existing liabilities. This is on May 19th. Wagner does not accept, and both concur in pushing on the business and in bringing about substantial changes. Old debts are paid and new ones are made. The items of debt and credit are different and the debtors and creditors cease to be the same. There are variations in respect to the stock and tools and the interests are changed in point of value. On June 9th the parties concur in a much more radical change. Wagner sells out to Eggleston for some $13,000, and by the-payment to Wagner of that sum Eggleston increases his. interest to the same extent. Eggleston promises that the offer of May 19th shall continue up to July 1st and that subsequent business shall be transacted on that basis. Both understand that the business is not to be interrupted. Now the offer of May 19th was not an offer to sell future interests, but to sell such as Eggleston then held, and not on the terms of an assumption by Wagner of indefinite and uncertain future liabilities, but of ascertained liabilities then existing. Such was the transaction, and on June 9th the parties agreed that this identical- proposal should remain open until July 1st. It is not pretended that any new proposal was made or agreed on. Having given Wagner an option to buy on certain terms such interest as he, Eggleston, held on the 19th of May, it was arranged to prolong such option until the 1st of July. There was no agreement to give ■time for Wagner to come in and accept an offer of a present ■or different interest. There was no such offer to be kept open. The writings and the surrounding facts are positive in their meaning that the original proposal applied to no interest except that which was held by Eggleston on May 19th, and that the arrangement allowing it to run until July 1st did not cause it to cover subsequent interests. From the :9th of June this original offer to sell the same interest Eggleston held on May 19th was an offer for every instant until the disagreement of the parties on June 30th, (Boston & Maine R. R. v. Bartlett 3 Cush. 225,) but no agreement was made to expand it. Such then was the offer and the -only offer which Wagner had before him on June 30th. Hpon the question whether the circumstances relied on as ■constituting acceptance tallied with this offer or proposal, only a few words are necessary. Wagner tendered $10,000 •and offered to assume certain debts and liabilities, and he required Eggleston to execute the deeds and bill of sale. These offers and requirements were put forth and are now urged as amounting to a perfect acceptance. It is needless to inquire whether Mrs. Eggleston’s execution of the deeds could be called for, or whether he could be required to give the covenants which were inserted, or whether the covenant -offered by Wagner applied to the same debts and liabilities ■contemplated by the proposal. The deeds and bill of sale together applied certainly to all the property pertaining to ■the concern and field by Eggleston on June 30tfi, and on tfie admitted facts they covered many thousand dollars of interest beyond tfie interest to wfiicfi tfie proposal applied. 'Tfie whole interest recently field by Wagner himself and •amounting to $13,000 had been added. Without referring to other points of probable disagreement between tfie proposal and tfie alleged acceptance, a ■clear illustration of tfie difference under notice is presented, by supposing tfie money price ánd tfie amount of interest to be equivalents; and tfie fact may then be described by saying that Eggleston offered to sell an interest of $40,000 and Wagner, under tfie name of acceptance of that offer, insisted upon being granted an interest of $53,000 and no less. Tfie result is that tfie alleged acceptance was not an acceptance. In substance and effect it was an offer to accept upon terms varying from tfie proposal, and it produced no contract relation. Nat. Bank v. Hall, supra. See also tfie books •on contracts referred to. I am not satisfied that tfie judge •erred in allowing a reference as to tfie value of tfie goodwill, but no further opinion is called for. Tfie judgment is reversed with costs, and a new trial •ordered. Tfie other Justices concurred.	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Marston, C. J. The motion made in this ease raises two questions. Suit was commenced against' the relator before Samuel R. Rockwell, a justice of the peace. On the return day the parties appeared, joined issue and the cause was adjourned by consent. The following entry next appears upon the justice’s docket: “ On account of sickness "W". Fox tries the suit. S. R. Rockwell, J. P.” On the adjourned day the parties appeared and the cause was tried, without objection, upon the merits, before Justice Fox, and a judgment rendered by him against the defendant. We are of opinion that the judgment so rendered was valid and binding. The justice had jurisdiction over the subject-matter and the parties by appearing and going to trial, without objection, upon the merits, waived any and all questions of regularity. A transcript of this judgment was filed in the circuit, execution issued thereon and a sale of lands made thereunder. It is claimed that no affidavit was filed as required by Comp. L., § 5383, and therefore the proceedings subsequent to the taking of the transcript were void. It appears that an affidavit for a transcript was made and filed with the justice February 14th, and a return made by the justice on the 15th and on the same day filed in the clerk’s office. In this affidavit it was stated, “ that there is now due and remaining unpaid upon the judgment heretofore on the 8th day of February * * the sum of ninety-six 90-100 dollars exclusive of costs.” Sec. 5382 requires an affidavit of insufficiency of goods and chattels to satisfy the judgment to be made and delivered to the justice, and thereupon it becomes his duty to give a certified transcript of such judgment and proceedings, and the original affidavit by this section required. The next section makes it the duty of the clerk to file such transcript, on an affidavit being made stating the amount due upon such judgment. The party applying for such transcript is not required, in making the affidavit required by sec. 5382, to state therein the amount due upon the judgment. It is the following section that requires an affidavit stating the amount due to be filed with the clerk of the circuit court. This last named! affidavit, or more properly speaking evidence of the fact required to be shown thereby, viz., the amount due upon the judgment, is a necessary jurisdictional fact in order to give the clerk of the circuit court any authority whatever to act in the premises. This fact, viz., the amount due, must not, necessarily, be shown by a separate affidavit, but may be set forth in the affidavit filed with the justice. If set forth therein and filed with the transcript in the clerk’s office, without any such delay as would or might give rise to a presumption that payments, after the date thereof and before filing with the clerk, may have been made, it will be sufficient and no farther showing need be made. Udell v. Kahn 31 Mich. 196. This is not at all inconsistent with what was said in Bigelow v. Booth 39 Mich. 624. In that case eight days was. permitted to pass by after the affidavit was sworn to and before its delivery to the clerk of the circuit court — a time ample indeed in which the judgment might have been paid in whole or in part. In this case the affidavit was filed with the clerk of the circuit court the day after it was sworn to,, and had a new affidavit been made as required by sec. 5384 and filed with the clerk the day after it was sworn to we should have no hesitation in holding it good, and the same rule must be applied in this case. It is not the form of a second affidavit that the statute requires, but the substantive jurisdictional fact of the amount due, and this the affidavit made in the present case fully supplied. The writ applied for in the present case must be denied with costs. The other Justices concurred.	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Cooley, J. The question in this case is one of construction of the “ Act to provide for the regulation and enforcement of assignments for the benefit of creditors,” approved May 13, 1879. Public Acts 1879, p. 181. The first section of the act provides “ that all assignments commonly called common-law assignments for the benefit of «’editors shall be void unless the same shall be without preferences as between such creditors, and shall be of all the property of the- assignor, not exempt from execution, and unless such instrument of assignment, or a duplicate thereof, an inventory of the assigned property, a list of the creditors of the assignor, and a bond for the faithful performance of the trust by the assignee, shall be filed in the office of the clerk of the circuit court of the county where such assignor resides, or, if he is not a resident of this State, then of the county where the assignee resides; if neither are residents of this State, then of the county where the assigned property is principally located, within ten days after the making thereof. Such assignment shall convey to the assignee all property of the assignor not exempt from execution, and all rights, legal or equitable, of said assignor: provided, that no such assignment shall be effectual-to-convey the title to the property of the assignor to the assignee until such bond shall be executed, filed with, and approved by said clerk: and provided further, that no attachment or execution levied upon any assigned property of such assignor, after such assignment, and before the expiration of the time provided herein for filing such bond, shall be valid or create any lien upon such property.” The second section gives specific direction respecting the inventory, list of creditors and bond; the third declares that “ every such assignment shall confer upon such, assignee the right to recover all property, or right or equities in property, which might be reached or recovered by any of the creditors' of such assignor; ” the fourth provides for notices to creditors, and the fifth for the filing by the assignee of periodical reports. The sixth and last section is as follows: “In case there shall be any fraud in the matter of said assignment, or in the execution of said trust, or if the assignee shall fail to comply with any of the provisions of this act, or fail or neglect to promptly and faithfully execute said trust, any person interested therein may file his bill in the circuit court in chancery of the proper county for the enforcement of said trust; and the court, in its discretion, may appoint a receiver therein, and the court shall have power to order the summary examination before himself, or a circuit court commissioner, of any party or witness, at any stage of said cause relative to the matters of said trust, and enforce attendance and the giving of testimony therein, in the same manner as in the trial of causes in such circuit courts in chancery.” , The defendants Bichard E. Hasbrouck and James Hill, composing the mercantile firm of Hasbrouck & Hill doing business at Mendon in St; Joseph county, on the tenth day of January, 1881, made a general assignment for the benefit of their creditors to Orlando J. East. The assignment purported to give no preferences. Appended to it was a list of imsecured creditors, and also a list of debts amounting to-$5841.38, which, were represented to be secured by chattel mortgages. Fast accepted the trust, took possession of and invoiced the property, and gave due notice to the creditors, lie failed, however, to give the bond required by the statute. Immediately on the expiration of the ten days several of the creditors sued out attachments which they caused to be levied upon the property, and the secui-ed creditors also took possession under their several mortgages. Thereupon the complainants in this suit, who are unsecured creditors, filed their bill in equity, setting forth all the facts, questioning the good faith of the chattel-mortgages, and suggesting that they were made to give fraudulent preferences, and praying that a receiver be appointed by the court and the trust under the assignment executed by him. The assignors and the attaching and mortgage creditors were made parties defendant, and the bill prayed that they be enjoined from proceeding further in the enforcement of their respective pretended liens. The defendants demurred to this bill, and the demurrer was sustained and the bill dismissed. This seems to have been done on the supposition that the failure of the assignee to give a bond within the ten days rendered the assignment wholly nugatory and void for all purposes; and that there was consequently no trust created, and nothing to preclude the creditors making levies. It is very evident that this view of the statute renders the sixth section in part at least of no avail. That section expressly provides that in case the assignee shall fail to comply with any provision of the act, the court may proceed in the enforcement of the trust through a receiver. The neglect to file a bond was unquestionably such a failure; so that the case is within the very letter of the statute, and apparently within the intent also. If we look no further than the sixth section the case would seem to be clear: the contingency happened which entitled the court to intervene with its-receiver, and the complainants on a showing of the facts called for its intervention. But the view of the defendants would also defeat the general intent of the statute, and render it worthless if not positively mischievous. The general intent of the statute; is plain: it is to secure the equal distribution of the-property of insolvents among all their creditors. To this end it prohibits the giving of preferences and requires-security for an accounting and frequent reports from theassignee. If preferences are fraudulently attempted the-intervention of equity to prevent it is authorized, and if the assignee shall fail in any particular in the discharge; of his duty, equity may displace him with -a receiver who-shall discharge the trust impartially. If the statute fails to accomplish this intent, but on the contrary gives new opportunities for unequal distribution, the legislation has manifestly failed in its purpose. No facts could illustrate this more clearly than those which are set forth in this bill of complaint. The moment the ten days expired which are allowed to the assignee for giving bond, several of the creditors appeared on the stage with their attachments and seized upon the assigned property. They thereby acquired, as they claim, a lien upon the property which takes precedence of all other claims. What they have done in this case may be done in every case in which an assignee shall fail to give bond, and ordinary prudence will require of every creditor, as soon as he shall learn that an assignment has been made, that he sue out his-attachment, and have an officer ready to serve it the very-minute the time for filing bond shall expire. Even .if he-shall have assurances from the assignee that a bond will be-filed, he cannot rely upon it with safety, for any accidental circumstance that should prevent it would let others in ahead of him, and by collusion, while keeping a part of the-creditors satisfied that he would give bond, the assigneemight give the others the very preference the statute intends-to preclude. This would be an extraordinary -result of legistion designed to secure uniformity and equality; putting it, as it would, in the power of the assignee to defeat the trust, and to distribute the property unequally in every instance.. Other anomalous results might also be indicated if it were important. There is undoubtedly some difficulty in harmonizing all the; provisions of this statute. The statute declares the assignment “void” if the bond is not filed; hut this word is frequently used in the sense of voidable, (Beecher v. Marquette & Pacific Rolling Mills Co. 45 Mich. 103); and it must have that construction here if it shall be necessary to give other provisions of the statute effect. The assignment as an effective trust in the hands of the assignee undoubtedly becomes inoperative and will remain so, and in a certain sense void, unless creditors take steps to save the trust and have it enforced in equity. This in our opinion is what the statute means; and this construction puts a meaning in all its terms. But it is said that the statute in forbidding attachment and execution levies upon the assigned property within the ten days, by implication recognizes the right to make such levies afterwards if bond is not given. This may be; and such levies may perhaps be perfectly valid if creditors fail to invoke the intervention of equity; it is only when the execution of the trust under the last section of the statute is called for that they are displaced. In disposing of this case we intimate no opinion what might have been the result, if it had appeared that the assignee named in the instrument had never assumed the trust or done any act in furtherance of it. In this case there had been distinct acts of acceptance; possession taken and notice given; everything done, in fact, which could be done before the giving of the bond. Nor does any question arise here as to the effect of the suit in equity upon rights which may have become vested before it was instituted; as rights acquired by attachment are inchoate until judgment and execution levy. Nor is there any question here of the effect of laches in filing the bill; for in this case the bill was filed without any unnecessary delay.' It is a significant fact bearing upon the general intent of the statute to secure as far as possible the equal distribution of the property under all circumstances, that the third section enlarges very considerably the effect of the assignment, in making it pass to the assignee or to the receiver the right to question the previous conveyances of the assignor to the same extent that the creditors themselves might question them. The decree appealed from must be reversed, with costs, and the cause remanded with directions for the entry of an order overruling the demurrer, and for further proceedings in accordance with this opinion. The other Justices concurred.	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Marston, C. J. The evidence fully sustains the finding of facts in this case. Chubb leased the premises in question to Ayers Stoddard for the term of three years, with the privilege of five, upon shares. Stoddard was to do all the work, find all the seed and to deliver to the lessor one-third the crops. The farm was to be cropped in a certain specified way, and the lessee was to have the use of certain farm implements of the lessor, and was to take good care of them and repair them at his own expense during the term of the lease. This lease and his rights thereunder the lessee afterwards undertook to assign to the plaintiff in error, and under circumstances of questionable good faith, and these proceedings were instituted by the lessor to recover possession of the premises. The judgment of the court below was correct. The very nature and character of the lease or agreement shows that it was a personal one to the defendant, and could not be assigned by him to a third party without the consent of his lessor. The rent or share which the latter would receive, must depend very much upon the character of the lessee, and the latter could not place a party in possession of the premises, who might not be a good husbandman, and who might not be able to carry on the farm operations in a good, careful, and proper manner. Under such a lease the landlord has a right to choose his tenant, and he may be willing to lease upon shares to one man, and yet be wholly unwilling to let another have possession upon any terms. So with reference to the use of his farm implements, one might be a careful, prudent man, who would take good care of them, while another more reckless would not by the owner be permitted to use them upon any terms. The attempt to assign this lease and put another in possession thereunder worked a forfeiture thereof, and enabled the lessor to take immediate steps to regain possession. The judgment must be affirmed with costs. The other Justices concurred.	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Cooley, J. This is a bill in equity to enjoin the collection of an assessment for the improvement of certain portions of streets in Grand Bapids, known as Bronson street, Crescent avenue and Bostwick street, under proceedings of the common council which are supposed to be void. The bill was demurred to and dismissed, and complainant appeals. The ground of invalidity chiefly relied upon is that Crescent avenue and parts of two streets were all to be improved in a single proceeding and by a single assessment; which, it is insisted, is unauthorized by law; but there are also various minor objections. I. It appears by the map accompanying the bill of complaint that Bronson street extends from Canal street easterly, and is intersected by Kent, Division and Prospect streets, which cross it at right angles. About half way between Kent and Prospect streets is Bostwick street, which also intersects Bronson street at right angles. Before reaching Bostwick street, Bronson street, as it extends easterly across Kent and Division, branches or divides into two circular arms, which open out and extend into Bostwick, as shown by the .accompanying diagram, so that the travel along Bronson street must go around by one of these arms, and along Bostwick street to Bronson street again. These two circular aims of Bronson street constitute what is called Orescent street. From the exhibits attached to the bill of complaint it appeal’s that on February 2, 1880, the common council adopted a resolution “ that the grading, graveling, and paving the gutters of Bronson street from the east side of Kent street to Prospect street, including the two circular arms of said Bronson street between Division street and Bostwick street and known as Orescent avenue in said city of Grand Rapids, including the construction of the necessary bridges, culverts, gutters, cross-walks, man-holes, catch-basins, approaches, and cesspools therein, is a necessary public improvement.” This it will be perceived says nothing about the grading, etc., of Bostwick street, and treats Orescent avenue as a part of Bronson street. , On February 28, 1880, the council adopted another resolution, apparently to remedy a supposed defect in the one above given, and described therein the street or streets to be improved as “ Bronson street from the east side of Kent street to Prospect street, including the two circular arms of said Bronson street between Division street and Bostwick street known as Crescent avenue in the city of Grand Rapids, and also the space between the east ends of said two circular arms to the center of that part of Bronson street east of Bostwick street and said Bronson street, thence east to Prospect street in said city of Grand Rapids.” On March 1, 1880, both the foregoing resolutions were rescinded, and a new resolution' adopted of the same purport, but describing the street or streets to be improved as-follows: “Those portions of Bronson street in the city of Grand Rapids included within the following limits, namely : from the east line of Kent street east to the west line of Crescent avenue, and from the west line of Bostwick street to the east line of North Prospect street in said city; ” “ also-Crescent avenue” and “that portion of Bostwick street lying between the north line of the north portion of Crescent avenue produced easterly and the south line of the south portion of Crescent avenue produced easterly.” It was- under this last resolution that the work in question was done, and the objection to it is that three or more distinct improvements were provided for by- a single resolution, whereas by law each should have been provided for and made by itself. One cannot read the three resolutions above given without perceiving that the common council regarded the work they provided for as a single improvement. In the first resolution which apparently was intended to cover all that is embraced in the third, it was not thought necessary to mention Bostwick street at all, and Orescent avenue is treated as a part of Bronson street, as for all practical purposes it is. The second resolution was a little more particular, but the idea is the same, and it is only more fully expressed, apparently from abundant caution, in the third resolution. The “necessary public improvement” intended by each was the improvement of Bronson street from Kent street to Prospect street, including the passage ways around the space embraced by the two arms known as Crescent street. This space we might infer from the map is a little park or other public ground, but the record does not explain. It was decided in Arnold v. Cambridge, 106 Mass. 352, that it was not competent for the city to order the building of sidewalks on two streets and provide for the expense by a single assessment levied upon the abutting owners. It was found in that case that the statute under which the assessment purported to be made contemplated that each street was to be considered and treated by itself; and that being the case, there was no authority for making a single assessment district and a single assessment for two sidewalks. But in order to make that decision applicable it must appear that there are in fact two improvements, and not a single work only, in what is substantially a single public highway. It sometimes happens that a single street has different names for different parts; but this fact could not preclude the whole being graded or paved under a single resolution and the cost provided for by a single assessment. The unity of the work must determine the right to deal with it as a whole, and not the diversity of names that may be given to its vari ous parts. We should impute absurdity to the legislature if we were to conclude that they intended under any circumstances that a single improvement should be taken up and dealt with in divisions. In one sense the improvement in this case was apparently single. It was the improvement of what was substantially a single avenue from one part of the city to another, but divided at one point into two, where its-two branches passed' around a small piece of ground. The people along the line from end to end must have had a common interest in its improvement; and it is quite possible if not probable that the improvement of that part of the street on which they happened to live would have been of little or no importance except in connection with the improvement of the remainder. We may well suppose the improvement of a part only of JBronson street at the expense of adjacent owners would be grossly unjust when the improvement of the whole together with the connecting arms at their expense would be strictly just as well as highly beneficial. We do not know what the fact was in this case; but the circumstance that a single party only is heard complaining is strongly indicative of the consent of the others. If one assessment cannot be made to cover this case, then it would seem there must be four: one for each part of Bronson street, one for Bostwick street and one for Crescent avenue. But it seems highly probable that the four assessments would overlap each other, and that what are called Bostwick street and Crescent avenue ought to be improved in part at least by owners of property east and west of them on Bronson street. If this is so the purpose of the statute would be defeated instead of being advanced by the four assessments, and confusion would be created by the subdivision of that which the statute evidently meant should be considered as an entirety. No doubt the council may provide for the improvement of a part of a street at a time when only a part needs improving at that time or in the way provided; but to lay several assessments at the same time for improving different parts of the same street in the same way must often be highly inexpedient. In the case at bar the authorities have treated the improvement as a unit, and there is nothing in the record which conclusively shows that they erred. We must therefore assume that the conclusion was just. It is not disputed that they had ample power by statute to levy an assessment; and that being conceded, we cannot assume from any ambiguous facts that they erred in exercising the power. Stockle v. Silsbee 41 Mich. 615. II. It is objected to the resolution declaring the necessity of the improvement that included therein were “ the necessary bridges, culverts, gutters, cross-walks, man-holes, catch-basins and approaches therein and connected therewith,” without specifying what.were necessary, and that the effect was to delegate to those who should be entrusted with the duty of carrying out the resolution the discretion to decide upon the necessity. 'But the conclusion does not follow from the premises. The council declared in general terms the necessity of the work as a public improvement; but it did not undertake to settle upon the details; nor was it needful to do so in the action to be taken at that time. Details would be settled afterwards by the action of the council itself. Moreover, there is nothing in the record which' shows that there were any bridges or culverts to be constructed, or anything else that was not properly incidental to the improvement of the streets; and if there were no bridges or culverts there could of course have been no delegation of power in respect to them. III. The statute requires that an estimate of the expense of the proposed improvement shall be made by the board of public works and reported to the council before any assessment is made. The provision is as follows: “ When the common council of said city decide that the construction of any public work in said city is a necessary improvement, the board of public works, with all convenient dispatch, shall determine as to the particular kind and quantity of materials to be used therefor, and estimate the probable cost and expense of such work, and of the material to be used in detail, and cause to be prepared, so far as necessary, plans and specifications for such, work, and report their estimate to the common council as a basis for assessing or otherwise raising, according to law, the funds necessary to enable the board to go forward and complete such work.” Laws 1873, vol. 3, p. 57. The bill states that, as appeal’s by the minutes of the common council, at a regular session held April 12, 1880, the board of public works reported an estimate as follows: “ Grand Rapids, Michigan, April 10,1880. To the Hon. Board of Public Works: Gentlemen— I submit herewith the estimate of cost for the improvement of Bronson street and Crescent avenue, as follows: Contract price,......$14,500 00 Assessment, engineering, printing, etc., - - 450 00 Total,......$14,950 00 Respectfully submitted, A. C. Sekell, City Surveyor. Estimate of cost. Improvement of Bronson street and Crescent avenue. Approved by the board of public works, and ordered certified to the council. April 10, 1880. George W. Thayer, Bres’t.” The bill does not negative the making or reporting of any further or other estimate. Three objections are taken to this estimate: 1. That it is the estimate of the surveyor, and not of the board. But the board adopted, approved and reported it, and that was sufficient. It was very proper for the board to make use of the surveyor’s services in preparing it. 2. That the estimate was made in gross, and not in detail. If the paper above given was all that was reported, this objection, as matter of fact, appears to be well taken. Whether in that case it is fatal is another question. The board of public works must undoubtedly make a detailed estimate, but there is much reason for contending that if only the sum total is reported to the council, and that body sees fit to act upon it, the objection cannot be taken after-wards. The estimate is for the information of the council, to enable that body to determine how much money shall be raised; and if they have the sum total and act upon it without calling for further particulars, it may well be urged that the question is precluded. But we do not decide that point in this case, because the bill does not negative the submission of detailed information.. It is perfectly consistent with the bill and with this paper that details may have been submitted by the board with the summary which they handed in, or that there may have been a further report besides the one given. Indeed, some of the subsequent proceedings would indicate this; for while the paper given names Bronson street and Crescent avenue only, in a subsequent resolution of. the council an estimate is referred to as covering the whole improvement proposed to be made, The omission in the foregoing paper of all reference to Bostwick street may have been accidental, but in support of a bill in equity to restrain the collection of taxes we can make no presumption against the correctness of official action. 3. It is objected that the estimate includes the cost of engineering and printing. But these were legitimate expenses, incidental and necessary to the assessment, and were properly included. Beniteau v. Detroit 41 Mich. 116. IY. Several objections are taken to the resolution of the common council establishing an assessment district, but they are very technical, and require no special attention. The assessment is objected to on more plausible grounds. The resolution of the council directing an assessment contained the following clause : “ And that the board of review and equalization of the city of Grand Bapids, who by the charter of said city are constituted commissioners for that purpose, be and they are hereby directed to make said assessment upon all the owners or occupants of lands and houses within the district aforesaid, in proportion, as nearly as may be, to the advantage which shall be deemed to accrue by the making of such improvement, and that the said commissioners meet for the purpose of making said assessment on Tuesday, the 27th day of April, 1880, at ten o’clock in the forenoon, at the office of the city clerk.” The report made in pursuance of this resolution was made by two of the members of the board, who make and subscribe it as “ a majority of the-board of review and equalization of the city of Grand Bap-ids, and the commissioners named in the annexed order and subscribing the annexed assessment' roll.” There is no-doubt a majority of the board had the right to, act, and that their action is legal if all were notified of the meeting.. Comp. L, § 2. The bill relies upon the fact that the-report on its face purports to be that of a majority only; but as this may be correct it is manifest that no illegality is. shown by the mere fact that one of the board does not unite-in the action. Y. It is further objected that the contract which was let. was a contract “ to improve Bronson street and Orescentavenue ” only; and it is true as set out in the bill the contract does not mention Bostwick street. But the contract-refers to accompanying plan, specifications' and profile, and' makes them a part of itself; and these are not given. With ,'them the contract was probably complete; but if not, we do* not know the fact. Other objections are taken, but we find none that is substantial. The decree of the court of chancery dismissed the bill, and it must be affirmed with costs. The other Justices concurred.	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Campbell, J. Plaintiff sued defendants on a liquor dealer’s bond for a judgment she had obtained against Steele for damages on account of the sale of liquor to her husband. The bond, which was made to cover dealings in Bay City, was dated May 1, 1878, and declared on as approved June 3, 1878. It contained no sum written out as a penalty, and was set out in its precise words, with an averment of a penalty of one thousand dollars. The defence rested on the double ground of want of penalty, and want of approval. The statute (Laws 1877, p. 214) requires the bond to be for not less than $1000 nor more than $3000, and requires-the sureties to justify “in a sum equal to the amount of the bond.” In the present case, they justified in the sum of one thousand dollars. We think the omission of the penalty is supplied by the justification — especially as that covers only the lowest sum for which any bond could be given.. This defect may be disregarded. The. statute is very express that no bond shall be received •without written endorsement of the approval of the common council. This bond had on it a brief approval signed by the recorder, which we have no doubt could be connected with any legal action of the council authorizing it. But the proceedings of the council are not shown to have amounted to such an approval. The records show that the “ retrenchment committee ” were required by resolution in connection “with the city attorney” should “report on all liquor bonds for the ensuing year.” The council proceedings show that on the 3d of June the retrenchment committee, without any mention of the city attorney, reported the acceptance of eight bonds. Two others are mentioned, and it is not very clear whether the entry means that two others were referred by the' committee or were referred by the council, to the city attorney. There is no mention of any approval or other action on the eight bonds , by the council. A further report by the same- committee, on an entirely different subject, is followed . by the word “ adopted.” This cannot properly be made to cover two different reports as it stands. The council could not delegate to any committee the final approval of bonds, and while we are not inclined to doubt the validity of a single entry of approval of several bonds at once, we think under the statutes there must be some distinct evidence that the council acted. If, as is most probable, the reference of two bonds to the city attorney is to be regarded as made by the council itself, that shows distinctly there was no direct approval of the rest. If made by the committee it would probably indicate that until those were examined action on the rest would be suspended. In either case it is fairly to be inferred that action was postponed, or else that it was erroneously supposed that the council had legally delegated all its powers to the committee. We think the court below was correct in holding that no approval was shown. The judgment should be affirmed with costs. Marston, C. J. and Graves, J. concurred. Cooley, J. did not sit in this case.	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Marston, C. J. The defendant Phelps recovered in. the Superior Court of Detroit a verdict against the complainant on the 24th day of January, 1881, upon which judgment was entered March 12th. January 27th, 1881, a writ of garnishment was sued out of the "Wayne circuit by Louis Selling who claimed to be a creditor of Phelps, and such writ was on the same day served upon the complainant. February 11th, 1881, the complainant filed its disclosure, and on the 16th of February a demand of trial was filed by the garnishee plaintiff in such garnishee suit. March 10th, 1881, complainant was notified that the verdict above mentioned had been, on the 25th day of January, 1881, assigned to the defendant Reilly. The complainant thereupon filed its bill of interpleader in the Superior Court against these defendants, Reilly, Phelps and Selling, and an injunction was issued restraining the collection of such judgment and the prosecution of the garnishee suit. The injunction was after-wards set aside because the amount of such judgment had not been paid into court; but this having afterwards been done the injunction was renewed. A motion was afterwards made to dissolve the injunction and' an order made granting the motion, and from this order the complainant appealed. The suit in which the verdict and judgment against the complainant were rendered was for a libel. In • such a case until a judgment was entered up on the verdict there was no indebtedness that could be garnisheed. Hill v. Bowman 35 Mich. 191. As the garnishee proceedings were commenced after verdict but before judgment the complainant herein is not at all likely to be injured thereby. The order appealed from will be affirmed with costs. The other Justices concurred.	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Marston, C. J. Boyd brought an action to recover damages ■claimed to have been suffered by reason of a trespass committed upon his lands in removing an embankment, and thereby permitting surface water to flow over his lands into ■a pond or reservoir thereon, from off the highway and lands ■of an adjoining proprietor. The tendency of the evidence on both sides is so briefly and clearly set forth in the bill of exceptions, that we give the material parts thereof in a'note herewith. We also give herewith the principal portion of the instructions given the jury by the court. (See p. 60, note ). Some very nice and interesting questions are quite likely to arise concerning the flow of surface water, and we therefore fully concur with the court below in declining to attempt to lay down any rule of universal application. Confining ourselves strictly to tbe facts in this ease, we are of opinion that tbe evidence introduced on tbe part of tbe defendants tended to prove that tbe surface water bad run from off Dewey’s land over that of tbe plaintiff and into the pond upon his land for far more than twenty years; that the plaintiff and his grantors had knowledge of such flowage for the entire period, and that work had been done in clearing and improving the highway, the channel, and no objections made thereto. Now without attempting to lay down any rule as to the right of an owner of an upper field to have the water that falls thereon flow off upon the lands of another below, or of the right of tbe latter, or tbe extent to which, in the improvement of his own lands for agricultural purposes, he can «top or prevent such flowage, we are of opinion that if the jury had found the facts to be as the defendant’s testimony tended to prove, the plaintiff would not have been entitled to recover. "Whether a lower estate owes servitude to an upper or superior one in the first instance or not, we are of opinion, that snob an easement may be acquired by prescription, and that tbe evidence bearing upon this subject should have been submitted to the jury. The authorities are quite fully collected and discussed in Washburn on Easements 353 et seq., to which reference is made. The judgment must be reversed with costs and a new trial ordered. A difficulty appears on the record, but as it was- not argued by counsel and will not again arise we pass no opinion thereon. Graves, and Campbell, JJ. concurred. Cooley, J. did not sit, having tried the case in the circuit as special judge. And thereupon the counsel for the said plaintiff to maintain the issue on his part called as a witness Thomas Boyd, who, being duly sworn, gave testimony that he was the owner of the premises described in the declaration in this cause; that he was then in possession of said premises and had been since some time in the year 1873; that said premises front on the road on the north known as the La Plaisance Bay turnpike, a road running east and west or nearly so; that the lands lying north of the premises mentioned in said declaration are occupied by one Dewey; that the highway immediately north of the premises mentioned in said ■declaration as well as said Dewey’s said land is low ground; that intimes of high water Evans creek lying north of said Dewey’s said land and about one-half mile north of said highway would overflow, and that in connection with the rain and melting snow would flow off south towards the land mentioned in said plaintiff’s declaration and fill up a pond upon said Dewey’s land immediately north of said highway; that when said Dewey’s pond would become filled as aforesaid, said water would further flow across said highway and upon the land of said plaintiff mentioned in said declaration into a pond or basin of water upon the land described in the declaration in this case, some thirty-five or forty rods south of said highway, and cause said last-mentioned pond to overflow a portion of the land mentioned in said declaration; that the nature of the land between said Dewey’s pond on the north side of said highway and said pond upon said plaintiff’s land hereinbefore mentioned, was low swampy land with the exception of a ridge four or five rods south of said highway which was higher than either of said ponds and higher than the land immediately north of said highway upon said Dewey’s premises; that there was no regular water-course between said Dewey’s pond immediately north of said highway and said pond hereinbefore mentioned upon said premises described in said declaration where living water usually runs, but water was only there in times of high water, and then only surface water; that for the purpose of preventing said water from settling back from Evans creek into Dewey’s pond and from Dewey’s pond flowing upon the land mentioned in said declaration and overflowing the same, said plaintiff caused in the fall of 1877 an embankment to be made upon the premises mentioned in said declaration immediately south of said highway and south of the fence enclosing said land on the north of about fourteen rods long east and yvest and twelve or fifteen feet wide; said bank extended east and west entirely across the swail or low lands over which in times of high water the water flowed into said pond upon the land described in said declaration; that the effect of said embankment was to keep off the water flowing from the highway and Dewey’s land as aforesaid, thereby rendering several acres of land tillable that otherwise would not bo. The original width of the road was six rods, as appears from the examination of the maps furnished from the department at Washington. The section line runs to the south of the present culvert in that highway. The distance from the culvert of the highway to the dam where the cut was, is fifty-nine one-hundredths of a chain, to the middle of the dam fifty-six one-hundredths of a chain, to the east end of the dam forty-nine one-hundredths of a chain. The length.of dam is about fourteen rods. The height of dam above natural surface of water in the Dewey pond is 3 88-100 feet. On an average (the top of the dam not being quite uniform) the top of the dam is five or six inches higher than the top of the culvert. The dam is three feet higher than the road ditch. The highway on east side of the culvert is lower than the culvert, on the east side of the culvert at least a foot lower than the bridge over the culvert. The road at the culvert is four and one-half rods between the fences as they now stand. The witness also stated that he was there twice in October, 1879; once he made survey and second time the level. The water in the creek was low water then. It was a dry fall. The surface of the water in the Dewey pond was then four feet and some fraction higher than in the Boyd pond. The defendants also introduced testimony tending to show that there had been a channel there for water, though water did not always run there, from above the place called Dewey’s pond, down through that pond across the road down through the Boyd place, a regular channel above spoken of, to the Boyd pond, for more than fifty years; that a road had been laid out on the section line in 1830, and the United States road, six rods wide on section line, in 1832; that the road had been worked and grubbed out one hundred feet wide, and had been used by the public ever since as a highway, but not the full width before mentioned; that the Boyd lot was taken up from the United States land-office by Luther Rawson in 1824, was purchased by Simeon Dewey with five other lots in June, 1829, who moved his family on the land and occupied it until 1831; that Simeon Dewey sold the lot in 1831, to Bliphalet Wood, who occupied the same with his family until 1855, when it was sold by Wood to Jarvis Duller, who occupied it with his family until ho sold it to the plaintiff in April, 1873, who has owned and occupied it ever since; that the water run down the natural channel across Dewey’s place and across the road and down the natural channel on the Boyd lot into the Boyd pond, the greater part of the year and in wet seasons nearly all the year; that the water consisted of surface water and of water from the springs running from the hills west of the water-course or channel, and of a spring east of the water-course or channel, and sometimes also from water flowing over the banks of Evans creek at a point nearly north of Dewey’s pond in a high freshet, and running down the ravine and channel to Dewey’s and Boyd’s ponds; that this water has ran from the first settlement of the country, more than fifty years; that the turnpike had been built nearly fifty years with a culvert or passage-way through which this water has ran in times of high water as aforesaid, ever since; that the channel through Boyd’s farm down to this pond had never been closed up entirely until he built the dam in 1877, though he had by plowing after his purchase filled it up a part of the way; that Eliphalet Wood, during his ownership and occupancy, had employed a Mr. Pocklington to clear out an old gully from the culvert on the highway down to the Boyd pond, and this was just after he had dug and cleared out a ditch from the culvert north-west and then running north-east on the Dewey place down the natural channel; that this had been done nearly twenty-seven years before, and the ditch cleared out and made so as to give a clear passage to the water down to Boyd’s pond; that no one of the owners of the Boyd farm before Mr. J3oyd, ever stopped that channel to the Boyd pond; that Mr. Boyd’s first act in closing the channel so far as the evidence shows was in the fall of 1877, when he built this dam; that when in the spring ■of 1878, its effect was discovered in overflowing and injuring the road, Albert Hyde, the highway commissioner of Tecumseh, cut the dam through so the water could pass into its accustomed channel, and the road was relieved of the water. Now it is a familiar rule that no one shall be at liberty to interrupt a ¡natural water-course so as to set the water back upon a land proprietor above him, and for the purpose of this case, I shall instruct you that the highway authorities in their control of the highway may be considered as having the right of land proprietors and entitled to the benefit of this rule. The defendants insist that this familiar rule applies to this case and that the water-way from Dewey’s land to the Boyd pond, where from the evidence there seems to be a clearly-defined channel or passage-way, is to be regarded as a natural water-course. The plaintiff, on the other hand, insists that only is a natural water-course in a legal sense where living water continually flows. For the purpose of this case I shall instruct you that if you find that living water does gather on Dewey’s land from living •springs or other source and flow for any considerable portion of the year in an accustomed channel along by the way of the culvert in the highway •and upon the plaintiff's land, the i this is to be considered a natural water-course and defendants were justified in keeping it open by cutting •open any embankment erected to obstruct it. If you find, however, that there was no such flow of living water for any considerable portion of the year, you will next direct attention to the rights of the parties as regar'ds the waters that occasionally gather in this water-way. As to these it is shown that they sometimes in very high water overflow from Evans creek. Of course if the water continuously or usually flowed from Evans creek in this water-way, a water-course would exist which could not rightfully be obstructed; but the overflow from high water appears to occur only in rare cases. In my opinion Mr. Boyd is not under obligation to furnish a way for this water. Eights in respect to this would be reciprocal; if Mr. Dewey has a right to insist that Boyd shall receive the water flowing along as it naturally would after the overflow, that Mr. Boyd would have a corresponding right to insist that Mr. Dewey should not shut it oil and prevent its coming. If therefore Mr. Boyd deshed to have the water for any purpose, as for example, in order to keep his pond supplied with fresh water for the raising of fish, he might claim damage of Mr. Dewey should the latter, by raising slightly the banks of Evans creek, prevent these occasional overflows. But this would be entirely unreasonable and therefore not sanctioned by the law. Dewey may prevent the occasional overflows upon him without being liable to Boyd, and Boyd may prevent the water from the overflows coming upon him without being liable to Dewey. And now coming to the question of mere surface water, whether Dewey and the highway commissioners have a right to insist that this shall continue to flow in its accustomed way without obstruction from Boyd, I am not disposed to attempt to lay down any rule that shall be of universal application, but shall confine myself to the facts of this particular case. This case in my opinion does not present the broad question of the obligation of the land proprietor through whose land there is a natural waterway for surface water, to suffer it to pass upon and through his land in an accustomed channel. The case here is of a natural basin of perhaps 175 acres, 100 acres north, of the highway and 75 acres south of it, within which the surface water collects into the Boyd pond. Now there is no outlet to this pond, and the land south and between it and the river is considerably higher than in this basin; there is therefore no natural course for the flow of surface-water through Boyd’s place upon the land south of him and off towards-any stream of water, but only a natural course for the flow of water upon his place, so that the question is not whether he shall allow a natural passage for the flow of surface water through his premises to be kept open, but whether he shall against his will receive the surface water from the lands above him into his pond as a natural place of deposit. Now I think it is manifest from the evidence that the Boyd pond is to some extent filling up. This would be the natural consequence of its receiving the wash of 175 acres of cultivated land, and the evidence shows that the bottom of the pond is muck. The time will probably come, therefore, when this lake from natural causes will disappear, but whether this is so or not, I think Mr. Boyd, so far as it is fed by mere surface water, has a right to get rid of it if he can. It is now small or large according to the flow of water into it, but I think he has a right to get rid of it altogether by draining it or otherwise, as he may be able to do-without trespassing upon others. It is no legal wrong to Mr. Dewey or to the township if in order to do so he'finds it necessary to stop the flow of surface water into it from the north. He is not under obligation to keep this pond here in order that the surface water from other premises than his own may be run into it as a reservoir, but he may bring all his land including this under cultivation if he shall find it practicable to do-so, and the fact that stopping the flow of the surface water into it injures the highway by setting back water upon it is not one of any legal importance in this controversy. One further claim is made by the defendants, namely, that by reason of Wood, when he owned the Boyd place, cleaning out this water-way on. his land in extension of a ditch then cut by Dewey, and evidently on an understanding between them, Dewey has acquired a right in the nature of an easement to have the way left open. I do not find in the evidence, however, any proof of an understanding from which an easement would arise or any evidence that Wood cleared out the way for anybody’s benefit except his own. And the mere fact that something done by one person for his own advantage proves useful to another, can confer no legal right upon such other to its continuous enjoyment. In a new country people often do things which for a time are for the convenience of their neighbors, and submit to things for the benefit of neighbors which as the country improves they find it for their advantage to change, and thereby withdraw the neighborly favor, and they are entirely at liberty to do this, provided they have not precluded themselves from doing so by some legal grant or contract. And I know of no evidence of such a legal grant or contract in respect to keeping open this water-way.	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Marston, O. J. . "While the witnesses do not fully agree upon the facts, yet in the view which we are compelled to take, the dispute becomes immaterial. The court charged the jury in substance and effect, that if they found the facts to be as testified to by the defendant’s witnesses, the plaintiff coidd not recover, and the instructions given, as to the right of the company to a clear track, and the boy being a trespasser, that it could only be held liable in case there was gross and wanton negligence on its part, such negligence as would indicate an indifference to the safety of the boy, were undoubtedly correct. The important question in the case as submitted is whether the court should not have charged the jury, as requested, that under the evidence the plaintiff could not recover. Taking the testimony of the boy, and accepting it as true in every respect, and there is no evidence in the case more favorable to the plaintiff, and it fails to show, or tend to show, that the engineer knew or had reason to know that . he was there at all, and consequently there could have been no negligence on his part in starting the engine. Neither does the boy’s evidence tend to show that the fireman knew or had reason to suppose, that'he had fallen down, or was in any danger of being run over or injured — and certainly there is nothing in the whole ease tending to show that any of the defendant’s servants were wanton or willful in their conduct, or indicating a degree of indifference on their part as to the safety of the boy. Even should it be conceded that negligence on the part of the fireman would render the •company liable, yet tbe evidence does not fairly tend to •show that be had any reason to believe that the boy would not have ample time to clear the track, or that it was at all necessary for him to call the attention of the engineer to the fact that the boy was there. It is not claimed that the boy would have been injured had he not, in some unaccountable way, fallen down, but there was nothing in his age, appearance, or knowledge of trains, or in the height of the step upon which he was .standing from the track, to indicate or lead any person to suppose that he would fall. Falling under such circumstances would be an exception and not the rule, and cannot therefore be made the foundation for a liability against the •company without proof of actual knowledge, which is wholly lacking in the present case. The evidence is clear that the locomotive was in all other respects properly managed and under complete control of the engineer at the time of the accident, so that no charge •of carelessness can arise thereon. We need not therefore dispose of this case upon any mere question of pleading, or because of any variance between the allegations in the declaration and the proofs, or whether the negligence of the fireman alone would be ■ sufficient to charge the company. The evidence is all set forth in the record and it fails to indicate that degree of negligence, upon the part of any •servant of the company, necessary to create a liability. The evidence does show the boy to have been a trespasser ; that he was possessed of more than average intelligence for one of his age; he knew that he had no right there, and repeatedly had been ordered away on previous occasions, and warned by his parents against going on the track or in places of danger; that when ordered off; he would have escaped all injury but that he stumbled and fell, which was unknown to and could not have been anticipated by any person upon or in charge of the locomotive. In other words the injury resulted from an accidental fall •of the boy and without any carelessness or negligence of the company’s servants, and the jury should have been instructed that under the evidence the plaintiff was not entitled to recover. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.	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Graves, J. Plaintiffs in error were tried for having created a public nuisance. The information contained five counts; but the circuit judge confined the jury to the first and fourth, and a verdict of guilty was returned. Judgment was given that each of the accused should pay a fine of fifty dollars and that the sheriff, under the direction of the board of health, and at the expense of the defendants, should abate the nuisance. In the recent case of Shepard v. The People, 40 Mich. 487, we suggested that before any judgment of abatement should be given there ought to be a specific finding of a present state of things showing not only the appropriateness but the necessity of a judgment of that kind. There is no occasion to repeat those observations. In the case before us the reasons against such a judgment are very obvious. Neither count alleged the nuisance to be continuing, and there was no basis for proceeding to give judgment on the supposition that it was. The King v. Stead 8 Term 142; The King v. The Justices 7 Term 464. In the next place the charge was not that the nuisance consisted of something permanent, as a wall or a building. It was alleged to arise from the use which was made of certain things wholly innocent in themselves; and hence the only necessary expedient for getting rid of the nuisance would be, in case of its continuance, to stop the objectionable mode of use. The case was not one, therefore, where it would be proper to destroy the instruments in order to effect an abatement, and there was hence no case to which proceedings to abate through the act of the sheriff could apply. The King v. Pappineau Strange 686. The fourth count alleged no offence. The substance of it is that the accused parties conveyed noxious matters from their glue works “ into a certain ancient stream of pure water there situated and flowing,” and thereby made the “ water unfit to drink ” “ to the common nuisance of the people.” To lay a criminal charge, sufficient facts must be stated to denote it, and where the public offence is the rendering the water of a stream unfit to drink the charge ought to be set out with circumstances to show how it is that the public is interested or affected. Unless this is done the court cannot say that anything amounting to a crime is imputed. Now the count under consideration is wholly wanting in facts to justify the conclusion that the causing of the water in this stream to be unfit for drink was “ to the common nuisance of the people.” The stream is not described as one in which the public have any right. For aught that appears it may be a stream in which no one except the plaintiffs in error have any right whatever. It is needless to go further. The judgment must be reversed. ¡ The other Justices concurred.	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Cooley, J. The defendant in error was recorder of the city of Wyandotte during the years 1877 and 1878. Hej claims that he has never been paid in full Ms salary for) those years, and as the common council refused to allowj and pay Mm what he demanded, he brought suit in assumpsit^ to recover. j By the city charter the recorder is elected for a term of two years. Laws 1867 vol. 2 p. 188. He is ex officio a justice of the peace for the city, with the usual powers and authority of justices; he is clerk of the common council, and is required to keep a record of their proceedings and an account of their receipts and expenditures, and to perform for the city all such duties as township clerks are required by law to perform for the several townships. Ibid. 206. He is also to possess the same powers and perform and discharge the municipal duties of mayor during the absence or inability, death, resignation or removal of the mayor. Ibid. 207. Por his compensation he is entitled to receive “ such sums as the common council may allow, not exceeding three hundred dollars per annum.” Local Acts 1875 p. 680. The facts in the case are stipulated, and the stipulation states that at the time of the election of defendant in error the salary of the office of recorder was two hundred and fifty dollars per annum; by which we understand that there was a standing resolution or order of the common council for the payment of compensation at that rate. This sum was paid to him for 1877, but for the next year the common council by resolution reduced the compensation to one hundred and fifty dollars, and that sum was received under protest. This suit is brought to recover the difference between that sum and the sum as previously fixed. The charter expressly gives to the recorder the customary town clerk’s fees for the duties performed by him which in towns are performed by clerks. Laws 1867 vol. 2 p. 206. He is also as justice of the peace entitled to charge and collect such fees as are chargeable and collectible by other justices. The annual compensation is therefore provided for such services performed by him for the city as fees are not given for. It is evident from the foregoing statement of his duties that these services must vary from time to time considerably, and there is wisdom, therefore, in leaving the compensation to be fixed by the council from a consideration of what these may have been or are likely to be in any particular year. It is claimed, however, that when the salary is fixed at the time when the office is accepted, the acceptance is presumed to have the salary in view, and a contract is thereby effected between the officer and the city which neither can change without the consent of the other. This is a position that has frequently been taken and almost as often overruled. Nothing seems better settled than that an appointment or election to a public office does not establish contract relations between the person appointed or elected, and the public. The leading case of Butler v. Pennsylvania 10 How. 402, has been universally regarded as having settled that question; and it has been followed by decisions in numerous cases. The salary or other compensation is there fore at tlie discretion of the legislative authority of the State, or of such other authority as the Legislature has seen fit to entrust it to. This was indirectly recognized in Chapoton v. Detroit 38 Mich. 636; a case which is in point here. It is said on behalf of the defendant in error that the principle above stated rests on the right of the officer to-resign and give up his office at any time; and it is further-said this right did not exist in the case of this officer because he could only resign to the common council — the very body that reduced the salary — and the council might keep him in by refusing to accept his resignation. Whether the council could in this way compel the recorder to continue in the performance of his duties we do not care to consider in this case, because we think the legislative authority over the subject does not depend upon the existence or non-existence of any such power. Offices are created for the public good at the will of the legislative power, with such powers, privileges and emoluments attached as are believed to be necessary or important to make them accomplish the purposes designed. But except as it may be restrained by the Constitution the Legislature has the same inherent authority to modify or abolish that it has to create; and it will exercise it with the like considerations in view. Whoever accepts a public office must accept it with this principle of constitutional law in view; and if his compensation is reduced below what seems to him reasonable, it may be a hardship, but it is not a legal wrong. The legislative power is ample, and he is' supposed to know when he takes the office that it is liable to be exercised. The legislative power to determine the compensation in respect to this office has been delegated to the common council, and that body has exercised it. This is conclusive. The judgment must be reversed, with costs of both courts. The other Justices concurred. Note. — See a large number collected in Cooley’s Const. Lim. 4th. ed. p. 336 note. See also the recent case of State v. Kalb 50 Wis. 178.	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Graves, J. This record is brought up as a case made after judgment, but it raises no question. It sets up the pleadings and informs us that the cause was tried by the court without a jury and that on the “ trial the following facts were proven,” and after reciting them it proceeds to say, that “upon the foregoing facts the said cause was submitted to the court, whereupon afterwards, and on the 21st day of December, A. D. 1880, the said court rendered judgment against the said plaintiff and in favor of the said defendants for their costs to be taxed and the said plaintiff did then file his written exception to the said judgment.” No special findings of any kind were asked for or made. The cause was tried before the judge on general evidence and he decided in accordance with his view of that evidence in the same manner in which a jury would have-'decided by general verdict, and his general conclusion on the effect of the evidence was followed by the only judgment which could be given on it. There was no more occasion for an exception than there would have been in case a jury had returned a general verdict for the defendants. The matters stated in the record as being the “facts proven” are deductions made from the evidence' since the judgment, for the purpose of constructing a cáse for review in this court. They were not constituents of the record when the judgment was given and a writ <of error would not have brought them up, and it would be extravagant to suppose they could be reviewed as though they were the foundation of the judgment. The provisions for deciding-cases on agreed facts have no application: Comp. L. §§ 4947, 6191, and of course the proceeding has no relation to the case where the question is whether there is any evidence on some specified point. The practice has been misconceived. Chatterton v. Parrott, at the last June term, ante p. 432, is exactly parallel. The irregularity is doubtless of small consequence because no foundation is discovered in what are represented as the “ facts proven ” for any different judgment. The judgment is affirmed with costs. The other Justices concurred.	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Campbell, J. Gertiora/ri having been brought in the circuit court for the county of Shiawassee upon a judgment rendered by the recorder of Corunna, acting as a justice of fhe peace, the circuit court dismissed it as returnable on Sunday. Plaintiff in certiora/ri brings error. The writ was clearly irregular, but it is claimed the court should have allowed an amendment. It appears, however, from the return, which we must assume to be correct, that the certiorari was never allowed by any one. The writ is never a matter of right, and can only issue upon satisfying the ■circuit court commissioner, or circuit judge, that there has been an error committed. Comp. L. § 5166. And the court in deciding finally on certiorari in such cases is bound to disregard all defects not affecting the merits. § 5171. This being the case the party could have gained nothing by an amendment if allowed; and we need not consider whether or not such an amendment could be regarded as ■one which the court could in a certiorari case be bound to grant, or whether if so, this is a proper method of objecting to the refusal. The judgment must be affirmed with costs. The other Justices concurred.	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Campbell, J. David C. Briggs and William Coffron presented a claim against George Tozer’s estate for damages from the failure of title of a steam pump the title of which it was insisted he had guaranteed. The pump had been sold by him as town treasurer on a tax levy, and bid off by one Jerome Warren. Plaintiffs desired to purchase and did purchase it of Warren, but being doubtful of Warren’s responsibility, they applied to Tozer, who as they claim promised to guaranty them from all harm in case any difficulty arose, and to be responsible for the title. It appears from the plaintiff’s testimony uncontradicted that they bought from Warren alone, and that the promise of Tozer was on no consideration moving to him and had reference only to such purchase. When the case went to the jury the court presented the question of responsibility in these words: “ If Tozer stepped in there and said to Briggs and Coffron ‘You buy that pump of Jerome Warren, I will guaranty the title,’ and they would not have bought it without that guaranty, he would be liable. If he stepped in then, and said that ‘ I, in my individual capacity, will guaranty the title to that pump,’ then he is holden, and it is an original undertaking on his part.” This promise was very clearly a promise that Warren’s contract should convey a good title, and that if it did not Tozer would be responsible. Our statutes declare void unless in writing, “ every special promise to answer for the debt, default, or misdoings of another person,” and they forbid any action on any favorable representation or assurance concerning the “dealings of any other person,” unless in writing. Comp. L., §§ 4698, 4101. "Whether the transaction with Tozer was a representation or assurance, or whether it was a promise, it related to a contemplated contract with "Warren to which Tozer was not a party, and under which a warranty of title was implied by the rules of law. It is impossible to regard it as anything but a collateral undertaking involving no liability until "Warren’s contract failed. The case is a very plain one and we think the court erred in holding otherwise. The judgment must be reversed and a new trial granted. The other Justices concurred.	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Marston, C. J. The plaintiff in error is organized under chapter 9fi of the Compiled Laws. The act authorizes any number of persons not less than five to organize as a corporation, for the purpose of securing “to the family or heirs of any member upon his death ” a certain sum of money, to be paid out of the corporate funds or by an assessment upon the members in the class to which the deceased belonged. The principal facts in this case are, that Isaiah Phair, on the 22d day of November, 1819, made a written application, upon one of the blank forms of the association, for a five thousand dollar certificate, to be made payable to Enos Hoyt. In this application Phair was asked to state “relation of the beneficiary (Hoyt) to the applicant” and the answer given thereto was “No relation.” The proper medical report was made, money premium paid, and a certificate issued on the 25th day of November, a copy of which is given in a note herewith. Phair died March 4, 1880, and at the time of his death there were but 1135 members of the association in the class in which he was insured. The association declined to pay upon several grounds, the most important, and the only one we shall consider, being that Hoyt was not a member of Phair’s family or one of his heirs. As showing the relations existing between Phair and Hoyt, the testimony of the latter is given in full herewith. This case seems to be peculiar, and if not one of fraud,, then from the very inception, it would appear at least to be delusive and deceptive. While the insurance, if such it may be called, was for five thousand dollars, and the premium paid was for tins sum, yet the actual amount was fixed by the number of members in the class to which the assured belonged, which turned out to be but a little over eleven hundred, so that the amount to be recovered was thus cut down. Again, the application, signed by Phair, and delivered, to the company, and upon which the certificate was issued, showed clearly, and without any ambiguity or uncertainty, that the certificate to be issued was to be made payable to Hoyt who was no relation to the applicant. The certificate issued three days after the date of the application, referred to the application and made it and each of the statements therein a part of the contract, and the promise made in the certificate was “to pay to Enos Hoyt, friend, of Isaiah Phair, of Jackson * * the sum of five thousand dollars.” It is thus clearly apparent that the association in accepting the application, receiving the premium, and issuing the certificate, well knew that Hoyt was not a relative, and was not claimed to be a member of Phair’s family or an heir, within ■even the most liberal construction. So that the association issued this certificate under circumstances which most strongly call upon the courts to enforce performance of their agreement, if certain imperative rules of public policy do not forbid. The defence set up in this case must be considered as that of the public and not that of the defendant, as it stands in no position to interpose such a defence. Lyon v. Waldo 36 Mich. 353. We need not discuss the other facts at length. The testimony of Hoyt shows that this contract was in the nature ■of a mere wager policy, and that his interest could not be ! promoted by prolonging the life of Phair. Such contracts \| are so clearly contrary to public policy that they cannot be ■upheld, and must be declared absolutely void. The judgment in this case must be reversed with costs of both courts. The other Justices concurred. The Mutual Benefit Association of Michigan — Certificate No. 4051 — Age at issue, 33-7-8 — Amount of Certificate, $5000. In consideration of Uie application for this certificate, which is hereby-referred lo and made part of this contract and of each of the statements made therein, and in further consideration of the first payment (four dollars), receipt whereof is hereby acknowledged, and of the further payment of the semi-annual dues of one dollar, on or before the first days of July and January of each year, and upon the notice of any assessment and the prompt payment of the same (said assessment never to exceed one dollar and ten cents) during the continuance of this contract, does promise to pay to Enos Hoyt, friend of Isaiah Phair, of Jackson, in the State of Michigan, his executors, administrators or assigns, the sum of five thousand dollars within ten days after duo notice and proof of the death of Isaiah Phair; provided, there be five thousand members.of the association in good standing. In case the number of members of the association shall be less, then a sum of as many dollars as there shall be members at the death of Isaiah Phair. If the above-named dues or assessments are not paid as provided for in the articles of incorporation and by-laws, of the association, then this certificate shall be inoperative and void. In witness whereof, the Mutual Benefit Association has caused this certificate to be signed by its president and secretary at its office in the city of Detroit, this 25th day of November, 1879. J. W. McGrath, Secretary. Geo. O. Langdon, President. 1 am the plaintiff in this case. Phair first came to board with me in December, 1878, and stayed till April 25, 1879. He returned on September 7, 1879. He came back as a boarder, and stayed as such boarder till December 25th. Question. State whether there was any arrangement or agreement between you and Mr. Phair as to his becoming a member of the family and remaining in the family during his life-time? Objected to by defendant as incompetent and immaterial; also incompetent to contradict the statement of no relationship set out in the application ; also because the certificate purports to insure a friend, and it cannot be shown that the family relationship existed; also as irrelevant to the issue. Objection overruled. Exceptions for defendant. A. He was to live with me as long as he lived. As long as I had a home he was to have one with me ; after that he was treated as a member of the family. This arrangement was made about the time the policy was got out. I was keeping hotel at that time. Q. What, if anything, did lie do around the hotel after this arrangement ? A. He was not obliged to do anything. He used to do chores. Q. Seemed to take an interest in it and work around as the rest of you? A. Just about the same. Q. Whether during that time and after this arrangement and up to his death he worked at your house around doing chores as .your wife would call on him? A. Yes, sir. Q. And between the two places lived with you as a member Qf your family? A..Yes, sir; just the same. Q. And under an agreement with you to that effect? A. Yes, sir. Q. You say he came and went, and in all respects conducted himself toward you, and you treated him, as one of the family? A. Just about the same, sir. He went away in December to Eaton Bapids and came hack the latter part of January. When he came back I needed a man, so I told him if he wanted to, I would give him $10 a month, the same as I would have to pay another man, so he stayed there as night watch until he got so-sick he could not work. Q. So that from the time he came hack, in addition to treating him as a member of the family, you allowed him $10 a month for some work he did? A. Yes, sir. Q. Who took care of him? A. Some of the help in the house. Q. Under whose instructions? A. Mine. Q. Who paid the bills? A. I did. Q. Who called in the doctor? A. I did. Q. Who paid them? A. I did. Q. Who paid the expenses of burying him? A. I did. Q. State whether Phair was indebted to you at the time of the issuing of the policy. Objected to for the same reasons as like testimony of the witness Foster. Objection overruled. Exception for defendant. A. Yes. He was owing me about $200; don’t know exactly how much. Q. And if you had charged up for all you did for him after he-became a member of the family, how much would he have owed you at the time of his death? A. About $600. Cross-examination. Phair was not in any business when he first- came to my place. Did not know where he came from. He was to pay me $5 per week. He never paid mo anything. He did not do anything; had no employment. I kept my account with my boarders in a large book; charged them with board and gave credit for payments. Q. Why didn’t you charge Phair with his board? A. I did have him charged with his hoard until after he was insured. After he was insured I gave him his account. He was square. I gave him his hill. Q. You say you gave him a square account after the insurance? A. I gave him his bill. Yes, sir. It was just stated in the book Ike commenced to board such a date, so much per week. I tore the leaf out, and gave it to him. Q. He never paid you anything? A. No, sir. Q. Any others around you had boarding like that? A. I had one — George Proudfit. I did not know where Phair went after he left April 5, 1879. Didn’t keep any track of him. Never dunned him for my pay while he was gone. No-arrangement was made when he came back in September, ’79; just came and stopped. Q. You had at the Sheridan House Mr. White (bar-tender) and this man (Phair) working around? A. No, sir. I did not have thia man working around the Sheridan House. He was there, but not working- for me. I moved from the American to the Sheridan May, ’79, and from there to the Central City House, December, ’79. When he was staying with me from December, ’78, to April, ’79, I did not charge up his board in the books. Q. You charged the other boarders? A. No, sir. I didn’t have any regular boarders. Q. Why did you keep him? A. He had been so long with me. Q. From December to April, between three and four months, do you call that a long time? A. Wouldn’t you call it a long time if you had a man boarding with you and he did not pay? Q. So you kept him along because he had not paid you? A. I kept him along so as to get my pay. When he left me at Christmas time, after the insurance, he went to Eaton Rapids in a livery barn. He earned wages but did not pay them to me. Q. This was after he became a member of your family, wasn’t it, according to your statement? A. Yes, sir. Q. When was it you tore his account out of the book and gave it to him? A. When 1 got the policy there; before he went to Eaton Rapids. He used to do a chore around once in a while. I have him charged with $33 for clothing — some clothes of mine had at different times. I made no charge of anything till this suit was commenced. Q. When you gave it to him you intended it as a gift, did you? A. Yes, sir. At any time when he worked for mo before he came back from Eaton Rapids, I paid him five and ten cents a chore. Q. You have charged him in this memorandum with $5 a day for taking care of him the last ten days of his life. He was only confined to his room about four days before his death, was he not? A. That is all. Q. Was it worth $5 per day for the last ten days of his life? A. Yes, sir. Worth that to have him around. Q. Why didn’t you send him to the hospital or pest-house? A. Because I had an insurance on him, and was to take care of him as long as he lived. Q. How old was he? A. Thirty-one, or 32, or 33, I think. Q. You stated a minute ago, didn’t you, that at that time he was an able-bodied man? A. Yes, sir. Q. And you were going to take care of him all the remainder of his life for the insurance? A. I was to give him a home. Q. Was that the agreement? A. The agreement was that he was to have a home as long as I had it. He could go out and work as he had a mind to, and he could come home as he had a mind to. Q. So that, for the remainder of his life, 30 or 40 year's, if it might be so long, you were to give him a home at any time? A. We did not expect this man was going to live there all his life at that time. If ho wanted to go to work he could. Q. But he need not do it? A. No, sir. Q. So you agreed to board him for that insurance? A. I agreed to let him have a home. Q. Who paid for this insurance? A. I did. Q. So that for the insurance you were not only to give him a home, but.you were to pay for the insurance itself? A. That was what I was to do. I don’t think I swore anything before the coroner about Phair’s being indebted to me. I don’t recollect that the question was asked me. I understand the cause of Phair’s death was congestion of the lungs. Q. What did you swear before the coroner’s inquest was the cause as you understood it? A. Whisky, I think. Q. Why did you swear whisky at that time? A. From the very fact I heard the doctors talking. Q. You knew he was a drinking man, didn’t you? A. Yes, sir. I knew he was a drinking man. I did swear before the coroner that he had free access to the bar. That meant my bar. Yes; that was true. He did have free access. Q. And from all you knew he was a drinking man at the time he was insured? A. Yes, sir. There ain’t many men insured who are not drinking men. Show me one, and I will show you a white blackbird. I did swear before the coroner’s jury that I paid him $10 a month and board. Q. Why did you swear to that if he was a member of your family? A. I did. Q. What for? A. Eor being night-watch. Q. Did you swear before the coroner that he owed you anything? A. I don’t recollect the question was asked me. Q. Did you swear he was a member of your family? A. I don’t think the question was asked me. Q. They asked you how he was living there, and you said you were paying him $10 a month and board. You did not say he was a member of your family? A. The question was not asked me. I have been convicted several times of keeping a disorderly house. I paid all the fines I have ever been fined. Yes, sir. I was convicted once in the circuit court of keeping a house of ill-fame. Q. Did you swear before the coroner that Phair worked for you on and off for a year? A. I did. I meant that he had done chores for me on and off for a year. I paid him five or ten cents for what chores he did. Q. Do you mean to say that if he was owing you all this money, that nevertheless whenever he did a little work you paid him for it? A. Yes, sir. Minutes of evidence of witness before coroner’s jury here read as follows: Deceased has worked for me about two months; has worked off and on for about a year. He acted as night watch. Understood his complaint was whisky. He was a man who drank pretty freely. I gave him $10 a month and board. Do not know of his having a family; understand he has a brother. I also have George Proudfit insured in my favor. Mr. Hoar found Phair dead this morning. He was filling Phair’s place while he was indisposed. Phair' had free access to the bar. Think he drank some outside of my place. I knew he was drinking when I had him insured. Captain Proudfit had his life insurance in my favor, and I mine in his. But when it came to paying for the policy he could not pay for mine, but I have kept his up. It was talking about this in Phair’s presence the way I happened to get his policy. Q. Now, Dr. Crawford swore, Mr. Hoyt, that he attended Phair some time before the insurance, and that you paid him. Is that correct? A. Think I paid him 75 cents then. I was thinking that was at the American House; that is my impression. I don’t remember any other time. I don’t recollect how long this was before we moved from the American to the Sheridan; but I recollect paying him 75 cents. Q. Then you were not only allowing him his board without getting any money, but you were paying his doctor’s bills? A. I paid 75 cents. I don't know what was the matter with Phair for which the doctor prescribed. Phair was not a man of any property that I know of. Some of the clothes were furnished before the insurance. Q. So that you were not only boarding him, but giving him clothes before? A. Yes, sir; a little.	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Bandstra, J. Defendant appeals as of right the Court of Claims order granting summary disposition in favor of plaintiff. Specifically, defendant contests the court’s determination that the use tax, MCL 205.93(1), did not apply to the promotional activities of plaintiff at issue here because they did not occur “in this state” under the statute. We affirm. The facts in this case are not in dispute. Plaintiff is a Delaware corporation with its principal office in Muskegon, Michigan. Defendant imposed a use tax on certain items (bowling balls and accessories) that had been withdrawn from plaintiffs Michigan inventory and given away to professional bowlers and customers, or otherwise used for promotional or advertising purposes, as opposed to being sold at retail. Defendant imposed the use tax on plaintiff regardless of whether this occurred in Michigan or in other states. Plaintiff contested only the use tax imposed with respect to non-Michigan activities. Plaintiff appealed to the Court of Claims defendant’s tax liability determinations. Defendant moved for summary disposition pursuant to MCR 2.116(0(10), arguing that no genuine issue of material fact existed and that it was therefore entitled to judgment as a matter of law. The Court of Claims denied defendant’s motion for summary disposition and granted plaintiff summary disposition under MCR 2.116(I)(2). It concluded that defendant’s imposition of the use tax on plaintiff was not authorized by law, and that, if plaintiff were liable under the Use Tax Act, it could potentially be taxed by two or more states on the same transaction in violation of the Commerce Clause of the federal constitution. Defendant argues that the Court of Claims erred as a matter of law in its determination that plaintiff is not liable for use tax on inventory withdrawals. We disagree. We review de novo a decision by the Court of Claims on a motion for summary disposition and issues requiring statutory interpretation. Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App 711, 719; 697 NW2d 539 (2005). With regard to the Court of Claims interpretation of the Use Tax Act, MCL 205.91 et seq., our review is subject to the general rules of statutory interpretation. Herald Wholesale, Inc v Dep’t of Treasury, 262 Mich App 688, 693; 687 NW2d 172 (2004). This Court has explained: “The primary objective of judicial construction is to ascertain and give effect to the Legislature’s intent. The language of the statute is the best source for ascertaining intent. An act must be read in its entirety and the meaning given to one section arrived at after due consideration of the other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. Long-standing administrative interpretations by those charged with administering a statute are entitled to considerable weight. However, an administrative interpretation is not conclusive and cannot be used to overcome a logical reading of the statute. If an act is clear and unambiguous, then judicial construction or interpretation is unwarranted. If a statute is ambiguous or susceptible to two or more constructions that could cause reasonable minds to disagree as to its meaning, the statute must be interpreted.” [Id. at 693-694, quoting Stratton-Cheeseman Mgt Co v Dep’t of Treasury, 159 Mich App 719, 724-725; 407 NW2d 398 (1987) (citations omitted in Herald Wholesale).] Moreover, “[t]ax laws generally will not be extended in scope by implication or forced construction,” and “[w]hen there is doubt, tax laws are to be construed in favor of the taxpayer.” Sharper Image Corp v Dep’t of Treasury, 216 Mich App 698, 702; 550 NW2d 596 (1996). “The use tax is complementary to the sales tax and is designed to cover those transactions not covered by the General Sales Tax Act [MCL 205.51 et seq.].” Sharper Image, supra at 701. MCL 205.93(1) provides that “[t]here is levied upon and there shall be collected from every person in this state a specific tax for the privilege of using, storing, or consuming tangible personal property in this state ....” MCL 205.92(b) defines “use” as “the exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given.” Plaintiff does not dispute that its use of inventory for promotional purposes in Michigan is subject to the use tax. See, e.g., Guardian Industries Corp v Dep’t of Treasury, 243 Mich App 244, 251-252; 621 NW2d 450 (2000). Thus, plaintiff has not contested imposition of the use tax with respect to the promotional use of bowling inventory in Michigan. The question raised in this appeal is whether plaintiffs shipment of items elsewhere constitutes a “use” in Michigan. Defendant maintains that plaintiffs withdrawal of items from its inventory constitutes a “use” in Michigan, thereby implicating the use tax. That is, the withdrawal of items from Michigan inventory with the intent to give them away in other states constitutes a “use” in Michigan because plaintiff exerts control over the inventory while it is in Michigan. Plaintiff maintains that the items in dispute are not withdrawn from inventory until they are given away in other states. That is, the items remain in plaintiffs control and custody when they are transferred outside the state, and are not “removed from inventory” until they are given away. Plaintiff emphasizes that, if the promotional items are not given away in another state, they are returned to plaintiffs Michigan inventory; thus, no “use” has occurred in Michigan. As noted above, the Use Tax Act applies to every person in this state “for the privilege of using, storing, or consuming tangible personal property in this state. . . .” MCL 205.93(1). At issue here is the term “use,” which MCL 205.92(b) defines as “the exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given.” This Court has explained that “[u]nder the plain meaning of the statute, in order to be taxed under the [Use Tax Act], a taxpayer must perform in Michigan one of the activities listed in the definition of ‘use.’ ” Sharper Image, supra at 702. In Sharper Image, the plaintiff taxpayer, a foreign corporation, challenged the Department of Treasury’s imposition of a use tax on catalogs shipped by mail into Michigan. Id. at 700. This Court concluded that the lower court erred in its determination that the use tax was applicable because, under the plain meaning of the statute, a taxpayer must perform one of the activities listed in the definition of “use” in Michigan. Id. at 702. This Court reasoned that, because the plaintiffs exercise of a right or power over the catalogs ended when they were delivered to a post office in Nebraska, no taxable “use” of the catalogs by the plaintiff occurred in Michigan. Id. Applying the logic of Sharper Image here, the dis-positive question is whether plaintiff maintained a “right or power” over the contested items as they were transferred to other states to be used or given away for promotional purposes. Plaintiff clearly did. The term “use” as set out in the statute does not encompass the withdrawal of inventory and subsequent distribution of such items in another state. Because the items in dispute remained in plaintiffs control and possession when they were sent to other states for potential promotional or giveaway purposes, their “use” for these purposes did not occur in Michigan. Defendant’s argument that it was sufficient that the items in dispute were “withdrawn from inventory” and “resold” to plaintiffs retail or promotional divisions in Michigan before being shipped out of state is misplaced; any such intracorporate transfers or redesignations of the status of the items in dispute did not affect plaintiffs possession or control over them. The Court of Claims properly denied defendant’s motion for summary disposition and properly granted plaintiff summary disposition on the basis of its determination that the use tax did not apply to plaintiff in this case. Defendant additionally argues that the Court of Claims erred in failing to accord due deference to defendant’s longstanding position on use tax liability for items withdrawn from inventory. Defendant relies on a 1977 case in the former Michigan Board of Tax Appeals, Wilson Sporting Goods Co v Dep’t of Treasury, issued November 10, 1997 (Docket No. 1297), to support its position. It is questionable whether that case is factually on point and addresses the legal question raised here. In any event, although “ ‘[l]ong-standing administrative interpretations by those charged with administering a statute are entitled to considerable weighty ... an administrative interpretation is not conclusive and cannot be used to overcome a logical reading of the statute.’ ” Herald Wholesale, supra at 693, quoting Stratton-Cheeseman, supra at 724. See also Guardian Industries, supra at 254. Defendant further argues that its position is entitled to deference, relying on a “revenue technical tax training” document from July 2002, as well as an earlier version from September 1997. However, “[i]n order for an agency regulation, statement, standard, policy, ruling, or instruction of general applicability to have the force of law, it must fall under the definition of a properly promulgated rule. If it does not, it is merely explanatory.” Danse Corp v Madison Hts, 466 Mich 175, 181; 644 NW2d 721 (2002). While the “tax training” document may be used as a guide, it was not promulgated as an administrative rule and therefore does not have the force of law. Id. Because we conclude that the Court of Claims properly determined that defendant’s imposition of the use tax was unauthorized, we need not address plaintiffs argument that applying the use tax in this case violates the Commerce Clause. We affirm. Defendant does not claim that the storage of the contested items in Michigan, before they are transferred for promotional purposes, is subject to the use tax. The affidavit of plaintiffs manager of financial reporting and analysis indicated that the howling balls that plaintiff supplies to its sponsored PBA (Professional Bowlers Association) bowlers are shipped directly to bowling tournament sites or to local distribution centers. There, a contractor hired by plaintiff takes possession of the bowling balls and has them stored on shelf space that is leased by plaintiff from the PBA. When necessary, the contractor takes a ball from plaintiffs leased storage space, drills it and otherwise prepares it for use, and gives it .to a plaintiff-sponsored professional bowler for use in a tournament. Thus, the bowling balls that plaintiff gives to PBA bowlers are under the control of plaintiffs contractor until they are given away. Similarly, any promotional items given away at trade shows are in the possession and control of an employee of plaintiff until they are given away. Additionally, any bowling balls or promotional items that are not given away are returned to inventory at plaintiffs Michigan facility.	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Marston, C. J. The record in this ease is not as full, clear and distinct in some respects as we could wish it to be. We are unable to find anything in the act under which the complainant company was organized, or in the rules appearing in the record, which would take away from John Priest the right and power of disposing of this fund by last will and testament in the ordinary manner. While section 9 of the rules and regulations of the complainant provides that the fund on the death of a member shall be paid to the person or persons last named by the deceased, and entered by his order on the Will Book of the company, yet this does not, nor did the will as entered upon the complainant’s books, attempt to deprive Mr. Priest of the right to make some subsequent disposition of the fund differing from that therein made. Indeed in the will made upon the complainant’s books, full right was reserved to make a different disposition thereof. This was done by the second will, which does not, in our opinion, violate rule 9 of the complainant, and if it did we might not be prepared to hold the testator’s disposition invalid because thereof. Very clear and binding provisions must be shown to deprive a person of the right given him by the laws of the land to dispose of such a fund by his last will. In our opinion the provisions of this second will, in so far as it names the persons and the amount to which each shall be entitled, must govern. This being a beneficiary fund, does not become a part of the property or estate of the deceased subject to his debts, but is exempt therefrom in accordance with the provisions of the act of incorporation. It does not therefore go to the administratrix of the estate, but should be paid direct to the beneficiaries named, if of age, and if not, then to their legal guardians. The decree will be modified, so as to give Mary Priest, the appellant, the sum of five hundred dollars, and in all other respects the decree shall stand confirmed, and a decree to this effect, and directing the payment of the minor children’s shares to their lawful guardians, will be entered in this court. This is not a case where costs should be allowed against the children and none will be. The other Justices concurred.	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Marston, C. J. ¥e can discover no valid objection to the plaintiff’s right of recovery in this case under the declaration and claim as made. In the instructions given the jury, the court most carefully protected the defendant, by limiting the plaintiff’s right of recovery to a finding that her mother received the money as a special deposit, and that it after-wards came into the defendant’s hands. The claim is made that the court erred in excluding the inventory filed in the probate court by the defendant as the guardian of Ellen Martin, and the evidence of James Grace, the clerk of defendant, as to what particular sums of money were set forth or included in such inventory, and the good faith of defendant in connection therewith. There was no error in rejecting this evidence. The inventory was made by the defendant and he could not, by including therein the moneys of plaintiff, cut off her rights thereto or transfer the same to his ward. He made no offer to show that acting in good faith he had paid out these moneys for the benefit of his ward or done any act that would prevent him from having full protection on the settlement of his guardianship account in the probate court. If he, in good faith, included the plaintiff’s money in the inventory of his ward’s property, and afterwards was obliged to pay over the same to the plaintiff, the probate court, upon a showing to that effect, would permit a correcting of his account or inventory, and thus save him from injury. The court properly excluded all evidence tending to prove the value of plaintiff’s board while she lived in the house of defendant. There was no evidence in the case tending to show a state of facts under which the defendant could charge the plaintiff, who was his sister, for board. We discover no error in the record and the judgment must be affirmed with costs. . , The other Justices concurred.	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Graves, J. Prior to July Id, 1859, the defendant Innes contracted a certain body of land to Ernst & Nixon and also another one to W. & E. Trill, and Berry claims that Innes on that date through his attorneys Ives & Martindale assigned to him the said contracts and bound himself to convey to him the property, subject only to such rights as were held by said purchasers under their contract. In July, 1861, lie filed his bill against Innes for specific performance, and joined Ives & MartindaLe and a person by tbe name of Price as defendants. Tbe purchasers by contract, Ernst, Nixon and the Trills were not made parties. On the 23d of August, 1873, the court made a decree in Berry’s favor; which, after finding and adjudging that the interest possessed by Innes at the time Berry became assignee, amounted to $1200, proceeded to decree that Innes should convey to Berry by deed containing the usual covenants of a warranty deed, but saving from the operation of the covenants whatever rights existed or might arise in favor of said purchasers by contract, or their privies. The case had proceeded without the filing of any notice of its pend-ency and on the 21st of February, 1868, the premises were conveyed by Innes and wife to George Jerome. April 10, 1874, the decree was allowed to be altered ex parte ; and a year later the court adjudged Innes guilty of contempt for not having made conveyance in accordance with the decree. An appeal was taken from that order to this court and the proceeding for contempt was reversed. Berry v. Innes 35 Mich. 189. After saying that Innes was not bound at his peril to prepare and execute such a deed as the decree ' called for, the court added these material observations: “But we also think the decree could not lawfully have been amended without notice; and though the amendment could not injure this defendant, yet as the decree itself appears to be in some particulars not warranted by the case made, we think the defendant should be allowed to take advantage of the error. The order appealed from will, therefore, be reversed, with costs, and leave given to file a bill of review. If the parties cannot now agree what their respective rights are, and settle them without further litigation, Nixon, Ernst and the Trills ought in some manner to be brought before the court.” The order of reversal was made October 25, 1876, and a certified copy was filed in the court below on the 7th of September, 1877, and the case implies that Innes filed a petition for leave to bring a bill of -review and attached thereto a copy of the . bill he desired to bring. No other proceedings were taken in that suit and on November é, 1819, Berry commenced the present action at law; the suit being a special action on the case to recover damages for the alleged neglect and refusal of Innes to execute and deliver the deed in accordance with the before-mentioned decree. The hearing proceeded without a jury and the judge on special findings decided in favor of defendants and the plaintiff seeks a review of the decision on a case made. The action is a novel one. Nothing like it is mentioned by; counsel or is remembered by the court. Still, if the principle is sound the bare fact that this is the first example ought not to defeat the plaintiff. But is the principle sound? "We think not, and many reasons are suggested for this opinion. But it is idle to multiply objections. We shall not presume to overhaul the practice in the equity case. We are not sitting in review of that suit and the occasion is not a proper one for inquiring in regard to errors and irregularities alleged to have been committed in it. It is sufficient for the present purpose to give attention to the views expressed on the hearing of that cause on the appeal. The real position of the plaintiff is that the original decree by the circuit court is valid, and that Innes committed an actionable grievance in neglecting to obey it. That it imposed a duty on Innes, which the courts are bound to regard, to execute, the deed to Berry; and that his failure to perform the duty by deeding as directed by the decree, created a ground of action at common law for the recovery of damages. Now if the duty supposed did not arise upon the decree, the action at law falls to the ground on its own theory, and recurring to our ruling on the occasion of reversing the order in the contempt proceeding, it is seen that we then held in substance that it did not. We thought that the case was too faulty and defective to warrant any coercive steps against Innes and that further proceedings of some kind would be necessary to place him at fault for not deeding as directed by the decree. That determination is consequently decisive against the very principle relied on to justify this action. In the present state of the controversy the plaintiff must loqk to some proper use of the suit in equity in the court of equity to obtain any substantial relief. The judgment is affirmed with costs. The other Justices concurred.	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Campbell, J. Plaintiff'who resides in Mecosta county, •sued defendants, who reside in another State, on contract, the suit being brought in Kent county and service made there. Defendants pleaded in abatement showing their non-residence and that of plaintiff, and claiming that under our statutes they could only be sued in Mecosta. On demurrer this plea was sustained, and plaintiff brings error. It was held in Haywood v. Johnson 41 Mich. 598, that a. resident of the State could not be sued in a transitory action in a county where neither party resided. It was held in Turrill v. Walker 4 Mich. 177, that the circuit courts could get no jurisdiction unless one defendant is served in the county. It 4 results from these decisions that a suit in Mecosta would have been fruitless unless a defendant should be found there, and that unless a suit can be brought where a non-resident defendant is found, he cannot be sued •at all, in many eases, and could not have been in this case. Reliance is had by defendants on section 5970 of the Compiled Laws of 1871, which requires transitory actions to be tried in the county “ where one of the parties shall reside at the time of commencing such action.” This was held in Haywood v. Johnson, to require suits to be commenced in such county. And if .the section applies to non-residents of the State, the decision below was correct. But if correct it follows that there are many transitory actions on contract, as well as in tort, where such persons can always evade the justice of this State by keeping away from counties where their creditors reside. The Constitution gives jurisdiction without any exception, in such cases, to the circuit courts. It would not be competent for the Legislature to take it away. And if the statute in question would have any such effect according to its ordinary meaning we are compelled to-choose between holding it to that extent void, or construing it according to what was no doubt its real intent, as not applicable here. We have no doubt the section in question was intended to-be a beneficial section in the direction of saving defendants from vexatious suits in places remote from their homes. It accordingly saved them the privilege of being sued at home, or in the home county of the plaintiff, who was regarded as entitled also to some consideration. It is evident that in so-legislating the law-makers had no idea of granting a privilege to non-residents against being sued at all. The natural inference is that those who were entitled to be sued in the-forum of their residence, are persons whose residence contains one of the courts of the State; so that suits may be brought under our laws. (The language of the statute only applies to trials of actions brought under our laws; and if' any case arises under our laws it would be absurd to hold that the Legislature meant to say it should not be tried at all. Those who claim the privilege must point out a Michigan forum where they can be found for service of process. The statute applies to no others.^ This has been the uniform practical construction, and this-is the first case brought to our notice, in which any nonresident defendant has claimed exemption from process. This practical construction of nearly forty years cannot be disregarded. "We think that the case is not within the statute, and that service on the defendants in any county of this State is valid when suit was commenced in that county. Judgment must be reversed with costs of both courts and •the demurrer sustained, with leave to defendants to answer over and plead issuably in twenty days. The other Justices concurred.	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Marston, C. J. An appeal having been taken to this court from the decree rendered in this cause, counsel for appellant, without any order from this court or special reason existing therefor, before return made, placed the originaL minutes of the oral testimony, which had been taken in open, court, in the hands of a printer, to have the record printed,, on his promise to save and return it; but, when printed, the-original manuscript was then destroyed by the printer.. Upon such a showing a motion is made for leave to file a. copy of the evidence in lieu or as a substitute for the original destroyed. The motion is very reluctantly granted, and only to save the rights of the appellants, who do not seem to have had any knowledge of such use being made of the testimony. Such a use is wholly irregular and should not be permitted, and the granting of the motion in this case must not be taken as an approval of the course adopted, or relied upon as a precedent in cases hereafter arising. The other Justices concurred. Henry F. Severens for defendant in error. The contract was not sufficiently definite to warrant specific performance: Browne St. Frauds, §§ 452, 492-3; Gosse v. Jones 73 Ill. 508; Taylor v. Staples 8 R. I. 170 ; Williams v. Morris 95 U. S. 444; Wright v. Wright 31 Mich. 380 ; Jones v. Tyler 6 Mich. 364; Case v. Peters 20 Mich. 298. Cooley, J. Specific performance is prayed in this case of an oral contract alleged to have been made by complainant with Hugh Lamb, bis father, now deceased. The defendants are the administrator and heirs at law of Hugh Lamb. The case made by the bill is that on or about October 12, 1872, Hugh Lamb owned a certain eighty-acre lot of land in the township of Weesaw, of the value of about $2400, ' upon which he lived alone; that he was then seventy-two years of age, and very infirm; that among his infirmities was an ungovernable temper which rendered it difficult for others to live with him; that he had been letting his land on shares and had not succeeded well in so doing; that he had no team, little live stock and few farming utensils; that com* plainant was then a married man, living with his wife and two children about a mile from his father; that his father went to see him, and after talking over his affairs and circumstances, entered into a verbal agreement with him' in substance and effect, as follows: On the part of complainant it was agreed that as soon as suitable preparations could be made, complainant with his wife and family should remove to his father’s dwelling-house on the land aforesaid, and live with him during the remainder of his life, and should give him suitable care and attention, and should farm the land, rendering to his father annually two-fifths of all the wheat and one-half of all the corn raised on the land, all to be delivered on the land, the wheat in the half bushel and the corn in the shock or row; that complainant should furnish the seed, farming utensils and team for use on the farm, and supply his father with suitable board, lodging, washing and mending, and on the part of said Hugh Lamb it was agreed that he should pay annually to complainant seventy-five dollars, and let complainant have the south 10 acres of the land, and give him a good and sufficient deed thereof; that this agreement was fully performed on his part to the satisfaction of his father; that complainant tcfok possession of the south forty as his own in July,-1873, and has since cultivated and improved the same; that his father often promised to give complainant a deed of said south forty, but neglected to dó so, and died without having given a deed, in September, 1878, and that since his death the heirs at law and the administrator appointed to settle his estate refuse to recognize and perform the agreement; wherefore complainant prays the aid of the court. The defendants answered, denying 'that Hugh Lamb ever made such an agreement, and the ease was. brought to a hearing on pleadings and proofs. We are convinced by the proofs that a contract substantially as set up in the bill was made by the parties, and that complainant has strong equities in his favor which should be recognized if no inflexible rules of law forbid. The evidence that proves the contract discloses little discrepancies in the understanding of particulars, but not such as to make us doubt the parties having agreed upon the terms of an arrangement as complainant now describes them. If “there is any doubt as to the precise terms of the contract, it concerns the time when the deed was to be given. The complainant seems to have expected his father would give him a deed without any great delay; but the agreement fixed no time; and as the retention of the title constituted the father’s security for the performance by complainant, it was not unnatural that he should delay putting the security out of his hands. If the contract had been in writing, Hugh Lamb -would have had the legal' right to decline to part with the title so long as he lived; and it is no reason for declining specific performance of the oral contract that complainant had expected his father would so far confide in him as to make the deed in person instead of leaving it to be made by Ms heirs. We think, therefore, that so far as proof of the contract is concerned, the case is sufficiently made out to answer the requirements of cases relied upon by defendants. Case v. Peters 20 Mich. 298; Wright v. Wright 31 Mich. 380. But it is said there has been no such part performance as can take the case out of the statute of frauds. The most important act of part performance was the taking possession of the land, occupying and cultivating it during the father’s life. But this it is said was not in fact the complainant’s possession, but the possession of the father; so that on this branch of the case there is substantial failure to make out any recogmzable equity. The reason why taking possession under an oral contract is recogmzed as a ground for specific performance when payment of the purchase price is not, is that in one case there is no standard for the estimate of damages when the contract is repudiated, and in the other there is a standard that is definite and certain. A purchaser who takes possession of land under an oral purchase is likely in so doing to change very considerably — perhaps wholly — the general course of his life as previously planned by him; and if he is evicted on a repudiation of the contract, any estimate of his loss by others must, in many cases, be mere guess-work. The rule, therefore, rests upon the element of uncertainty, and not upon any technical ground of exclusiveness in the possession. And upon this point no case on its equities could be plainer than this. Complainant abandoned one home and made a new one in reliance upon the oral contract; .occupied the land bargained for and cultivated it for six years in confidence that the contract would be performed; and it is not too much to say that the whole course of his subsequent life was probably changed in consequence. To deny relief under such circumstances for no other reason than that he did not occupy exclusively, would be to make the whole case turn upon a point in itself unimportant as affecting the real equities. The case is within Kinyon v. Young 44 Mich. 339. The decree of the court of chancery was in favor of complainant, and it must be affirmed with costs. The other Justices concurred.	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Campbell, J. Harrison filed his bill to get relief, as- a retired partner, concerning his claims against the firm assets. From 1872 to 1877 he was a partner in a business in which there were some changes of ownership. In July, 1877, the firm consisted of Harrison, Dewey, Lane, Charles Palmer, and Foster B. "Warren. The capital stock was $22,500, and the actual assets as inventoried were about $88,000, subject to not far from $16,000 debts. Assuming them to be worth their face, the assets beyond debts and capital would reach nearly $50,000, leaving each partner nearly $10,000. In July, 1877, the defendants desired to form a new concern, and bought out "Warren for the sum of $12,500, he accepting as his share beyond his capital stock $7500 as his interest in the profits. Harrison was also applied to, to sell out, and upon all the testimony we have no doubt that was the purpose of the arrangement which is set up in the bill, although he claims his sale was partial. Dewey insisted at this time that Harrison had overdrawn his accounts sufficiently to use up all his profits. Harrison claimed on the other hand that there was a very large balance in his favor. After an offer of $1000 had been refused, he finally accepted $2500. This he claims to have done under false representations from Dewey as to the state of the accounts and assets • and this bill is filed, practically for the purpose of rescinding that arrangement and obtaining an account of his proper share. We have found much inconvenience resulting from the manner in which the testimony was put in. Instead of transcripts from such parts of the books as became material, the books were put in bodily, and no statement whatever was laid before us of Harrison’s account, in the way in which it appeared on the books. It is not desirable or proper in ordinary cases to have the books themselves introduced and filed, unless there is something in their appearance which it is necessary to consider on questions of fraud or forgery, or some special difficulty. But where no such issue is raised, parties ought not to be deprived of the custody of their own books, and such accounts as are required should be transcribed. In the present case the only issues presented by the pleadings or on the argument, which involved the correctness of the books, related to particular, charges. It was not claimed the books themselves had been wrongly kept, or manipulated. The chief item of dispute was a set of charges against Harrison for deficiencies in the proceeds of some securities which he turned over to his firm to be used in payment for some property purchased of Mr. Johnston. These securities amounted to $11,300 as credited. They were guaranteed to 3ohnston by the members of the firm; and when the deficiency arose they were charged back, so' far as necessary, to Harrison. The testimony is not as clear as it should be on these items. It is admitted that Harrison, when the difficulty arose, took back the title to one portion of the mortgaged premises, and we think it very clear that as to this the charge back was right. The exact amount of the other deficiency is not shown, but it seems to have been not far from $2000. No other charges claimed to be wrong have been brought to our attention. Allowing the full amount of these Johnston charges to stand, the books show that in July, 1877, at the time of settlement, Harrison was indebted to the firm in excess of all his credits, in the sum of about $9639.71. That is the balance shown, and subject possibly to some miscalculations, is correct or nearly so. Dewey’s statements, therefore, as to the condition of the books were not seriously erroneous. The additional $2500 which was paid to Harrison made the share which he drew of the profits more than $12000, and in excess of his proper share on the basis of the inventory, more than $2000, and more than $4500 beyond what Warren about the same time received for his equivalent share. No items or specifications have been pointed out to us to indicate that there is any error in these figures. If they are correct he has on his own theory sustained no wrong, while on defendant’s theory he has been largely overpaid. We have referred to these figures chiefly for the purpose of showing that if there was a fair compromise, it ought not to be disturbed. It appears from Harrison’s own showing that he knew the Johnston deficiencies had been charged against him some time before the settlement. He knew that Dewey, who acted for the others, claimed that there was nothing coming to him. On this dispute there was one' offer made and rejected, and then a larger offer of a round sum of $2500 accepted. We see no reason to believe Harrison could not have informed himself fully at the time. Since this suit was commenced he has had access to the books, and has pointed out no false charges, and no definite omissions of specific credits. ¥e cannot assume that any exist; and we cannot properly speculate on peculiarities in the books which Harrison does not criticise or seek to have explained. Whether the settlement was a better one or a worse one than Harrison was entitled to ask can make no difference if it was deliberately made. We think it was so made, and should stand. The decree must be affirmed with costs. The other Justices concurred.	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Campbell, J. Atkinson sued for a libel, which contained reflections upon his conduct in relation to certain dealings and transactions connected with Gardner K. Clark. Mr. Clark’s action, with which Atkinson was claimed to have been involved, was in brief as follows: Clark was a dealer in grain and grain contracts in Detroit, and bought and sold in considerable amounts. . On April 5, 1878, Clark had in various dealings issued checks to the amount, as outstanding at the close of the business day, of $11,096.39. At the same time on that day he had on deposit at the Mechanic’s Bank, $9867.51, and a check of Gillett & Hall, of Detroit, for $1014; leaving a deficiency or loss on the day’s balances of $214.88. That evening he called on Col. Atkinson for professional advice. His statement is that he had reason to fear that his bank account would be garnisheed by parties in Chicago, and his business facilities be crippled so that he could not pay his checks; and that he asked Atkinson whether he would incur any criminal liability by drawing his money, so as to make a uniform settlement. He says that being informed he would not, he' then told Col. Atkinson he proposed to go to Toronto for a few days until it was settled, and that Atkinson did not advise him to go. The next morning Clark went with Atkinson and drew out his money from the bank, a messenger with a check for the balance not designated having been previously refused payment on such a general voucher. They then went to Atkinson’s office, each carrying a part of the packages of notes, and at that place the Gillett & Hall check, which Mr. Clark had handed to Mr. H. E. McNeil to present at the 2nd National Bank on which it was drawn,'was brought back with the statement that the bank would only pay it in the regular course of bank exchanges. This check was handed to Col. Atkinson for collection, and he was given a list of Clark’s outstanding checks, and Clark desired him, if he could, to settle at one-fourth cash and the remainder on time. Clark went over to Windsor, and missing the early train on which his wife had started, remained in the immediate vicinity at Walkertown until the noon train, on which he left for Toronto, but stopped at Hamilton that Saturday night. While in Windsor or Walkertown he entrusted the bulk of the money to McNeil, who during the day came back to Detroit, and delivered the principal part, of it to Atkinson, who left it for safe-keeping in the People’s Savings Bank, and on Monday took certificates of deposite for all but $1000, which sum he deposited in the Detroit Savings Bank. The amount of money received from McNeil is shown to have been about $8750. A portion of the balance is not fully explained. Atkinson met the creditors three times during the day, and telegraphed to Clark without getting any reply until in the afternoon. He went to Windsor'to find him, but failed to do so. At these meetings various conversations concerning settlement occurred, on which there is some conflict, but which are not important except in connection with the justification of the libel, to which reference will be made hereafter. At the last meeting he offered the terms given birm by Clark in the morning, but they were rejected. The communications concerning the settlement are among the matters involved in some controversy, both as to time and circumstances. Atkinson left the Gillett & Hall note at the People’s Savings Bank, and took therefor a certificate of deposit. Gillett & Hall stopped its payment, and Atkinson took it back and informed Gillett & Hall it would not be used to their prejudice. Hpon the terms of this communication some questions also were made at the trial, as raised by the libel. Two of Clark’s creditors, Messrs. Lasier and McDonald, visited him at Hamilton and induced him to return to Detroit, agreeing to see that he was not molested there. They reached Detroit early Monday morning, first calling on McNeil and then going to Col. Atkinson’s house, where they remained a while and appointed a meeting at - Clark’s house at a little later hour, with the expectation of coming to an arrangement. At the agreed time it was found by Lasier and McDonald that the other creditors stood out, and were disposed to prosecute, and accordingly they took Clark back to Windsor. In tbe meantime some creditors had sent to Clark’s brother in Boston, and on Tuesday morning he arrived. Atkinson made a settlement and turned over the money and securities. This settlement is also involved in the libel. Clark, through his brother, settled for 75 cents cash, and got time for the balance. On Tuesday, the 16th of April, one week after the settlement, the libel complained of was published. The managing editor before publishing it had interviews with various creditors and other parties concerning its correctness. Some opposed and some did not oppose its publication. It was not published at their instance. After its publication a communication was published signed by Mr. Clark, and approved — -so far as his knowledge went — by Col. Atkinson. In publishing it the editors of the Free Press commented on it at some length, referring to facts outside of it, and in conclusion said: “It is difficult to see wherein the Free Press statement of Tuesday needs to be corrected in the interest of that truth which Atkinson wishes to spread before the public.” This last publication was introduced to show malice in repeating and adhering to the charges before made, and is not made the ground of action by itself. The publication sued on consisted of a continuous narrative, with a conspicuous heading, purporting to give a full account of the entire dealings of the parties said to have been involved in Clark’s affairs. The whole libel is set out as a single grievance, the account being so drawn up as to prevent any convenient separation of Atkinson’s part from the rest. But the grounds on which the principal grievances appear to be based are chiefly these : — The heading was in these words : “ An inside view — Some hitherto unpublished facts respecting the Ola/rk affad/r — The figure which several pa/rUes cut therein — The movements of Ola/rk and the action of his attorneys — OlarFs misfortunes* the biggest kind of grist for his lawyer — Rather slight services for a very la/rge fee — $125 gathered in for cprevious ser vices ’ — A plain, unvarnished tale from which each reader cam, draw his moral. These references to professional misconduct, which are undoubtedly libellous on their face, appear from the body ■óf the publication, and are also averred by the innuendoes to relate to Col. Atkinson. It is claimed, and I think justly, that they indicate that Atkinson took advantage of Clark’s circumstances to make extortionate charges for services and pretended services. In the body of the principal article, the chief indications of an offensive character, as apparent from the words alone or as applied by the innuendoes, seem to include a series of acts, which are declared to “ reflect no credit on the parties of the second part, who have figured more or less prominently in the affair.” Atkinson and McNeil are the only persons mentioned, and it is averred the reference was made to plaintiff, who is also connected by averment with a previous reference to a “ ‘power behind the throne,’ which moved in a mysterious way.” Proceeding with the narrative, reference is made to Clark’s claim that he heard Chicago parties meant to garnishee his deposits, and it was stated that on Friday evening or Saturday morning, at McNeil’s suggestion, Clark called on Atkinson. Then follows this sentence, which is by averment alleged to mean that Atkinson gave advice which was improper, dishonest, and discreditable to him professionally: “ The advice that was given to Clark by Atkinson is of course not positively known to any beside those two, but the subsequent visit of Clark and Atkinson on Saturday morning to the bank, and their drawing out the money, to be followed almost immediately by Clark’s departure for Windsor, caused certain inferences to be drawn, too obvious to mention.” The article then stated that, “ On withdrawing his money, $9867, from the bank, Clark passed part of it to Atkinson, which, on arriving at the head of the stairs, leading to Atkinson’s office, was, Atkinson stated, passed back to Clark.” This last phrase, “ Atkinson stated,” is averred to mean that Atkinson retained a part of the money, and at the close of tbe article is a further statement, with similar averment of' its reference to Atkinson, that “ some one has in the neighborhood of $500, which is, as yet, not present or accounted for.” In the narrative of the proceedings of Atkinson and the creditors on Saturday reference is made to the concealment from Atkinson by the creditors of their knowledge of Clark’s movements in Canada, as reported to them by Captain Sogers, the chief of police, who happened to be in his company, and also to certain matters connected with the' Gfillett & Hall check, concerning which it was intimated that Atkinson made false suggestions as to his own course in saving Gillett & Hall from responsibility. There are also further descriptions of Atkinson’s statements concerning the amount and whereabouts of the money drawn, and a reference to information derived from Clark by Lasier and McDonald, as to his communications with Atkinson and his transmission of the money to Atkinson, with further intimations, as drawn from the language directly, or implied by averment, that Atkinson made false statements to the creditors concerning this money, and concerning his authority. There is then a passage stating that Clark when found by Lasier and McDonald “ showed his lack of confidence in his home representatives by offering to telegraph and have a detective shadow the man who had his creditors’ money, until they could get hack to Detroit.” This is averred to refer to Atkinson, as also a further statement that Clark “finally consented to return to Detroit, and endeavor to regain possession of his, or rather, his creditors’ money.” In describing the subsequent occurrences in Detroit when Lasier & McDonald visited Atkinson, it is said that Clark informed them, that McNeil said he had given the whole money to Atkinson, but that Atkinson claimed it was $500 short, and this is averred to mean that Atkinson claimed he received so much less than he really did. It is subsequently stated that Clark’s brother was informed when he reached Detroit by three persons named T. P. Hall, Alexander Lewis and John G. Erwin, that the credit ors were unwilling to trust Atkinson, and they thought a speedy settlement could be made if Clark could be got out from his influence. This is connected with an allegation that it meant to indicate that Atkinson was unworthy of credit in his profession. This was followed by a reference to-the final settlement, when Atkinson is averred to have rendered an account of which it is said “ a copy of its most important items is appended.” This reference gives special attention to an item italicised as for “previous ” services, which is alleged to mean that the charge was false and discreditable. It then is followed by a series of calculations including similar intimations as to charges-for services, and ending with the remark previously mentioned that “ some one has in the neighborhood of $500, which is, as yet, not present or accounted for.” This is alleged as “meaning-that plaintiff, in his employment as aforesaid, has dishonestly failed to account to his client for $500 entrusted to him.” There are two counts in the declaration, but for present purposes I need not refer to them at large. The defendant put in the general issue, with a general justification. The effect of the various statements claimed to be libellous was to charge Atkinson with giving dishonest and unprofessional advice, with making false statements in 'professional dealings, with incurring loss of confidence by misconduct, with embezzling moneys, and with making false charges for services, and extorting excessive compensation. All of these are in the declaration alleged as appearing in the libel, and intended to be conveyed by it. "When no defence is put in except the general issue, the language of a libel may be shown to fairly bear a mitigated sense. But when a libel is justified generally the doctrine is well settled that so far as the justification is concerned, it is justified as applied or explained by the innuendoes, and therefore there is no justification made out by the evidence unless the facts are proven true as alleged in the declaration, and with the meaning there averred, unless with the aid of the colloquium such meaning is repugnant. Townshend on Libel and Slander §§ 212, 214, 215, 357, and notes; Bissell v. Cornell 24 Wend. 354; Fidler v. Delavan 20 Wend. 57; Tillotson v. Cheetham 3 Johns. 56; Gage v. Robinson 12 Ohio 250 ; Helsham v. Blackwood 5 E. L. & Eq. 409; Lewis v. Clement 3 B. & Ald. 702: 3 Br. & B. 297; Lake v. King 1 Wms. Saund. 130 and notes; 1 Chit. Pl. 433; Weiss v. Whittemore 28 Mich. 366; Cresinger v. Reed 25 Mich. 450; Bailey v. Kalamazoo Pub. Co. 40 Mich. 251. Unless every material item of defamation is established the plaintiff must recover his damages for so much ’ as is not fully justified. The truth of one part cannot deprive him of his action for that which is not shown to be true. It has not been suggested in this ease that any of the averments of the defamatory meaning of parts of the libellous article are repugnant or not maintained by the article itself as read in the light of the other averments. As to such statements as refer to hearsay, or are claimed to be capable of a double sense, the averment of their offensivé meaning makes them libellous if justified. Giving defamatory statements as coming from other persons does not deprive them of their defamatory character. Burt v. McBain 29 Mich. 260. A considerable number of the errors assigned are supposed to depend on these principles. Others relate to the reception or rejection of testimony. While the record is long, the questions • presented may be to some extent dealt with so as to avoid the necessity of great repetition. So far as the objections refer to the admission of testimony, they are chiefly based on the ground, which is undoubtedly correct as far as it may be applicable, that nothing was properly at issue that- had not some tendency to show the charges against Atkinson himself, well or ill founded in fact, or else credibly represented to be so, and published in that belief. How far the matters affecting hito personally can be separated from the rest is therefore one of the questions of some difficulty in the case. The record is free from some complications that have caused difficulty in other causes. While the good faith and probable cause of belief of the managers of the defendant, corporation appear to be involved here as they are in most similar cases, there is no controversy concerning the deliberate and intentional character of the publication, and therefore no dispute as to the persons responsible. The repetition in the supplementary article, and the knowledge and approval by the managing editor, remove any such question from the issues. Neither is the article connected with any matter concerning which it could be regarded as privileged.. It does not relate to facts which could be lawfully published except as true. The first class of objections to evidence included some-extended narrations of Clark’s dealings on the fifth day of' April. There is nothing in the libel either in direct language or as made out by averments or innuendoes, which, charges Atkinson with any complicity in these dealings. A general notice of justification must undoubtedly be construed as covering all the ground which could be covered by special pleas. But no plea would be proper which attempted to-prove by way of justification facts not charged against the-plaintiff. If Clark had been plaintiff, the testimony of his-dealings on the 5th would be very material. The admission of this could only be pertinent to create a belief that there-was some dishonesty which bore upon the plaintiff. It. could hardly fail to prejudice him by coloring the whole case with matter to which he was a stranger. The libel begins his connection with Clark after the close of business-on the 5th, or in the morning of the next day. It was not disputed that it might be shown what was the condition of' his bank credits and checks out at that time, and who held them. But the details of his business dealings which led to-that condition of things could have no legitimate bearing on anything alleged against Col. Atkinson, and the justification cannot go beyond the charges. A second class of testimony objected to is the statements- and conversations of Clark with and to various other persons, while in Canada, including McNeil, McDonald and Lasier. The court allowed all of the conversations to be shown.. And the reason given is found in what was said by the judge when McNeil was sworn, although similar rulings had been made before during the examination of McDonald and Lasier. "When McNeil was inquired of concerning the transaction between him and Clark, the court used this language : “ The claim in the article is, as I understand it, that McNeil and Atkinson and Clark were all together in this matter, and I think myself that what any one of' them did, •or any two of them did, would bind Col. Atkinson. It was -a part of the res gesta as I look at it. And it is a part of the article, I believe; it has been so stated.” Here the ■counsel for defendant was proceeding to show the court was mistaken as to the tenor of the article, when he was interrupted by the court, who proceeded as follows: “ As far as ■there is anything in the case at all — and of course it is a ■question for the jury — the testimony shows that McNeil and Atkinson and Clark met together, and that McNeil and Atkinson and Clark were together in the matter, and the .article, perhaps, substantially charges they were all together in the transactions; and I think you have a right to show [what] the conversations and transactions of the parties were ■at the time, to show what the real transaction was.” On further objection that it was not shown in any way that Atkinson had any knowledge of the conversations, the court nevertheless ruled that all the testimony might be let in. In a part of this ruling the court seems to have held, and the admission of testimony from McDonald and Lasier evi■dently could only be explained on this theory, that the fact that the article charged complicity between all three of thesp parties made the statements of any of them admissible. If all three had joined in this libel suit, there might be some difficulty in drawing lines very closely. But this suit is brought by Atkinson for libellous allegations against himself .alone, and hearsay evidence is no more admissible against him in this than in any other case. If charged as a conspirator, the charge cannot be assumed as true until proven, ■and it certainly is not competent to prove a conspiracy by •the declarations of a portion of the persons alleged to have conspired. The conspiracy and its extent must be definitely and positively proved by legal evidence, before court and jury can give heed to any act or statement of persons not parties to the suit as to particular acts done under it. In this class of cases it is not permissible — on any theory of the order of proof — to allow hearsay that has not already been shown to be within some rule of agency. If, when the evidence is offered, there is not already in the case enough to show the agency, the admissions and statements of the supposed agent must be lcept out. Agency or conspiracy is the first thing to be shown. The evidence was not admitted on the ground that the order of proof was discretionary, but on broader and absolute grounds. The question therefore arises in a double aspect: First, whether there was any charge in the libel which was justified on any such basis • and second, whether any such conspiracy had been shown by legal evidence, on which it would have been competent for the jury to have found it. The principal if not the only questions raised here do not relate to the transactions while Clark was in Detroit, but to the transmission and reception of the money from Canada and dealings subsequent thereto, or to Clark’s departure from Detroit on April 6th. It is very plain that evidence of an agreement or combination, even for an unlawful purpose, has no tendency to prove such agreement for other purposes, and that where a conspiracy for wrong purposes is clearly proved, there is no responsibility for mutual conduct between the scope of that agreement. This is sufficiently explained in People v. Knapp 26 Mich. 112. Our attention has not been called to anything which indicates a charge in the libel that Atkinson was in any way implicated in any arrangement for the return of the money from Canada, or to any suggestion that when Clark left Detroit any such return was thought of. Nor is it pointed out in the argument in what way that return was calculated or intended to injure any one. The possession of the money by Atkinson prior to the last meeting of creditors on the 6th, and the purpose for which he held it, did become material in view of otlier allegations concerning bis statements and course at that meeting. "But it does not appear that he was accused of any conspiracy to get it back into his-hands, or that it was returned in furtherance of any such conspiracy. In regarding the proof, therefore, we must not confound the testimony as to the fact of its return with that-which is hearsay. So far as McNeil’s testimony is concerned, it contains no statements of any consequence by Clark as to any act or declaration of Atkinson, and except for the ruling of the court that all were bound by each other’s acts, it would not. be very important. So far as it explains the purpose and conditions on which the money was put in McNeil’s hands, it had no tendency to prejudice Atkinson, and being uncontradicted has a strong bearing in his favor, as it shows no authority whatever for giving him the money, and indicates-that it was only given him as a safe custodian. But in regard to McDonald and Lasier the case is different. Both were allowed to give their impressions, although neither was positive on the subject, that Clark said he-directed the money to be put into the hands of Atkinson.. This, taken in connection with his other statements in regard to his fears about the money, and distrust of its safety, must-necessarily, in view of the ruling concerning joint liability,, have operated to Atkinson’s prejudice. Aside from these statements, there is nothing in the record tending to show that Clark was in any way concerned with Atkinson’s obtaining possession of the money. And leaving out these statements, the testimony introduced by the defendant and not-explained by any opposing proofs, tends to show that Atkinson did not receive the money for Clark himself or subject-to his disposal, but as the property of Mrs. Clark, to whom he gave vouchers for it. Some of these statements and suspicions, if they referred to Atkinson at all, upon which it will be necessary to dwell a moment hereafter, were made for a hostile purpose and in concert of action with the creditors. Upon what theory such declarations could be regarded as res gestee in a con spiracy with Atkinson it is impossible to imagine. It is quite evident that the court below deemed it desirable to have all the transactions of Clark explained, as connected with the libel, on the same basis as if Clark himself were plaintiff. But I do, not think this identity of interest is within any proper theory of the case. In this connection it is proper to refer to testimony not merely in reference to the statements in the libel as to-Clark’s lack of confidence in his agents, but also as to the opinions of the creditors. No doctrine is better settled than that a person has no more right to put in circulation the opinions; or statements of other persons concerning private character than he has to publish Ms own. When such publication is made it cannot be justified by the proof that such views were expressed or entertained. Every justification must stand on facts and not on opiMons or hearsay. Any inferences warranted by evidence may be drawn by the jury, and of course may be pressed on their attention, but no man’s character can lawfully be assailed, and the object of every plea of justification is to directly assail it, by proof that other men do not have confidence in him, or speak evil of him. Burt v. McBain 29 Mich. 260; Fowler v. Gilbert 38 Mich. 292; Watkin v. Hall L. R. 3 Q. B. 396; M'Pherson v. Daniels 10 B. & C. 263; Townshend on Libel and Slander §211. . For similar reasons evidence of the conduct of the creditors among themselves, and not in Atkinson’s presence, and not commumcated to or acted on by him, can in no proper sense be treated as part of the res gestae to his prejudice. It is only his dealings that are in issue in this cause, and except as he is shown to have been in connection with others., their acts and sayings are outside of the controversy. I think, subject to such exceptions as would exclude hearsay evidence, and matters otherwise irrelevant, that it was not improper to allow testimony of the whole course of negotiation and correspondence which resulted in a settlement. It was substantially one train of transactions begun by Atkinson and completed by Charles F. Clark, and Atkin son was more or less connected with the business until he turned over the funds and rendered his accounts. The terms of the settlement itself and whether it was complied with by Clark were not relevant. I also think it was proper to allow Mr. Quinby and the others connected with the publication to show the circumstances which induced them to publish it. These matters bore upon the motives of the publishers, and, while no complete justification, would be properly open to consideration on the question of damages, if not justified by other proofs. I see no good reason for rejecting- proof of the value of Atkinson’s legal services. Overcharging under peculiar circumstances was one of the most offensive suggestions of the libel. And a portion of the testimony excluded seems to have been relevant to the fact of garnishee proceedings as having once been had against Clark. The charge of the court throughout disregarded the rule that a justification cannot be made out without proof that the plaintiff was guilty of the acts charged against him in the sense averred in the declaration. As this error pervades the entire charge, it is not necessary to refer specifically to the various instances in which particular portions were referred to specially and either declared not libellous or left to the jury to interpret. The case was left to the jury with such instructions as would have authorized them to find, as they did find, a complete justification. This could only have been done by allowing weight to facts not proven by any legal evidence, and probably in accordance with the theories before referred to. But a plea of justification is an affirmative charge, to be made out by proof as strictly as if the defendant were a plaintiff seeking to enforce a liability. The libel itself is no proof, and no help to proof. Upon some very important charges there was no proof whatever, and upon some the defendant’s testimony exculpated the plaintiff directly. There was no proof tending to show that Atkinson had any money not accounted for. There was none that he and Clark had any difference in regard to the funds, or that he had done anything with- them not authorized. IJpon other points the testimony was more or less subject to the infirmities before referred to. The result of the trial and the size of the record indicate that whatever may be the facts upon the issues properly in the case, it has been tried upon, other facts and different issues to a sufficient extent to render it impossible to sustain the verdict. The judgment should be reversed with costs, and a new trial ordered. Graves,. J. It is my opinion that the declaration discloses a cause of action and that the record contains evidence tending to support it, and sufficient to warrant consideration by a jury. In regard to the ruling and proceedings relating to •the objections against the conversations in Canada between Clark and McDonald and Lasier I agree with Mr. Justice Campbell, and I agree that a new trial is unavoidable. Concerning the other topics brought under discussion I reserve my opinion. Marston, C. J. concurred.	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Cooley, J. TMs is an equity case heard on pleadings and facts stipulated. The facts are as follows : By an act approved March 15,1861, the Legislature of the State granted to the defendant 25,000 acres of State swamp lands to aid the defendant in erecting buildings for its use. The lands were to be selected by defendant and conveyed to-it, but the act contained a proviso “ That if said seminary shall fail to erect bmldin-gs, in pursuance of the terms of the lease- or grant made by the city of Detroit of land to said seminary, and witMn the time therein mentioned, said seminary shall in such event forfeit the swamp land, by this act granted, to-the State of Michigan, and the same shall absolutely and forever revert to the State, against all and every person claiming to hold the same or any part thereof, and the patent or deed issued by the State of said lands shall state in substance this proviso of forfeiture.” Laws 1861 p. 283. By an amendatory act passed in 1863 this proviso was changed so-as to read as follows: “ That before the issuing of the patents- or conveyance, the trustees of said seminary shall deposit with the State treasurer a .bond to the people of this State, with sufficient security, to be approved by the State treasurer, in the sum of twenty-five thousand dollars conditioned that the net proceeds of the sales of said lands shall be faithfully and forever applied to the purposes contemplated in this-grant.” Laws 1863 p. 59. The bond provided for by this act was given by defendant, and complainants became the sureties therein. The lands granted were duly selected, patented to and the most of them sold by defendant, and thé sum of $16,205.34 real ized therefrom. In April, 1861, while defendant was without buildings for its use, it was consolidated with the German-English school of Detroit, and received therefrom a •school building and lot of the value of ten thousand dollars, to which defendant three years later made additions at a cost •of ten thousand dollars, and since that time has expended in repairs and improvements the sum of five thousand five hundred dollars. Of the sums realized from the sale of -swamp lands defendant has expended $2123.96 for buildings and repairs, $3726,53 for taxes, insurance and legal ■ expenses, and $6954.85 for stationery, books, school utensils •and teachers’ salaries, and claims a right to expend any sum .so received for the current expenses of its school. The bill, to protect complainants against liability as sureties on the bond so given to the State, prays for an accounting by defendant of the moneys received from sales of said ■ swamp lands, and that defendant may be enjoined from making use of any of such moneys for any purpose whatsoever except for the purpose of aiding the defendant to erect-buildings for its use and occupancy. It is admitted by the stipulation that the school buildings ■of defendant are now in a good state of repair, and as large .as the wants of the school require. On these facts the court of chancery granted decree in favor of complainants as prayed. It is objected to this decree that, on the theory of the bill, the swamp lands were conveyed to the defendant in trust, .and the bill seeks to compel the execution of the trust. But the conveyance of the land to defendant was for its own benefit, so that if the conveyance was charged with a trust ■defendant was both cestui que trust and trustee, which is impossible. Bolles v. State Trust Co. 27 N. J. Eq. 308. In ■such a case, it is said, if the fund donated is not applied according to the directions of the donor, there can be no redress, for the donor, by making absolute conveyance to the beneficiary, has trusted wholly to his good faith and ¡sense of duty. See Emigrant Co. v. Adams County 100 U. S. 61, 69. Tbe bill, however, does not proceed on the theory of a trust. Its theory is that the donor in making a gift for a specific purpose has required the donee to give security against misappropriation, and the complainants, as the donee’s sureties, are entitled to the protection of equity. There is an implied agreement between them and the defendant that the moneys shall be faithfully applied according to the intent of the gift, and a misappropriation would be a species of fraud. Nor is it any answer to say that the State, having ■conveyed absolutely, cannot possibly be damnified and therefore cannot in any event recover on its bond. The State, as ■donor, in releasing the condition of forfeiture contained in the act of 1861, had an interest amply sufficient to support the bond, and the bond was intended to accomplish the same purpose which the provision of forfeiture had in view. This was, to restore the property, or an equivalent, to the State in case of attempted misappropriation. The vital question in the case, however, is whether any misappropriation, actual or threatened, is shown. The question must be solved on a consideration of the purpose of the grant, and the use which has been or is proposed to be made ■of the proceeds. The general purpose of the grant is made very plain by the statute. It was to aid a private educational institution to accomplish the object for which it was ■established. That object was to give instruction to those who should apply for it. To do this it must have buildings, means of illustration and teachers, and to obtain these it must have money. The State deemed it wise to provide that the moneys to be realized from its donations should be applied, not in the payment of teachers’ wages, or for current expenses, but to the procuring of necessary buildings. If under any and every conceivable circumstances the ap]3li•cation must be made according to the very terms of the grant, the agreed facts show that the corporation is already in default for some of them have been used otherwise. The general rule undoubtedly is, that public grants are to be construed strictly as against the grantees. United States v. Arredondo 6 Pet. 691; Charles River Bridge v. Warren Bridge 11 Pet. 544; Martin v. Waddell 16 Pet. 367; Dubuque etc. R. R. Co. v. Litchfield 23 How. 66; Baltimore v. Railroad Co. 21 Md. 50; Bradley v. Railroad Co. 21 Conn. 294; Richmond v. Railroad Co. 21 Grat. 614; DeLancey v. Ins. Co. 52 N. H. 581; La Plaisance Bay Harbor Co. v. Monroe Walk. Ch. 155 ; Pennsylvania R. R. Co. v. Canal Com'rs 21 Penn. St. 22. The grantee shall take nothing which is not plainly granted, and as is said in the case last cited, “ every resolution which springs from doubt is against ” him. But there is no question in this case in respect to the grant; its terms are clear and precise and its extent undisputed; the controversy arises upon the terms of a restraint imposed by the grant, and which is in the nature of a condition subsequent, and tends to a defeat of the grant by way of forfeiture. If the grant is to be construed strictly as against the grantees, the condition is to be construed strictly against the State; and the State is entitled to enforce it only when a forfeiture would be fairly within the intent of the act whereby the grant was made. The purpose of construction is to give effect to an instrument; not to defeat it: Rice v. Railroad Co. 1 Black 358; People v. Burns 5 Mich. 114; Tabor v. Cook 15 Mich. 322; and in a public grant especially, more than in any other, we should expect to find provisions looking to the- permanent enjoyment of the right or property granted as against mere technical breaches of contract or condition on the part of the grantee, not tending to defeat the general purpose. The general intent of the grant, as has been said, was to aid the incorporation in accomplishing its objects, but the funds realized must be expended in buildings. Buildings ■would be permanent and could not be wasted, and by requiring their construction, the State would guard as far as was practicable against its bounty being lost. But suppose the corporators when the lands were received had deemed it wise to withhold them from market for a term of years in anticipation of a rise in value consequent upon the improvement of the State, and by the donations of themselves and their friends, had procured all necessary buildings; would they thereby have lost the benefit of the grant and entitled the State to demand a reconveyance % This, as we think, is in substance the question now before us. A liberal, and technical construction of the grant would require the very moneys realized from the lands to be applied to the purchase or erection of buildings. But the view consonant with the generosity which prompted the donation looks beyond the technicality, and finds the purpose substantially accomplished if the grant has enabled the donee to procure buildings for its purposes, whether exactly in the method contemplated or otherwise. If buildings were procured of a value equal to the fund donated, the condition of the grant would be kept in spirit, and it would be beneath the dignity of the State to raise technical objections and demand a forfeiture based upon a failure in literal compliance under such circumstances. Sovereignties do not deal with the objects of their bounty in that spirit. In this case the grantee did not purchase or erect buildings, but it accomplished what was equivalent: it was enabled by consolidation with another organization formed for the same purpose to procure the buildings it needed. The value of these was equal to the grant, and it is conceded that they supply the corporate needs. The end, therefore, that was to be accomplished by the State grant, is now accomplished. Confessedly the defendant might still invest the State bounty in further buildings, but it has no need for them, and the fund would be wasted if made use of in that way. The State intended the fund should benefit the defendant, and we find nothing in the act which justifies us in saying that the State contemplated that under any circumstances the alternative would be presented to the defendant of either wasting -the grant or restoring it. The restraint imposed by the grant was meant_to prevent waste; not to invite or .encourage it. It may be said that if the money is not needed for buildings now, it is the duty of the defendant to keep it for that purpose until the time when it shall be needed. But if the statute had contemplated the erection of buildings at some indefinite time in the future after those first erected or obtained had gone to decay or been destroyed, it would have contained quite different provisions. It is entirely safe to say the State would not have accepted personal obligations as security for the application of the moneys at a distant and indefinite time when all the sureties would be likely to have passed away. The conclusion is that the fears of the complainants are groundless, and their bill should be dismissed. We are inclined to think, however, there should be no costs awarded. The other Justices concurred.	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Bandstra, J. Defendant appeals as of right his jury trial conviction of assault with intent to do great bodily harm less than murder, MCL 750.84. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 47 months to 15 years in prison. We affirm in part, reverse in part, and remand for resentencing. Defendant first argues that the prosecution failed to present sufficient evidence to sustain his conviction. Specifically, defendant contends that the prosecution failed to refute his claim of self-defense. We disagree. We review de novo challenges to the sufficiency of the evidence in a criminal trial to determine whether, when viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found all of the elements of the charged crime to have been proven beyond a reasonable doubt. People v Bowman, 254 Mich App 142, 151; 656 NW2d 835 (2002). Defendant argues that he honestly and reasonably believed that his life was in danger. It is well-settled that “ ‘[t]he killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.’ ” People v Fortson, 202 Mich App 13, 19-20; 507 NW2d 763 (1993), quoting People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). “Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt.” Fortson, supra at 20. Here, there was evidence presented that when defendant opened the door to a storage closet in the basement, the victim lunged at defendant and hit him on top of the head. However, there was also evidence presented that defendant secured the victim in a headlock, dragged him upstairs, and was able to call 911 twice while still restraining the victim. Although there was evidence presented that the victim was able to break away from defendant at one point (i.e., there was arguably a perceived threat), defendant punched the victim twice, causing the victim to fall to the floor. Indeed, there was evidence presented that the victim remained immobilized in the fetal position when defendant began to stomp his face and chest; therefore, any perceived threat was no longer imminent. Two witnesses testified that defendant stomped the victim several times and that the victim did not attempt to fight defendant. One of the witnesses also testified that the victim did not possess a weapon at the time of the incident. Additionally, defendant weighed nearly 100 pounds more than the victim. The evidence, when viewed in a light most favorable to the prosecution, was sufficient for the jury to find that defendant did not have an honest and reasonable belief that he was in imminent danger or that the victim posed a threat of serious bodily harm. Therefore, defendant is not entitled to relief on this issue. Defendant next argues that the trial court erroneously scored prior record variable (PRV) 5 and offense variable (OV) 7. “A sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score.” People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). Further, “ ‘scoring decisions for which there is any evidence in support will be upheld.’ ” Id. (citation omitted). “This Court shall affirm sentences within the guidelines range absent an error in scoring the sentencing guidelines or inaccurate information relied on in determining the defendant’s sentence.” People v Leversee, 243 Mich App 337, 348; 622 NW2d 325 (2000); MCL 769.34(10). We find that the trial court abused its discretion in assessing two points for PRV 5, where defendant did not have a prior misdemeanor conviction: MCL 777.55(1)(e). The record indicates that defendant was previously charged with possession of marijuana and sought deferred sentencing under MCL 333.7411(1), which provides that “[w]hen an individual who has not previously been convicted of [a controlled substance offense] pleads guilty to . . . [certain controlled substance offenses], the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation .... Upon fulfillment of the terms and conditions [of probation], the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and ... is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime .. . .” Defendant pleaded guilty of possession of marijuana under MCL 333.7411(1), had to serve two years of probation, and subsequently fulfilled the terms and conditions of his probation. Defendant argues that because he was discharged and the proceedings were dismissed upon fulfillment of the terms and conditions of his probation, he did not have a conviction for which the trial court could assess points under PRV 5. We agree. We review de novo questions of statutory construction. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999). In doing so, our purpose is to discern and give effect to the intent of the Legislature. Id. at 329-330. “We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written. ... We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature’s intent.” Id. at 330. The Michigan Sentencing Guidelines Manual (2003), p 7, defines “conviction” as “an adjudication of guilt in a criminal matter.” MCL 333.7411(1) specifically states that the discharge and dismissal procedure that it authorizes is “without adjudication of guilt” and “is not a conviction for purposes of... disabilities imposed by law upon conviction of a crime ...Thus, defendant’s misdemeanor guilty plea cannot be used to enhance his sentence in this case. To do so would be to impose a “disability]” against him upon his conviction of this offense. Under the plain language of the statute, defendant did not have a prior misdemeanor conviction, and the trial court abused its discretion in assessing two points for PRV 5 under MCL 777.55(1)(e). Because the evidence did not support a score of two points for PRV 5, the trial court’s scoring decision was error, and defendant is entitled to resentencing on this basis. We find that the trial court did not abuse its discretion in assessing 50 points for OV 7, concerning aggravated physical abuse, where the victim was “treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety... suffered during the offense.” MCL 777.37(1)(a). “Sadism” is defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3). Here, the record indicates that defendant repeatedly stomped the victim’s face and chest after the victim was lying unconscious on the ground. Additionally, the victim was deprived of oxygen for a period of four to six minutes, causing him to have anoxic encephalopathy, i.e., significant brain damage from lack of oxygen, and currently remains comatose with little or no chance of ever regaining consciousness. Defendant treated the victim with sadism, torture, excessive brutality, and conduct designed to substantially increase the fear and anxiety the victim suffered during the offense. Because the evidence supports a score of 50 points for OV 7, we find no error in the trial court’s scoring decision, and defendant is not entitled to relief on this basis. Finally, defendant argues that his sentence was imposed in violation of the United States Supreme Court decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). However, our Supreme Court and this Court have concluded that Blakely does not apply to sentences imposed in Michigan. People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004); People v Wilson, 265 Mich App 386, 399; 695 NW2d 351 (2005). We affirm in part, reverse in part, and remand for resentencing. We do not retain jurisdiction. We acknowledge the contrary holding of the United States Court of Appeals for the Sixth Circuit in United States v Hawkins, 969 F2d 169, 173 (CA 6, 1992). However, we are not bound to follow, decisions of federal courts of appeals, Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004), and we find the Sixth Circuit’s analysis unconvincing.	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Per Curiam. In these consolidated cases, appellants Michigan Electric Cooperative Association (MECA), Michigan Electric & Gas Association (MEGA), Consumers Energy Company, and The Detroit Edison Company claim appeals from orders entered on November 25, 2003, and January 29, 2004, by appellee Michigan Public Service Commission (PSC) adopting and approving administrative rules governing service quality and reliability standards for electric distribution systems and authorizing automatic penalties for the failure to meet those standards. We affirm in each case. I. UNDERLYING FACTS AND PROCEEDINGS On January 3, 2000, the PSC directed its staff to review methods designed to improve the reliability of service rendered to Michigan’s electric power customers by regulated electric utilities and to propose performance standards for those utilities. The matter was docketed as Case No. U-12270 and was initiated as a nonrulemaking proceeding. On June 5, 2000, while Case No. U-12270 was pending, 2000 PA 141, the Customer Choice and Electricity Reliability Act (CCERA), MCL 460.10 et seq., became effective. The Legislature enacted the CCERA as part of its decision to deregulate the electric utility industry in Michigan. Attorney General v Pub Service Comm, 249 Mich App 424, 426; 642 NW2d 691 (2002). The stated purposes of the CCERA included: (a) ensuring that retail electric power customers have a choice of electric suppliers, (b) allowing the PSC to foster competition in the provision of electric supply and to maintain regulation of that supply, (c) encouraging the diversification of ownership of electric supply, (d) ensuring that all the people in Michigan are provided reliable electric power at reasonable rates, and (e) improving opportunities for economic development in the state and promoting competitive and financially healthy utilities. MCL 460.10(2). The CCERA required the PSC to establish service quality and reliability standards for electric transmission and distribution systems of regulated utilities. MCL 460.10p(5) provides: The commission shall adopt generally applicable service quality and reliability standards for the transmission and distribution systems of electric utilities and other entities subject to its jurisdiction, including, but not limited to, standards for service outages, distribution facility upgrades, repairs and maintenance, telephone service, billing service, operational reliability, and public and worker safety. In setting service quality and reliability standards, the commission shall consider safety, costs, local geography and weather, applicable codes, national electric industry practices, sound engineering judgment, and experience. The commission shall also include provisions to upgrade the service quality of distribution circuits that historically have experienced significantly below-average performance in relationship to similar distribution circuits. In addition, the CCERA authorized the PSC to penalize a utility’s failure to comply with performance standards established pursuant to MCL 460.10p(5). MCL 460.10p(8) provides: The commission shall be authorized to levy financial incentives and penalties upon any jurisdictional entity which exceeds or fails to meet the service quality and reliability standards. In light of the enactment of the CCERA, the PSC concluded that implementation of performance standards by way of the rulemaking process provided in the Administrative Procedures Act, MCL 24.201 et seq., was necessary and submitted a request for rulemaking along with the required Regulatory Impact Statement (RIS) to the Office of Regulatory Reform (ORR). MCL 24.239(2), 24.245(3). The ORR approved the request, and the PSC initiated a formal rulemaking proceeding. The PSC’s proposed rules included provisions for the automatic imposition of penalties for a utility’s failure to meet the performance standards. The automatic penalty provision rules provide: R 460.744 Penalty for failure to restore service after an interruption due to catastrophic conditions. Rule 44. Unless an electric utility requests a waiver pursuant to part 5 of these rules, an electric utility that fails to restore service to a customer within 120 hours after an interruption that occurred during the course of catastrophic conditions shall provide to any affected customer that notifies the utility of the interruption with a bill credit on the customer’s next bill. The amount of the credit provided to the residential customer shall be the greater of $25.00 or the customer’s monthly customer charge. The amount of the credit provided to any other distribution customer shall be the customer’s minimum bill prorated on a daily basis. R 460.745 Penalty for failure to restore service during normal conditions. Rule 45. Unless an electric utility requests a waiver pursuant to part 5 of these rules, an electric utility that fails to restore service to a customer within 16 hours after an interruption that occurred during normal conditions shall provide to any affected customer that notifies the utility of the interruption a bill credit on the customer’s next bill. The amount of the credit provided to a residential customer shall be the greater of $25.00 or the customer’s monthly customer charge. The amount of the credit provided to any other distribution customer shall be the customer’s minimum bill prorated on a daily basis. R 460.746 Penalty for repetitive interruptions of the same circuit. Rule 46. (1) Unless an electric utility requests a waiver pursuant to part 5 of these rules, a customer of an electric utility that experiences and notifies the utility of more than 7 interruptions in a 12-month period due to a same-circuit repetitive interruption shall be entitled to a billing credit on the customer’s next bill. The amount of the credit provided to a residential customer shall be the greater of $25.00 or the customer’s monthly customer charge. The amount of the credit provided to any other distribution customer shall be the customer’s minimum bill prorated on a daily basis. (2) Following provision of the billing credit to a customer experiencing more than 7 interruptions in a 12-month period due to a same-circuit repetitive interruption, the electric utility’s interruption counter shall be reset to zero to ensure that another credit to the customer will be processed only after the occurrence of another 8 interruptions in a 12-month period. In an order entered on November 25, 2003, the PSC approved administrative rules governing service quality and reliability standards for electric utilities. The PSC rejected appellants’ contentions that it lacked the statutory authority to impose automatic penalties and that automatic penalties were arbitrary and capricious, observing that the rules allowed a utility to seek a waiver of a penalty and entitled a utility to request a hearing before placing a credit on a customer’s bill. Appellants filed a claim of appeal from the PSC’s November 25, 2003, order (Docket No. 252949). Subsequently, on January 29, 2004, the PSC entered an order formally adopting the rules. Thereafter, appellants filed a claim of appeal from the PSC’s January 29, 2004, order (Docket No. 253899). We consolidated the appeals for purposes of hearing and decision. II. STANDARD OF REVIEW The standard of review for PSC orders is narrow and well-defined. Pursuant to MCL 462.25, all rates, fares, charges, classification, and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co v Pub Service Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, the appellant must show that the PSC failed to follow a mandatory statute or abused its discretion in the exercise of its judgment. In re MCI Telecom, 460 Mich 396, 427; 596 NW2d 164 (1999). An order is unreasonable if it is not supported by the evidence. Associated Truck Lines, Inc v Pub Service Comm, 377 Mich 259, 279; 140 NW2d 515 (1966). A final order of the PSC must be authorized by law and be supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Attorney General v Pub Service Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987). We give due deference to the PSC’s administrative expertise and will not substitute our judgment for that of the PSC. Attorney General v Pub Service Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999). We give great weight to any reasonable construction of a regulatory scheme that the PSC is empowered to administer, Champion’s Auto Ferry, Inc v Pub Service Comm, 231 Mich App 699, 708; 588 NW2d 153 (1998), but we may not abandon our responsibility to interpret statutory language and legislative intent, Miller Bros v Pub Service Comm, 180 Mich App 227, 232; 446 NW2d 640 (1989). We do not afford the same measure of deference to an agency’s initial interpretation of new legislation as we do to a longstanding interpretation. In re Procedure & Format for Filing Tariffs Under the Michigan Telecom Act, 210 Mich App 533, 538; 534 NW2d 194 (1995). Whether the PSC exceeded the scope of its authority is a question of law that we review de novo. In re Complaint of Pelland Against Ameritech Michigan, 254 Mich App 675, 682; 658 NW2d 849 (2003). The PSC possesses only that authority granted it by the Legislature. Authority must be granted by clear and unmistakable language. A doubtful power does not exist. Attorney General v Pub Service Comm, 231 Mich App 76, 78; 585 NW2d 310 (1998). Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998). The object of the rule is to give effect to the legislative purpose as found in the harmonious statutes. Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273, 280; 597 NW2d 235 (1999). If two statutes lend themselves to a construction that avoids conflict, that construction should control. House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993). III. ANALYSIS A. STATUTORY AUTHORITY Appellants argue that the PSC’s orders adopting and approving rules providing for automatic penalties are unlawful and unreasonable because the PSC lacks the statutory authority to impose automatic penalties for a utility’s failure to meet performance standards. MCL 460.10p(5) requires the PSC to adopt performance standards, and MCL 460.10p(8) authorizes the PSC to levy penalties on a utility that fails to meet those standards, but neither statute contains language authorizing the PSC to impose automatic penalties for violations of those standards. Appellants contend that MCL 460.10p(8) must be read in conjunction with MCL 460.10c(1), which applies to all sections of the CCERA and provides: Except for a violation under section 10a(3) and as otherwise provided under this section, upon a complaint or on the commission’s own motion, if the commission finds, after notice and hearing, that an electric utility or an alternative electric supplier has not complied with a provision or order issued under sections 10 through lObb, the commission shall order such remedies and penalties as necessary to make whole a customer or other person who has suffered damages as a result of the violation, including, but not limited to, 1 or more of the following: (a) Order the electric utility or alternative electric supplier to pay a fine for the first offense of not less than $1,000.00 or more than $20,000.00. For a second offense, the commission shall order the person to pay a fine of not less than $2,000.00 or more than $40,000.00. For a third and any subsequent offense, the commission shall order the person to pay a fine of not less than $5,000.00 or more than $50,000.00. (b) Order a refund to the customer of any excess charges. (c) Order any other remedies that would make whole a person harmed, including, but not limited to, payment of reasonable attorney fees. (d) Revoke the license of the alternative electric supplier if the commission finds a pattern of violations. (e) Issue cease and desist orders. Appellants maintain that the adoption of rules providing for the imposition of automatic penalties contradicts the legislative intent reflected in MCL 460.10c(1) that any penalty may be imposed only to make whole a customer who has suffered specific damages and only after notice to the utility and a hearing. We disagree. MCL 460.10p(5) requires the PSC to adopt performance standards applicable to all electric utilities. Appellants’ assertions that MCL 460.10p(8) does not authorize the PSC to impose automatic penalties for a utility’s failure to meet those standards, and that all penalties may be imposed only through the procedure set out in MCL 460.10c(1) are not supported by the plain language of MCL 460.10p(8). MCL 460.10p(8) explicitly authorizes the PSC to levy financial penalties on a utility that fails to meet performance standards. We cannot ignore the plain language of MCL 460.10p(8) authorizing penalties; to do so would render that portion the statute surplusage or nugatory. Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999). It is reasonable to conclude that by authorizing the imposition of penalties for a utility’s failure to comply with performance standards, without specifying that the penalties were intended to make whole those customers harmed by the failure, the Legislature did not intend to require that any specific harm be demonstrated before the imposition of the penalties. However, the language of MCL 460.10c(1) indicates that the imposition of penalties and remedies authorized by that subsection is to be done to make whole a customer damaged by a utility’s violation of any provision of the CCERA. That damage must be established in a hearing, and the penalties and remedies authorized, such as refunds of excess charges and payment of attorney fees, are determined by the nature of the damage established. MCL 460.10c(1) and 460.10p(8) relate to the same subject, i.e., the consequences of a utility’s failure to comply with a provision of the CCERA, but have different purposes. However, the statutes may be construed in a manner that avoids conflict, House Speaker, supra, and that gives effect to each without overreaching, absurdity, or unreasonableness. Livonia Hotel, LLC v Livonia, 259 Mich App 116, 131; 673 NW2d 763 (2003). The CCERA is relatively new legislation; nevertheless, the PSC’s conclusion that MCL 460.10p(8) authorizes the imposition of automatic penalties for a utility’s violation of performance standards notwithstanding the lack of specific harm to any particular customer, is plausible, and is entitled to some deference. Champion’s Auto Ferry, supra. Appellants have not demonstrated that the PSC exceeded its statutory authority by adopting rules that provide for the imposition of automatic penalties, and have not shown by clear and satisfactory evidence that the orders are unlawful or unreasonable. MCL 462.26(8). B. ARBITRARY AND CAPRICIOUS NATURE OF AUTOMATIC PENALTIES In determining the validity of an administrative rule, a court must consider: (1) whether the rule is within the subject matter of the enabling statute; (2) whether it complies with the legislative intent underlying the enabling statute; and (3) whether it is arbitrary or capricious. Dykstra v Dep’t of Natural Resources, 198 Mich App 482, 484; 499 NW2d 367 (1993). “A rule is arbitrary if it was ‘fixed or arrived at through an exercise of will or by caprice, or without consideration or adjustment with reference to principles, circumstances, or significance.’ ” Id. at 491, quoting Binsfield v Dep’t of Natural Resources, 173 Mich App 779, 786; 434 NW2d 245 (1988). A rule is capricious if it is apt to change suddenly, or is freakish or whimsical. If a rule is rationally related to the statute’s purpose, it is not arbitrary or capricious. Id. at 786, 787. Any doubt must be resolved in favor of the validity of a rule. Dykstra, supra at 491. Appellants argue that the PSC’s orders adopting rules providing for automatic penalties are unlawful because the automatic penalties are arbitrary and capricious. Appellants emphasize that when electric service is unavailable because of an outage, a customer effectively receives an automatic billing adjustment because the customer’s meter does not run until power is restored. Therefore, an additional credit is duplicative and unnecessary. Furthermore, penalties may be imposed even though the performance standards are met. The penalties, which are imposed as service credits granted to customers, have no relationship to the value of the electric service lost by the customer during an outage. MCL 460.10p(8) authorizes the PSC to levy financial penalties on a utility that does not meet the performance standards. The rules providing for automatic penalties for a utility’s failure to meet the performance standards are within the subject matter of and comply with the legislative intent underlying the enabling statute. Service credits required as penalties are not related to the actual value of the electric power lost by a customer during an outage, but this fact does not make the imposition of such penalties arbitrary and capricious. The intent of the legislation authorizing the imposition of financial penalties is to encourage a utility to take all reasonable measures to comply with the performance standards, and not to make customers whole. Furthermore, appellants correctly note that under certain circumstances financial penalties could be incurred by a utility that meets a particular performance standard; however, that utility is free to seek a waiver in the event those circumstances materialize. R 460.751. Appellants have not demonstrated that the rules providing for automatic penalties are arbitrary or capricious. Dykstra, supra. Appellants have not shown that the PSC’s orders adopting the rules are unlawful or unreasonable. MCL 462.26(8). C. SUFFICIENCY OF EVIDENCE FOR INCLUSION OF AUTOMATIC PENALTIES Appellants argue that the PSC’s orders adopting rules providing for automatic penalties are unlawful because the PSC did not consider “safety, costs, local geography and weather, applicable codes, national electric industry practices, sound engineering judgment, and experience” when formulating the performance standards, as required by MCL 460.10p(5). The PSC’s orders contain no findings on these factors. Furthermore, the PSC’s RIS, prepared as required by MCL 24.239, erroneously stated that customers were dissatisfied with the quality of service being provided by appellants. The PSC had the discretion to adopt performance standards that did not include automatic penalties, and its decision not to adopt standards without automatic penalties was not supported by the requisite evidence. MCL 460.10p(5) does not require that the PSC make specific findings with regard to the various factors listed when formulating performance standards. Furthermore, appellants’ assertion that the PSC did not undertake consideration of the relevant factors listed in MCL 460.10p(5) is unsubstantiated. Appellants presented evidence to counter the PSC’s assertion that customers were dissatisfied with the quality of service they received, but the PSC approved rules imposing automatic penalties as an incentive to utilities to comply with the performance standards, and not as punishment for any perceived customer dissatisfaction. Appellants have not demonstrated that the PSC’s orders approving the rules are unlawful or unreasonable. MCL 462.26(8). D. DUE PROCESS No person may be deprived of property without due process of law. US Const, Am V; Const 1963, art 1, § 17. Before a person is deprived of property by administrative rule, that person must be afforded notice, an opportunity to be heard, and a written statement of findings. Bundo v Walled Lake, 395 Mich 679, 696-697; 238 NW2d 154 (1976). The Legislature cannot delegate its power to make a law; however, it can enact a law that delegates a power to determine a fact or status upon which the law makes, or intends to make, its own action depend. Such a statute must be sufficiently broad to permit efficient administration designed to carry out legislative policy, but not so broad as to leave an administrative body with uncontrolled and arbitrary power. The guiding principles in determining whether a statute provides sufficient standards for the exercise of administrative discretion are: (1) the provision in question should be read with reference to the act as a whole; (2) the standard should be as reasonably precise as the subject matter requires or permits; and (3) if possible, the statute must be construed in such a way as to render it valid rather than invalid, i.e., as conferring administrative, not legislative power, and as vesting discretionary, not arbitrary, authority. Dep’t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976). Appellants argue that the rules providing for automatic penalties are unconstitutional because they function to deprive a utility alleged to have violated the rules of property, i.e., funds in the form of credits granted to customers, without due process. MCL 460.10p(8) does not authorize the PSC to ignore the due process protections of notice and a hearing provided for in MCL 460.10c(1). Appellants assert that the PSC’s interpretation of MCL 460.10p(8) effectively allows it to assume legislative power to adopt new penalty provisions. A utility may seek a waiver of the automatic penalty provisions before the imposition of a penalty. The PSC hears a petition for a waiver as a contested case. R 460.752(1). A contested case affords a petitioner the right to an evidentiary hearing. MCL 24.203(3). In a contested case, the rules of evidence are followed to the extent practicable. MCL 24.275. A final decision in a contested case must be in writing or stated in the record and must contain findings of fact and conclusions of law. MCL 24.285. The rules that afford a utility the opportunity to seek a waiver of penalty provisions do not deprive the utility of due process. Bundo, supra. A central purpose of the CCERA is to ensure that customers are provided safe and reliable electric power. MCL 460.10(2)(d). The PSC’s adoption of performance standards, as authorized by MCL 460.10p(5), furthers that purpose, as does its adoption of rules providing for automatic penalties in the event a utility fails to meet those standards. The rules establishing the performance standards require that a utility maintain detailed records, and a utility’s failure to comply with the performance standards can be determined by examining those records. The imposition of automatic penalties is not left to the unfettered discretion of the PSC. The PSC’s enactment of rules providing for penalties is not an unconstitutional assumption of legislative power. Seaman, supra. The PSC’s interpretation and application of MCL 460.10p(8) is reasonable, and thus is entitled to deference. Champion’s Auto Ferry, supra. IV CONCLUSION The PSC orders adopting and approving rules providing for the imposition of automatic penalties for a utility’s failure to comply with performance standards are lawful and reasonable, comply with the legislative intent of the enabling statutes, and are supported by the requisite evidence. Affirmed. MECA represents the following customer-owned rural electric cooperatives in this action: Alger Delta Cooperative Electric Association, Cherryland Electric Cooperative, Cloverland Electric Cooperative, Great Lakes Energy Cooperative, HomeWorks Tri-County Electric Cooperative, Midwest Energy Cooperative, Ontonagon County Rural Electrification Association, Presque Isle Electric & Gas Cooperative, and Thumb Electric Cooperative. MEGA represents the following investor-owned electric utilities: American Electric Power Company, Alpena Power Company, Edison Sault Electric Company, Upper Peninsula Power Company, We Energies, Wisconsin Public Service Corporation, and Xcel Energy. “Service Quality and Reliability Standards for Electric Distribution Systems,” 1999 AC, R 460.701-460.752. The rules, commonly referred to as “performance standards,” are composed of five parts: (1) general provisions, (2) unacceptable levels of performance, (3) records and reports, (4) financial incentives and penalties, and (5) waivers and exceptions. Appellants’ challenge is limited to the automatic penalty provisions. 4 R 460.702(f) defined “catastrophic conditions” as severe weather conditions resulting in interruption of service to ten percent or more of a utility’s customers, or a state of emergency declared by local, state, or federal government officials. 5 R 460.702(r) defined “normal conditions” as “conditions other than catastrophic conditions.” 6 R 460.702(s) defined “same-circuit repetitive interruption” as “a grouping of more than 10 customers on a circuit who experience multiple interruptions under all conditions.” R 460.702(1) defined “interruption” as “the full or partial loss of service to 1 or more customers for longer than 5 minutes.” The duration of the interruption was to be measured from the time the utility was notified or otherwise became aware of the loss of service. The Legislative Services Bureau and the ORR approved the rules on December 18, 2003, and January 6, 2004, respectively. The Joint Com mittee on Administrative Rules had twenty-one days to object to the rules, MCL 24.245a(1), but filed no objections. As an example, appellants note that R 460.722(c) requires a utility to restore service within eight hours to not less than 90 percent of customers who have experienced an outage under normal conditions. However, under R 760.745, unless the utility seeks a waiver, it would be required to grant service credits equal to the greater of $25 or the customer’s monthly customer charge to any of the remaining customers who were without power for longer than 16 hours. A standard that does not satisfy the requirements of due process cannot be considered as reasonably precise as the subject matter requires or permits. See State Hwy Comm v Vanderkloot, 392 Mich 159, 169-178; 220 NW2d 416 (1974) (opinion by Williams, J.) R 460.731 through 460.734.	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Per Curiam. Defendants were charged in a two-count information with felony-murder during the commission of a rape, MCL 750.316; MSA 28.548, and premeditated murder, MCL 750.316; MSA 28.548. A jury returned a guilty verdict on June 13, 1977, but whether the verdict covered both counts or only felony-murder is one of several issues in this appeal. Both defendants received two life sentences and now appeal of right. Donna DeFoe was killed by a bullet shot from close range through the back of her head on the night of October 28, 1975, or the early morning October 29, 1975. Defendants were arrested on an unrelated charge on November 23, 1975. A .38 Colt Cobra was seized from the car in which defendants were riding at the time of their arrest. In March, 1976, Sterling Brown, the prosecution’s principal witness, informed police that the defendants had previously told him about killing a woman. The gun seized when defendants were arrested in November, 1975, was test fired and found to be the weapon that killed DeFoe. For several reasons, including defendants’ trial on another criminal charge, their trial in the instant case did not begin until May 31, 1977. Neither defendant testified at trial. Defendant Faulkner presented an extensive alibi defense in which testimony indicated he was playing cards with friends at the time the killing occurred. The defense presented by both defendants tended to show that Sterling Brown actually committed the murder. A few days before the trial commenced defendant Ramsey requested to be appointed as his own co-counsel. Ramsey told the court he was very pleased that he had his particular counsel, but wanted to be co-counsel in order to talk to witnesses and perhaps make opening and closing statements. The court denied Ramsey’s request. The Supreme Court has recognized that at times a "standby counsel” may be appropriate to assist a defendant who represents himself. Faretta v California, 422 US 806, 834-835, fn 46; 95 S Ct 2525; 45 L Ed 2d 562 (1975). Cf. Chief Justice Burger’s concurrence in Mayberry v Pennsylvania, 400 US 455, 467-468; 91 S Ct 499; 27 L Ed 2d 532 (1971). However, these cases do not stand for the proposition that a defendant has a right to share trial defense responsibilities with an attorney. In gen eral, a defendant must choose between his right to court-appointed counsel and his right to conduct his own defense. People v Joines, 46 Mich App 427, 430; 208 NW2d 193 (1973), rev’d on other ground on remand 55 Mich App 334; 222 NW2d 230 (1974). There was no error in the court’s denial of defendant Ramsey’s request. As mentioned, defendants were charged with two counts of premeditated murder and felony-murder. The court instructed the jury on both counts. Defendants contend that they were twice placed in jeopardy by the submission to the jury of two separate counts of murder based on one killing. There was no error in sending both counts to the jury. The prosecutor did not have to select which count was to go to the jury, People v Crown, 75 Mich App 206, 211-212; 254 NW2d 843 (1977), and double jeopardy was not violated since defendants could ultimately be convicted only on one count. People v Fullwood, 51 Mich App 476, 481; 215 NW2d 594 (1974). Relying on People v Crown, 75 Mich App 206, 214-215; 254 NW2d 843 (1977), defendants argue that a verdict of guilty on the felony-murder count but not guilty on the premeditated murder count is reversibly inconsistent. Using the analysis in People v Crown, supra, defendants reason that since second-degree murder is a lesser included offense of both felony-murder and premeditated murder, an acquittal on a premeditated count and a conviction on a felony-murder count also means an acquittal on an underlying second-degree count as well as a conviction on an underlying second-degree count. Hence, defendants conclude the verdict is internally inconsistent. In this case we do not reach defendants’ conclusion because we differ with defendants’ initial premise, i.e., that the jury reached an acquittal on one count and a conviction on the other. When the jury returned its verdict there was some confusion in the proceedings. The foreman variously announced the guilty verdict as follows: "Murder in the first degree, felony, murder, rape.” and "Murder in the first degree, criminal felony, rape.” The court then asked the jurors if they found defendants "guilty of murder in the first degree, guilty of murder in the first degree and guilty of murder in the course of a felony murder”. After the jurors indicated they did, the jury was polled. There was some confusion as to how the clerk should phrase the question to the jurors in polling them. The court explained that first-degree felony-murder was just one of the two counts before the jury. The clerk eventually phrased the question in terms of whether the defendants were found "guilty of first degree murder and murder felony rape”. There was never any objection to the questioning and the verdict was accepted. We disagree with defendants’ interpretation of the record on appeal. At all times during the trial it was clear there were two counts before the jury. The jury was instructed on both counts. It is reasonable to find that the jurors returned a guilty verdict on both counts, although through a poor choice of words. The questions by the court and the clerk focused on two counts, rather than being a redundantly worded question just on the felony-murder count. The clerk’s use of "first degree murder” referred to the premeditated count. If defendants’ position were correct it would have resulted in a verdict on just one count when all parties involved knew two counts were involved, with nobody, including the court, inquiring as to the decision on the second count. It would be highly irregular for the court not to make such an inquiry. We are further convinced that the jury’s decision was guilty on both counts because defendants were sentenced, without objection, on both counts. This indicates that the court, counsel and defendants believed the jury had returned a guilty verdict on both counts. Defendants also suggest that there was insufficient evidence to support the felony-rape count, and since one of the two theories that went to the jury in this allegedly general verdict case was unsound, the decision must be set aside. Defendants cite Stromberg v California, 283 US 359; 51 S Ct 532; 75 L Ed 1117 (1931). In the instant case, however, we have found that the jury returned a verdict on each count rather than a general verdict. We also find there was ample evidence on which to find a rape. People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974). The victim was found lying in an alley with her coat on. Her skirt was pulled up around her waist and her top was open. Her underwear had been pulled off of one leg and was half off of the other. And there was evidence of sexual intercourse. This was sufficient evidence from which the jury could find a rape. In sum, we find that the jury found defendants guilty on both counts and the court sentenced each defendant on both counts. Two convictions for the single killing violated double jeopardy, therefore, we reverse and vacate the sentence and conviction of each defendant on the felony-murder count. People v Hall, 83 Mich App 632, 637; 269 NW2d 476 (1978), People v Crown, 75 Mich App 206, 215-216; 254 NW2d 843 (1977). Defendants next point to certain gaps in the chain of custody of the gun and argue that it should not have been admitted. Part of the foundation for admitting the gun was the testimony of the officer who originally seized the gun, that the gun being admitted had the same serial number as the gun he seized as well as having his own initials scratched on it. This was sufficient for the court to be satisfied in reasonable probability that the weapon was the same. People v Beamon, 50 Mich App 395, 398-399; 213 NW2d 314 (1973). Any breaks in the custodial chain would go to the weight of the evidence rather than to its admissibility. People v Full wood, 51 Mich App 476, 482; 215 NW2d 594 (1974). Defendants contend it was error for the court to prohibit certain cross-examination into the credibility of the prosecution’s chief witness, Sterling Brown. There is no question that the veracity of the various witnesses was crucial in this case. The cross-examination of Sterling Brown was extensive. He was shown to have an extensive criminal record including a conviction for "impersonating” a lawyer and managing to get himself admitted to the bar of the Sixth Circuit Court of Appeals. Eventually the prosecutor objected to continued questioning on, inter alia, instances of Brown’s lying to an attorney, and the objection was sustained. It was in the court’s discretion to put a halt to questioning on the collateral issue. Lehr v Rogers, 16 Mich App 585; 168 NW2d 636 (1969). MRE 608(b). Defense counsel was permitted, and did, elicit the fact that Brown perjured himself to obtain admission to the sixth circuit bar. There was no error here. Defendants cite three instances during the course of the trial which they construe to be attempts by the prosecutor to impermissibly impeach defendants with prior convictions or other criminal activity. Such impeachment by the prosecutor might well create error, though not automatically so. People v Andrews #1, 52 Mich App 719, 721; 218 NW2d 379 (1974). However, there was no error here since none of the incidents brought out past convictions or other criminal conduct. Defense objections were sustained in each instance before the information was revealed. Furthermore, in the first instance the court (which found the question to require speculation by the witness) instructed the jury to disregard the question; in the second instance defense counsel refused a cautionary instruction and, in the third instance, a cautionary instruction was given. Finally, defendants argue that it was error to refuse their request for a continuance (and money) to enable them to obtain the presence of an out-of-state witness, defendant Ramsey’s uncle, who allegedly would testify that the murder weapon was in the control of Sterling Brown at the time of the murder. The granting of such a continuance is addressed to the discretion of the trial court. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), People v Joines, 46 Mich App 427; 208 NW2d 193 (1973), GCR 1963, 503.2. There was no abuse of discretion here. Defendants knew that possession of the weapon was an important factor from the time they were arrested in April, 1976. The trial was not held until June, 1977, and even then, the issue was not raised until the middle of the eighth day of trial. In addition, there was other defense testimony indicating the gun was in Brown’s possession at the time of the murder, which would largely make the additional testimony cumulative. The defendants’ convictions and sentences for felony-murder are reversed and vacated. The convictions and sentences for premeditated murder are affirmed. Although such a situation might be appropriate in some cases, the administrative difficulties inherent in such a scheme are apparent. In its brief the prosecution agreed with the defense that the jury returned a verdict of guilty of felony-murder only, but then disagreed with the rest of defendants’ analysis. At oral argument, however, the prosecution argued alternatively that the jury returned a guilty verdict on both counts. Our conclusion does not require us to reach the analysis of People v Crown, supra. We do note that significant concerns arise under the case. It is well established that a case can go to the jury on both felony-murder and premeditated murder counts. It is just as well established that double jeopardy bars more than one conviction. The question arises as to just what the jury’s verdict should be. It seems somewhat anomalous not to permit the jury to return a not guilty verdict on one count and a guilty verdict on another when that is precisely the factual decision before it. There was also considerable evidence on which to find premedi tated murder. The deceased was shot with a pistol at close range in the back of the head, probably while she was kneeling. She was a known prostitute, but at the time of the discovery of the body there was no identification or money on it. As a comment on the preceding issue in the body of the opinion, this case seems very appropriate for a jury decision on whether the murder was premeditated or in the course of a rape.	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Sawyer, J. Famela Bolen and William Lobaina were divorced in 1991. Lobaina, who thereafter remarried, died on April 6, 2003. At the time of his death, the youngest child of the marriage, Amanda, was still a minor. Bolen filed a claim against Lobaina’s estate for $40,000, representing the amount of the proceeds of a life insurance policy provided by Lobaina’s employer. The life insurance policy named Lobaina’s second wife, defendant Karin Lobaina, as the beneficiary. Plaintiff maintains that, pursuant to the judgment of divorce, the minor daughter should have been named as the beneficiary. Plaintiff appeals the trial court’s order of summary disposition, and we reverse and remand. Plaintiff argues that her daughter was entitled to the proceeds of the life insurance policy under the terms of the judgment of divorce. We agree. Under a paragraph entitled “SUPPORT OF MINOR CHILDREN — LIFE INSURANCE,” the divorce judgment provided as follows: IT IS FURTHER ORDERED AND ADJUDGED that both Plaintiff and Defendant shall forthwith irrevocably designate the minor children as beneficiaries of any life insurance policies they may have by virtue of their employment and they shall continue said minor children as beneficiaries until such time as their obligation to support said minor children as hereinbefore provided shall have been terminated or until the further Order of the Court. The judgment of divorce also provided that Lobaina, who was the plaintiff in the divorce action, was to pay child support until Amanda reached eighteen years of age or graduated from high school, but in no event past the age of nineteen and one-half. Amanda was sixteen-years old when her father died. Accordingly, the support obligation was still in place at the time of his death. Plaintiff argues that, under the express terms of the judgment, Lobaina was obligated to name Amanda as the beneficiary of his employer-provided life insurance benefit. We agree. Because the judgment of divorce was entered upon the settlement of the parties, it represents a contract, which, if unambiguous, is to be interpreted as a question of law. In Gramer v Gramer, the Court stated: Judgments entered pursuant to the agreement of parties are of the nature of a contract. Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; [520] NW2d [708] (1994). Furthermore, a settlement agreement, which is what this property settlement agreement is, is a contract and is to be construed and applied as such. Id.; supra; Eaton Co Bd of Road Comm’rs v Schultz, 205 Mich App 371,379; [521] NW2d [847] (1994). Absent a showing of factors such as fraud or duress, courts act properly when they enforce such agreements. Balabush v Balabush, 199 Mich App 661, 662; 502 NW2d 381 (1993). Interpretation of unambiguous and unequivocal contracts is a question of law. In re Loose, 201 Mich App 361, 366; 505 NW2d 922 (1993). The life insurance provision in the judgment of divorce in this case is clear and unambiguous. Both parties to the divorce were to “irrevocably designate the minor children as beneficiaries of any life insurance policies they may have by virtue of their employment,” and that obligation was to continue until their obligation to support the minor children was terminated. It is undisputed that Lobaina had a $40,000 life insurance policy provided through his employment and that there was still an obligation to support Amanda. Therefore, by the clear and unambiguous terms of the divorce judgment, Lobaina was obligated to name Amanda as the beneficiary of that policy. Accordingly, the trial court erred in ruling in defendant’s favor. Defendant relies on In re Monreal Estate, for the proposition that provisions within divorce judgments requiring minor children to be named as beneficiaries of life insurance policies serve the purpose of securing the child support obligation and the child’s entitlement to the proceeds of the policy when the parent fails to name the child as a beneficiary is limited to the extent of the remaining unpaid support obligation. Monreal certainly does support defendant’s position. The language in the divorce judgment in that case is similar to that employed in the case at bar. But Monreal was decided before November 1, 1990, and therefore we are not obligated to follow it. And we choose not to follow it. First, there are other opinions that, on similar facts, reach the opposite conclusion. Second, contrary to defendant’s assertion, Monreal does not stand for the general proposition that the life insurance provision in a divorce judgment serves only to secure the unpaid child support. The Monreal Court recognized a number of different possible outcomes, concluding that treating the life insurance in that case as securing the payment of child support was the interpretation “more appropriate to the facts of this case.” Third, while the facts in Monreal are similar to those in the case at bar, we believe Monreal was incorrectly decided. As stated above, the clear and unambiguous language of the judgment, both in Monreal and in the case at bar, provides that the minor children shall be beneficiaries of the parents’ life insurance policies. Although the continuing existence of the support obligation establishes the time frame for the continuing existence of the insurance beneficiary obligation, the explicit language of the judgment does not provide that the purpose of that obligation is merely to secure the payment of the child support obligation after death. In Self, there was a similar provision in the divorce settlement. Specifically, it required that the minor children be maintained as beneficiaries of the father’s employer-provided life insurance as long as the father’s “ ‘duty to support them shall continue.’ ” The Self Court noted that Monreal had concluded that the life insurance policy in that case was intended to secure the payment of support, but stated that the language in the settlement in Self made it “clear” that the children would remain beneficiaries until the support obligation ended. The Court also made the observation that the life insurance was intended to be part of the support obligation itself, rather than just a means to secure the support obligation. The Monreal Court looked to Gray v Independent Liberty Life Ins Co, for the proposition that the designation of the minor children as the beneficiaries of life insurance policies serves to secure the support obligation. But Monreal appears to have overlooked an important distinction in Gray, namely that the Gray case concerned itself with the ability of the trial court to compel the parent to name the minor children as beneficiaries. Ultimately, the Gray Court concluded that the trial court lacked that authority except to the extent that it is used to secure the payment of the child support obligation. But neither Monreal nor the case at bar involves the authority of the court to impose such a condition following a trial, involving instead the parties agreeing to the designation of the children as beneficiaries. The parties to a divorce are free to reach an agreement that the trial court lacks the authority to compel. In Krueger v Krueger, the Court upheld just such an agreement where the parties agreed in their divorce settlement to have their son named the beneficiary of the father’s life insurance policy until the son reached the age of twenty-one years or graduated from college. We disagree with defendant’s suggestion in her brief that the only purpose of a life insurance provision in a divorce judgment is to secure the future payment of child support. That is a possible purpose for the clause, but it certainly is not the only purpose. The parties may simply wish to provide additional security for their minor children in the event that a parent dies while one or more of the children are still minors. Ultimately, it does not matter why the parties agreed to require that any minor child be a beneficiary of the life insurance policy. The fact remains that the explicit language of the divorce judgment so provides. Conversely, had the parties wished to only secure the payment of any remaining child support, the language of the judgment could have been drafted accordingly — we are not concluding that there is an inherent obligation to make the minor children beneficiaries of the whole amount of the par- exits’ life insurance. For example, the judgment could have required that Lobaina maintain life insurance in an amount sufficient to secure the support obligation with the minor children named as beneficiaries until they were no longer entitled to child support. But the judgment did not so provide. Indeed, the life insurance provision is not at all related to the support obligation beyond the fact that the obligation to name the children , as beneficiaries ended at the same time that the support obligation ended. But there was no obligation to maintain insurance in an amount necessary to secure the support obligation. That is, Lobaina was obligated to name the minor children as beneficiaries of the employer-provided life insurance regardless of the amount of that insurance. The insurance might have been more than enough to secure the unpaid support obligation, or it may have been woefully inadequate — and there was no requirement for Lobaina to obtain other life insurance to secure the support obligation. If the parties’ only intent was to ensure the security of future child support payments, the provision would have required that Lobaina maintain sufficient life insurance, regardless of source, to achieve that goal. But Lobaina was under no obligation to maintain any life insurance beyond that provided by his employer. For that matter, both parents were required under the judgment to name their children as beneficiaries of their employer-provided life insurance, yet only the father was obligated to pay child support. This fact further supports the view that the life insurance clause was not merely intended to secure the payment of future child support. While not essential to reach this conclusion, this mutual obligation clause makes the conclusion that the insurance clause was not intended to secure child support payments very compelling. In sum, we hold that a provision in a divorce settlement that requires either or both parties to name the minor children as beneficiaries of their life insurance policies is not inherently limited to securing the payment of future child support. Such a provision may, depending on the nature of the agreement, provide for either the payment of the entire proceeds of the policy to the minor children, or only the amount of the remaining support obligation. Where, as here, the divorce judgment broadly imposes the obligation to name the children as beneficiaries without any indication that the purpose of the provision is merely to secure the payment of the future child support obligation, the children are entitled to the entire life insurance proceeds without respect to the remaining balance of child support owed. Given the lack of an express statement in the judgment that the purpose of the life insurance clause was to secure child support payments or other clear indication of such a purpose, such as linking the amount of insurance that must be maintained to the amount of future support owed, there is no basis for finding such a purpose. On the other hand, the fact that the decedent was not obligated to obtain insurance if no employer-provided insurance was available, the fact that there was no obligation to ensure that there was enough insurance to secure the remaining support obligation, and the fact that both parents had an obligation to name the minor children as beneficiaries despite the fact that only one had a support obligation all indicate that no such limited purpose was intended. Next, defendant argues that she should receive credit for the amount that the minor child will receive from social security for survivor benefits because of decedent’s death, citing Frens v Frens. We disagree. Frens dealt with the issue of a credit against child support for amounts received by the child as social security disability benefits following the parent’s disability. It is by no means clear that Frens would apply in the context of whether there should be a credit for survivor benefits against the remaining support obligation of a deceased parent. In any event, as discussed above, the life insurance proceeds do not represent the payment of decedent’s weekly child support obligation. Accordingly, there is no credit against the life insurance proceeds arising from any survivor benefits that the child receives. Finally, plaintiff argues that the trial court erred in denying her an award of attorney fees. We agree. The judgment of divorce provided as follows: If either party hereto fails to comply with any of the terms and conditions of the Judgment of Divorce, the prevailing party shall be entitled to their actual attorney fees, in addition to all other statutory attorney fees and costs from the losing party. Decedent failed to comply with the terms of the judgment regarding the naming of his minor child as the beneficiary of his employer-provided life insurance. Plaintiff prevailed in the action to enforce the judgment. Accordingly, she is entitled to an award of her actual attorney fees. On remand, the trial court shall determine the appropriate amount of that award. Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994). Id. 126 Mich App 60; 337 NW2d 312 (1983), aff'd 422 Mich 704 (1985). Id. at 64. MCR 7.215(J)(1). We do not believe the Supreme Court’s opinion in Monreal is relevant to this case because the Supreme Court’s focus was on a question not present here, namely whether the decedent’s adult children should share in the life insurance proceeds. See, e.g., Metropolitan Life Ins Co v Self, 129 Mich App 242; 341 NW2d 488 (1983). Monreal, supra at 64. Self, supra at 244. Id. at 245 n 1. Id. at 245. 57 Mich App 590; 226 NW2d 574 (1975). Monreal, supra at 64. Gray, supra at 594. Krueger v Krueger, 88 Mich App 722, 725; 278 NW2d 514 (1979), citing Newton v Security Nat’l Bank of Battle Creek, 324 Mich 344; 37 NW2d 130 (1949). Krueger, supra at 724-725; see also Kasper v Metro Life Ins Co, 412 Mich 232; 313 NW2d 904 (1981). 191 Mich App 654; 478 NW2d 750 (1991).	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Per Curiam. Defendant appeals by delayed leave granted, with the issue “limited to the question whether the parole board’s ‘life means life’ policy violates the Ex Post Facto Clause, U.S. Const, art I, § 10, cl 1.” After review de novo of this question of law, we conclude that there is no such violation. See People v Westman, 262 Mich App 184, 187; 685 NW2d 423 (2004). Defendant was convicted of armed robbery in 1976. It appears that the sentencing judge gave defendant a choice of sentences, either a term of forty to sixty years’ imprisonment or a parolable life term. Apparently, defendant’s counsel advised defendant that he would be eligible for release sooner with a. life sentence than with the sentence of an indeterminate term of years, and defendant chose the life sentence. That advice was allegedly supported by information from the Michigan Department of Corrections indicating that for most similarly situated offenders, those with a parolable life sentence could be released after serving twelve to fifteen years, while those with a forty- to sixty-year sentence would not be eligible for parole until after serving sixteen years. However, in the years since defendant’s sentencing, particularly in 1992, the parole statutes were revised and the parole board was reorganized. Defendant claims that with the reorganization of the parole board in 1992 came a change in philosophy and decision-making policy with regard to the parole consideration given to parolable lifers, including the implementation of a “life means life” policy. On appeal, defendant argues that the application of this “life means life” policy to his sentence violates the federal Ex Post Facto Clause because his punishment has been increased. Defendant claims that this policy change, in practice, effectively rewrites his sentence and essentially eliminates parole for parolable lifers because “the parole board is no longer exercising its discretion in parolable lifer cases. Instead it has adopted a blanket policy, applied retroactively, of almost never releasing parolable lifers, no matter how strong their institutional records or how long their terms of incarceration.” We disagree. The first “lifer law” came into effect in 1941, granting parole eligibility to prisoners sentenced to life in prison for crimes other than first-degree murder after serving ten calendar years. Before its enactment, those life sentences would have to have been served in their entirety unless commuted by the Governor or a pardon was granted. The lifer law has been revised through the years, but at the time of defendant’s sentencing, MCL 791.234 provided that he would be subject to the jurisdiction and authority of the parole board after serving ten calendar years. It also appears that at the time of defendant’s sentencing, a perception commonly held by legal practitioners, as well as some judges, was that a “parolable life” sentence did not mean life; rather, it meant between twelve and twenty years in prison. See, e.g., People v Lino (After Remand), 213 Mich App 89, 95-98; 539 NW2d 545 (1995), overruled by People v Carson, 220 Mich App 662, 673-674 (1996); see, also, Prisons and Corrections Section of the State Bar of Michigan, What should “parolable life” mean? Judges respond to the controversy (March 2002), available at <http://www.capps-mi.org/pdfdocs/JudicialSurvey.pdf> (accessed June 24, 2005). In fact, defendant’s sentencing judge also believed that a parolable life sentence was less harsh than a long indeterminate term sentence because of the earlier opportunity for parole. This belief seems to have been somewhat supported by parole data; for example, from 1941 through 1974, 416 parole-eligible lifers were paroled, averaging twelve a year. However, it appears that there was a change in parole practice, because from 1975 through 1992 only sixty-five parole-eligible lifers were paroled, for an average of less than four a year. In 1992, the parole board was restructured, both in number and composition, and it continued the practice of the prior seventeen years in granting fewer paroles. “The primary goal of the reorganization was to increase public safety by minimizing the number of dangerous and assaultive prisoners being placed on parole.” Michigan Parole Board website, Introduction <http://www.michigan.gov/corrections/0,1607,7-119-1378-22894-,00.html> (accessed June 24, 2005). In a 1997 status report, then Michigan Department of Corrections Director Kenneth L. McGinnis, stated: To reinforce public confidence in Michigan’s penal system, Gov. John Engler in 1992 ordered an overhaul of the Parole Board and the way in which paroles were granted. The intent of the overhaul was to make Michigan’s communities safer by making more criminals serve more time and keeping many more locked up for as long as possible. *** Among the most important differences since the overhaul is a Parole Board that is much less willing to release criminals who complete their minimum sentences — and much less willing to release criminals at all, forcing many to serve their maximum sentences. [Michigan Department of Corrections, Five years after: An analysis of the Michigan parole board since 1992 (September 1997).] On September 28, 1999, the chairperson of the parole board, Stephen Marschke, testified before the Legislature in support of proposed legislation to amend the life law to eliminate the mandatory interview requirement. His written testimony stated: It has been a long standing philosophy of the Michigan Parole Board that a life sentence means just that — life in prison. Of course, there are exceptions and parole may be appropriate under certain circumstances. The process to handle parole for a prisoner serving a life sentence is when a majority of the parole board votes to send that case to a public hearing. It is the parole hoard’s belief that something exceptional must occur which would cause the parole board to request the sentencing judge or Governor to set aside a life sentence. Good behavior is expected and is not in and of itself grounds for parole. And, in 2001, in prepared materials distributed at a judicial conference, representatives of the parole board stated: “There are some who believe a life sentence equates to a number of years of confinement; i.e. a life sentence equals 10, 20, 30 years, etc. The parole board believes a life sentence means life in prison. There is nothing which exists in statute that allows the parole board to think, or do, otherwise.” [Material prepared by Martin, Steinman & Marschke, Michigan Department of Corrections, Field Operations Administration, Office of the Parole Board, for the Michigan Judges Association Annual Judicial Conference, Traverse City, Michigan, October 1-3, 2001, quoted in a report by Citizens Alliance on Prisons & Public Spending, No way out: Michigan’s parole board redefines the meaning of “life” (September 2004), p 15, available at <http://www.capps-mi.org/pdfdocs/fullliferreport.pdf> (accessed June 24, 2005).] Defendant argues that these various statements, along with the parole board’s actual practices, demonstrate a “life means life” policy that was newly instituted after he was sentenced to life in prison and has the effect of increasing his punishment in violation of the federal Ex Post Facto Clause. The Ex Post Facto Clause of the United States Constitution prohibits the enactment of a law that, when applied, increases the punishment for a crime committed before its effective date. See US Const, art I, § 10; Riley v Parole Bd, 216 Mich App 242, 244; 548 NW2d 686 (1996). It was “intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedure that do not affect matters of substance.” People v Russo, 439 Mich 584, 592; 487 NW2d 698 (1992). Accordingly, before we address defendant’s ex post facto challenge, it must be determined whether this “life means life” policy exists, and whether it was enacted after defendant was sentenced. Even if we assume arguendo that this “life means life” policy exists, we must conclude that defendant has failed to establish that it was not in effect when defendant was sentenced to parolable life imprisonment. As noted above, from 1941 through 1974, only about twelve parole-eligible lifers were paroled a year. From 1975 through 1992, even before this alleged “life means life” policy was instituted according to defendant, fewer than four parolable lifers were paroled a year. However, there is a discrepancy in the statistical data. In Lino (After Remand), supra at 97-98, the Court indicated that from 1986 through 1990, only seven parolable lifers were paroled, including two in 1990, and one was paroled in 1991 and another in 1992. However, even after this so-called “life means life” policy was allegedly adopted in 1992, fourteen parolable lifers were paroled in 1994 and twelve were paroled from 1995 through 1998. See report by Citizens Alliance on Prisons & Public Spending, No way out: Michigan’s parole board redefines the meaning of “life” (September 2004), p 10, available at <http://www.cappsmi.org/pdfdocs/fullliferreport.pdf> (accessed June 24, 2005). Further, it appears to have been well-known that most lifers were never granted parole. See People v Bates, 439 Mich 960, 961 (1992) (statement of Cavanagh, C.J., dissenting from denial of leave to appeal). From the data provided by defendant, as well as our own research, it is unclear why in 1976 legal practitioners and sentencing judges would have believed that a sentence of parolable life meant that a prisoner would be released shortly after they became eligible for parole. On the record before us, defendant has failed to establish that there was a discernable change in practice with respect to parole decisions after the alleged adoption of a “life means life” policy. It appears that enforcing a valid life sentence has almost invariably been the policy and practice of the parole board. Accordingly, there was no government action instituted after defendant’s sentencing that produced a significant risk of increasing his punishment. See California Dep’t of Corrections v Morales, 514 US 499, 509; 115 S Ct 1597; 131 L Ed 2d 588 (1995). There was always a “significant risk” that defendant would be made to serve his life sentence. As has been stated on numerous occasions, parole eligibility does not mean that a defendant has a right to parole. See Morales v Parole Bd, 260 Mich App 29, 39; 676 NW2d 221 (2003). It seems that defendant’s argument is primarily that the parole board has been granted almost unfettered discretion with regard to its parole decisions. Defendant cites the alleged lack of meaningful consideration granted to parolable lifers since the parole board is not required to prepare parole guidelines until confronting a release decision, Jackson v Dep’t of Corrections, 247 Mich App 380, 383-384; 636 NW2d 305 (2001), and the fact that, for the most part, its decisions of “no interest in taking action” toward release are relatively unsupported and unappealable, In re Parole of Johnson, 235 Mich App 21, 25-26; 596 NW2d 202 (1999). However, those are issues for the Legislature to consider and remedy if necessary. In sum, the Department of Corrections and the parole board’s articulation of an alleged “life means life” policy merely states the policy and practice that has been in effect since before defendant was sentenced to a parolable life term. Accordingly, there is no ex post facto violation. Affirmed. See HB 4624 of 1999, subsequently enacted as 1999 PA 191, amending MCL 791.234 and 791.244.	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T. M. Burns, J. These consolidated cases were based on a single incident and raise the same issue of law on appeal. The issue relates to the payment of prejudgment interest under MCL 600.6013; MSA 27A.6013, where the parties agree on an offer of judgment under GCR 1963, 519.1. The problem arises on the following facts. On June 19, 1975, Robert and Paul McGrath were injured when the motorcycle they were riding was struck from the rear by a pickup truck driven by defendant Dennis Clark. Individual suits were started in the name of each plaintiff on November 3, 1975. Two weeks before the trial date, defendant made an offer of judgment in the amount of $10,000 to Robert McGrath and $20,000 to Paul McGrath. The offers were silent on the question of interest and represented the limits of liability on defendant’s insurance policy. The offers were accepted and the appropriate documents were filed with the court. Although rule 519 envisions that once the offer is accepted and filed, the clerk will perform the ministerial act of entering the judgment, in this case a dispute arose over the payment of costs and interest on the judgment. The dispute on costs was resolved and is not questioned on appeal. The circuit court resolved the interest question in favor of defendant and this appeal followed. Rule 519.1, while resolving the question of costs, does not mention interest. The offer in this case did not contain an interest term. The trial court held that no interest attached to the judgment, apparently because it believed that no interest attached to offers of judgment or that interest was implicitly included in the amount offered. We disagree and reverse. RJA § 6013 provides that "[ijnterest shall be allowed on any money judgment recovered in a civil action * * Under normal rules of statutory construction, the word "shall” is mandatory and not a grant of discretion to the trial court. See King v Director of Midland County Department of Social Services, 73 Mich App 253, 259; 251 NW2d 270 (1977). By the same rules, the word "any” is to be considered all-inclusive. We, therefore, conclude that where the parties have made no provision for interest in the offer or acceptance of a judgment under rule 519.1, interest is to be allowed the same as on any other judgment. This is not inconsistent with either the purposes of GCR 519 or prior cases. We agree with defendant that one of the purposes of rule 519 is to promote settlements and avoid costly litigation. It does not necessarily follow, however, that prejudgment interest merges into the offer by implication. This would occur if the court rule expressly provided for the offer to include interest, but the present rule does not. Compare, Proposed MCR 2.405. Cf. WCCR 21.13 (meditation). Under the present rule, where the offer is silent on the question of interest the statute applies. This leaves the parties free to negotiate on the subject but does not deprive one party of a statutory right by mere silence. As Honigman and Hawkins have noted, the effect of rule 519 in conjunction with RJA § 6013 is to possibly stop interest from running on the date of the offer. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 250 (1978 supp). It is two completely different things to say that the rule will terminate the accumulation of interest and to say that the rule will eliminate interest altogether. The statute and rule provide for the termination of the accumulation of interest, not its elimination. Neither Bertilacci v Avery, 42 Mich App 483; 202 NW2d 331 (1972), lv den 388 Mich 801 (1972), nor Beltz v Kimberley, 63 Mich App 700; 235 NW2d 25 (1975), dealt with the question presented by this case. Both involved a situation where the offer was rejected and a trial held. There is no indication in either case that interest was not included in the rejected offer and in Beltz it is clear that interest was included in the rejected offer, not to be added to it. Those cases do not control here. In conclusion, we hold that where the parties agree on the entry of judgment under GCR 519.1, but make no provision for prejudgment interest, the party in whose favor the judgment is entered is entitled to interest under RJA § 6013. We, therefore, remand these cases to allow the judgment in each to be modified to provide for prejudgment interest as provided in the statute. Remanded. Costs to appellants. The entire rule provides: "1. Offer of Judgment. A party defending against a claim may serve upon the adverse party an offer, in writing, to allow judgment to be taken against him for all or a part of the claim for relief in accordance with the term of the offer together with costs then accrued. If the adverse party serves written notice that the offer is accepted, within 10 days after the service of the offer and before the evidence is closed, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer which is received 10 days before the evidence is closed and is not accepted within 10 days after being received shall be considered rejected. An offer received less than 10 days before the evidence is closed may be accepted or expressly rejected before the evidence is closed but if it is not thus expressly accepted or rejected the offer shall not be considered as rejected and shall have no effect on costs. Evidence of an offer is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the rejected offer, the offeree must pay the taxable costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.” In the original volume, Honigman & Hawkins made it clear that rule 519 had no effect on the question of interest. See, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 647. The statute provides: "Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is subsequently rendered and the offer of settlement is substantially identical or substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date the written offer of settlement is made.” MCL 600.6013; MSA 27A.6013. The last sentence of the statute is . not applicable because the offer was accepted. But, it may be relevant to show that the legislative intent was not to eliminate interest altogether, but only to terminate the accumulation of interest at the time of the offer. Proposed MCR 2.405(a)(2) defines an offer as "a written notification to an adverse party of the offeror’s willingness to stipulate to the entry of a judgment in a sum certain, including all costs and interest then accrued”. On the question of whether the insurance carrier can be held responsible for prejudgment interest which would bring the total amount paid by the company above the stated policy limits, see Denham v Bedford, 82 Mich App 107; 266 NW2d 682 (1978).	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Per Curiam. By leave granted, plaintiff appeals from a circuit court order affirming a prior district court finding that plaintiff had no cause of action against defendant. Plaintiff is the insurance carrier for Double A Products of Manchester, Michigan. Double A Products and defendant Duckham had entered into an agreement pursuant to which defendant agreed to haul trash from the Double A plant for a price fixed in the agreement. The course of dealing established the method by which the contract was to be carried out, namely, Duckham left a trash compacting truck at the Double A plant and, when it was full, either he himself or an employee of his would drive the truck to the dump, empty it, and return the truck to the Double A plant. On April 14, 1966, one John Johnson, a part-time employee of the defendant employed on an "as needed” basis, who was a full-time employee of the Dempsey Company in Garden City, Michigan, was unable to report to his regular employment with the Dempsey Company because his automobile broke down. Johnson succeeded in driving his automobile, however, from his home in Jackson to Manchester. He first stopped at a bar and imbibed some alcoholic beverages. Johnson then proceeded to the Double A plant. A Double A employee was loading defendant’s trash compactor, and Johnson rendered assistance. The truck mechanism was jammed and, in an attempt to free the device, Johnson caught his hand in the machinery and severed three fingers of one hand. The severed fingers were discovered in Johnson’s glove and surgically restored to his hand at the hospital. Johnson instituted a petition for worker’s disability compensation benefits against defendant Duckham, who, in, violation of statute, carried no workman’s compensation insurance, as well as against Double A and its insurance carrier, Aetna Casualty & Surety Company. Subsequently, a redemption hearing was held at which all parties were represented. Duckham’s attorney stated that Duckham denied liability under the act in that he denied there was an employment relationship at the time of Johnson’s injury. The attorney then stated that having denied liability on behalf of his client, he would not participate in the redemption hearing. Johnson and Double A then voluntarily entered into a redemption settlement. This was done despite the fact that Duck-ham’s attorney had specifically stated on the record of the redemption hearing that Duckham would deny any liability for reimbursement to Double A or its insurance carrier. Johnson’s petition for compensation against Duckham was not further pursued. Plaintiff thereafter commenced this suit seeking indemnification pursuant to MCL 418.171(2); MSA 17.237(171)(2). The district court found, and the circuit court affirmed, that on the day in question Johnson was not an employee of defendant and was not injured in the course of his employment. In reaching this conclusion, the court found to be significant the facts that on the date in question Johnson was not requested to come in for work, did not report at defendant’s office nor punch in, was out drinking and decided to voluntarily visit the men at the Double A plant. Once it was determined that the employment relationship was not established, plaintiff’s claim for indemnification necessarily fell. Four issues are raised in this appeal. Only one is of sufficient significance to merit discussion. Simply stated, we must determine whether the lower court’s decision that Johnson’s injury was not related to his employment with defendant was in error. In Whetro v Awkerman, 383 Mich 235, 242-243; 174 NW2d 783 (1970), the Supreme Court concluded that in Michigan, if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid. Thus, in Whetro, the Court held that injuries caused by the devastating Palm Sunday, 1965, tornados were compensable under the worker’s compensation act. In Nemeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973), the Court held that where an employee was injured while working after hours with his employer’s equipment on a project with a fellow employee, his injury arose out of the employment relationship. The Court set out a "sufficient nexus” test. If it is possible to say that "but for the employment relationship” the injury would not have occurred, then the injured employee is entitled to compensation. In a later case, Hicks v General Motors Corp, 66 Mich App 38, 44; 238 NW2d 194 (1975), lv den 396 Mich 838 (1976), this Court held that a plaintiff’s volunteering to do something outside of his working hours which was not a part of his assigned duties did not automatically remove him from the course of his employment. Most recently, the Supreme Court allowed recovery by an employee who was struck by a car, off-premises, while walking across a street to a restaurant during his lunch break. McClure v General Motors Corp, 402 Mich 392; 262 NW2d 829 (1978). The Court stated, at 395: "Here, too, 'it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured’. It was as an incident of the employment relationship that McClure found himself in the traffic lane on the Fleetwood Inn side of Fort Street approximately 50 to 75 yards from the factory during his lunch break on April 14, 1973.” In the instant case the injured employee’s status as a part-time employee of defendant both before and after his injury is undisputed. His action in helping plaintiff’s insured’s employees load defendant’s garbage truck arose out of his employment relationship with defendant. It is probable that "but for the employment relationship”, the injured employee would not have offered to help plaintiff’s insured’s employees load the garbage truck. It was his familiarity with defendant’s equipment, gained from his employment with defendant, that led the injured employee to offer assistnace on the date of his injury. We hold under these circumstances, therefore, that the injury arose out of an employment relationship with defendant. By statute, MCL 418.171; MSA 17.237(171), plaintiff has the right to seek indemnification from defendant for the amount paid to the injured employee as a result of the redemption settlement. The district court’s finding of no cause of action was clearly erroneous and is. reversed. Appellant may tax costs.	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V. J. Brennan, J. Defendant, Doil Taylor, was convicted, on his guilty plea in 71-A District Court for the County of Lapeer, of attempted possession of gambling policy slips. MCL 750.306; MSA 28.538; MCL 750.92; MSA 28.287. Defendant was sentenced to 180 days in the county jail (to be served on weekends) and was ordered to pay $500 in fines and costs. Defendant then appealed to the circuit court claiming first that the subject statute was vague and overbroad and thus unconstitutional and second that reversible error occurred when the district judge accepted defendant’s guilty plea without explaining the various rights waived thereby. The circuit court ruled in favor of the constitutionality of the statute but set aside the defendant’s conviction due to the district court’s failure to explain the rights waived by the plea. The circuit court then remanded the cause on the original charge (and not the lesser charge to which the defendant pled) holding that People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), did not apply "as the prosecuting attorney was not asked whether he would comment upon the plea taking procedure”. Defendant brings this appeal by leave granted arguing both the unconstitutionality of the statute and the applicability of McMiller. Initially we point out that the circuit court properly vacated the plea due to the district court’s failure to substantially comply with DCR 1963, 785.4(d)(1) which states that before the plea is accepted the court shall advise the defendant that "he will not have a trial of any kind, so he gives up the rights he would have at a trial”. Upon review of the plea transcript nowhere do we find that the defendant was advised of the rights waived incident to the plea. The resultant plea was thus "constitutionally defective”. Guilty Plea Cases, 395 Mich 96, 121; 235 NW2d 132 (1975). We now address defendant’s contention that the statute in question is unconstitutional for vagueness and overbreadth. MCL 750.306 provides: "All policy or pool tickets, slips or checks, memoranda of any combination or other bet, manifold or other policy or pool books or sheets, are hereby declared a common nuisance and the possession thereof a misdemeanor, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than 500 dollars. "The possession of any such articles, or of any other implements, apparatus or materials of any other form of gaming, shall be prima facie evidence of their use, by the person having them in possession, in the form of gaming in which like articles are commonly used. And such article found upon the person of one lawfully arrested for violation of any law relative to lotteries, policy lotteries or policy, the buying or selling of pools or registering of bets or other form of gaming shall be competent evidence upon the trial of an indictment to which it may be relevant.” The thrust of defendant’s vagueness argument centers on the use of the terms "policy”, "pool” and "manifold”. Defendant asserts that people of common intelligence are not given fair notice of the conduct proscribed or that judges and jurors are free to decide what is or is not prohibited in each particular case contrary to Giaccio v Pennsyl vania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1966). A statute will not be struck down for vagueness where the language, although not mathematically precise, does delineate with reasonable certainty the proscribed conduct. Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972), People v Chapman, 80 Mich App 583, 586; 264 NW2d 69 (1978). Further, the requisite certainty may be supplied by materials outside the statutory definition of the offense or by a reading of the entire text of the statute. Kalita v Detroit, 57 Mich App 696, 701; 226 NW2d 699 (1975). A reading of the entire statute, MCL 750.301, et seq.; MSA 28.533, et seq., reasonably indicates that its primary aim is to prohibit various forms of gambling and the possession of "articles, materials, devices, et cetera, which have integral connections with a gambling game or which are actually used in gambling operations”. People v Locricchio, 373 Mich 490, 495; 129 NW2d 856 (1964). When MCL 750.306 is read in this light a reasonable interpretation concludes that possession of various written memoranda used in gambling operations is prohibited. Accordingly, the statute is not impermissibly vague. Defendant next argues the statute’s overbreadth in that participation in the legal state lottery is also prohibited. We point out that one to whom a statute may properly be applied may not challenge that statute on grounds of overbreadth unless First Amendment rights and a chilling effect thereon are involved. Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973), People v Chapman, supra. The defendant has nowhere asserted that the gambling slips in his possession were legal lottery tickets, nor has the defendant demonstrated any First Amendment rights affected by the statute. Therefore, defendant lacks standing to raise the overbreadth issue. Defendant next argues that the circuit court erred in ruling People v McMiller, supra, inapplicable due to the fact that the prosecutor was not asked to comment on the plea procedure. We agree. The proper McMiller exception most certainly relied upon by the circuit court is found in Guilty Plea Cases, supra, 136-137, as follows: "If the prosecutor calls the court’s attention to plea-taking error before the plea is accepted, McMiller will not apply in the event the trial court vacates the plea on defendant’s motion or with defendant’s consent or the trial court is reversed on appeal on the basis of the same error.” The record in the present case indicates that the prosecutor, although not asked to comment on the plea, had every opportunity to point out errors in the proceeding. Since this was not done, the above-mentioned exception to McMiller is rendered inapplicable. We affirm the circuit court in vacating defendant’s plea, however, on remand, in accordance with People v McMiller, supra, the defendant may not be charged with an offense higher than that to which he pled. Affirmed as modified. Pursuant to the enactment of MCL 432.1, et seq.; MSA 18.969(1), et seq., participation in the state lottery and in licensed bingo or millionaire parties is permitted. We invite the Legislature to revisit MCL 750.301, et seq.; MSA 28.533, et seq., in order to update and redefine its prohibitions in accordance with the state’s and citizenry’s progressive attitude. This omission on the part of the district judge cannot be held error since under DCR 1963, 785.4(d) there is no requirement that the prosecutor be asked to comment on the plea procedure.	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V. J. Brennan, P.J. Plaintiff appeals as of right from a portion of a February 17, 1978, judgment of Genesee County Circuit Judge Robert M. Ransom. Plaintiff was injured in an automobile accident on February 19, 1975. His wife was killed. Surviving was their two-year-old daughter, Tanya. Defendant is plaintiff’s "no-fault” insurer. Plaintiff filed a complaint in district court in Flint on October 3, 1975. The amount of damages sought exceeded district court jurisdictional limits and on August 2, 1976, the case was removed to circuit court. An amended complaint was filed in circuit court on October 27, 1976, alleging that defendant had failed to pay benefits for reasonably incurred expenses for the care of plaintiff’s daughter necessitated by plaintiff’s wife’s death and for services performed for plaintiff that he would have performed for himself had he not been injured. Plaintiff also sought recovery for various medical expenses and contested the validity of an excess-deductible provision in his policy with defendant. Plaintiff testified that he suffered hip, back and internal injuries. His back was broken. He had to wear a corset until June 7, 1975. He was unable to bend over or to move around without crutches. He and his daughter, Tanya, stayed with plaintiffs mother and his mother-in-law who cared for them. Plaintiff returned to work on October 1, 1975. From October . 1975 until January of 1976 plaintiffs mother-in-law cared for Tanya. On January 6, 1976, plaintiff remarried. Plaintiff stated that he had an agreement with his new wife to pay her $20 per day to care for Tanya. The amount was based on the benefit provided in the no-fault statute. There was no definite term to the agreement between the parties. The trial court concluded that plaintiff "reasonably incurred” expenses with his mother and mother-in-law for his own "ordinary and necessary” care at the rate of $20 per day. In fact, the court thought that the reasonable value of the services rendered to plaintiff was more than the $20 allowed under the no-fault statute. The court also concluded that plaintiffs remarriage reestablished the family unit and ended the need for plaintiff to incur expense for ordinary and necessary services for Tanya in lieu of those provided by her dead mother. The court found insufficient evidence of a contract between plaintiff and his new wife for the care of Tanya. The court denied plaintiff benefits for replacement services for Tanya from the date of his remarriage, although it awarded benefits for the time between plaintiffs return to work and his remarriage, when Tanya was cared for by her grandmother. The court found that the excess-deductible provision in plaintiffs policy was a part of the policy at the time of the accident. Plaintiff was awarded his claimed unreimbursed medical expenses. Plaintiffs appeal contests only the denial of benefits for replacement services for Tanya after plaintiffs remarriage. The plaintiff argues that his remarriage did not end the dependency of the child on the deceased mother. MCL 500.3110(1)(c); MSA 24.13110(1)(c). He argues that the trial court’s conclusion that plaintiffs remarriage reestablished a family unit and ended the provision of replacement services for Tanya is without legal basis and that nowhere in the no-fault statute is there language that disqualifies relatives from performing services. He further argues that in the Worker’s Disability Compensation Act, another no-fault statute, the Supreme Court has held that a disabled employee may recover benefits for services rendered him by his wife, Kushay v Sexton Dairy Co, 394 Mich 69; 228 NW2d 205 (1975), and that the insurer should not reap a windfall because ordinary and necessary services rendered to replace those which would have been performed are performed by a wife instead of a housekeeper or a nursemaid. We agree. Defendant argues that there was no contract between plaintiff and his new wife to care for Tanya and that the language of the statute requiring expenses to be reasonably incurred can hardly be construed to provide for payment to a new wife for the care of her husband’s daughter. Defendant further argues Kushay v Sexton Dairy Co, supra, is distinguishable since it arose under a section of the Worker’s Disability Compensation Act which requires employers to furnish services to the injured employee. It is defendant’s position that § 3108 of the no-fault act does not require payment for child care under all circumstances, but only where the expenses are reason ably incurred and that the trial court properly found that expenses claimed here were not reasonably incurred. This is a case of first impression under the no-fault act. MCL 500.3101 et seq.; MSA 24.13101 et seq. No cases have construed § 3108 of the act, the contested provision in this case. It reads as follows: "Personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivor’s loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.” MCL 500.3108; MSA 24.13108. Plaintiff argues that his agreement with his new wife to pay her $20 per day for the care of his daughter entitled him to benefits under the section. Defendant argues that a remarriage in which the new wife provides ordinary and necessary services to the daughter ends the insurer’s obligation under this section where there are no other expenditures to care for the daughter. The trial court agreed with defendant. The Supreme Court has decided that the provi sion of services by a spouse or relative, where reasonable, is compensable under a provision of the Worker’s Disability Compensation Act. MCL 418.315; MSA 17.237(315). Although the provision does not exactly parallel § 3108 of the no-fault act, both statutes create an entitlement for benefits reasonably provided. Kushay v Sexton Dairy Co, supra. Both statutes are concerned with the provision of services and not with the status of the person providing those services. Thus, the Court in Kushay held that a spouse could recover for services rendered to a husband, even though, in all probability, she would have performed them absent the possibility of recovery from the employer. Kushay v Sexton Dairy Co, supra, pp 74-75. Plaintiffs new wife does not legally replace his daughter’s dead mother. A stepmother is not liable for all the duties or entitled to all the rights of a parent. See MCL 710.60; MSA 27.3178(555.60). Nor does a stepmother enjoy any favorable presumption for purposes of child custody under the Child Custody Act. See MCL 722.25; MSA 25.312(5). Plaintiffs remarriage, while re-estalbishing the family unit, in no way affected Tanya’s need for ordinary and necessary services that her dead mother once provided. The trial court improperly concluded that plaintiffs remarriage terminated his daughter’s eligibility to receive survivor’s loss benefits under § 3108 of the no-fault insurance act. Reversed and remanded for entry of judgment accordingly. Defendant to pay costs and reasonable attorney fees.	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Per Curiam. Plaintiff filed an action in the Wayne Circuit Court for reimbursement of Social Security benefits deducted by defendant in paying survivor’s loss benefits under MCL 500.3109(1); MSA 24.13109(1) of the "no fault” insurance act. The defendant appeals from an order of the trial court granting summary judgment to the plaintiff. This issue has been litigated several times before the Court of Appeals. Most of the decisions have adopted the rationale or result obtained in the majority opinion in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976). However, the Supreme Court, in a very recent opinion, has reversed this Court’s holding in O’Donnell, 404 Mich 524; 273 NW2d 829 (1979). In view of the pronouncement of the Supreme Court, we accordingly reverse the decision of the trial court granting summary judgment and remand for entry of an order consistent with the opinion of the Supreme Court. Reversed.	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N. J. Kaufman, P.J. On July 26, 1977, defendants Michael McKaig and William Loewe were found guilty in a bench trial of unarmed robbery, MCL 750.530; MSA 28.798. They were sentenced on August 9, 1977, and appeal as of right. Michigan law requires that in order for a defendant to effectively waive his right to a jury trial, he must make a written waiver in open court. MCL 763.3; MSA 28.856: "In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in such cause and made a part of the record thereof. It shall be entitled in the court and cause and in substance as follows: T,_, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’ Signature of defendant. "Such waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel.” The file shows defendants signed the "Waiver of Jury Trial Circuit Court” form on July 26, 1977. The waiver was acknowledged by Judge Spivak’s court clerk the same date. Defendant McKaig alleges correctly that the transcript of the hearing does not reveal that he orally acknowledged the waiver of jury trial. Defendant Loewe does not allege this to be a ground for reversal. However, in the interest of justice we will consider the legal question as to both appellants. In People v Rimmer, 59 Mich App 645, 647; 230 NW2d 170 (1975), a panel of this Court reversed the defendant’s conviction and stated: "While the record does contain a written waiver executed by defendant on November 9, 1973, nowhere in the record does any transcript of an oral waiver before or at trial appear.” I agree with the Rimmer result because footnote 2 reveals that the written waiver was executed more than three months prior to defendant’s trial and there is no indication that the waiver was made in open court. In our case, however, the waiver was stamped filed on the same date as the commencement of trial and defendant McKaig makes no claim that the waiver was not made in open court. In People v Word, 67 Mich App 663, 665-666; 242 NW2d 471 (1976), a panel of this Court, in which I was one of the panelists, stated: "* * * Thus strict compliance with the statute is necessary and requires both a written waiver and an acknowledgment in open court of the waiver of a jury. There being no open court acknowledgment of the waiver of jury trial, this Court’s prior ruling in Rimmer, supra, requires a retrial.” Since concurring in the Word opinion, supra, I have come to the conclusion that there cannot be a hard and fast rule for every case. A valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. In cases such as the present, where the waiver is signed and filed the same day as the commencement of trial, the defendant is represented by an attorney, and the defendant does not claim that he did not sign the waiver in open court after having the opportunity to consult with his attorney, the statute is strictly complied with. See People v Woody, 25 Mich App 627, 629; 181 NW2d 621 (1970), lv den 384 Mich 822 (1971). We encourage trial judges to supplement the written waiver with an oral acknowledgment by the defendant. This practice eliminates any doubt as to whether or not the waiver was made in open court. However, the statute does not require an oral waiver and we decline to impose that requirement on trial judges. We have carefully reviewed the records and briefs and find the remaining allegations of error to be without merit. Affirmed. Bashara, J., concurred. 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Per Curiam. The plaintiff brought this action against individual police officers, seeking damages on various theories arising out of their forced entry into her home in search of a suspect. Some claims were dismissed, and the jury found for the defendants on others. However, it found in plaintiffs favor on her claim that the actions of one officer violated her and her daughter’s rights under the Michigan Constitution. The Court of Appeals reversed, with the majority basing its decision on the conclusion that the plaintiff had not established that the defendant officer’s actions were undertaken pursuant to a custom, policy, or practice of the Detroit Police Department. We agree with the result reached by the Court of Appeals, though not with the rationale. Rather, we conclude that there is no judicially inferred cause of action under circumstances like those presented in this case. Therefore, we affirm the judgment of the Court of Appeals. i The facts underlying this action were summarized by the Court of Appeals as follows: On October 29, 1991, several Detroit police officers were pursuing an individual suspected of assault and operating a stolen vehicle. The officers believed that the suspect ran into a nearby house owned by [plaintiff] Ruth Jones .... Plaintiff was home with her minor daughter . . . when she heard a man’s voice yell, “He’s in 17331,” followed by the sounds of a crash and a window breaking. Plaintiff and her daughter ran to a back bedroom for several minutes. Plaintiff heard loud voices saying, “B—, open up the mother f—ing door, we know he’s in there.” Pláintiff returned to the living room, where she saw that the front storm door and inner door had been forcefully opened. However, a security gate remained locked. Plaintiff told the officers that no one was in the house but plaintiff and her baby. Pursuant to the officers’ demands, plaintiff retrieved her keys and opened the security gate. Plaintiff testified that the officers entered the house and that two of the officers, defendants Powell and Kenneth Winslow, pointed their guns at her. Plaintiff was allowed to go next door to her sister’s house, while the officers, with the aid of a police dog, searched plaintiff’s home. However, no one was found inside. Plaintiff testified that she did not give the officers consent to enter or search the house. [227 Mich App 662, 665-666; 577 NW2d 130 (1998).] Plaintiff Jones, individually, and on behalf of her daughter, brought this action in Wayne Circuit Court, against the city of Detroit, Powell, Winslow, and several other Detroit police officers. She advanced various theories, alleging false imprisonment.and arrest, assault and battery, and intentional infliction of emotional distress. She also claimed that the defendants, acting under color of state law and pursuant to Detroit Police Department policy, deprived plaintiff and her daughter of their federal civil rights. Finally, plaintiff alleged that the defendants violated their rights under the Michigan Constitution. The defendants initially removed the action to the United States District Court for the Eastern District of Michigan, but the District Court remanded plaintiffs state claims to the circuit court. The circuit court granted summary judgment for the city of Detroit on all plaintiff’s claims, and the case proceeded to trial against the individual officers. Shortly after the trial began, plaintiff agreed to dismiss all her claims against the individual defendants except Powell and Winslow. After the close of plaintiff’s proofs, the defendants moved for a directed verdict on plaintiff’s constitutional claims, arguing that Michigan did not recognize a cause of action against individual officers under the Michigan Constitution. The circuit court initially took the matter under advisement, but denied the motion at the close of the defense case. The jury returned a verdict of no cause of action with respect to defendant Winslow, and found in favor of defendant Powell on all theories except the constitutional claims. On those claims, the jury awarded $75,000 to plaintiff Jones, and $126,000 to her daughter. After the trial court denied defendant Powell’s motions for judgment notwithstanding the verdict or a new trial, he appealed. n The Court of Appeals reversed. Much of the analysis focused on our decision in Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff’d sub nom Will v Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). All three judges of the Court of Appeals believed that a damages action should not be available against an individual defendant for violation of state constitutional rights. Because of the availability of alternative remedies against such defendants, the majority would have limited Smith to actions against the state, explaining: [W]e read Smith as recognizing a narrow remedy against the state where none otherwise would have existed. Conversely, we believe that none of the concerns identified in Smith that support a damage remedy for violations of the state constitution are applicable when the party that is alleged to have violated a plaintiffs state or federal constitutional rights is a municipality or an individual municipal employee rather than the state. In cases involving entities other than the state as a party defendant, the plaintiffs have available a number of alternative remedies. This is because municipalities, unlike states and state officials sued in an official capacity, are not protected by the Eleventh Amendment, which, of course, safe guards the state’s sovereignty in our federal system of government. Lake Country Estates, Inc v Tahoe Regional Planning Agency, 440 US 391; 99 S Ct 1171; 59 L Ed 2d 401 (1979); Fitzpatrick v Bitzer, 427 US 445, 456; 96 S Ct 2666; 49 L Ed 2d 614 (1976). Accordingly, local government units may be sued in federal or state court under § 1983. Monell [v New York City Dep’t of Social Services, 436 US 658, 690, n 54; 98 S Ct 2018; 56 L Ed 2d 611 (1978)]; Moore v Detroit, 128 Mich App 491, 499; 340 NW2d 640 (1983). Relatedly, it is clear that individual government employees cannot seek immunity for their intentional torts. Blackman v Cooper, 89 Mich App 639, 643; 280 NW2d 620 (1979). Here, plaintiffs were free to, and did, assert claims for false arrest and imprisonment, assault and battery, intentional infliction of emotional distress, and deprivation of civil rights in violation of § 1983. Accordingly, there simply was no justification under Smith for plaintiffs here to assert state constitutional violation claims, even claims alleging an offensive custom or policy, against these municipal and individual defendants. [227 Mich App 671-672.] Despite this view, under MCR 7.215(H), the majority felt constrained by an earlier decision in Johnson v Wayne Co, 213 Mich App 143; 540 NW2d 66 (1995), to recognize a damages cause of action against individual defendants for violation of a plaintiffs constitutional rights. Johnson and Marlin v Detroit (After Remand), 205 Mich App 335; 517 NW2d 305 (1994), however, also held that in an action against an entity or person other than the state, the plaintiff is required to prove that the alleged constitutional violations occurred by virtue of a custom or policy of the governmental agency involved. The majority concluded that defendant was entitled to judgment because there was no evidence that his actions were pursuant to such a custom or policy. The Court of Appeals remanded the case for entry of a judgment of no cause of action. The plaintiff has filed an application for leave to appeal from that decision. m We agree with the Court of Appeals majority that our decision in Smith provides no support for inferring a damage remedy for a violation of the Michigan Constitution in an action against a municipality or an individual government employee. In Smith, our consideration of the issue focused on whether such a remedy should be inferred against the state, which is not subject to liability under 42 USC 1983. The holding in Smith was set forth in a memorandum opinion summarizing the Court’s conclusions. It included the following: 5) Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action. 6) A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases. [428 Mich 544 (emphasis added).] Of the several separate opinions, the one that extensively considered the question was that of Justice Boyle. She noted the United States Supreme Court’s recognition of a damage remedy in Bivens v Six Unknown Named Federal Narcotics Bureau Agents, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971), and explained: We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are circumstances in which a damage remedy would not be appropriate. The absence of any other remedy would, as in Bivens, heighten the urgency of the question. Justice Harlan, concurring in Bivens, states that “[t]he question then, is, as I see it, whether compensatory relief is ‘necessary’ or ‘appropriate’ to the vindication of the interest asserted.” 403 US 407. In answering this question in the positive, Justice Harlan commented, “[f]or people in Bivens’ shoes, it is damages or nothing.” Id., p 410. Where a statute provides a remedy, the stark picture of a constitu tional provision violated without remedy is not presented. While a Bivens-type action may still be inferred, see Carlson v Green [446 US 14; 100 S Ct 1468; 64 L Ed 2d 15 (1980)] (federal tort claims remedy no bar to Bivens action), the existence of a legislative scheme may constitute “special factors counselling hesitation,” Bivens, supra, p 396, which militate against a judicially inferred damage remedy. [428 Mich 647.] Smith only recognized a narrow remedy against the state on the basis of the unavailability of any other remedy. Those concerns are inapplicable in actions against a municipality or an individual defendant. Unlike states and state officials sued in an official capacity, municipalities are not protected by the Eleventh Amendment. Lake Country Estates, supra at 400-401. A plaintiff may sue a municipality in federal or state court under 42 USC 1983 to redress a violation of a federal constitutional right. Monell, supra at 690, n 54 and accompanying text. Further, a plaintiff may bring an action against an individual defendant under § 1983 and common-law tort theories. Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we affirm the judgment of the Court of Appeals. Weaver, C.J., and Taylor, Corrigan, and Markman, JJ., concurred. I.e., assault, false arrest, false imprisonment, and intentional infliction of emotional distress. The majority also disagreed with this part of the Johnson decision, explaining: Again, while we are constrained to follow Johnson, we believe that the Johnson Court not only erred in allowing a Smií/i-based constitutional tort claim to be brought against individual governmental employees, but confused matters even further by applying the custom or policy standard from Smith in determining liability. The custom or policy standard first arose as a means of holding a local government liable under § 1983 for the acts of its agents. See MoneU, supra at 690-691. Justice Boyle’s opinion in Smith, in turn, merely suggested that the same standard should apply to hold the state liable for damages where a state custom, policy, or practice mandated the state official or employee’s actions. See Smith, supra at 642-643. Contrary to the decision in Johnson, because constitutional tort claims brought solely against individual municipal employees have nothing to do with whether the municipality itself can be held liable, the custom or policy analysis derived from § 1983 cases simply ought not to apply. [227 Mich App 676, n 4.] Judge Mdrphy concurred in the result, but disagreed with some of the majority’s reasoning. He did not believe that Johnson decided that it was appropriate to infer the existence of a constitutional tort. Rather, Johnson presumed that such an inference was appropriate and then disposed of the case on the ground that the plaintiff failed to present the proof necessary to prevail in such a suit. Judge Mdrphy argued that a judicially inferred cause of action under the Michigan Constitution is unwarranted in this case, principally because of the availability of damages under 42 USC 1983, for violations of the analogous provisions of the federal constitution.	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Per Curiam. Plaintiff filed suit charging the defendants with legal malpractice and seeking damages therefor. Defendants filed a motion for accelerated judgment. The basis for this motion was a mutual general release signed by the plaintiff and defendant, Paul L. Nine, following institution of this suit. The release referred specifically to the instant litigation. At the hearing on the motion the defendants argued that the release was an absolute bar to the action. Plaintiff countered that defendant had violated the Code of Professional Responsibility by contacting plaintiff directly and inducing him to sign the release and that this conduct constituted fraud and duress. Plaintiff also argued that the defendant made certain false representations to the plaintiff which induced him to sign the release, including that the defendant would be financially ruined by the litigation, that he had never been sued for malpractice at any prior time, and that such litigation would adversely affect the plaintiff’s business relationship with a business partner of the defendants. Plaintiff argued, therefore, that the release was obtained by fraud and duress. It was lastly urged by plaintiff that the release must fail for want of adequate consideration. The trial court, after considering the foregoing arguments, granted accelerated judgment for defendants. Plaintiff now appeals by right. We have reviewed the record and briefs and have given, as we must, considerable weight to the trial court’s findings. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969). We concur in its determination that the release was "fairly and knowingly” made. See Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), and Farwell v Neal, 40 Mich App 351, 355; 198 NW2d 801 (1972). Lastly, plaintiff’s suggestion that the release was unenforceable for lack of consideration is without merit. The settlement of the parties’ respective disputed claims furnishes good consideration. 6 Michigan Law & Practice, Contracts, § 58, p 319. See also MCL 566.1; MSA 26.978(1). Affirmed. Costs to appellees.	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J. H. Gillis, J. Defendant was convicted by a jury of delivery and conspiracy to deliver a controlled substance, heroin. MCL 335.341; MSA 18.1070(41) and MCL 750.157a; MSA 28.354(1). He was sentenced to serve 8 to 20 years in prison and appeals as of right. The charges against defendant were based upon certain events which took place on March 23, 1976. Thomas Cadieux, a police informant, contacted Edward Emmons, seeking to purchase some heroin. Emmons called defendant’s house and spoke with Paul Sobeck to arrange a sale. Cadieux then picked up Emmons and the two drove to defendant’s house where they were admitted by a woman and sent to the basement. Emmons went upstairs and returned with Paul Sobeck. Cadieux then arranged for the purchase of a gram of heroin. Sobeck went back upstairs and subsequently returned with defendant. Defendant was carrying a tinfoil packet in his hand. He handed this to Sobeck who in turn gave it to Cadieux. Cadieux handed defendant $80 to pay for the substance which was later analyzed as heroin. Initially defendant, Sobeck, Emmons, and Guadalupe Flores, defendant’s wife, were all charged in this matter. Following the preliminary examination Sobeck, Emmons and defendant were bound over on conspiracy and delivery charges. Mrs. Flores was bound over on conspiracy and possession with intent to deliver charges. The first issue raised by defendant concerns the admissibility of certain evidence. There was testimony that witness Cadieux and undercover Officer DeFeyter had gone to defendant’s house on a number of times prior to March 23, 1976, and been denied admittance. There was also testimony that Officer DeFeyter had made heroin purchases at the house from persons other than defendant. We agree the evidence that entrance to the house was denied was not probative of any matter in issue. In addition, it is questionable whether there was sufficient circumstantial evidence to link defendant with the sales by other persons. See People v Samuel Smith, 85 Mich App 404; 271 NW2d 252 (1978). However, we find any error in the admission of this evidence to be harmless. There is no indication that the prosecutor deliberately tried to inject prejudice into the trial, People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), and no basis for finding an error so offensive to the maintenance of a sound judicial system as to require reversal. In addition, the evidence of guilt was overwhelming and it was not reasonably possible that, absent the claimed error, even one juror might have voted to acquit. Hence, the error was harmless. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). Defendant also claims it was error to admit evidence of prior transactions wherein defendant sold heroin to one of the alleged co-conspirators, Emmons. These transactions took place in defendant’s basement over a four-month period prior to the date of the incident in question. In order to prove conspiracy, it was necessary for the prosecutor to establish specific intent. In People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974), the Court explained this element as follows: " 'A conspiracy is a partnership in criminal purposes’, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910). A twofold specific intent is required: a combination with others to do what is unlawful. Conspiracy, 28 La L Rev 534, 535 (1968); see also 1 Wharton, Criminal Law & Procedure, 183-184. "Intent to conspire, " '[w]hile it is not identical with mere knowledge that another purposes unlawful action * * * is not unrelated to such knowledge. Without the knowledge, the intent cannot exist. United States v Falcone [311 US 205; 61 S Ct 204; 85 L Ed 128 (1940)] [footnote omitted]. Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. Ibid. This, because charges of conspiracy are not to be made out by piling inference upon inference * * Direct Sales Co v United States, 319 US 703, 711; 63 S Ct 1265; 87 L Ed 1674 (1943). "Therefore, defendant’s intent to sell marijuana must be established in the present case, and to establish that intent, there must be evidence of knowledge of the unlawful purpose of sale. To prove the crime of conspiracy, however, it must further be proven that that intent, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more persons.” Where intent is material, other acts of the defendant which may tend to show his intent in doing the act in question may be proved notwithstanding that such proof may tend to show the commission of another crime by the defendant. MCL 768.27; MSA 28.1050. In the instant case it was necessary to show that defendant had intent to deliver and was aware of the unlawful purpose of this delivery. Evidence that he had engaged in prior heroin transactions was admissible to show that defendant was not an innocent conduit for the delivery of heroin on March 23, 1976. While this evidence may have been prejudicial to defendant, it was highly probative on the issue of intent. In addition, both the prosecutor and the trial judge properly informed the jury of the limited use to which this evidence could be put. We find no reversible error in its admission. Defendant also argues that under the facts of this case convictions of both conspiracy to deliver heroin and delivery of heroin violated the double jeopardy clause. We reject this argument on the authority of People v Gonzales, 86 Mich App 166; 272 NW2d 227 (1978). Defendant next contends that he was illegally sentenced according to a county program of mandatory prison sentences for heroin dealers. The record indicates the trial court took a number of factors into consideration in imposing sentence, including the potential for rehabilitation, the recommendations given by members of the community, defendant’s background, and the interests of the community. The fact that the court felt the interests of the community outweighed the other factors does not render the sentence improper. People v Gonzales, supra, People v Van Epps, 59 Mich App 277; 229 NW2d 414 (1975). The sentence was within the statutory limits and not based upon any impermissible considerations. Defendant also argues that in imposing sentence the trial court impermissibly discriminated against him on the basis of his sex. Defendant received an 8 to 20 year term. His wife, who was convicted of conspiracy to deliver heroin and possession of heroin with intent to deliver, received probation. Defendant contends this disparity in sentencing was the result of discrimination on the basis of sex. It is true that different treatment in sentencing can not be based upon some arbitrary classification such as race or religion. People v Dupuie, 52 Mich App 510; 217 NW2d 902 (1974). Disparity based upon sex has also been found constitutionally deficient. United States v Maples, 501 F2d 985 (CA 4, 1974). An examination of the transcripts indicates that the sentences were not the result of any impermissible discrimination based upon sex. Defendant was sentenced on May 31, 1977. At that time his wife had not been convicted of any offense. As noted above, the trial court felt that the interests of society outweighed factors operating in defendant’s favor and sentenced him to 8 to 20 years in prison. Mrs. Flores was convicted on January 6, 1978, and sentenced on January 23 of that year. The trial court noted that she was not convicted of delivery of heroin as was her husband. It also felt that her involvement in drugs was somewhat peripheral to that of her husband and that with his influence removed she would not engage in future illegal activities or present a threat to the community. Finally, the judge stated that because one parent was already in jail and there were five minor children depending upon Mrs. Flores, he would put her on probation for five years. It is evident that the trial court’s decisions regarding sentencing were based upon the circumstances of each person at the time of sentencing and not due to sex. Hence, defendant’s claim is without factual support. Defendant’s other contentions of error merit no discussion. Affirmed.	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Corrigan, J. We granted leave in this felony murder case to determine whether the prosecution presented sufficient evidence of common-law arson, the felony underlying the convictions, MCL 750.316; MSA 28.548. A jury convicted defendant of two counts of felony murder, MCL 750.316; MSA 28.548, and one count of arson of a dwelling house, MCL 750.72; MSA 28.267. Defendant was thereafter sentenced to concurrent terms of life imprisonment on the felony murder counts, while the arson conviction was vacated. The Court of Appeals, in a split opinion, reversed on the ground of insufficient evidence and remanded with instructions to enter a conviction of involuntary man slaughter. We hold that the evidence of arson was legally sufficient and reinstate defendant’s convictions of felony murder. This case also affords us the opportunity to clarify the state of mind required to prove common-law arson. The Court of Appeals erred in assuming that common-law arson is a specific intent crime. Common-law arson is a general intent crime that merely requires the prosecutor to prove malice. It occurs in circumstances where a defendant intentionally or wantonly bums property without justification or excuse. I. UNDERLYING FACTS On January 15, 1995, the ten-unit Lansing apartment building where defendant lived exploded and burned. The force of the explosion fragmented the building. The three center units were completely leveled and the roof was blown off. A sixty-seven-year-old woman and a ten-year-old boy who lived in the center section in apartments adjoining defendant’s were killed. Ironically, although defendant was present in his apartment where the explosion originated, he sustained only bums and minor injuries. He walked away from the explosion and spoke coherently with investigators shortly thereafter. The prosecution theorized that defendant attempted suicide by releasing gas into his apartment, resulting in the explosion and fire. Defendant essentially contended that the explosion and fire were accidental. The defense suggested various possible accidental sources of the gas, including the furnace and water heater. Further, the defense argued that if defendant deliberately released the gas, he may have been trying to asphyxiate himself or to gain attention rather than cause an explosion. By their verdicts, the jury accepted the prosecution’s theory. The evidence showed that defendant had attempted suicide three times in 1992. On January 8, just one week before the fire, defendant told his minister and later told a police officer that he wanted to “end it all” by putting a “bullet in his head.” The officer took defendant to a psychiatric hospital where he remained until the day before the explosion. Defendant obtained a temporary pass to leave the psychiatric hospital on January 14. He asked his former girlfriend, Kathryne Russell, to transport him home from the hospital, but she wanted defendant to stay in the hospital. During their conversation, defendant threatened suicide and said that nobody would catch him this time. Despite defendant’s suicidal threat, Russell did not comply with defendant’s wishes. Defendant returned to his apartment by cab. On the day of the crime, someone released gas into defendant’s apartment by deliberately tampering with the gas pipe at its union with the water heater and loosening the pipes. Gas built up in defendant’s apartment; it thereafter ignited, causing the explosion and fire. None of the other apartments experienced any gas buildup. The experts opined that the cause of the explosion was the combustion of an almost perfect mix of methane gas and air that “literally made a bomb of apartment number 5 The prosecution’s experts systematically excluded accidental sources of the blast. They found no electrical malfunction because the building’s gas regulator was in good condition and the gas lines had not rup tured. Given the exclusion of various accidental sources of gas and the evidence that the pipes had been loosened, the experts concluded that some human agency untied the gas train to allow an uninterrupted flow of gas into defendant’s apartment. The experts could not, however, explain how the gas had been ignited. They discounted possible sources of ignition, such as the presence of static electricity or the arc generated by a light switch, as unlikely in a residential setting. The prosecution’s experts also opined that the pattern of blast debris and the fact that the explosion flowed in an omnidirectional movement from the center established that the explosion originated in defendant’s apartment. Further, defendant’s lack of blast-related injuries strongly suggested that he was present at the epicenter of the explosion. Prosecution experts testified that following an explosion, a propagation wave becomes stronger as it leaves the point of ignition. Thus, a person located at the source of ignition has a greater chance of survival than someone who is located further away. Other evidence revealed that defendant left a note on the apartment door warning Ms. Russell not to turn on any type of switch. Defendant also admitted to the police that he knew about gas appliances because he had worked in an appliance store. Finally, defendant falsely told police that he had unplugged appliances and tightened the gas union in the water heater/fumace area and shut down the gas line when he smelled gas, contrary to the physical evidence that the gas pipes had been loosened. The prosecution relied on this evidence to establish that defendant was the individual who tampered with the gas pipes. II. COURT OF APPEALS ANALYSIS In reversing, the Court of Appeals majority found “[w]hat is missing is sufficient evidence to establish that the ignition of the gas was the result of an intentional act on defendant’s part.” Unpublished opinion per curiam, issued October 9, 1998 (Docket No. 196655), slip op, p 5. The majority noted that the prosecution experts could not determine the exact source of ignition. The majority assumed that defendant had deliberately filled his apartment with gas, but held that the evidence did not establish that defendant specifically intended to ignite the gas. An equally possible explanation was that defendant merely intended to asphyxiate himself. Accordingly, the panel majority found the proof insufficient. In dissent, Judge Griffin accused the majority of usurping the jury’s role as trier of fact. He noted that the prosecution’s experts characterized defendant’s theories of accident as improbable. Judge Griffin observed that the prosecutor was not required to negate every reasonable theory consistent with innocence. In his view, a reasonable juror could conclude that one who purposefully fills his apartment with natural gas intends an explosion to occur. He adopted the trial court’s reasoning: one who loosens gas pipes and releases a quantity of gas intends the natural results thereof, i.e., an explosion or fire. Although static electricity possibly could have been the source of the ignition, the evidence supported the reasonable inference that defendant had purposefully created conditions from which an explosion and fire was a natural and probable consequence. Thus, the jury’s verdicts were not irrational. Judge Griffin cited the following evidence: (1) [Defendant deliberately filled his apartment with natural gas by loosening the gas pipe at its union, (2) the fire and explosion were caused by the ignition of the gas buildup, (3) defendant, as a former employee of an appliance store, was knowledgeable of the functioning of gas appliances, (4) defendant had a history of suicide attempts and expressed his intent to kill himself less than a week before the explosion, vowing that “nobody would catch him this time,” (5) defendant’s lack of “blast-related injuries” indicated that defendant was located at or near the origin of the ignition, (6) accidental ignition from static electricity (in a nonindustrial setting) or from an arc caused by a light switch or an appliance was very unlikely, and (7) defendant’s note on his front door warning his girlfriend revealed defendant’s knowledge of the danger and potential for the explosion that ultimately occurred (negating defendant’s claim of accident or mistake). [Slip op, p 3.] We granted the prosecution’s application for leave to appeal. 459 Mich 1002 (1999). III. STANDARD OF REVIEW The test for determining the sufficiency of evidence in a criminal case is whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979); Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979). People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), articulated the governing standard for reviewing sufficiency claims: [Wjhen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or circumstantial. “ ‘Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). We once again caution reviewing courts that the prosecutor need not negate every reasonable theory consistent with innocence. People v Konrad, 449 Mich 263, 273, n 6; 536 NW2d 517 (1995). Instead, the prosecution is bound to prove the elements of the crime beyond a reasonable doubt. It is not obligated to disprove every reasonable theory consistent with innocence to discharge its responsibility; it need only convince the jury “in the face of whatever contradictory evidence the defendant may provide.” Id. IV. SUFFICIENCY ANALYSIS Because this offense occurred in January 1995, before the April 1, 1996, effective date of the amendments in 1996 PA 20, § 1, now codified as MCL 750.316(2)(a); MSA 28.548(2)(a), we must analyze the sufficiency of proof of common-law arson underlying the felony murder charge, rather than statutory arson. In People v Reeves, 448 Mich 1, 3-4; 528 NW2d 160 (1995), we held that “the word ‘arson’ in the felony murder statute refers to the common-law crime of arson, that is, the malicious and voluntary or wilful burning of a dwelling house of another.” This Court reviewed the history of the felony murder statute and concluded that the Legislature intended to retain the common-law definition of arson in the felony murder statute. In apparent response to Reeves, the Legislature amended the felony murder statute to provide that statutory, not common-law, arson is the relevant offense in felony murder cases. See 1996 PA 20, now codified as MCL 750.316(2)(a); MSA 28.548(2)(a). People v Carines, supra, pp 758-759, recited the elements of felony murder: “The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute, including (arson)].” [Citation and internal quotations omitted.] “The facts and circumstances of the killing may give rise to an inference of malice. A jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm.” Id., p 759 (citations omitted). The prosecution presented sufficient evidence of the elements of felony murder. Uncontested evidence established that two human beings died in the explosion, thereby satisfying the first element. Regarding the second element, the jury could infer that defendant acted with malice when he intentionally set in motion a force likely to cause death or great bodily harm. As discussed below, the circumstantial evidence and reasonable inferences therefrom indicated that defendant intentionally released and ignited gas in his apartment building. Defendant thereby created a very high risk of death or great bodily harm, and the jury could infer from defendant’s actions that he knew that death or such harm was the likely result. The third element of felony murder is satisfied because defendant committed the crime of arson. People v Reeves, supra, pp 3-4, defined common-law arson as “the malicious and voluntary or wilful burning of a dwelling house of another.” We note preliminarily that the trial court, without objection, instructed the jury in accord with CJI2d 31.2(4), which states that the defendant must have “intended to set a fire, knowing that this would cause injury or damage to another person or to property.” We hold that the evidence was sufficient to establish the elevated level of intent required by the standard instruction. In arson cases, the trier of fact usually draws inferences from circumstantial evidence: [TJhere is rarely direct evidence of the actual lighting of a fire by an arsonist; rather, the evidence of arson is usually circumstantial. Such evidence is often of a negative character; that is, the criminal agency is shown by the absence of circumstances, conditions, and surroundings indicating that the fire resulted from an accidental cause. [Fox v State, 179 Ind App 267, 277; 384 NE2d 1159 (1979). It is beyond dispute that the “dwelling house of another” was burned. Thus, the only remaining question is whether defendant maliciously and voluntarily or wilfully caused the burning. The evidence supported a reasonable inference that defendant intentionally caused the explosion and resulting fire. Defendant had threatened to kill himself the previous day and the previous week. A rational jury could infer that defendant deliberately released gas into his apartment by loosening the union of the gas pipe. Further, defendant was present at the point of ignition because he suffered no blast-related injuries. The circumstantial evidence that defendant was located at the source of the ignition is particularly persuasive. The expert testimony concerning the properties of propagation waves supported a rational jury determination that defendant ignited the gas. The Court of Appeals majority completely overlooked this evidence. The evidence also supports the reasonable inference that defendant ignited the gas in an effort to kill himself quickly. When threatening to kill himself, defendant told Russell that no one would catch him this time. A rational juror could infer that defendant intended to take his life quickly to avoid being stopped. Igniting the gas obviously provided a quicker method of demise than asphyxiation. As a former appliance store employee, defendant certainly knew the dangers of a gas explosion. Indeed, defendant specifically cautioned Russell not to turn on any switches. A reviewing court must consider the evidentiary facts not in isolation, but in conjunction with one another, in a light most favorable to the prosecution. Taken together in this light, the evidence supports a reasonable inference that defendant intentionally released the gas in his apartment and ignited it. V. INTENT REQUIREMENT FOR COMMON-LAW ARSON We now turn to the mental state required for common-law arson. Under the common law, the act of purposefully creating conditions that cause a dwelling to bum satisfies the elements of arson. The Court of Appeals majority posited that common-law arson requires proof of an intentional act of ignition on the implicit assumption that common-law arson is a specific intent crime. The Court of Appeals may have relied for that mistaken view on CJI2d 31.2(4). That instruction states that arson requires proof that the defendant “intended to set a fire, knowing that this would cause injury or damage to another person or to property.” A footnote to the instruction also refers to arson as a specific intent crime, without distinguishing various statutory offenses with specific intent components from common-law arson. CJI2d 31.2 does not accurately reflect Michigan law regarding common-law arson. No Michigan case has ever held that common-law arson is a specific intent crime. Accordingly, the cases cited in the commentary to CJI2d 31.2 in support of the specific intent instruction are inapposite for purposes of analyzing common-law arson. For example, in People v McCarty, 303 Mich 629; 6 NW2d 919 (1942), the defendant was convicted of the statutory offense of wilfully burning insured personal property with the intent to injure and defraud the insurer, 1931 PA 328, § 75, now codified at MCL 750.75; MSA 28.270. Obviously, the statutory language at issue in McCarty included a specific intent requirement. But McCarty never held that common-law arson is a specific intent crime. “[T]he distinction between specific intent and general intent crimes is that the former involve a particular criminal intent beyond the act done, while the latter involve merely the intent to do the physical act.” People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983). Because virtually every reported Michigan case involves a statutory arson offense, see Reeves, supra, our cases do not discuss common-law arson. Const 1963, art 3, § 7 states: “The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” Thus, to the exdent that it is consistent with our state and federal constitutions and statutes, the common law has been adopted into our jurisprudence. In re Lamphere, 61 Mich 105, 108; 27 NW 882 (1886); Lorman v Benson, 8 Mich 18 (1860); Stout v Keyes, 2 Doug 184 (Mich, 1845). Common-law arson is a general intent crime. “[T]he enduring common law definition of the mental element of” arson is that the burning be done “maliciously and voluntarily.” Poulos, The metamorphosis of the law of arson, 51 Mo L R 295, 319 (1986). A malicious burning occurs when the defendant “either intentionally or wantonly bums property without justification or excuse.” Id., p 403. Wanton arson “required an intentional act which created a very high risk of burning a dwelling house, which risk was known by the actor and disregarded when the actor performed the risk taking act.” Id., p 408. “[T]he word ‘willfully’ adds nothing to the common law concept of malice . . . .” Id., p 404. The common law defines arson as the performance of any act resulting in the burning of a dwelling house that was done with malice. Perkins, Criminal Law (2d ed), ch 3, § 2, pp 216-219. Common-law malice requires either: 1) an actual intent to commit the actus reus, or 2) an intent to act with a heedless disregard that the prohibited harm is a plain and strong likelihood. Id., ch 7, § 4, pp 766-768, and n 25. Arson, in the common-law sense, usually results from a deliberate intent to bum the dwelling of another and without doubt this intent was at one time assumed to be an ingredient of the crime, which explains the use of the word “voluntary” or “wilful,” as mentioned above, in many of the definitions. Either word, however, lost all meaning in this definition when it became established that by fiction an intent to bum might be recognized in law when it did not exist in fact. Thus Lord Coke, writing in the early 1600’s said that the “law doth sometime imply, that the house was burnt maliciously and voluntarily,” giving as an illustration the instance of a fire spreading and causing damage beyond that actually intended. It is not common-law arson for a dweller to bum his own dwelling, and this has given rise to the outstanding example of unintentional arson; for if such a fire obviously creates an unreasonable fire hazard for other nearby dwellings, and any of these is actually burned, common-law arson has been committed even if the wrongdoer did not actually intend the consequence and may have hoped it would not happen. An intentional act creating an obvious fire hazard to the dwelling of another, done without justification, excuse or mitigation, might well be characterized as “wilful” (a word of many meanings), and would certainly be malicious, but as the law has developed it is a mistake to assume that the phrase “wilful and malicious,” when found in the definition of common-law arson, adds some distinct requirement not included in the word “malicious” alone. [Id., ch 3, § 2, pp 217-218.] 4 Blackstone, Commentaries on the Laws of England 222 (1769), states that common-law arson requires a malicious burning. Blackstone stated: As to what shall be said a burning, so as to amount to arson: a bare intent, or attempt to do it, by actually setting fire to a house, unless it absolutely bums, does not fall within the description of incendit et combuffit; which were words necessary, in the days of law-latin, to all indictments of this sort. But the burning and consuming of any part is sufficient; though the fire be afterwards extinguished. Also it must be a malicious burning; otherwise it is only a trespass: and therefore no negligence or mischance amounts to it. [Id.] See also United States v Acevedo-Velez, 17 MJ 1, 2-3 (1983). We have previously discussed the definition of malice in the context of murder. The “malice” required to prove murder requires either: 1) an intent to kill, 2) an intent to cause great bodily harm, or 3) wanton and wilful disregard that the natural tendency of the defendant’s behavior is to cause death or great bodily harm. People v Aaron, 409 Mich 672, 714; 299 NW2d 304 (1980). The same level of criminal culpability exists regardless whether a defendant wantonly and wilfully disregards the consequences of his actions or intends to cause the prohibited harm. Like murder, common-law arson is a crime against the person and manifests a contempt for human life. 3 Torcia, Wharton’s Criminal Law (15th ed), § 334, pp 325-326, and n 5, citing State v McGowan, 20 Conn 245 (1850). We thus treat arson no differently than murder for purposes of defining malice. Accordingly, the required mental state for arson is either: 1) an intent to bum the dwelling house of another, or 2) doing an act in circumstances where a plain and strong likelihood of such a burning exists. Perkins, supra, ch 3, § 2, pp 219-220. Proof of common-law arson does not require a specific intent to cause injury to a particular person or damage to particular property. To establish that a defendant acted wilfully or maliciously and voluntarily, the prosecution must prove one of the following: 1) that the defendant intended to do the physical act constituting the actus reus of arson, i.e., starting a fire or doing an act that results in the starting of a fire (intentional arson); or 2) that the defendant intentionally committed an act that created a very high risk of burning a dwelling-house, and that, while committing the act, the defendant knew of the risk and disregarded it (wanton arson). The first type of malice should not be confused with a specific intent requirement. The discussion in People v Langworthy, 416 Mich 630; 331 NW2d 171 (1982), of malice in the murder context provides a useful analogy. While the intent to kill and the intent to cause great bodily harm “sound suspiciously akin to the traditional language of specific intent,” Lang- worthy, p 651, neither intent is a necessary element of second-degree murder. “[A] wanton and willful disregard of the likelihood that the natural tendency of a person’s behavior is to cause death or great bodily harm may also satisfy thé malice requirement.” Id., pp 650-651. Similarly, while an “intent to start a fire” may sound like the language of specific intent, this intent is simply one possible means of proving malice in an arson case. Such an intent is not a necessary element of arson. The wilful and wanton commission of an act that creates a very high risk of burning a dwelling house is an alternative method of proving malice. VI. CONCLUSION The prosecution presented sufficient evidence of common-law arson underlying the murders in this case. This evidence established the elevated level of intent required by CJI2d 31.2(4). Nonetheless, common-law arson is a general intent crime. Accordingly, we vacate the judgment of the Court of Appeals and reinstate defendant’s convictions of felony murder. Weaver, C.J., and Taylor, Young, and Markman, JJ., concurred with Corrigan, J. We do not suggest that the trial court’s instructions are dispositive when reviewing sufficiency of the evidence claims. Normally, an appellate court identifies the elements of the crime and assesses whether the evidence presented at trial, taken in the light most favorable to the prosecutor, satisfied those elements. In this case, however, the prosecution satisfied the heightened intent requirement of CJI2d 31.2(4). As discussed below, the jury instruction wrongly created an elevated intent requirement to prove common-law arson that is not found in the common law. We take the opportunity in the next section of this opinion to clarify the mental state needed to prove common-law arson. 2 See also People v Horowitz, 37 Mich App 151, 154; 194 NW2d 375 (1971), in which our Court of Appeals stated: It is the nature of the offense of arson that it is usually committed surreptitiously. Rare is the occasion when eyewitnesses will be available. By necessity, proofs will normally be circumstantial. In Horowitz, the Court of Appeals rejected the defendant’s claim that the jury had piled inference upon inference: “The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. If enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking.” [Id., p 155, quoting Birring v United States, 328 F2d 512, 515 (CA 1, 1964).] We acknowledge that this question is not squarely before us, given our conclusion that the evidence was sufficient under the heightened intent requirement of CJI2d 31.2(4). We nonetheless address the intent requirement of common-law arson because we have no other method of suggesting corrections to misstatements in the standard instruction. Many courts and commentators have criticized the general intent/specific intent distinction as confusing and unworkable. See People v Langworthy, 416 Mich 630, 639-640, 653; 331 NW2d 171 (1982), and authorities cited therein. Nonetheless, this Court in Langworthy declined to abolish or modify the longstanding dichotomy. Id., pp 641, 653. We likewise refuse to abandon a concept that is so deeply rooted in our state’s criminal jurisprudence. Foreign authorities also persuade us that common-law arson is a general intent crime that requires proof of either an intentional or a wanton act. See, e.g., State v Scott, 118 Ariz 383, 385; 576 P2d 1383 (Ariz App, 1978); United States v Acevedo-Velez, supra; DeBettencourt v State, 48 Md App 522, 525; 428 A2d 479 (1981); Linehan v State, 442 So 2d 244 (Fla App, 1983); State v Nelson, 17 Wash App 66, 69; 561 P2d 1093 (1977) (“At common law, specific intent to bum a particular thing or to injure a particular person was unnecessary, it being sufficient to show that there was a general malice or intent to bum some structure”); Mai v People, 224 Ill 414; 79 NE 633 (1906); State v Doyon, 416 A2d 130, 135 (RI, 1980) (“We adhere, therefore, to the common-law mandate that the mental state for the crime of arson requires only that the defendant intended to do the proscribed act, that it was done unlawfully, and that it was not done inadvertently”); People v Tanner, 95 Cal App 3d 948; 157 Cal Rptr 465 (1979).	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Marston, C. J. The declaration in tbis case in tbe first count sets forth that the plaintiff was, at a time and place named, a poor married woman, and being confined in child-bed and a stranger, employed in a professional capacity defendant De May who was a physician; that defendant visited the plaintiff as such, and against her desire and intending to deceive her wrongfully, etc., introduced and . caused to be present at the house and lying-in room of the plaintiff anfl. while she .was in the pains of parturition the defendant Scattergood, who intruded upon the privacy of the plaintiff, indecently, wrongfully and unlawfully laid hands upon and assaulted her, the said Scattergood, which was well known to defendant De May, being a young unmarried man, a stranger to the plaintiff and utterly ignorant of the practice of medicine, while the plaintiff believed that he was an assistant physician, a competent and proper person to be present and to aid her in her extremity. The second and third counts while differing in form set forth a similar cause of action. The evidence on the part of the plaintiff tended to prove the allegations of the declaration. On the part of the defendants evidence was given tending to prove that Scattergood very reluctantly accompanied Dr. De May at the urgent request of the latter; that the night was a dark and stormy one, the roads over which they had to travel in getting to the house of the plaintiff were so bad that a horse could not be ridden or driven over them; that the doctor was sick and very much fatigued from overwork, and therefore asked the defendant Scattergood to accompany and assist him in carrying a lantern, umbrella and certain articles deemed . necessary upon such occasions; that upon arriving at the house of the plaintiff the doctor knocked, and when the door was opened by the husband of the plaintiff, De May said to him, “that I had fetched a friend along to help carry my things ; ” he, plaintiff’s husband, said “ all right,” and seemed to be perfectly satisfied. They were bidden to enter, treated kindly and no objection whatever made to the presence of defendant Scattergood. That while there Scattergood, at Dr. De May’s request, took hold of plaintiff’s hand and held her during a paroxysm of pain, and that both of the defendants in all respects throughout acted in a proper and becoming manner actuated by a sense of duty and kindness. Some preliminary questions were raised during the progress of the trial which may first be considered. The plaintiff when examined as a witness was asked, what idea she entertained in' reference to Scattergood’s character and right to be in the house during the time he was there, and answered that she thought he was a student or a physician. To tliis there could be no good legal objection. It was not only important to know the character in which Scattergood went there, but to learn what knowledge the plaintiff had upon that subject. It was not claimed that the plaintiff or her husband, who were strangers in that vicinity, had ever met Scattergood before this time or had any knowledge or information concerning him beyond what they obtained on that evening, and it was claimed by the defendant that both the plaintiff and her husband must have known, from certain ambiguous expressions used, that he was not a physician. “VVe are of opinion that the plaintiff and her husband had a right to presume that a practicing physician would not, upon an occasion of that character, take with him and introduce into the house, a young man in no way, either by education or otherwise, connected with the medical profession; and that something moré clear and certain as to his non-professional character would be required to put the plaintiff and her husband upon their guard, or remove such presumption, than the remark made by De May that he had brought a friend along to help carry his things. The plaintiff was not bound however to rest her case upon this presumption, how- ■ ever strong it might be considered, but had a right to prove what she supposed was the fact, and this she could do by showing anything said at the time having such a tendency, or in the absence thereof what she actually believed to be the fact. The question asked the plaintiff’s husband as to what he had stated under oath in an affidavit was properly overruled. This court has repeatedly pointed out the proper practice in such cases. Hamilton v. The People 29 Mich. 198, and cases cited. The question asked the witness Dr. Monfort as to the custom among physicians in such cases as to calling assistance was not objectionable; besides, the answer given could in no • way have injured the defendants. In either event therefore they cannot complain. It yet remains to consider the principal questions raised in the case. They relate to the sufficiency of the declaration, to which the general issue was pleaded, and farther that admitting the facts to be trae as claimed by the plaintiff she was not entitled to recover. We need not consider the question as to what the effect would be had the jury found that the plaintiff knew the non-professional character of the defendant Scattergood and made no objection or consented to his remaining in the house or rendering such assistance as was. demanded. Upon this branch of the case the court charged the defendants would be justified in doing what they did, if the plaintiff or her husband consented to Scatter-good being there, with a full understanding of, or with good reason to believe or know of the character in which he was there. This certainly was placing the matter in a sufficiently favorable position for the defendants. A few facts which were undisputed may assist in more clearly presenting the remaining question. Upon the morning of January 3d Dr. De May was called to visit the plaintiff professionally which he did at her house. This house was fourteen by sixteen feet. A partition ran partly across one end thus forming a place for a bed or bedroom, but there was no door to this bedroom. Next to this so-called bedroom, and between the partition and side of the house, there was what is known and designated as a bed sink; here there was a bed with a curtain in front of it, and it was in this bed the doctor found Mrs. Eoberts when he made his first visit. On their way to the house that night De May told Scattergood, who knew that the plaintiff was about to be confined, “ how the house was; that she was in the bed sink back, and there was a curtain in front of her, and told him he need not see her at all.” When the defendants got to the house they found Mrs. Eoberts “had moved from the bed sink and was lying on the lounge near the stove.” I now quote farther from the testimony of Dr. De May as to what took place : “ I made an examination of Mrs. Eoberts ■ and found no symptoms of labor at all, any more than there was the previous morning. I told them that I had been up several nights and was tired and would like to lie down awhile; previous to this, however, some one spoke about supper, and supper was got and Scattergood and myself eat supper, and then -went to bed. I took off my pants and had them hung up by the stove to dry; Scatter-good also laid down with his clothes on. "We lay there an hour or more, and Scattergood shook me and informed me that they had called and wanted me. Scattergood got my pants and then went and sat down by the stove and placed his feet on a pile of wood that lay beside the stove, with his face towards the wall of the house and his back partially toward the couch on which Mrs. Roberts was lying; I made an examination and found that the lady was having-labor pains. ■ Her husband stood at her head to assist her; Mrs. Parks upon one side, and I went to the foot of the ■couch. During her pains Mrs.” Roberts had kicked Mrs. Parks in the pit of the stomach, and Mrs. Parks got up and went out doors, and while away and about the time she was coming in, Mrs. Roberts was subjected to another labor pain and commenced rocking herself and throwing her arms, and I said “ catch her,” to Scattergood, and he jumped right up and ■came over to her and caught her by the hand and staid there a short time, and then Mrs. Parks came up and took her place again, and Scattergood got up and went and took his place again, back by the stove. In a short time the child was born. Scattergood took no notice of her while sitting by the stove. The child was properly cared for; Mrs. Roberts was properly cared for, dressed and carried and placed in bed. I left some medicine to be given her in case she should suffer from pains.” Dr. De May therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house <5f the plaintiff, when it was apparent that he could hear at least, if not see all that was said and done, and as the jury must have found, under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of such third party. It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had a right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case.' The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this -right by requiring others to observe it, and to abstain from its violation. The fact that at the time, she consented to the presence of Seattergood supjiosing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his ■ true, character. In obtaining admission at such a time and under such circumstances without fully disclosing his 'true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterwards sustained, from shame and mortification upon discovering the true character of the defendants. Where a wrong has been done another, the law gives a remedy, and although the full extent and character of the injury done may not be ascertained or known until long after, yet in an action brought damages therefor may be fully awarded. This is true both in cases of tort and crime as well as in actions for breach of contract. The charge of the court upon the duty and liability of the defendants and the rights of the plaintiff was full and clear, and meets with our full approval. It follows therefore that the judgment must be affirmed with costs. . The other Justices concurred. The testimony of Dr. Monfort was as follows: Question. “You say you have been in practice about eight years; what is the custom among physicians called upon to do the necessary duties attending cases of midwifery in reference to calling in assistance? Answer. I suppose that would depend somewhat upon the circumstances under which the case existed; usually it is not the custom to have assistance, unless the case demands it; after it is ascertained that assistance is required, it is customary and proper to call medical assistance; in an urgent case, perhaps most any kind of assistance; but medical if it could be obtained.”	[ -9, -30, 0, -43, -3, -48, 5, 8, 21, -1, -31, 15, 30, 7, -9, -17, -28, -31, 12, -30, -7, 2, -39, 9, 30, -4, 45, -34, -32, -17, 11, 30, 18, 31, 26, -3, 56, -37, 23, -20, 86, -35, 41, -29, 19, -21, 46, 17, -25, -2, 28, -65, -26, -15, -6, -14, 21, -4, -4, -81, 21, -10, 4, -23, -34, -43, 12, -10, -36, 16, 24, 15, 27, -22, -41, -45, -42, -16, 12, 3, 48, -33, -2, 45, 6, 27, 24, 29, -38, 29, 63, -4, 42, -6, 8, 21, -54, -32, -3, 63, -33, 29, -47, -36, -31, 87, -3, -32, -4, 1, -2, 35, -2, 28, 12, 4, 4, -25, -44, -1, 2, 20, 45, -25, -27, 18, 11, -36, 14, -36, 1, -39, -20, 31, 3, -38, -2, 18, 3, -50, -58, -16, 3, 5, -16, 24, -64, 20, -1, -40, 13, 5, 9, 37, 38, -15, -35, -16, 10, -50, 5, -17, 32, 25, 14, -22, 17, 27, 59, 36, 0, 23, -8, 30, -37, 57, -53, -47, -17, -19, 0, 10, 0, 11, 21, 43, 39, -19, 15, 14, 34, 5, -38, -44, 65, -2, -15, -2, 30, -68, 4, 14, -62, -20, 33, -32, -28, -41, 27, -65, 0, -39, -23, -49, 20, 9, -11, -15, -40, -15, -43, -30, 39, 62, -75, -12, -32, -28, -11, -61, 36, 70, -38, -12, -32, -50, -33, 15, 22, 4, -81, -5, 17, 21, 18, 11, 11, 32, -51, 76, 1, 57, 12, 0, -65, -10, 15, 51, -20, -19, -41, 16, -50, 32, 79, 16, 0, 29, 55, -9, 28, 30, 15, -12, -42, -55, -15, -9, 26, 46, 33, 16, -43, 34, 13, -23, -38, 5, -26, -2, 26, -52, -10, -30, 63, 28, 59, 36, -25, 4, 33, -45, 46, 17, 43, -50, 2, 41, 7, -58, -12, -24, 10, -17, 24, -6, -19, 11, -21, 22, -69, -28, -41, -9, 21, 30, 14, -42, 6, 27, -36, 2, 39, -41, 23, 71, -12, -24, 47, -44, -26, 0, -65, -4, -65, 25, -30, -59, -29, -36, -50, -30, 71, -29, -25, 23, -23, -50, 22, -11, 4, -26, -13, 14, 3, -53, 33, -44, 35, 42, 42, -19, 44, -62, -14, 15, 42, 33, 33, 52, -16, -23, -13, 17, -8, -2, -36, -13, 34, -43, -48, 24, 56, 12, -19, -15, -41, 29, -15, 7, -15, 21, 16, 56, -46, -15, 9, -68, -4, 11, -35, 63, -6, 5, 42, -24, 31, -53, -6, -11, 33, 18, 10, -35, -16, 17, 16, -35, -6, -48, -13, -6, 18, 59, 84, -20, -49, 73, 27, -20, -45, -17, 16, 57, 0, 45, 18, -14, 5, -18, 9, 60, 32, -55, -64, -4, -14, 60, -8, 36, -2, -37, 30, -12, 35, 53, -24, -21, -40, -5, 10, -33, -12, -21, 8, 0, -59, 20, -14, -65, 31, 39, -8, -22, 2, 63, -57, -42, 29, -41, -2, -6, -58, 46, 5, 27, -43, 9, -46, 11, 0, 30, -44, -39, 22, -2, 24, 25, 8, -3, -27, 29, 23, 2, -22, 54, 68, 8, -25, 19, -6, 16, -1, -3, 23, -14, 75, -1, -25, 0, 17, 10, 22, -3, 53, 8, 23, 8, 24, -60, -26, 33, 72, -25, 30, -60, 34, -24, -39, 98, 53, 48, 32, -56, 24, 13, 38, -30, 20, 22, 19, -28, 3, -25, 49, 13, 60, -38, 9, -39, 18, 65, -50, 30, -28, 1, -19, -14, -53, -25, -3, -22, 50, 36, -41, -34, 16, -24, 5, -17, -54, -13, -40, 31, -13, -76, 19, -4, -24, -3, 7, -31, -8, 5, -18, 52, 35, -7, 0, -45, -2, -24, -36, 5, -63, -3, -43, 25, -13, 32, -54, -24, -31, 1, 2, -22, 9, 0, 17, -58, 11, -24, 38, 45, -12, 6, 6, 13, -57, 53, 51, -6, 26, 35, -45, 48, -45, -23, -19, 38, 27, 16, -77, 1, 0, 21, -12, 14, -34, 36, 7, -40, 26, 9, 61, 73, 38, 13, -24, -39, 29, 0, 44, 37, 30, -30, 10, 25, 31, -21, -6, 11, 33, -7, -2, 20, -23, 49, -16, -19, 23, -76, 4, 7, 56, -10, -13, -7, 3, 32, -13, -35, -11, 29, 79, -23, 1, -21, 18, -32, 19, 95, 0, -28, 32, -15, -6, 5, 24, 18, -7, 33, 41, -2, 3, -51, 13, 0, 38, 10, 17, 28, -19, 35, 0, -22, 39, 8, 7, -5, -29, 30, -1, -11, 41, -15, 39, 4, 27, 60, 14, -11, -8, -41, 45, -7, 4, -1, 4, -30, -8, 17, 0, -93, -53, -30, -66, 7, -4, -11, -23, 14, 16, -40, -51, 36, 33, -67, -36, -14, 73, -54, -25, 37, -49, -26, 4, -16, 48, 6, 32, 32, -5, -11, 4, -29, -38, -38, -30, -6, -7, -4, -18, 6, 56, 4, -10, 17, -25, -33, 24, 33, 38, -8, -37, -26, 11, 10, -14, -23, 8, -31, 29, 12, 16, 41, -64, -17, -29, -57, -26, -3, 21, 5, -5, 20, 27, -21, -47, 7, -18, 72, -21, 28, 47, -24, 29, 31, 24, -50, 31, 8, -18, 46, -17, -55, -10, -34, -22, -17, -57, -28, -57, 0, -37, 47, 64, 27, 34, 28, -52, 10, 23, 11, -60, 29, 3, -59, 51, 28, 4, -42, -43, 65, -16, -10, 1, -35, -8, -3, 46, -25, 56, 16, 10, 15, -18, -5, 4, -59, -41, 15, -16, 1, -5, -34, 23, 0, -51, -27, -3, 21, -28, 17, 1, 62, -26, 12, -22, -15, 21, -21, 75, 7, -26, 8, 17, -8, -12, 63, 38, 8, -86, 13, 18, -15, 6, 28, -15, 2, 69, 39, -15, 30, -24, -15, -39, -13, -6, -34, -20, 0, 5, 13, -31, 50, 0, -42, -38, 35, 47, -25, -38, 30, -46, 0, -55, 3, 8, -8, 56, -18, 50, 10, -6, 15, -22, 11, -36, 26, -30, -39, -47, 23, -54, -33, -10, 13, -21, -5, -47, 25, -60, 21, 32, -17, -11, -33, 13, -19, -5, -29, 10, 84, 19, -32, 36, 34, 26, -63, 24, 14, 60, 41, -30, 9, -18, -11, -24, -24, 12, -5, 17, 2 ]
Graves, J. Plaintiff’s intestate brought assumpsit against the defendants as copartners before a justice of the peace to recover for certain brick furnished them. A recovery was allowed in that court and defendants appealed, but prior to the trial in the circuit court Mr. Stecker died and the plaintiff was duly authorized to assume the prosecution of the action. On the hearing of the case the circuit judge directed a verdict for the defendants. The plaintiff claimed that the defendants were partners in putting up two certain buildings, and that the bricks were procured by the firm for those buildings and actually used as materials therein. A witness 'for the’ plaintiff testified that one of the defendants contracted individually for the brick, and another witness on the same side testified that one of the defendants admitted that brick were received, but that they were on Ms own account and not for the partnersMp. The plaintiff then offered to show that the defendants were in partnership in putting up the buildings for which the brick were obtained and in which they were used, but the court on objection excluded the evidence. This was error. The statement made by the witness that the brick were purchased by one of the defendants on his individual account, was not necessarily conclusive. In the first place it was more matter of opinion than of fact, as represented by the record. But in any court the plaintiff was entitled to lay all the facts before the jury and have their judgment on the question whether the purchase was not a partnership transaction, or at least one wMch entitled the plamtiff to charge the defendants as partners. If in point of fact they were erecting the buildings as partners, and one of them procured the brick for the purpose of the buildings without any express arrangement with plaintiff’s intestate that the purchase was an individual purchase, and the brick were used in the buildings, the firm was hable. The judgment is reversed with costs and a new trial granted. The other Justices concurred.	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Marston, C. J. Tbe facts upon which this case arises are set forth in Dutton v. Merritt 41 Mich. 537. The plaintiff in this case seeks, as assignee of Merritt’s interest in the lease referred to, the rental value of the premises not already credited upon the mortgage foreclosure decree. The fact that defendants have occupied the premises, and that they must pay a fair rental therefor, is not questioned, but they claim the right to apply the rent upon the amount still due them upon the decree. The fact that these defendants foreclosed the mortgage given them would not deprive them of the right to resort to any other security they held in order to obtain full satisfaction of the debt; and the mortgagor could not deprive them of this right by assigning the' due and unpaid rent to a third person. The latter could acquire no better right than that of his assignor, who could not have sued for and recovered the rent in this case. "While the defendants remain in possession the fair rental value of the premises must be applied in reduction of the decree until the extinguishment thereof, and until the happening of that event, an action will not lie to recover rent which may be due and uncredited. It follows that the judgment must be affirmed with costs. The other Justices concurred.	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Graves, J. Nash, having recovered before a justice of the peace, sued the judgment over before another justice who-gave judgment in his favor, and Whelpley took the cause by cerbiora/ri to the circuit court, where the determination made by the justice was affirmed. Whelpley brought error. Complaint is made that the declaration was too general. We are inclined to think it was sufficient, but, admitting that, it lacked legal certainty, the objection is unwarranted. The defendant was present and pleaded to the merits without suggesting any dissatisfaction with the declaration, and, as. we are satisfied it is good in substance, there is no ground of complaint that has not been waived. In recording an adjournment the justice neglected to state-to what place it was made. This irregularity in the entry worked no prejudice to defendant. He was not misinformed or misled. He appeared in person and answered. The-defect was a clerical mistake which harmed no one. The-statute forbids reversals for such causes. Comp. L. § 5477. The original judgment which was sued over was given for $79.80 damages and $24.56 costs. The allowance for costs was excessive and illegal, and Nash desired to remit them, and his object in suing the judgment over was to effectuate this purpose and eliminate the unauthorized allowance. This was made a matter of proof before the justice. The judgment in respect to damages was perfectly correct. The fault was confined to the award of costs and Whelpley made no attempt to have the error corrected. The-case was allowed to stand without appeal or eerbiora/ri. It is first objected that the judgment for damages and the-award of costs were an entirety and that the excessiveness of' the costs caused the whole recovery to be illegal. No doubt, ilie costs when made up are an incident of the judgment. (Saunders v. Tioga Manuf’g Co. 27 Mich. 520), but they are not inseparably blended with the damages, and in case they exceed legal limits they do not necessarily infect with illegality that part of the recovery applicable to damages. The statute which says the judgment shall not be reversed “on account of any fees having been improperly allowed” by the justice, sufficiently implies that an award of costs- beyond what the law authorizes will not necessarily invalidate the entire recovery. Comp. L. § 5479. When the damages have been legally adjudged they may be distinguished and counted on, notwithstanding that the costs set down with them are illegal and must be rejected. It is next contended that if the original judgment was a good one for the damages, there was no occasion to sue it over and cause further costs, since an execution might have been issued without including costs. The point is without merit. On rendering the second judgment the justice excluded the entire costs of the first. He included the damages only of the first judgment and then added the bare costs of the suit before himself. By such means Nash was enabled to remit the whole costs of the first cause, and reduce his recovery to proper form, and this was correct. He was not bound to let the judgment stand uncorrected and submit to whatever difficulties and embarrassments might arise from the error in regard to costs. He was entitled to have it brought into such shape as to afford the regular remedies for collection either through execution from the justice or a certified transcript entered up in the circuit court. Whether collection might not have been practicable without suing the judgment over is not material. There was “good cause" and that is sufficient. Comp. L. § 5376. It is made a point that in affirming the judgment, the circuit court allowed interest on the costs before the justice. The statute gives interest on all judgments at law for the recovery of money (Comp. L. § 1635), and the practice has been constant under it to reckon interest on the costs in case of affirmance on certiorcwi. The legal costs before the justice have been treated invariably as a branch of the judgment for the purpose of interest, and there is no propriety in going behind this practical construction. Had the Legislature deemed it an improper one they would have interposed and corrected it long ago. There is nothing else worthy of notice. The judgment is affirmed with costs. 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Marston, C. J. While we are of opinion that costs should have been awarded tbe plaintiff in error in this case, and can conceive of no reason for tbe same not having been given, let alone giving of costs against him as was done, yet within tbe rule in Hewitt v. Ingham Circuit Judge 44 Mich. 153, we cannot review tbe discretion of tbe circuit judge even although we may think no discretion was exercised. Tbe judgment will be affirmed with costs. Tbe other Justices concurred.	[ -42, -11, -28, -9, -3, -16, 66, -7, -11, 13, 42, 12, 0, -27, 0, -40, 25, 9, -2, 34, -7, -7, -22, 5, 4, 6, 29, 28, -36, 13, -20, -6, 29, 47, -59, 18, -7, 54, 4, -9, -3, -61, -13, -12, -28, 1, 69, -4, 10, -36, -9, -6, -27, 13, 18, 20, 17, 23, -50, -51, 31, 9, 38, 28, 12, -68, -12, 17, -27, 5, -30, 23, 16, -45, 58, -49, 2, -9, -34, -30, 21, 24, 4, -76, -5, -17, 11, -12, -17, -7, -36, 74, 3, -41, 16, 48, -44, -4, 0, 0, -2, 29, 7, 11, -32, -24, -17, -33, 1, 33, 17, 42, -31, 20, -12, 20, -47, 6, -36, -16, 16, 12, -3, 9, -31, 33, 6, 9, -28, -38, -1, -1, -28, -7, -1, -39, -13, 2, -8, -6, 25, 18, 46, -11, 48, -7, 48, -19, -28, -35, 38, 43, -11, 43, 30, -29, 9, -26, 48, -18, 48, 39, -24, 6, 27, 32, 41, 8, 33, -14, -1, -3, 18, -20, 15, 78, -12, -17, 8, -36, 15, 18, -3, -1, -34, 45, 55, 24, 8, -34, 0, -30, -17, -20, -4, 5, 44, 22, 8, -21, 6, 3, -39, 37, 13, -50, -21, -22, -27, 32, 4, 20, -7, -68, 18, 23, -12, -25, -28, -26, -6, -3, 9, -26, -20, -47, -29, 27, 19, -25, -35, 59, -1, 46, 48, -2, -15, 0, 36, -4, -28, 11, -23, 1, -19, 1, 15, 43, -40, -9, 11, 21, 17, -10, -16, -38, 69, 25, -62, 11, -8, 44, -72, -21, 15, 18, 13, 16, 33, -9, -22, 10, 23, -26, -12, -10, -3, -23, -12, -11, 27, 34, -2, 5, -45, 31, 49, 26, 62, 7, 36, -69, -5, 8, 67, 25, 18, 5, -22, -49, -17, -16, 14, 51, 45, -32, -31, -21, -13, 10, -37, 7, -29, 3, -3, 20, -65, -19, -9, -17, -60, 13, -18, -35, 11, 7, 56, -66, 12, -14, -2, 9, -9, 47, 23, -50, 4, -4, 21, -7, 16, 13, -47, -20, -23, -14, -22, -35, -18, 29, -36, 31, 8, 44, 22, -24, 17, 5, -21, -1, 16, -29, 51, -57, -15, 14, 28, -10, 22, 40, 72, -6, 0, -24, -39, 14, 23, -37, 19, 59, -44, -8, -61, -15, 28, -30, -15, -16, -2, 15, -64, -9, 18, 26, -37, 13, -30, 25, -3, 10, 12, -6, 0, 26, -24, 0, -12, -41, 6, -8, -43, 13, -28, 23, -27, -6, 21, -23, 29, -38, 42, -15, 23, 7, -9, -17, 15, 32, -10, -38, -6, -5, 21, -53, -5, 18, -16, -15, -26, 7, -16, 28, 2, 11, -30, -12, 35, 89, 2, -14, 14, -14, 6, -2, -32, -17, -35, -49, -19, -24, 7, -19, -26, -1, 3, -21, -14, 28, 14, -19, -34, 40, 26, 21, 8, 12, -39, -24, -2, -7, 28, 23, -2, 1, -48, 15, -64, -44, -26, -23, -9, 57, -5, -45, -11, -1, 17, 19, -20, 25, -17, 44, 39, -75, 27, -49, 6, -47, 19, -5, -8, 28, 37, 11, -29, 27, -20, 33, 7, 16, 64, -21, -78, -22, -13, 45, -9, -20, 0, -28, 48, 69, -4, -36, -38, 15, 21, -49, 63, -42, -26, 38, 12, 37, 0, -42, -40, -32, 57, 27, 35, -4, -8, -31, -15, -2, 10, -19, -1, -19, -34, -11, -18, 22, 92, 30, -39, -50, 50, 4, 66, 11, -55, -12, -11, -40, 4, 6, -15, -12, -40, -5, -71, -27, -47, 0, 19, 32, 27, -29, -37, -39, -18, 14, -21, -47, -13, 2, 60, 1, 32, 1, -20, 28, 40, 39, -12, 7, -40, -6, -1, -13, 28, -21, 20, 3, -43, 4, -5, -29, -20, 2, -21, 4, -10, 26, 15, -48, -13, -23, 25, 36, 28, 10, -33, 14, -11, -13, -52, -27, 44, 5, 1, -25, 16, 43, -55, 9, -42, 14, 18, 50, 4, 25, -9, 10, -11, -25, -17, -30, 49, -4, 19, 71, -15, 36, -55, 23, 71, -3, 32, -1, 23, 12, 26, -5, 8, 3, -10, 22, -13, -24, 12, -22, -2, 23, -37, 31, 12, 11, 29, 20, 19, -47, 16, -47, 24, 31, 0, 12, 19, -39, 49, 10, 0, 26, -30, 4, -6, 44, -32, 40, -20, 17, 18, -2, -21, -22, -51, 5, 24, -59, 27, -20, -5, -39, 15, -6, -2, -20, 16, -10, 7, 17, 4, 11, 32, -52, -8, 27, -16, 58, 36, 0, -35, -13, 16, 43, -50, 72, 35, -36, 45, -10, -59, 28, 39, 1, 41, -20, -25, -12, -15, 1, 26, -54, -51, -28, -12, 27, 20, -33, -22, 5, -25, 29, 16, 0, 0, -5, 6, 0, -9, 76, -15, -49, 14, -56, -38, 26, 65, -20, -2, 15, 35, 28, -39, 32, -2, -2, -20, 22, 47, -51, -9, 39, -15, -3, 53, -46, 48, -18, -21, -22, 31, -31, -5, 26, -64, 11, 15, 29, -8, -31, 0, -21, 1, 15, -7, 13, 27, -33, -28, 71, 7, 22, -30, 0, -36, 4, 10, 14, -8, 15, 27, 36, -41, 22, -6, 21, -23, -29, -3, 11, 8, -54, -21, -20, 52, 36, -8, 44, -36, -13, 14, 45, 17, 10, 5, -12, 24, 73, 90, -27, -25, -33, 15, -10, 2, -7, 8, -25, -1, 31, 18, -5, -20, -47, -61, 11, 30, -7, -3, 26, -12, 16, -60, -8, 18, -49, -6, 13, 7, 22, 37, 59, -20, 16, -31, 39, 4, 12, -46, 10, 0, 23, -52, 11, -25, -20, 7, 42, -33, 22, -14, -22, 34, -47, -39, -26, -30, -11, 41, 53, 11, -18, 18, 14, -40, 11, 2, -61, 22, -20, -21, -34, -56, 51, -25, 3, 2, -17, -33, 2, -58, -21, -21, -34, -28, 3, -26, 11, 13, -2, 0, -2, 7, 29, -76, 30, 38, 10, -7, 6, 40, 4, 22, 12, -1, 23, 14, -52, -27, 40, -26, -40, -21, 22, -16, 14, -5, -18, -5, -11, -14, 6, 6, 20, 33, 15, 6, 24, -5, -10, 22, 7, -8, 38, 32, -35, -19, 67, 16, 12, -42, 15, -50, -74, -6, 16, 16, 57, 8, -19 ]
Cooley, J. The facts in this case are somewhat complicated, and as the questions involved are questions of fact, we shall content ourselves with stating conclusions. On the second day of September, 1859, the copartnership of McBride Bros, of the city of New York had a judgment against Lewis M. Clark and Bichard G. Hillyer for the sum of $670.10, and the copartnership of Archibald Young & Hoaglan had a like judgment for the sum of $1176.93. To secure the payment of these debts the creditors held separate mortgages on lands in Gratiot county. On the day above named the debtors executed to William L. Webber as trustee for the two copartnerships a third mortgage. The nominal consideration for this was $800, but it was conditioned for the payment of the two judgments. The complainants in this suit are the members or representatives of t]ie two copartnerships named. The Webber mortgage covered blocks seven, eight and seventeen of the village of Pine Biver, which were embraced in neither of the other mortgages. In January, 1866, the judgments remained unpaid, and Henry L. Holcomb, who had acquired an interest in the lands covered by the Webber mortgage, and also in certain parcels covered by tbe others, went to New York to negotiate for a release. He there saw the members of the two copartnerships, and agreed with them for a release of certain described lands, included in blocks seven, eight and seventeen above mentioned, for the sum of $700 which he paid. Whether in the negotiations the Webber mortgage was mentioned is in dispute; but the release which was drawn, executed and delivered purported to discharge the lands from the other two mortgages only, and Holcomb testifies that he received it in that form on being assured that it was sufficient to release the lands from the Webber mortgage also. On the part of complainants the giving of any such assurance is denied; but we think the probabilities are that all parties at the time understood that the security the creditors had on blocks seven, eight and seventeen for the payment of their judgments was to be and was released. Hnless it released from the Webber'mortgage, the instrument executed was of course, so far as these blocks were concerned, wholly ineffectual. In equity the release by the eestuis que trustent was a good release. The Webber mortgage appears to have been mislaid soon after it was given, and nothing was done by any one in respect to it until 1878, when some person interested in a parcel of the land called upon Mr. Webber for a release of record. As the condition of the claim 'at that time was unknown to him, he addressed the complainants, and they, claiming it to be still undischarged, called for and obtained an assignment to themselves and instituted this suit. Our conclusion is, for the reason above stated, that the suit cannot be maintained. In equity the mortgage is discharged, and there is no necessity for a cross-bill to enable the defence to be made. The case of Berry v. Whitney 40 Mich. 65, is in point here and analogous in principle. The circuit court having dismissed the bill, the decree will be affirmed with costs. The other Justices concurred.	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Graves, J. There was no error in refusing to exclude Hughes’ deposition. It was taken on stipulation which provided that the person to act in taking it should be a notary public and not of counsel nor in any manner interested for either party, and that this should be certified by the notary in his return. The only grounds of objection not distinctly waived by the stipulation were competency and relevancy. On the reception of the deposition by the clerk due notice-was given according to the terms of rule fifty-one, but no-objection was intimated until its offer at the trial. The defendant’s counsel then contested its admission on the ground that the notary’s certificate was not full enough. It stated that he did not act as counsel for either party, but went no further. There is no claim that as matter of fact he was interested, or that he acted dishonestly or partially, or that he lacked any qualification contemplated by the stipulation. Nor is-there any claim that a literal adherence would have been of any practical value. The objection rests entirely on the-fact that the certificate did not go to the exact extent specified. Assn mi rig, for the present purpose, that the defect was a, sufficient departure from the stipulation to justify complaint by the defendant, yet we are quite satisfied that fair practice required that he should either make known his objection in the mode described in the rule referred to, or at least by reasonable notice of motion to strike the deposition from the files or suppress it. Having ample notice that the deposition had been returned in attempted compliance with the-stipulation, he owed it to the plaintiffs, who were resting upon his apparent acquiescence, to use such diligence in evincing; his objection as would enable them to malee reasonable efforts-to avert serious consequences. Kimball v. Davis 19 Wend 437; Zellweger v. Caffe 5 Duer 87; Sheldon v. Wood 2 Bosw. 267; Rust v. Eckler 41 N. Y. 488; Sturm v. Atlantic Mutual. Ins. Co. 63 N. Y. 77; Doane v. Glenn 21 Wall. 33. Several parts of the deposition were particularly objected to, but the rulings of the judge seem to have been regular. Complaint is made that the cross-examination of the witness Siller was unduly restricted. No doubt the questions excluded might have been allowed; but no harm was done. A full investigation was obtained before the witness was dismissed. Some exceptions appear where the decisions were manifestly within the judge’s discretion. But the record contains one ruling which cannot be defended. The plaintiff in error having been examined and cross-examined, the defendants in error were permitted to put in evidence, in order to contradict him and impair his credit with the jury, the stenographer’s notes of his testimony on a former trial of the cause. No evidence was given to verify these notes or to invest them with the ehar'aeter of sworn minutes; nor was there any admission of their accuracy. Their exclusive title to competency and credence consisted in their presence in the files as minutes made by the stenographer in the former trial when the jury disagreed. They were not depositions nor established media of general evidence in the cause. Neither party, except by consent or under circumstances not existing here, could use them before the jury as a method of proving the facts. To hold otherwise would imply that a party would have the right to defy objection, and rely exclusively on the minutes of a former-trial, and avoid calling witnesses altogether. The Legislature iu providing for the assistance of shorthand writers did not intend that their notes should have more force than judge’s minutes, and no one has ever supposed the latter to possess the inherent character of written evidence. They are allowed to be made use of in various ways and under various circumstances, but not as depositions or evidence of record. Wharton’s Ev. §§ 180 and notes, 825 and notes. The special provision for employing stenographer’s notes to settle bills of exceptions in certain cases, affords no countenance to the practice pursued below. It gives a remedy for the particular case and goes no further. In order to preserve the right to a bill of exceptions where a vacancy occurs in the office of the trial judge, the minutes of the stenographer are allowed to be resorted to; and for the specific purpose of settling the bill In such case they are declared to be primafacie evidence of the testimony given. Act No. 8, Pub. Acts 1879, p. 5. This declaration would have been needless, however, if these minutes were already constituted evidence by the prior law. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.	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Marston, C. J. This case has been before in this court, and is found reported in 41 Mich. 453, to which reference is made for a statement of the facts and a diagram, showing the location of the bridge, swing, property of the plaintiff, etc. Two questions of primary importance have, with others, been argued and submitted in tbe present case, and these were not passed upon on the former hearing; First, Did the evidence introduced tend to prove an estoppel as against the plaintiff' or his grantor Hart, so that damages could not now be recovered against the company % and, Seoondk/, Did the action of the supervisors in 1874, in fixing rates of toll for the bridge company to charge and collect, and of the Legislature in 1875 legalizing the rates so fixed, legalize the bridge, and make it a lawful‘structure not only from the date when such act took effect, but from the time the bridge was established by the board of supervisors in May, 1864, as claimed by counsel for the bridge company ? • The testimony of Mr. Glasby, who built the bridge, was •one of the principal stockholders, and who testifies fully as to what Mr. Hart the plaintiff’s grantor said and did in reference to the location and construction of the bridge and swing is given in a note herewith, and there is no other testimony in. tbe case tending, more strongly tban tbis, to sbow acts or conduct of Hart, or reliance tbereon by tbe company, tbat would estop tbe plaintiff in tbis case. In speaking of an estoppel, wben tbis case was before considered it was said tbe doctrine of estoppel rests upon a party having directly or indirectly made assertions, promises or assurances upon wbicb another has acted, under such circumstances tbat be woirld- be seriously prejudiced if tbe assertions were suffered to be disproved or tbe promises or assurances to be withdrawn; and as tbe doctrine wben applied operates to take away legal rights it is no more tban common justice to require tbat tbe facts wbicb are supposed to call for its application shall be unquestionable, and tbe wrong which is to be prevented be undoubted. Tbe correctness and indeed tbe justice of tbe rule as thus laid down will be unquestioned, sustained as it is by an almost unbroken line of authorities. "What is there in tbe evidence to bring tbis case within tbe rule thus laid down ? Tbe testimony of Mr. G-lasby, wben taken together, and tbis is tbe only way to test it, shows conclusively, tbat in no way was bis conduct — and be tben and for tbis purpose was tbe company — influenced or affected by tbe acts, conduct or language of Mr. Hart, different from wliat it would bave been bad Mr. Hart not been an actor or interested in tbe question at all, Mr. Grlasby says clearly and distinctly that it was to tbe board of supervisors be looked and depended for bis authority in tbe premises, in all that be did; tbat if bis actions and doings pleased Hart, be' (G-lasby) was glad, but beyond tbis Hart’s acts and conduct bad no influence with bim. It is’ clear beyond dispute from tbe evidence, that aside from Hart’s signature to tlie petition presented the board of supervisors asking that the bridge be located at the foot of Third street, he neither did any act nor said anything, which changed or influenced the conduct of the company, or upon which action was taken by it different from what it otherwise would have been, so that we are unable to see how it can now be said that the company relying upon what he said or did, expended any money or did anything, which justice and equity requires them to be protected in the full enjoyment of, as against Hart or his grantees. The essential elements required by the doctrine of estoppel in-order to apply it are wholly wanting in tlie present ease* Were this simply a question as to the weight of the testimony, within the rule laid down in Conely v. McDonald 40 Mich. 150, and since adhered to, we should not interfere, hut in our opinion the evidence failed in essential particulars to establish an estoppel, or facts which would warrant a jury in so finding. Upon the second question we are of opinion that the acts-of the supervisors and of the Legislature in fixing and legal izing the rates of toll upon this bridge were sucb that the public could not thereafter question the legality of the structure or the right of the company to maintain it under its charter. "We are also however of opinion that such action would not cure or cut off any claim which np to that time the plaintiff may have had, because of its illegal character and the injury he may have sustained in consequence thereof. The Legislature did not attempt to legalize the action of the board of supervisors in granting authority to construct the bridge in 1864, even if such an act iu 1875 would cut off tlie right of the plaintiff to recover damages which he had sustained between those dates. The act of the supervisors in 1871 in fixing tolls thereafter to be collected and the Legislature in making legal such proceedings of the board, was but a recognition of the legality of the company and its rights after that date. Statutes are not to be given a retrospective construction unless the language thereof shows clearly such to have been the intention of the Legislature, and in this case it clearly appears that no such intention existed, but that other and far different reasons existed for tbe action of tbe Legislature. We need not therefore discuss at length in this case, what the effect of an act legalizing the structure from 186é would have been or how the plaintiff might have been affected thereby. This case calls for no such investigation. But conceding that the effect of the legislation of 1875 in legalizing the previous action of the board of supervisors was to make the bridge and pier a lawful structure, it does not follow that the plaintiff may not maintain an action for the consequential injury to his dock. Neither the super visors nor the State can directly or indirectly appropriate the plaintiffs use of the shore to public uses without compensation ; and if even a lawful bridge and pier is constructed so near it as to preclude its profitable use he is entitled to compensation. If the bridge and pier is far enough from the dock so that it may be used but only with inconvenience, the same principle applies, and the .question is merely of the extent of the injury. On the part of the plaintiff testimony had been introduced tending to show that certain vessels had not stopped at his dock because of this bridge, which otherwise would have, and the business lost in consequence thereof. The plaintiff was,, as a witness, then asked: “What in your judgment has been the diminution in your business in amount by this prevention or interference with the boats coming there?” Answer. “About a thousand dollars a year during the years 1813-45-6.” The court in charging the jury upon this subject said that such general ■ statement or estimate of damages was not enough for the jury to consider; that it devolved upon the plaintiff, especially if defendants acted in good faith, to show in some satisfactory way a safe basis from which they could determine the amount of his loss or injury. This evidence, following what had then been introduced, was admissible, and the particulars upon whieh such estimate was formed could be called out by the other side. The estimate for the purpose for which it was introduced was competent, and the weight thereof was for the jury. If the court desired the jury to understand that while they could consider such estimate of damages, yet that it was not conclusive, but that the facts and circumstances previously testified to should be considered'in connection therewith, by them, in estimating the damages, then the charge would have been correct to that, extent. It was competent testimony to be considered by them, but under the issue and claim of the plaintiff, the good or bad faith of the defendant had nothing to do with the question. Only actual damages were claimed, and the good or bad faith could have no bearing upon that question. The fact that the plaintiff offered to lease some of the prop erty to the defendant had no proper bearing in the case, and should not have been considered. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred. William V. Glasby, sworn for tlie defendant, testified as follows: I reside in East Saginaw; have lived there since 1850. I am a contractor .and builder. I built the bridge for the Bay City Bridge Company. I built the most of it in 1861. I owned about or very nearly one-half of the stock. I knew when the company was organized and the preliminary arrangements for locating and building the bridge. I knew Julius B. Hart; he had a store just north of the street where we were building the bridge at that time. I think it was the second store — a warehouse and store together. His was the second block; Park & McDowell had a liquor establishment in the first block. I believe I was acquainted with Mr. Hart before the bridge company was organized. When we were ready to locate the bridge I talked it over with all those interested in the neighborhood of the bridge, and Mr. Hart was among the rest, and I had a number of talks with Mm as to where he would like to have it located to suit him, with others.. He seemed to want the location of the bridge there on Third street, where it was finally located. He was more .active than other parties living right around there. He had nothing against it, but requested if there was any such thing he wanted it located there. He would be satisfied to have the bridge there, and wanted it there; that was Ms point for it. [Witness was shown a paper, being the petition of Hart and others herein set forth.] I recollect of there being a petition got up by the parties there which was requested by us bridge men to put before the board of supervisors and have their sanction in the thing as much as possible. I would not say how many times Mr. Hart and 1 talked over the matter, but did so every little while. There was some of them around every day talking it over. I could not tell you whether it was talked over five times or twenty times. We talked it over a number of different times. During the time I was building the bridge I had a little office over Mr. Hart’s store part of the time, and part over in the next block below on this side of the street. Captain Averill I think his name was. I saw Hart around frequently while we were building the bridge every day or every day or so, and 1 could not say how often. Question. After the resolution had passed locating the bridge or giving the consent to the building of it, state what you did and who assisted you m making the actual locations and hutments of the piers and swing? Answer. The way I would explain that would he this: I wanted to-locate the bridge so it would be satisfactory to the people here as much as possihlé, and I didn’t care myself where it would he particularly, only to suit everybody. All I can say in regard to Mr. Hart, his desire was-to have the bridge located on Third street and no other place. I recollect something about the morning we went to drive the first spile. I drove in the bridge proper through the channel of the river. I drove the spile in the center of the swing as near as I could get at it, and it was talked over that I was going to locate the swing, and there was different parties there to look on to see how it would look, how far out, and so on. I told them how far out I wanted it, and they didn’t seem to know until they could see a spile drove. There was all the neighbors, Mr. Hart and all of them there looking on, and they made up their minds that it would be about right. Mr. Hart was with the rest, and there was no objections, and said it would be about right. As near as I can recollect there was no objections at all from anybody. I would say in regard to the location, I believe it as I supposed to be just about right for the use of the bridge, and the working of vessels and so on through the bridge to be handy, the location of the dock at the time of it, we had to build a bridge about that shape to be so that it would not be knocked down right off. The swing of the bridge has to be about so far from the dock to be handy, and if it is too close it is in danger. I measured the depth of the water across the river, and then I talked it over with different parties here that knew all about the vessel business and the current up and-down the river here, and where there’ was a bar up above by Mr. Lord’s mill as it used to be then. There was a bar out around there, and I wanted to get the channel as near as I could so as to have the long pier in the middle of the river with the channel of the river. I talked it over with different parties and put it to the best of my judgment of what I could make it by measuring the water above and below; in doing that I located it where it is. That was the best place I thought, or I should not have put it there. I am positive Mr. Hart was present when we drove the first spile, because all those were there that were interested. I drove the first as near as I could get at it, measuring from the shore to the center of the swing, as near the bridge line as 1 could. I drove the spile as near the center as I could, and from that spile I got my exact center; from that spile I struck out my stakes. I could not tell anything about how often Mr. Hart was around consulting with me while I was constructing the swing pier: it was frequently talked over with every one that came along. I could not say how many times I talked with Mr. Hart, nor anything about it. I did a number of times. We did all our shipping there, and I saw him very often; was in the store, and did a great deal of business with him. He had a shipping warehouse for steamboats, and all our iron we had came up and landed at his dock, and was unloaded there. We paid him, and he collected the bills that we paid him. I would say as to the influence of the thing in locating the swing pier, swing and abutments of the bridge where they are, I don’t know as Hart had any great influ- • ence no more than general good will. I wanted every one to be satisfied, and he was perfectly satisfied with it, and had no objections to make, and seemed to be pleased when he talked it over. He, nor no other man that I know of, never expressed a word of objections or dissent to it. I don’t know as his power, actions, requests and acts had any bad influence on us in relation to constructing the bridge and the expenditure of our money and nothing against it at all. I don’t know as there was any great influence, no more than I was pleased to have him satisfied with it. It seemed to be his wish. Question. Will you please state whether Mr. Hart was in a position where he saw the bridge during its construction? Objected to by Mr. Hanchett. Objection overruled, and plaintiff excepted. Answer. Yes, sir; he was where he could see it every day, and his store was right in plain view. I presume he was attending to his own. business at the store. He was there, and I saw him around. I could not tell how often I did see him during the progress of the work; I might have seen him once a day, and I might have seen him 20 times a day, and might not see him once in a week. I didn’t notice whether he was there every day or not. His position was where he could see me a dozen times a day, just as well as not, if he was at home. I cannot say whether he was there every day or not. He might have been out of town a day or so, and I not know it. He was there generally just as much as any other man doing business in his own store. I would see him very often. There was never a word of complaint in the world in no way, shape, or manner from him. He didn’t disapprove of it in any way, shape, or manner; that is all he could do about it. I didn’t ask him to help me, or any such thing. I could not tell the date of the application to the board of supervisors, yet I remember the whole transaction. I had a little sketch of the plan of the bridge, something of what I was going to build. I had a plan something like the manner of the construction of the bridge. I have got the most of that plan. I have got the plan just as we built it, with the exception of from the swing this way. I cut off that part of it, and used it in another draft and I have not got that 50 feet of the light trestle-work that was on this side; I used it up. [Witness produces the plan.] This was the plan that I presented to the board of supervisors. It shows a part of the swing that we built there, but it don’t show so that you can tell from the shore, on account of the first 50 feet being cut off. There was 50 feet of trestle-work, running from the end of the swing to the dock, that I cut off and used in another place. This place represents the end of the swing. There was a 50-foot span just exactly like this other 50-foot span run to the dock. He saw that, and we showed it to every one. Mr. Hart saw it a number of times. The bridge was built after this plan — exactly like it. It was either that or tracing of it that was before the board of supervisors when the petition was presented; if it was not that identical paper, it was a tracing of it. I mean we traced it off on tracing cloth, a copy of it. There was no other draft of it ever got up, and that is exactly the way we built the bridge. This plan indicates what parts are wood and what parts are iron. The draft offered and received in evidence, and marked exhibit “0.” Question, [Showing witness paper, being the notice attached to the petition.] Will you look at that notice? Ansioer. I have seen that notice lots of times. I think I posted that notice. I done it myself, individually, because I wanted it done to suit me, and I done it the whole length of the Saginaw river, from Salina to the lake. I cannot tell the exact stump or house where I posted them. I knew what the law required in regard to the number of towns that notices must be posted in, and I knew the towns then and looked them all over, and went and did it myself to have it correct. I could not tell the exact house or stump where I posted them. I can explain what knowledge I had of what I had to do, and what means I took of ascertaining what had to be done on posting the notices in this way. I helped to get up the charter of the East Town bridge; two charters up to East Town, and I knew what I would have to do, because when I got up those others I looked it all over, and I knew; and I came down here knowing-just what I had to do a year before. [Witness was shown statute to refresh his memory.] The law required so many days, and I testified that I posted them in the required time. I was very particular about that. It wanted three weeks, and I say I did it four or five weeks before. I won’t say it was three days over, but I was particular having it right. I don’t recollect the particular places in each town. They were posted up in just as public places as I could find. But I could tell the greater part of them where I put them up. It was over three weeks. I will testify to that sure, because I am positive about it. It is a pretty hard thing* to tell the exact place I posted them at, around town here. I know I had one stuck up near the Barclay house here — I forgot whether it was on the house or exactly the spot; and I stuck up one on the old Stephens store up there; and up at East Town I stuck up some there, in the town, in the most public places I could think of — anywhere it came handy. I remember of going to Salina, and putting them up there, and over to-Saginaw City. I could not tell all where I put them, only I know I kept up the required amount, and I done it in time. I would swear to that anywheres. At that time I knew exactly the different townships, but I could not tell now. I posted notices in each of the townships on the Saginaw river — I was particular about that. It was more than three weeks prior to the meeting. I don’t know whether Mr. I-Iart was present or not at the meeting of the board of supervisors at the time this question came up. I posted three notices in- each town, and I think I posted in some places a number more than that, l'-got a lot struck off, and 1 stuck them up where it came handy. I would not say positively that at the-time of the meeting of the board of supervisors, or the presentation of the petition, I furnished proof to the board of such posting, but I think I did. I have no doubt about it at all, and if it was asked or any question about I done it. 1 don’t recollect that particularly. The bridge first, cost us very nearly $28,000. I’ve built it partly since. I built the iron contract here, and had something to do with the rest. We calculated to-get it as near the same line of the old one as we could. We put it on the-same line as near as we could mark it. I think it is on the same line* It was the same width in the roadway — exact. • CROSS-EXAMINATION BT MR. HANCHETT. I cannot exactly tell now the date when the Bay City Bridge Company was organized. I was not one of the original corporators. My connection with it was from the beginning. I virtually owned the stock from the commencement. That was the agreement. I was to own the bridge, and yet, in a business way, there would have to be a good deal of security in all of such works to get the thing along, and I proposed to run the thing myself. I did not want to get outsiders interested. I had those three men take the stock. I came up as a contractor and took the bridge. In fact I had an old man that worked for me by the name of Brown that took the contract, so I went security for the whole of them all round. Then I owned the stock virtually myself. William S. Gilbert and myself owned the stock, and I was a stockholder. The stock had been transferred to me after the organization of the bridge company, so that from the beginning I was the managing man. I was the one that first came down here to look it over and talk about the bridge, and get the rest to take hold with me. I did, by the" way of William S. Gilbert, institute the proceedings to get the authority from the board. I was the one that instigated this job down here. The company was formed for the purpose •of building this bridge and no other. I had already been connected with the foundation of two other bridge companies. I had built one bridge across the river at East Town the year before, so that I knew that the authority to build a bridge across the river must come from the hoard of supervisors. I did not write the petition that was presented to the board of supervisors for authority, but 1 knew what was done, and how it was being done. I think Mr. Gilbert presented the petition. I did not present the plan of the bridge to the board myself. I think Mr. Gilbert did it. I was not before the board to say anything orto do anything. I was down here backwards and forwards. I was here once or twice while they were in session, but I think I was not here the day they acted on the application. I was hero when they were talking over once about the t.olls; I think that’s all. When I say that plan was presented to the board, I am speaking of what I understood from Mr. Gilbert, and those down ■at this end of the river. I went along the river myself to select a place to locate it. I think Mr. Gilbert was not with me; I think I had a man with me that I brought down here that surveyed the river and staked it. His name was Bush. I employed him, and I think we went about up to Mr. Lord’s mill, and I think I was out on the ice and cut holes in it, and measured across the river every 50 feet, so that I acquainted myself with the whole space as far as I wanted to go. I did not calculate to build the bridge any further up or down than that. I talked with different parties light around Third street, and consulted with the citizens here in the city in. regard to the location of the bridge. That is in the winter of ’63, about 16 years ago. I heard Mr. Hart is dead now. When I speak of Mr. Hart and his conduct particularly, I haven’t a bit more recollection of what he said and did than what other people said and did on the subject. He had a good deal to say about it because he was anxious, and so were others. He was in the neighborhood, and I could see him every day, or very frequently, and just so with all the rest that lived there. In regard to Mr. I-Iart’s conduct, it is no different with him than a Mr. Barclay on the other side of the street. I was desirous and satisfied to have other people satisfied. In my location of the bridge I looked to the board of supervisors, and depended upon them for my authority. I did not look to the people for that, of course. When I constructed the bridge I looked to the board for my authority, and acted in obedience to that authority as I understood it. That’s what I supposed I was doing and intended to do. In regard to Mr. Hart’s conduct, I can simply say I was glad he was pleased at what we were doing. After we had got it all round in shape, and the supervisors satisfied, then I showed him what I was going to do, and they were all satisfied. When I drove that spile at the center of the swing, I can’t exactly tell whether Mr. Hart was there before or after it was driven, but they all had a good deal to say about my business that morning, and they were all there looking on out of curiosity, and every one had his opinion as to whether it was too far out or in. I drove it just where I had a mind to, and they were all satisfied with it. When I started the pier I acted exactly as I was a mind to, and nobody dissented. They thought it was all right; I thought it was all right, and, says I, how is that? and they says that is exactly the spot. In putting it there I acted on my own judgment, and under the authority I got from the board. I was satisfied first, and if they were satisfied afterwards, I was glad of it, and I went on building the bridge clear through in the same way. They thought if I had a mind to come down here and fool away my money, they were pleased over it. I thought it would come out all right; I acted upon my own judgment, and in putting the bridge there and locating it there, and constructing it as I did, I did it under the authority of the board, and I looked to the board only, of course, for my authority. I could not get any sanction from the citizens here to build the bridge, no more than their will for it. I was glad if they woreWted. I could not say any particular thing that Mr. Hart said on a particular day, only I know he never growled about it more than the rest. As I did my work along step by step, when I saw Mr. Hart with others I have spoken of, I called their attention to it, and as questions came up, and I asked whether they were pleased and they said they were. They found no fault only to hurry up with it. RE-DIRECT EXAMINATION BY MR. HOLMES. There was no general controversy between the citizens in regard to the location of the bridge, as I know of. There was some different parties that said they wished it could be put up at the foot of Center street. In regard to the necessity of the pier being built the length it was, I would say when I built the bridge it was before the days of tugs; vessels most all sailed up here, and I wanted to get the pier down below the bridge, so that if a vessel came up it would strike that pier before it would strike the bridge. I built it down a considerable ways on that account, and sharpened it off, and built it down farther than it might be now probably when they tug vessels through and scows and everything as handled by the tugs. Then there was scarcely a tug on the river, and vessels would come flying up through here, and'l had to have a protection above and below, in order to protect it. Without this they would come up part way, and throw their anchor out, and swing right in the bridge, and I had to have a protection there. I think I put that 25 or 50 feet below the end of the swing, when the swing is open. It commenced right where the swing comes around below; I commenced and sharpened it off so as to give it a sharp point. The length is just exact as I thought about right at that time. If I was going to biiild one now, I would build it exactly like it, if I could. RE-CROSS-EXAMINATION BY MR. MAXWELL. There has been tugs on the river a good while, but there was not so many then; vessels sailed up then. I wanted to go down as far as could without any complaint, and there would no one have complained if I had gone down 10 rods further. I did not drive that group of spiles at the end of the pier. I planked up all I drove. It has been 12 or 14 years since they commenced tugging, and don’t sail up so much. They don’t sail up very much now, but they used to. I don’t know as any of them sail at all in the neighborhood of the bridge. And said witness being further examined by defendant’s counsel testified: We did not complete the bridge entirely until along in the spring of 1865, — that is, to get the sidewalks and everything all done. Boats were running when I got the sidewalk completed. I commenced the work in June, 1864, and I think I had it done along some time in April, I860. We had a freshet that bothered us, and I worked right along; and there was some little work about it that I done along in the spring, but we had the bridge already to cross when the ice started out. It was substantially by the fall so that we could travel. The ice was good until I had the bridge ready to travel.	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Cooley, J. This appears to be a case made for review in this court after judgment for defendant .in the Kent circuit. The action was trespass qua/re cltmsvm, and the plea was the general issue, with notice that the locus was a private way, properly established as such by the public authorities. The case sets out the pleadings and proceeds to say that— ¶ “ The facts as proved by the evidence are as follows: “ 1. On and previously to October 28,1878, the plaintiff had been the owner of, and been in possession of the premises mentioned in the declaration. “ 2. On the 4th day of September, 1878, the defendant and his wife made application to the proper authorities, in a lawful manner, to have a private way, two rods wide, laid across said premises. “ 3. Thereupon notice, pursuant to law, was given plaintiff of such application, and also of a meeting to be held at defendant’s house on the 21st day of October, 1878, at 10 o’clock a. m., by the commissioner, for the purpose of striking a jury to determine as to the necessity and propriety of such road. “ 4. On the day and at the hour mentioned, the highway commissioner, town clerk and defendant and his wife, met at the defendant’s house in pursuance of the notice, and the meeting was regularly adjourned until the 28th day of October, 1878, at 8 o’clock a. m., at the same place. “ 5. On the 28th day of October, 1878, at the time appointed, the same parties, and the plaintiff with his attorney, met at the defendant’s house, and proceedings were commenced to obtained a jury. Henry W. Booth, a' constable, was duly sworn to write down the names of eighteen disinterested freeholders from which to select a jury. After such names had been written down, the plaintiff and the defendant each struck off three of the names; whereupon the commissioner issued a proper citation to the remaining twelve persons, whose names had not been stricken off, to act as a jury. "6. The citation, having been delivered to the officer for service, was returned duly served upon nine of the persons therein named, three of said persons not being found. Thereupon the plaintiff and the defendant agreed that George Winslow, Arthur W. West and William Andrews might be summoned in the place of the three persons not found. It appearing farther that said George Winslow could not be found, and that one of said original nine who ■were summoned was incompetent to act, the plaintiff and the defendant agreed that Isaac Brannon and George Broad-bent should be summoned to act in their stead. “ 7. Thereupon the constable having summoned the said jury, returned said citation duly served upon the following named persons: TIenry Gould, Calvin Hull, John Yeiter, Isaac Yan Oty, Charles Powley, James Brannon, Luther McConnell, Thomas Lowden, Arthur H. West, William Andrews, Isaac Brannon and George Broadbent, who were duly sworn well and truly to examine in regard to the necessity and propriety of said private road, and, in such case they should decide it a necessity, to justly and impartially appraise the damages, etc. . “ 8. The petition and the law having been properly read to the jury, said jury repaired to, and examined the premises, returned to Parrott’s house, and after due deliberation (separate and apart) returned and decided, that after their said examination they found the road necessary and propel-, and appraised Chattel-ton’s damage at one hundred dollars. “ 9. Then the defendant paid the jurymen their lawful fees, and they were discharged. Defendant then also placed in commissioner’s hands, to be paid to plaintiff, one hundred dollars, being the damage appraised. All this took place on the 28th day of October, 1878, and on the 29th day of October, 1878, the commissioner of highways made a proper order that the private road be laid out as applied for. The proceedings to open and lay out the road as above set out, appear from the lawful record thereof, which was put in evidence, and the record closed with the receipt of John Chatterton for the hundred dollars damages, which was appraised by the jury, and which was paid to him by the commissioner. “ 10. It also appeared from the evidence, that the defendant paid all the costs and charges incident to the opening of the road. It also appeared that during all the proceedings the plaintiff was present with his attorney, whom the plaintiff had taken there expressly on that matter, and participated therein, and made no objections to any of the jurymen, but left it to the men selected to assess the damages. The defendant, under the commissioner’s orders, afterwards went upon the premises and opened the road, and used it thence and until the present time. He removed some fences and apple trees, offering the plaintiff to set the trees where plaintiff might direct; but the plaintiff replied, that they would be of no use to him, and ne, plaintiff, did not want them. And it appears from the evidence that the defendant removed only such obstacles as was necessary to remove and open the road, and did no unnecessary' damage. “ 11. About eight or nine months afterwards, the plaintiff claimed that there was no road laid out across his premises, and he thereupon tendered to the defendant the $100 that had been paid him as the damage awarded, and forbid the defendant coming on the land any more. He did not tender back any of the other expenses or interest. The defendant refused to accept the one hundred dollars, but continued to go on the plaintiff’s land and use the said road, and has continued so to do hitherto. The reason assigned by the plaintiff that the road was illegal, was that he had ascertained that two of the jurymen, who acted on the jury while layingout said road and assessing the plaintiff’s damages, to-wit, Hull and Gould, were not freeholders at the time said road was laid out, that fact was proved on said trial that Calvin Hull and Henry Gould were not freeholders at the time that they acted on said jury, and that the said plaintiff did not know that fact; that the highway commissioner did know that Gould was not a freeholder, for Gould told him so, and tho commissioner told Gould that it would make no difference, but the commissioner did not communicate the fact to any of the parties. It was also established that they were living in the neighborhood of the plaintiff, and he knew them, and it did not appear that the plaintiff or his attorney made any inquiries or efforts to ascertain whether or not said two jurymen were freeholders. It further appeared that said plaintiff had not kept the tender of one hundred dollars good at all times, and did not have that amount of money present in court. Afterwards, to wit, in the October term of said court, 1880, the said court rendered judgment in the said cause in favor of the defendant for cost. “ To which judgment the plaintiff did except.” This is the whole case. This Court does not review law cases on the facts, and has no power under the law to do so. Its jurisdiction is limited to a review of such rulings of the circuit court upon questions of law as were distinctly presented and passed upon. What rulings upon questions of law are to be found here ? It is recited that the plaintiff excepted to the judgment; but why ? So far as appears it was in due form of law, and it was the duty of the court to render it if the judge was of opinion that the plaintiff had made out no case. Perhaps the plaintiff supposed he would be at liberty to go back of the judgment and raise any question of law that might have been raised in the court below ; but that is a mistake: we might if that were admissible be passing upon questions that were never called to the attention of the trial judge, and perhaps be reversing his judgment on points on which he would agree with us. A general exception to a judgment cannot be given any such sweeping effect. In this case we do not know whether the circuit judge held the defendant entitled to a judgment because he considered the proceedings in laying out the private way valid,, or because he held the plaintiff estopped by accepting the compensation awarded, or because having accepted it he had not kept good his tender of repayment, or because he had not effectually revoked his license, or for some other reason which seemed to him sufficient. No finding upon points of law was requested, and none was made. The judge merely tried the cause and rendered judgment, and the judgment is excepted to and nothing else. But this is futile: a mere exception to a judgment which is good in form can never be available. Had there been findings, an exception that they did not support the judgment might have been considered ; but this case is nothing but a presentation of all the facts for our judgment upon them. We have no authority to express such a judgment. .This disposes of the case. Nevertheless as further litigation may arise, we have looked into the plaintiff’s brief upon the merits, and find that he relies for the invalidity of the proceedings in laying out the way, upon the incompetency of two of the jurors. But after accepting the compensation awarded he was not in position to take such an objection. Baker v. Braman 6 Hill 41; Embury v. Conner 3 N. Y. 511; Detmold v. Drake 46 N. Y. 318; Mobile etc. R. R. Co. v. State 29 Ala. 586. It is of no importance that he failed to ascertain the incompetency in due season; his duty was to inquire into the facts while the proceedings were pending. The judgment must be affirmed with costs. The other Justices concurred.	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Campbell, J. Russell filed this bill to obtain specific performance of a contract whereby Nester agreed to sell him certain pine lands, amounting to about five hundred. acres, which had been previously lumbered upon. The contract was made in December, 1874, and was for the sum of $3000, of which $100 was paid down, a lot of logs to be delivered which amounted to between $1100 and $1200, and the balance to be paid in 1876, 1877 and 1878, with interest at ten per cent. The logs were delivered, and taxes mostly paid, but no further payment was made. Nester in February, 1878, notified Bussell that he must pay at once or the contract would be forfeited. Bussell not paying within the five days which Nester assumed to fix, Nester sold the property to the defendants Bliss, for the remainder due and to become clue from Bussell, and they took, knowing all the facts. At this time Bussell made some efforts to get means but failed, and thereafter he made no personal efforts, and had no arrangements or negotiations with the purchasers. He had, soon after the contract was made, sold out a half interest to Orville O. Morris, who declined to invest further. In the fall of 1878 the purchasers, who had not been notified to the contrary, went upon the land an'd during the winter got out lumber, which at the value as cut would about cover the sum which remained unpaid. Thereupon Wellington B. Burt, to whom Bussell had made a sale, filed a bill to enforce specific performance, and tendered the balance unpaid, according to the terms of the contract. This suit went down for an error in the papers, and then Bussell, who had taken a re-assignment, filed this bill, which is really in Burt’s interest. The court below dismissed the bill. It is not claimed that Nester’s notice was of itself a complete forfeiture, but that it was a distinct warning to Bussell that he must act promptly and delay no longer. The question presented is whether the delay without any further effort to pay, is such that the court should regard the purchasers as entitled to hold their bargain. It cannot be held an absolute matter of right to have a contract enforced after there has been gross default. The vendor, if he cannot justly appropriate the moneys paid, and still hold the land for less than its value, should always be allowed to make himself good without being subjected to unreasonable delay, and if a forfeiture of the contract is not inequitable, the court will not feel bound to disregard it. In the present case, if Nester had offered the property for sale on a mortgage, having the same amount due, we are satisfied the land would not have sold for any more than he obtained for it. He made nothing out of the sale, and. the purchasers paid all it then appears to have been worth. If he had sold to a bona fide purchaser, he could not have been fairly chargeable with any more. This being so, the delay to set up any claim to the purchasers, and the omission to warn them against incurring expense and trouble in lumbering, renders it very inequitar ble to allow the defaulting party to step in and get the profit which their diligence may have earned them. They did not act in bad faith, and we think they should be protected. And we think Russell has no greater equities than he would have had against Nester if the latter had sold to a purchaser who knew nothing of the contract. In that case the accountability of Nester, after such a long default, could not fairly have gone beyond the value of the land as then existing. And, as already stated, we do not think the market value would have exceeded what the Blisses paid for it. The decree must be affirmed with costs. The other Justices concurred.	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Cooley, J. The misapprehension in respect to the proper practice in this case has been such as to necessitate a reversal of the order which is appealed from. In August, 1879, Ransom took decree against Sutherland and others in a foreclosure case. ’ The decree adjudged Sutherland to be personally liable upon the mortgage debt. A sale under the decree of all the land described therein was made October 8, 1879, and the commissioner reported a deficiency, after applying the purchase money on the decree and costs, of $583.61. December 30, 1880, complainant’s solicitors served on the solicitor who had ' appeared for Sutherland in the foreclosure case a notice that on the third day of January, 1881, they would move the circuit court for an execution against Sutherland for “ such deficiency as may remain unsatisfied on the decree rendered in this cause.” The notice stated that the motion would be based “ on the files, decree, report of sale and subsequent proceedings had in said cause.” At the time specified said solicitor for defendant appeared and objected that no notice of the motion had been personally served on the defendant. This objection was overruled, and time was allowed to answer the motion. January 19,1881, the solicitors being in court, defendant’s solicitor moved to dismiss the application for the want of any proper showing that complainant was entitled to execution. This was denied. ITe then assumed to file an unsworn answer for the defendant, denying any indebtedness, but the terms of the denial were obviously such as to dispute the justice or validity of the decree, and of course presented no issue which was then material. The. complainant produced the decree and the report of sale and deficiency as evidence of his right to an execution, and the court ordered that an execution issue. Sutherland appealed. The whole proceeding was informal; and while it might have been sustained had no objection been made at the time, the irregularities are such as the defendant had a right to take advantage of. The application should have been made on sworn petition, reciting briefly the facts giving the right to an execution, and praying the court to direct its issue. It is not absolutely essential that the application take the form of a petition; but it should be in writing and under oath, and it should be served on the party against whom execution is sought, with notice of the time when it will be presented. The service should be on the defendant in per son, wherever that is practicable; for presumptively the retainer of a solicitor in a cause does not extend to proceedings taken subsequent to the decree for its enforcement. If personal service on the defendant is impracticable, the court, on a showing of the facts, may direct a substituted service. "When the defendant is brought in on petition and notice, if he contests the right to an execution, he should file his answer setting out the grounds of his objection. It is hardly necessary to say that these must be grounds not inconsistent with the decree and usually such as operate in its discharge: the validity or justice of the decree cannot be inquired into on such an application. The answer, like the application, should be on oath, and if it present matter of discharge, the complainant may take issue upon it, and the court in proper ■cases may order a reference to take proofs. But in such a case the burden of proof to show discharge must be on the defendant, for the decree adjudging the defendant personally liable, and the report of the deficiency, make out a prima, facie case against him. The order appealed from must be reversed. As the costs •are in our discretion, and nothing in the record indicates that defendant is relying upon any matter of discharge, we are not inclined to award full costs. Both parties seem to have mistaken the practice, and there are no equities apparent which entitle the defendant to special consideration. The order will therefore be reversed, and the defendant may recover the costs of printing the record and brief in this court, but in other respects each party will be left to pay his own costs. The other Justices concurred.	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Campbell, J. Complainant filed her bill against defendant as owner and actual possessor of lands in Nankin,Wayne county, charging defendant with giving out and pretending some opposing claim which she could not ascertain, but which she believed to be under some pretence of levy. The bill prayed for a decree quieting the title. Defendant filed an answer making no admissions of complainant’s rights, and denying that he had given out that he had any interest, but not disclaiming any interest in fact. It appeared on the proofs that he had undertaken to sell the land under a levy against complainant’s husband, which was not made under a valid writ, and that the certificate of sale had been filed with the register of deeds. It also appeared that he had refused to release the claim. The court below decreed for the complainant. Ve can see no reason for disturbing the decree. Defendant has not shown that it was filed without reason, and is not in a position to complain of the suit, because his own course made it proper. The suggestion that creditors of the husband might attack the wife’s title is of no force, because no such issue is raised by the answer, and defendant has not put himself in any position to raise such a question. The testimony is not taken so as to try any such question, and it would be not only acting on a foreign controversy, but acting without any sufficient light to consider i or discuss the possibilities of such a state of things. The decree must be affirmed with costs. The other Justices concurred.	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Graves, J. The material facts stated in the bill are in substance as follows: Margaret Hack being the wife of Jacob Hack obtained a decree of divorce from him in the circuit court for the county of Wayne about the year 1859, and thereafter intermarried with Leopold E. Taufkirch, and lived with him as his wife until her death. That said marriage was however void by reason of a prior and subsisting marriage of said Taufkirch. That said Jacob Hack and Margaret Hack are both dead, the latter having died on the 26th of March, 1870, and that complainants are their sole issue and the only surviving heirs at law as weE of the one as of the other. That on or prior to November 17,1868, the said Margaret was the absolute owner in her own right ■of lots nine and ten in block four of the western addition to the city of Detroit of part of the Cass farm, and that said lots were worth about $10,000. That during the time she lived with Taufkirch he treated her with great brutality and held her under his absolute control. That his cruelty broke her down in body and mind and so completely that in July, 1868, she was attacked with softening of the brain and paralysis, and became wholly insane and incompetent to transact business. That on said 17th of November, 1868, said Margaret was living on the premises with said Taufkirch, and that he then took advantage of her helplessness and incompetency and coerced her to join him in executing a warranty deed thereof to the defendant Norris upon a consideration as expressed of $6500. That no part of said consideration was either paid to or received by her and that the deed was not her act, and that the defendant Norris was-acquainted with all the facts. That possession was taken soon after by him and has since been retained by him and the defendant Waterman. That the latter on the 15th of June 1875, had full knowledge of the facts before mentioned affecting the validity of the transfer from said Margaret, but nevertheless took a deed of the property from said Norris on that day. That complainants are informed that said Waterman paid nothing for said conveyance and received it merely for the purpose of facilitating a disposition by said Waterman (who is a real estate broker) for the benefit of Norris. That defendants have had the use and occupation since November 17, 1868, and have collected and received the rents amounting to a large sum and have not accounted therefor. That on the death of their mother, the said Margaret, the property descended to the complainants. The statements to excuse delay and the claims made for relief need not be noticed. Such is the case made by the bill. The only matters in the answer which are now material are the denial of incompetency of complainants’ mother, the allegation that the deed to Norris was in pursuance of an arrangement between her and Taufkirch to provide her with a separate living, the averment that whatever equity the complainants may have had originally had been lost by their laches, and that even if they should be held entitled to an accounting it ought not to be carried further back than six years next preceding the filing of the bill and in equity and justice should be confined to the six years next preceding the reference. The parties went into evidence at great length and on the 19th of November, 1880, the cause was heard on the merits. The court, by a decree of that date, declared that the deed ■of November 17, 1868, to Norris, and tbe deed of June 15, 1875, from Norris to Waterman were void, and ordered an •accounting by the defendants of tbe rents, profits and income collected and received by tbe defendants since tbe 17th of November, 1868, and of tbe amount to which complainants were entitled for tlie use and occupation of tbe premises ■subsequent to tbe same date. The decree further required 'that tbe commissioner should ascertain tbe amount laid out by the defendants for taxes, insurance, improvements and necessary repairs and other disbursements if any during said •time, and also that he should compute tbe interest upon tbe balance due at tbe end of each year in favor of complain.■ants and tbe rents, profits and income over and above tbe amounts in such year expended for taxes, insurance and necessary repairs and improvements and other disbursements if any, at tbe rate of seven per centum per annum •compounded with annual rests to tbe date, of tbe decree. All further directions were reserved. This decree was not appealed from or otherwise disturbed. Tbe parties acquiesced. It determined all matters except tbe equity reserved and such determination has come to be tbe law of tbe case. December 8, 1880, tbe commis-sioner filed bis report. Tbe parties waived tbe computation •of interest directed by tbe decree and it was not made. Tbe defendants filed nine exceptions, and on tbe 4-th of •January, 1881, a bearing was bad on the report and exceptions, and tbe court overruled the exceptions and confirmed tbe report except as found inconsistent with tbe final order then made. And tbe case is now before this court by •appeal on the part of tbe defendants from this last order, a •copy of which appears below. The first decree negatived the defence and by necessary consequence determined that complainants had not been guilty of any unconscionable laches or delay; and it decided further that the case made by the bill was established and that they were entitled to have the deeds set aside, to be put in possession and have an accounting. These matters are no longer open. They are beyond the power of this court. In view of the effect of that decree and of the state of the commissioner’s report and the character and scope of the exceptions thereto and considering the shape and operation of the decretal order appealed from, there appear to remain only two subjects of inquiry: first, as to the right to carry the accounting back to November 17, 1868, the date of the conveyance by complainants’ mother to defendant Norris; and second, as to the right to allow interest. Neither party has contended for beginning the accounting from March 26, 1870, the time when complainants’ mother died, and hence tbe time when their title accrued. Both sides have obviously declined to adopt that view. The position taken and adhered to by complainants, and which the court in making the decretal order accepted, is, that the accounting should commence at the date of the conveyance to Norris, a time some sixteen months prior to the acquirement of title by complainants. On the other hand the defendants claimed and still insist that it should begin not further back than six years preceding the reference or at the most six years preceding the filing of the bill. The parties are hence at variance as to which of these periods is the proper one; it being assumed obviously that one of them is so and that the date of Mrs. Hack’s death ought to be excluded. And under these circumstances the court would naturally pause in any event before it would fix on this last-mentioned date as the proper limit. But whatever embarrassment on this score might have arisen, we think tbat tbe equities which spring from the circumstances are such as operate to refer the accounting to one of the periods contended for in argument and to show that the assumption that Mrs. Hack’s death is not the proper time to reckon from is a correct assumption. The principle on which complainants rely has been long settled. It was fully explained and variously applied long since. Duke of Bolton v. Deane Prec. in Chy. 516 ; Bennet v. Whitehead 2 P. Wins. 644; Dormer v. Fortescue 3 Atk. 124; Norton v. Frecker 1 Atk. 524; Curtis v. Curtis 2 Brown’s Ch. R. 620. Añd in view of the determination made upon the facts, of which we have decisive proof in the first decree, it is entirety clear that complainants are by these authorities not only entitled to an accounting, but to one going back as far at least as their mother’s death, and accordingly beyond the period contended for by defendants. The necessary meaning of that decree is that Norris got the estate from her by unconscionable means; that Waterman obtained it from him under circumstances exposing the title to the same objections to which it was liable in the hands of Norris; that the defendants knowing 'they had no right to the property yet withheld it under a claim of title they knew to be inequitable, and deprived Mrs. Hack of the use of it until her death, and thereafter deprived complainants of it. No milder meaning can be ascribed to that decree, and proceeding as we are bound to proceed on the basis of it, the extension of the accounting to Mrs. Hack’s death at which time the complainants’ title accrued is undoubtedly correct. The authorities are very positive. In addition to the ancient cases referred to, see Hicks v. Sallitt 27 E. L. & E. 212, 230, 236; Russell v. Southard 12 How. 139; New Orleans v. Gaines 15 Wall. 624, 634. But as we have seen, the accounting was not limited to the beginning of their title. On the contrary it was carried back to the commencement of defendants’ title, being some sixteen months prior to any title in complainants, and this would be .incompetent unless under very unusual circumstances. But we have such circumstances and they apply not only to this consideration but to the argument that the time ought to be arbitrarily confined to six years by analogy to the rule at law. in cases for mesne profits. The complainants come to be relieved against the two deeds and to obtain the just emoluments of the estate, and they are bound to do equity as a condition of relief, and under this principle, as the court finds, the accounting ought to be extended beyond six years and to the date of defendants’ title. The defendants are entitled to allowances for improvements and expenditures, and these are found to have been so distributed over the different periods that no just and equitable settlement is .practicable without including the whole interval subsequent to Mrs. Hack’s death. Moreover the matters in regard to allowances to one party and another are so related and so intermingled in point of justice that an accounting on both sides is impracticable on any terms of equity without passing the limit of six years and going-back to the beginning of Norris’ title. And certainly no accounting could be allowed on one side merely for the whole or any particular portion of the time. This branch of the ease stands on special and peculiar grounds. Neesom v. Clarkson 4 Hare 97, presented a state of things somewhat similar and the right to prolong the .accounting was sustained. "Whether, in case the circumstances were not repugnant, the rule of limitation in respect ho mesne profits in suits at common law would not apply by analogy, we do not inquire. On this part of the case we see mo reason for disturbing the order appealed from. The second point demands no special comment. We do mot know what objections were made below or what are relied on here against the allowance of interest. The parties saw fit to take the subject away from the commissioner and hence nothing concerning it appears on which to found an •exception, and of course no exception was tendered, and the .sole suggestion made in this court is, that interest should not be allowed. We are not favored with any reason and are mot able to conjecture any. The effect of the first decree was to establish a ground warranting the allowance of inter■est. The rents collected and the value of the arm nal use during such time as the property was not rented, together with interest, seem proper items in fixing the sums chargeable against defendants, considering the nature of their adjudged liability. Vandevoort v. Gould 36 N. Y. 639; New Orleans v. Gaines supra. The result is that no cause is shown for disturbing the •order and it must be affirmed with costs. The other Justices concurred. Superior, Court or Detroit — In Qlianm'y. At a session, of the Superior Court of Detroit, held at the Superior ‘Court room in the city of Detroit, on the fourth day of January, A. D. one thousand eight hundred and eighty-one. Present, the Hon. J. Logan Chipman, Judge of the Superior Court of Detroit. Peter Hack, George Hack and Mary Tihbits, complainants, v. Philetus W. Norris and William J. Waterman, defendants. This cause coming on to he heard at the last September term of said •court, upon pleadings and proofs, and the court upon due consideration thereof, having, at the November term of said court ordered, adjudged and decreed that the deed of conveyance purporting to have been executed by Leopold E. Taufkirch and Margaret, his wife, to the defendant, Philetus W. Norris, bearing date November 17th, 1868, purporting to convey the premises described in the bill of complaint, viz.: Lots number nine and ten, in block number four, of the western addition to the city of Detroit, of part of the Cass farm, according to the recorded plat thereof, said premises being situate on the south side of Larned street in the city of Detroit, county of Wayne, and State of Michigan; and also a conveyance of the same premises executed by Philetus W. Norris and Jane K. Norris, his wife, to the said William J. Waterman, bearing date June 15, 1875, were utterly void and of no effect; and having further ordered that the bill of complaint in this cause be referred to Harry E. Chipman, ■one of the circuit court commissioners in and for the county of Wayne, to take an account of the amounts of rents, profits, and income of every name and nature collected and received by said defendants, upon said premises, since the 17th day of November, A. D. 1868; also of the amounts to which the complainants are entitled for use and occupation of said premises since the 17th day of November, A. D. 1868: also of the amounts laid out by said defendants for taxes, insurance, and necessary repairs and improvements upon said premises, and other disbursements, if any, during said time; and further, to make certain computations of interest therein specified, further directions being reserved until the coining in of said report. Upon reading the report of said commissioner heretofore filed in this cause, together with the several stipulations thereto attached, and defendants’ exceptions thereto filed in this court, and after listening to the arguments of Charles M. Swift, solicitor for complainants, and John Ward, Esq., solicitor for defendants, it is ordered that the exceptions to the said report be overruled, and that said report be, and the same is, hereby in all things confirmed, except so far as the same may be inconsistent with this decree. And. upon consideration of the matters therein reported to this court, and upon further consideration of the pleadings and proofs, and after hearing further argument thereon by the said Charles M. Swift, Esq., solicitor for complainants, and John Ward, Esq., solicitor for the defendants, it is, by the court, now here ordered, adjudged, and decreed, and this court, by virtue of the power and authority therein vested, doth order, adjudge, and decree that complainants are entitled to recover of said defendant Norris, the full sum found by said report to have been received by said Norris for rents, and due for use and occupation of the said premises during his occupancy thereof, less the several sums found by said report to have been expended by him for taxes, insurance, necessary repairs, and improvements, and interest paid upon the mortgage executed by Margaret Taufkirch and Leopold, her husband, to Ira Davenport, dated April 4, 1863, together with interest on the several yearly balances in favor of complainants of the amount so received over and above the amounts so expended, at the rate of seven per centum per annum to the date of this decree; and that the complainants are entitled to recover of said defendant Waterman the full sum received by him for rents during the time said premises were occupied by him in the years 1875 and 1876, and from and after the first day of January, A. D. 1877, for use and occupation at the rate of forty dollars per month, to the date of this decree, less the several sums by him expended for taxes, insurance, necessary repairs, improvements, and interest upon said mortgage, together with interest on the several yearly .balances in favor of the complainants of the amounts so received for rents, or to which the complainants are entitled for use and occupation over and above the sums so expended, at the rate of seven per centum per annum to the date of this decree. And reference to a circuit court commissioner to compute the several sums herein specified being waived by all parties in open court by their respective counsel, the court has thereupon computed the same upon the findings contained in the report of said Commissioner Chipman, and upon the basis of computation here declared, and said computations are contained in Schedule A, attached to this decree, and made a part thereof. And thereupon it is ordered, adjudged and decreed that said complainants do recover of said defendant, Philetus W. Norris, the several sum and sums which as aforesaid they are entitled to recover, to-wit, the sum of $3040.73; and that said complainant do recover of said William J. Waterman the said several sum and sums which as aforesaid they are entitled to recover, to-wit, the sum of $2012.08; and that said complainants do have execution for all of said sums. And it is further ordered, adjudged and decreed that said defendants, and all person or persons claiming by, through, or under them or either of them, do yield and deliver up to the said complainants, their several heirs, executors, administrators, representatives and assigns, possession of the premises herein described; and that defendants severally execute-to said complainants, their heirs, executors, administrators, representatives or assigns, deeds of conveyance of the premises above described, releasing ana forever quitclaiming unto said complainants, their heirs, executors, administrators, or assigns, all right, title, interest, claim or demand of said defendants in and to said premises; and it is further ordered, adjudged, and decreed that complainants do recover of said defendants their proper costs of suit to he taxed and to have execution therefor. J. LOGAN CHIPMAN, Judge of the Superior Court of Detroit.	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Graves, J. The parties are mill-owners on tbe Flinfe river, Jobnston being a short distance lower down than plaintiffs in error. It appears that tbe stream in tbe vicinity of tbe mills is not uniformly capable of floating logs when in its natural state during tbe summer months. In June, 18J9, Jobnston bad a large quantity of mill logs in tbe river above Richards’ mill which be needed to get down in season to supply tbe operations of bis mill, and be attempted to take them down in tbe forepart of that month, but failed. He complains in this action that be was prevented by means-of Richards’ dam and canal and personal interference, and that be was thereby damaged and chiefly by bis mill being forced to remain idle for tbe want of logs. He obtained a. verdict for damages and Richards brought error. Several objections appear in tbe record in regard to evidence. They required that tbe grounds relied on should be explained; but this was omitted and we cannot say they afford any basis for charging error. On tbe argument it was conceded that Jobnston was entitled to recover on account of tbe hindrance suffered in getting down logs in June ; but it was claimed that tbe substantial objection to tbe verdict was that tbe circuit judge allowed recovery for hindrance during July and August,, whereas during that period tbe use of tbe stream for running logs was excluded by want of water and hence that the-condition of tbe river at that time did not permit a right of' floatage nor give rise to any right in Jobnston to complain of obstructions thereto on tbe part of Richards. This position appears to be a misapprehension of the-proceedings. There was evidence tending to show that Jobnston would have run down all tbe logs in June had it; not been for tbe interference of Richards, and tbe claim made was that tbe injury consisted, not in any interference, with tbe use of tbe stream in July and August, but in the; enforced idleness of the mill in these months by reason of the detention of the logs by what occurred in June. No requests in regard to damages were made; neither was the charge on that subject excepted to and we discover no ground on which a charge of error in relation thereto-could be based. The jury were fairly instructed and there-is nothing to authorize any disturbance of the result. The judgment is affirmed with costs. The other Justices concurred.	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Campbell, J. Hart was sued before' a justice of the peace of St. Clair county for the amount of a small judgment collected by his deputy (he being sheriff) and not paid over. Having moved to quash for want of jurisdiction of the justice to entertain a suit by a municipal corporation, the motion was denied. He then pleaded, but subsequently got leave to withdraw his plea, and the case was tried, and ¡judgment rendered for tbe township. Hart made no objection to testimony and allowed tbe case to go to judgment, and tben sued out a certiorari to tbe circuit court, where tbe judgment was affirmed. He now brings error. Tbe objection to jurisdiction is not urged, and is not maintainable. Upon all tbe points in issue there appears to have been evidence, and tbe objection that it was not tbe best evidence can hardly be raised now, when tbe defendant deliberately abstained from objecting. Some technical-points which do not relate to tbe merits we need not notice, as on such writs the statute requires all objections not going to tbe merits to be disregarded. The principal one of these seems, to have been that tbe defendant was not sued by bis name of office. But bis liability being shown this was not a substantial objection. Tbe judgment must be affirmed with costs. The other Justices concurred.	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Cooley, J. This is a foreclosure suit. The mortgage is not disputed, nor tbe amount due upon tbe debt, and tbe controversy is narrowed to a question whether complainant is entitled to recover certain sums as payments upon taxes. Tbe mortgage was given by defendant Seth Willey: it bears date February 14, 1872, and was conditioned among other things for tbe payment by tbe mortgagor of all taxes and assessments that might bave been or might be levied or assessed upon tbe mortgaged land. It was also provided therein that in case of non-payment of tbe debt and inter est, or of the taxes assessed or levied on the land “ as soon as the same have become due and payable,” the mortgagee might foreclose and sell. The bill avers that the mortgagor did not pay the taxes for the years 1872 to 1878, both inclusive, and that complainant paid the same, and then proceeds as follows: “Your orator further shows that he paid said taxes through his agent, Jerome K. Stevens, of Saginaw City, Mich.: that said Jerome K. Stevens was his agent for looking after and attending to the payment of taxes upon said premises, and taking care of your orator’s interest in said premises under his said mortgage; that said Stevens for and in behalf of your orator, paid said taxes by bidding off said lands at the annual tax sales in October, 1875, for the taxes for the year 1872 for city taxes, and for the years 1872, 1873 and 1874 for State and county taxes, and by bidding ■off the lands at the annual tax sales in October, 1875, October, 1876, and October, 1877, October, 1878, for the State and county taxes for the years 1874, 1875, 1876 and 1877 respectively, and that he paid the city taxes upon said lands for 1873 and 1874, by purchasing leases of said lands from the city of East Saginaw upon the date aforesaid, which leases were made by said city of said lands, as delinquent for the city taxes levied thereon, in pursuance of its charter. “Your orator further shows that his said agent made said bids and took said purchases in his own name, but for the use and benefit of your orator and for convenience merely, as your orator charges, and said Stevens so informed said defendant Willey ataoout the time of taking said bids and afterwards, and has always held the same subject to the orders of your orator, and for his protection, and your orator has been at all times willing to release and assign said certificates to said Willey, upon repayment to him of the amount paid by your oi’ator therefor and interest, and hereby offers so to do. “Your orator further shows that all of said payments, bids and purchases were made with your orator’s money and for the protection of your orator’s said mortgage interest, ■and for no other purpose, and not to obtain an independent title or to in any way, injure or oppress said defendant Willey. That the certificates of sale upon said bids, and the leases of said city are the receipts referred to by your orator in his allegation of the payment of said taxes, and the same now produced, proved and filed in this cause are referred to for greater certainty.” It is proved in the case tbat Stevens made tbe purchases as alleged ; tbat he was at tbe time agent for complainant and made use of complainant’s money for tbe purpose with bis assent, and tbat before purchasing be called upon defendant Willey and requested him to pay tbe taxes, which tbe latter refused to do, claiming tbat they were illegal and that he intended to contest them. It was also proved that Stevens was willing to surrender his certificates of purchase to Willey at any time. Tbe circuit court was of opinion tbat tbe purchases by Stevens were not in contemplation of law payments of tbe taxes by complainant, and refused to include tbe sums paid, in-the decree for foreclosure. In this opinion we agree. When tbe mortgagee, instead of making payment of tbe taxes, makes a purchase of tbe land at tax sale, either in his own name or in tbe name of any other person who has his money for tbe purpose, we have no doubt of tbe right of tbe mortgagor to have tbe purchase treated as a payment, and to compel tbe cancelment\of tbe certificate or deed on refunding the amount paid with interest. On this subject we need not repeat what was said in Connecticut Mutual Life Ins. Co. v. Bulte 15 Mich. 113. But the right to treat the purchase as a payment is tbe right of the mortgagor only, and rests upon a principle of equity tbat is necessary for bis protection. Neither party to a mortgage can be suffered, against tbe will of tbe other, to buy at a tax sale and thereby cut off tbe other’s interest. But either may bid, as a stranger to tbe title may, if tbe other makes no objection. But in this case tbe mortgagor does not claim tbe purchase to be a payment, but repudiates it and asks no protection against it. Tbe question now is whether it shall be held against bis will to be a payment in bis interest. Tbe question, moreover, is complicated by tbe fact tbat tbe purchase was made not by complainant, but by another, and under circumstances which would have entitled tbe purchaser to retain tbe title as against complainant. Under our statute — Comp. L. § 1120 — there is no resulting trust in such a case, and Stevens at bis option would have deeded as complainant directed, or would have refused to do so. It is plain, then, that when first made the purchase constituted no payment, and if it can be deemed one at all, it must be because of the subsequent willingness to convey. This willingness might depend upon whether on investigation the tax title promised to be sustainable ; but if it existed from the first it would be unavailable to complainant, for-the party whose will was in question would in respect to the particular transaction be wholly beyond his control. The case of Jones v. Wells 31 Mich. 170, is in point here, and is conclusive. When the mortgagee under such circumstances permits a third person to become purchaser at the tax sales he takes all risks — First, of the purchaser recognizing a resulting trust and conveying accordingly; and second, of the mortgagor being disposed to accept as a payment in his interest that which has assumed the form of a hostile purchase. The purchase cannot be forced upon the mortgagor if he chooses to leave it in the hands of the purchaser. The decree must be affirmed with costs. The other Justices concurred.	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Cooley, J. The relator was prosecuting attorney for the county of Barry, for the years 1879 and 1880, having been elected at the general election of 1878. At the October session of the board of supervisors for the year 1878 the salary of this office was fixed at seven hundred dollars. This was done under section 535 of the Compiled Laws, which provided that “ the prosecuting attorneys shall severally receive such compensation for their services as the board of supervisors of the proper county shall, by an annual salary or otherwise, from time to time, order and direct.” In their action the board did not. declare the length of time the salary should stand thus fixed, but it had been customary to fix it annually. In 1879 the Legislature enacted “ That the annual salaries of all salaried county officers, which are now or may be hereafter by law fixed by the board of supervisors, shall be fixed by said board on or before the 31st day of October prior to the commencement of the term of such officers, and the same shall not be increased or diminished during the term for which such officers shall have been elected or appointed.” Pub. Acts, 1879, p. 148. If this act was applicable to the cases of those then in office, it would not have been competent for the board again to fix the salary for the office in question previous to their October session, 1880.. The board nevertheless, in October, 1879, assumed to act upon the subject and to increase the salary by $100, but at an adjourned meeting in January this action was rescinded. The questions arising on this application are: First, whether the board had any power to act upon the subject in 1879, and if so, then second, whether the action taken in that year was not conclusive. It is insisted on behalf of the relator that the act of 1879 was not intended to apply to the cases of incumbents, but was plainly meant for the cases of subsequent appointments and elections, and that its operation is retrospective if applied otherwise. Reliance is then placed upon the general principle that statutes shall not be given a retrospective -operation unless their terms plainly require it: Harrison v. Metz 17 Mich. 377; Clark v. Hall 19 Mich. 356. But we do not think the act of 1879, if applied to the case, is in any sense retrospective. The salary was then fixed only for the time being, and the board at discretion might change it; and the only effect of the statute would be to take away the power to fix “ from time to time ” and require it to be done once for all, for the whole term. There is no doubt whatever ■of the power of the Legislature to do this. The fixing of a salary does not constitute a contract between the county and its officer; and the legislative authority is ample so far as .salary is not already earned by the performance of services, except when otherwise provided by the Constitution: Butler v. Pennsylvania 10 How. 402, 416; Conner v. New York 2 Sandf. 355, 369; s. c. 5 N. Y. 285. Nor does it make any difference that a part of the duties of the office .are duties to the State rather than to'the county; the county authority having been given full power in respect to compensation. We are of opinion that the Legislature intended the act to apply at once, as soon as it should become a law. No doubt it is open to a different construction, but this seems to us the one that is most natural, and there is no impolicy and no injustice in the act thus applied that should make us hesitate in accepting it. The conclusion is that the writ prayed for must be denied. The other Justices concurred.	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Cooley, J. The suit in tbe court below was by Whitney and Wheat against Prosser and the other plaintiffs in error to recover upon a bond given on taking an appeal in chancery. In the chancery cause Whitney and Wheat were complainants and Prosser was one of several defendants. The decree denied to the complainants the relief they prayed, but it also denied costs of his defence to Prosser. Complainants appealed and so did Prosser; and under the statute the parties appealing were required to give bond to abide tbe order of tbe appellate court. Prosser’s bond was in the penal sum of one hundred and fifty dollars, and the condition was as follows: “The condition of the above' obligation is such, that whereas, on or about the 19th day of February, A. D. 1879, a decree was entered in the circuit court for the county of Kalamazoo, in chancery, in a certain cause therein pending, wherein the said Clark J. Whitney and Isaac C. Y. Wheat are complainants, and the said Isaac P. Prosser, among others, are defendants; and whereas, the said complainants have appealed from said decree to the Supreme Court of the State of Michigan; and inasmuch as in and by said decree the said Isaac P. Prosser is denied costs of suit in the circuit court, and he having appealed from that portion pf said decree denying him costs. Now, therefore, if the said Isaac P. Prosser shall pay, satisfy and perform the decree or final order of said Supreme Court, and shall pay all costs in case the decree of the said circuit court, in chancery, shall be affirmed in parts appealed from by said Isaac P. Prosser, then this obligation to be void, otherwise to remain in full force and effect.” The appellate court by its decree awarded to the complainant the relief prayed for, with costs of both courts as against Prosser. The costs were taxed at upwards of three hundred dollars. An execution issued upon the decree having been returned molla bona, this suit was then instituted upon Prosser’s appeal bond. The circuit court gave judgment in favor of the plaintiffs below for the amount of the penalty. The decree of the Supreme Court took no notice of the separate appeals, but awarded costs to complainants in precisely the same form that it would have done had complainants alone appealed. It is therefore insisted on behalf of plaintiffs in error that there has been no decree whatever upon what they designate the cross-appeal; no special adjudication and no award of costs in respect to it. The decree is single and is made upon the merits which are brought up for consideration by the appeal of complainants; and the award of costs is made in disposing of the merits, and without regard to the appeal taken by Prosser. From these facts it is insisted that there has been no breach of the bond now in suit; the trne intent and meaning of its condition being to secure, payment, satisfaction and performance of the decree or final order that should be made on or in respect to the appeal which Prosser had claimed. If appeal bonds were intended to secure the payment of such costs only as should be made in consequence of the appeal, the argument made for the plaintiffs in error would be very plausible and perhaps conclusive. It might be necessary in that case, before there could be a recovery on any bond where two or more appeals were taken, that the costs should be apportioned by an adjudication of the court, and the proper amount assigned to each appeal. But the appeal bonds are not thus restricted in their scope: the costs made in the case previous to decree in the court, of chancery are equally within their condition, and these of course are not referable to the appeal, and cannot be apportioned as between appellants except upon reasons appealing to the discretion and which should have influenced the chancery court. Nor is there any other reason which is obvious to our minds why the liability of one appellant upon an appeal bond should necessarily be affected by the fact that another party has taken an appeal also. If the case were such that both parties failed in separate appeals, the court would probably apportion the costs between them; but this would be done in its discretion, and on a consideration of equities. But when one appellant succeeds on his appeal, and recovers costs as against the other, there is no reason why the appeal bond of the latter should not secure this recovery. In the case at bar the complainants appealed. Prosser, had he seen fit, might have left the case to go to a hearing in the Supreme Court on their appeal, but in that case he would have been precluded from making objections to that part of the decree appealed from which denied him costs. Proctor v. Robinson 35 Mich. 284. He preferred to appeal from that part; and the statutory condition was that he should give such a bond as he gave. In giving that bond Le and his sureties undertook to “ pay, satisfy and perform the decree or final order ” of the Supreme Court, and to “ pay all costs in case the decree of said circuit court in chancery shall be affirmed in parts appealed from” by him. The appellate court not only sustained and in legal effect affirmed the decree in that part which denied him costs, but it also awarded costs of both courts against him. Plainly, as we think, the case is within the condition of the bond, and the court was right in ordering judgment for the plaintiffs. The judgment must be affirmed with costs. The other Justices concurred.	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Graves, J. In 1874 one Burgess held a note for $500 signed by defendant Isaac Hounson and decedent Karr, and Hounson agreed with Karr to assume the payment of it. Hounson paid the interest for some three years, but did not pay the principal. Karr died and the demand was allowed against his estate. In 1877 said defendant Isaac Hounson received conveyance of a farm of about one hundred and twenty-two acres in the township of Hudson in Lenawee county, and proceeded to occupy it as his homestead and carry it on, and some time thereafter and about the 20th of December of the same year he gave a deed of it, in which his wife joined, to their son, the defendant Alonzo Hounson. In March, 1878, the complainant commenced a suit by attachment against the defendant Isaac on his undertaking of 1874 to pay the Burgess note, and the writ was levied on said farm, which was still occupied by said Isaac in the same manner as before his deed to his son. At the November term of the court for 1878 the administrator obtained judgment for damages, $580.47, besides costs, and in the succeeding February execution was taken out and levied on the farm. This bill was filed not long after in aid of the execution. The farm as held by the judgment debtor was subject to a mortgage of $2000 and the defendant Alonzo after receiving the deed from him paid and discharged it. After hearing the case on pleadings and proofs the circuit judge declared the premises liable to the execution after exempting the homestead. But the decree provided that the defendant Alonzo having discharged the mortgage of $2000, which stood on the whole premises and was a prior lien to the levy, he ought in equity in case of a sale of the-premises or any part under the execution, to receive from the purchase price the same proportion of the $2000 which the purchase price of the part so sold would bear to the value of the portion set off as homestead. Both parties-appealed. The bill must be construed in reference to its nature. It-is not filed to reach property incapable of seizure on execution, and therefore based on the theory that the legal remedy has been exhausted. Yery far from it. The principle-on which it proceeds is that a legal remedy is in fact progressing, and which being fraudulently obstructed, the aid of the Court is needed to remove that obstruction. The-claim made is that the deed from the judgment debtor to-his son is fraudulent as against the creditor,,and that the farm is therefore subject to levy and the deed exposed to be-removed out of the way of it by the assistant jurisdiction of equity. Instead of setting forth the proper facts to induce the-inference that the deed was fraudulent as against the complainant, the bill in general terms merely alleged the fraud itself. Hence it did not appear on the face of the bill in what way the deed was fraudulent as against complainant. But the defendants made no objection to this general mode-of pleading and the defect is not open to exception on this appeal. It is objected that defendant’s insolvency is not alleged and not proved. The nature of the bill is not such as to-make an allegation of that kind indispensable. As previously observed the office of the suit is to remove the debtor’s deed out of the way of the execution and on the-ground of its being fraudulent as against the creditor, and the equity for such interference may exist although the debtor is not insolvent. The circumstance of his being solvent or insolvent is important only as it bears upon the question whether in fact the deed is or is not fraudulent as against the creditor who has levied. Upon the matter of fact there is no doubt. The evidence is full to show that Isaac Hounson retained nothing liable to execution. It is also objected that no allegation is made that the defendant had not sufficient personal property liable to execution in Lenawee county to pay the judgment; and no allegation that the officer made any effort to find it. Neither allegation was a necessary ingredient of the bill. If the officer neglected to make due search for goods and chattels on which to levy before levying on the land the question is not an open one here. The fault if any would have to be corrected in the court where the writ issued. The court of chancery is not the place. The presumption is that the sheriff obeyed the writ; and as stated previously, according to the evidence there was no personal property of the debtor exposed to levy. The intent with which the deed was given is hardly open to controversy. The evidence of various kinds that the purpose was to screen the property from the demand of complainant and that both defendants participated in the design is too strong to be resisted. It appears conclusively from the bill and evidence that when the execution debtor gave the deed in question he held and occupied a homestead on the premises. That part of the farm was therefore exempt. The holder was as free to dispose of it without interference as though he had been not indebted at all. It passed by the deed to his son Alonzo and it is impossible for complainant to avoid the conveyance as in fraud of his rights. Smith v. Rumsey 33 Mich. 183. As against that parcel he had none. Therefore the equity of the bill fails in respect to that portion. It is admitted that young Hounson paid the mortgage of §2000, and that this mortgage was a valid lien on the whole farm at the time his father gave him the deed, and of course anterior to the levy. The expenditure by young Hounson in making this payment relieved the property from the burden and practically increased the interest in the farm to an amount equal to the expenditure, and it seems right to regard this as raising an equity in his favor. The same doctrine which, requires-him to do equity entitles him to receive it.It is therefore just to provide as far as may be for protecting him against a forfeiture of the redemption money which it is admitted he paid. But he goes further and contends that in addition to the $2000, the principal of the mortgage, there should be included the sum of $380 on account of interest paid. The evidence on this topic is not satisfactory. The only proof consists of his oral statements, and the explanation is neither full nor certain. The fact must have been capable of clear and ample illustration, and the case called for it. But there seems to be a want of equity in this claim! He strenuously insists that he has had the use of the entire premises during the whole period since the deed was given, and if truthful in this and the fact is as represented, it would seem that for the interest which grew on the principal of only $2000 he must have obtained an ample equivalent in this enjoyment of the property, and on the other hand it would be unreasonable to give him the benefit of an equity founded on the supposition of his having deliberately misrepresented in explaining his case to the court. As the mortgage covered the exempt homestead as well as the residue it was entirely fair to require it to bear its due proportion of it. The benefit arising from the payment of the mortgage according to the proportion was equal between the homestead and the rest of the farm, and the principle that equality, is equity applies. It would not Jbe just to throw the whole burden on the part liable to execution and being that portion to which complainant is confined. It is objected by defendants that the decree instead of making thq price obtained by the sale on execution of the premises which may be sold, the criterion by which to' get at the proportion to be allowed to the defendant Alonzo on account of the mortgage, it ought to make the real vahoe of the part so sold, such criterion, and the reason given is that the pi'ice obtained on the sale under the execution may be far below the true value, and hence that the homestead may be compelled to bear an undue proportion. On considering this objection my brethren have concluded that the relief should be changed as here indicated. That the commissioners first set apart a parcel of the value of $1500 which shall include the dwelling and accompanying outbuildings. That they appraise the whole premises including the homestead and chai’ge upon the homestead so much of the mortgage as is the proportion which $1500 bears to the value of the entire property. That they then set off a parcel of land of the value of so much of the mortgage money as is not charged on the homestead. The remaining lands are to be subject to sale on the execution free from all encumbrance. The decree will be so far modified as to conform to this view and in other respects be affirmed. Neither party will recover costs of this court as against the other. The other Justices concurred.	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Chandler, J. The father of plaintiffs in his lifetime was the owner of a 75-acre farm near Monroe, this State; the father died intestate in 1920 leaving as his heirs at law five children, three of them being the plaintiffs. One of the children, Burton Wright, sold his interest in the farm to his brother Ernest. Burton predeceased Ernest, who was killed in an accident in 1928. None of the children were ever married excepting Ernest. No probate of the father’s estate was had and the three unmarried children, the plaintiffs, continued to live on the farm, and Ernest who resided a short distance away did the active farming of the property. After the death of Ernest, his widow, in conjunction with the probating of her husband’s estate, insisted that the father’s estate also be probated and that she be paid her share in cash. Administration was had upon the petition of plaintiff Marion, and defendant bank was appointed administrator of the father’s estate and in due course obtained from the Monroe county probate court a license to sell the farm for the purpose of paying debts, expenses of administration, and distribution. The plaintiffs in the probate proceedings, and in subsequent negotiations, were represented by an attorney, a reputable member of the Monroe county bar. A petition was filed by the plaintiffs in the probate court to set aside the order granting the license to sell, which was dismissed by the probate judge. The plaintiffs evidently wanted the widow of Ernest to take her share in property, but no proceedings were ever taken for a partition of the farm. Ernest died leaving no children, and his widow and the plaintiffs became his sole heirs at ,law. His interest in the real estate of his father was a two-fifths interest by reason of his having acquired the interest of the deceased brother Burton. After the license to sell the farm was granted, the defendant, administrator, claimed to have received an offer for the same of $15,000, and the record indicates that .the plaintiffs were advised that it was for their best interests to let the farm be sold and the proceeds divided. Plaintiffs, however, decided to acquire ownership of the farm and purchased the same of the administrator for the sum of $15,000. The defendant bank was requested by the plaintiffs to make a loan of $7,500, that being substantially the amount required in cash to pay a mortgage that was then on the farm held by the Dansard State Savings Bank of $1,545.67, back taxes of $841.20, expenses of administration, for quieting title to the land in question, and to pay the widow of Ernest her share in cash for her interest in the real estate and the personal property, which totaled $3,808. The bank declined to do so. The plaintiff Marion testified that she contacted in the neighborhood of 100 people in an effort to obtain a loan on the farm of $7,500, but without success. The defendant referred the plaintiffs to one Carl Kiburtz, a broker, who agreed to obtain the money for plaintiffs. The plaintiffs executed a promissory note to Mr. Kiburtz for the sum of $7,500, bearing-interest at the rate of 7 per cent, per annum, payable semiannually, $250 of the principal sum to be due April 19, 1932, and the whole sum to be payable three years after date. The payment of this note was secured by the execution and delivery of a real-estate mortgage covering the 75-acres in question. Kiburtz, being unable to negotiate the sale of the note and mortgage, assigned the same to the defendant, who furnished the. money on April 21,1930. The plaintiffs in these negotiations were still represented by their attorney, who was a witness to the mortgage in question. It does not appear that the plaintiffs at the time of these negotiations knew that defendant bank furnished the money and took an assignment of the mortgage; however, the record discloses that the bank notified the plaintiffs that it was the owner of the mortgage a few months after the mortgage was given. No payments were ever made upon the note and mortgage in question after April, 1931, and on April 19, 1932, the plaintiffs were in default on said mortgage both as to interest and principal, and had not paid the taxes assessed against said premises. In May, 1932, the bank threatened to foreclose the mortgage, and the plaintiffs, in consideration of defendant refraining from so doing, executed a warranty deed to the bank, which was placed in escrow and was to become absolute on April 1, 1933, unless previous to that time the plaintiffs should pay to the escrow agent all interest past due on said mortgage together with the interest due April 1, 1932, and all interest due October 1,1932, and should deliver proof of payment of all taxes and assessments due and payable on the premises described in the mortgage previous to April 1, 1933. Said escrow agreement further provided: “If said interest as aforesaid and taxes and assessments as aforesaid shall have been paid to the escrow agent before April 1, 1933, the deed affixed to this escrow agreement and deposited with said escrow agent shall be returned to parties of the second part [plaintiffs]; otherwise it shall be delivered to the First National Bank, of Monroe, Michigan, party of the first part, and may be recorded, and all right, title and interest of parties of the second part to said lands therein described shall pass upon such delivery. In consideration of the above covenants and agreement the First National Bank, of Monroe, Michigan, covenants and agrees to refrain from foreclosure and to accept the covenants placed in escrow of the premises as satisfaction of the mortgage debt.” The plaintiffs failed to comply with the terms of the agreement and said deed was delivered to the bank. On January 12, 1934, the deed was recorded in the office of the register of deeds of Monroe county. The defendant bank was closed by proclamation of the governor in February, 1933; placed in the hands of a conservator, and during the process of reorganization certain of its assets were placed in the hands of three trustees, amongfet which assets was the farm in question, which was deeded by the bank to said trustees on January 10, 1934, by quitclaim deed which was duly recorded. In view of the claim of the plaintiffs that they never knowingly executed the deed to the bank above referred to and did not know that the bank was claiming ownership of the farm in question, a letter written by the bank to plaintiff Marion Wright under date of September 27, 1934, and received by her, is quite significant. The letter follows: “Dear Madam: We have had it called to our attention that part of the fence on the western part of the property you are living on — I think around the orchard — is in need of repairs. We called up Mr. Woelmer the other day, asking him to go up there and look at the other part of the fence on which we had a complaint, but he claimed that it was fixed. I do not know who fixed it. Evidently you did yourself. “We hate to be annoyed by having people call np complaining about the condition of these line fences. They must be fixed up to the satisfaction of the neighbors. Kindly look after the same and see whether they need any additional repairs and, if so, have it done at once. “You have lived on these premises since we have had a deed for the same. For one year and a half we have received not one cent in the way of rent and the taxes on the farm have been accruing and the general condition of the farm has been going backward. “I talked to the liquidating committee just yesterday and they definitely intend to do something on this in the near future. We are giving you ample warning that you cannot expect to forever occupy these premises without paying for the same. It may be a hardship on you, but I do not know what your intentions were at the time you gave a first mortgage on these premises, when you promised to do certain things and as collateral to that promise, you pledged the farm. “We are not going to have some of our good customers of this bank look with disfavor on this institution because certain property which we own is not being kept up and whether you think you are in the right or not with the condition of line fences, we must insist that they be taken care of at once. “Yours truly, The First National Bank ok Monroe, Edmund W. Reisig, Cashier.” EWR: ILM. Either in 1934 or 1935 the trustees of the segregated assets of the defendant caused the buildings on the premises in question to be painted, this with full knowledge of the plaintiffs. In view of the claims of the plaintiffs of fraud and concealment on the part of defendant that the bank made the loan to plaintiffs, and that plaintiffs had not given a war ranty deed to defendant, it is also quite significant that on March. 29, 1935, the plaintiffs entered into a written lease with a Mr. Conlisk, one of the trustees of defendant, for the premises in question for a period of one year from and after the first day of April, 1935, and agreed to pay as rental for said premises the sum of $300, which lease was an exhibit in the case and the execution thereof was admitted by the plaintiffs. The record in this case indisputably shows that plaintiffs never paid any part of the principal, and that after April, 1931, no part of the interest on the mortgage; neither did they pay any of the rent specified .in the written lease, nor at any other time paid any rent for the use of the premises, and never paid any of the taxes assessed against said premises. The taxes for and including the year 1930 and subsequent years until the present time have been paid by defendant. O.n April 10, 1937, defendant instituted summary proceedings against plaintiffs before a circuit court commissioner in and for the county of Monroe to recover possession of the premises involved, and upon the trial of that case the plaintiffs were in court represented by an attorney, a Mr. T-TiTl, of Detroit, and at the conclusion of the trial in May, 1937, a judgment of ouster against said plaintiffs was entered by said commissioner from which judgment no appeal was ever taken. On October 20, 1939, a writ of restitution was issued out of said court and was duly executed, plaintiffs being put out of possession of the premises involved. In December, following said ouster, the plaintiffs filed their bill of complaint in this case claiming that the mortgage executed by them is void on the theory that the defendant, while administrator of the estate of their father, by loaning to them the sum of $7,500, and taking an assignment of the 'mortgage involved, violated its fiduciary relation by an act of self dealing. Plaintiffs also claim that the deed in question was void as the same was never knowingly executed by them and was a part of the transaction by which the mortgage in question was taken by the bank, that it was without consideration and should be canceled. The theory of the plaintiffs, that the defendant committed an act of self dealing in violation of its fiduciary duty in taking an assignment of the mortgage and the furnishing of the money, cannot be sustained. Even if the loan had been made directly by the defendant to the plaintiffs, and the note and mortgage in question had been given directly to the bank as mortgagee, the loan was as a matter of fact made to the plaintiffs who were the owners of the farm, and therefore the mortgage lien did not attach to property belonging to the estate, of which defendant was administrator, and was never at any time an obligation of said estate. Neither can we hold that the method by which the transaction of obtaining the loan and giving the mortgage was either a direct or indirect attempt on the part of the administrator to acquire property of the estate of which it was trustee. We find nothing in the record that rises to the dignity of evidence that tends to show any fraud or unconscionable conduct on the part of the defendant in its dealings with plaintiffs, either as administrator of the father’s estate or as the owner of the mortgage on the premises in question. It is the contention of plaintiffs that the transaction by which the bank acquired the mortgage in question was in violation of 3 Comp. Laws 1929, § 15824 (Stat. Ann. § 27.2990). We are not in accord with this view, but, even if it could be said that the defendant in loaning the money and taking the mortgage in question was violating a duty it owed as fiduciary to the plaintiffs, the transaction at most would be only voidable, and the defendant in this instance has not only met plaintiffs’ prima facie case, but has established beyond peradventure that no fraud or breach of trust was committed. The record is convincing that the defendant never intended or planned to take any advantage of plaintiffs nor to, in any way, deprive them of their inheritance. No fraud was intended or committed, either active or constructive, and we must hold that the trial court was correct in its determination that no fraud or wrongdoing had been committed by defendant; and as bearing upon the entry of a decree dismissing plaintiffs’ bill because there had been no fraud or overreaching on the part of defendant shown by any credible witnesses, we quote the trial court’s opinion, with which we are in accord, filed at the conclusion of the hearing: “I don’t know as it will benefit any of us to go into detail in argument of this matter. It is a case where the sympathy of the court might be moved towards the plaintiffs, but it is not a case where you are dealing with ignorant people. One of these plaintiffs graduated in the same class I did in high school in Monroe here in 1902, and she taught school for a good many years after that; so that you are not dealing with ignorant plaintiffs in this case. You are dealing with educated plaintiffs, at least one who took advantage of that education and made a living by it for years and years in this community. “The plaintiffs must show by a preponderance of the evidence, must sustain the various allegations to permit the court to find in their favor. In passing upon that the court has to pass upon the credibility of the witnesses. All of the plaintiffs testified they knew nothing about this deed. It was entirely new to them until I think along about the 11th of May, 1937, when the register of deeds told them there was a warranty deed. Check yonr exhibits in this case; you will find a letter was received by Marion Wright, who, under the testimony in this case, handled this property and these deals for the other plaintiffs under their own testimony; Marion Wright had received a letter from the trust officer of the bank a considerable period before that; reference is clearly and unmistakably made to the existence of this deed and the fact that the bank owned the property by this deed and objected to the condition in which the plaintiffs were permitting it to exist. Again going back to your question of credibility, that bears considerable weight in the mind of the court. “Then you have testimony of .these plaintiffs with reference to what disposition was desired to be made by them and by the widow of her [their ?] deceased brother of this property; in other words, the theory of the plaintiffs being now that they were forced into this transaction against her [their ?] will. Yet the testimony of the local municipal judge here this morning, a party certainly disinterested in this case, said that a very short time after the closing of the probate case Marion Wright, the plaintiff in this case who handled the transaction for the other plaintiffs in this case and for herself, in conversation with him flatly contradicted any premises upon which such a theory might be evolved. Now, I say as a matter of credibility a court cannot surmount that and find that in this case they have sustained their various allegations by a preponderance of the evidence. “It does not seem to me there is a thing in the world that this court can do under all the testimony in this case, even disregarding the question of laches, and the court finding that they did have knowledge of these transactions, I certainly think laches would exist, and laches would be a bar to these plaintiffs at the present time; because, as I say, you have at least three witnesses who through out the progress of this testimony have been mentioned by the plaintiffs frequently, Kiburtz, Conlisk and Gutmann, who are now dead; certainly the delay in instituting this action if they had that knowledge, and the court believes they did have knowledge from the testimony in this case, their delay in instituting this action until three material witnesses have died and cannot be presented in the determination of this case, would bring them under the rule of laches. But disregarding that entirely, the. court is compelled to find that plaintiffs have failed to sustain the various allegations set up in the bill of complaint by a preponderance of the evidence, and for that reason the several grounds of relief prayed for in the bill of complaint should be denied, and the bill of complaint dismissed.” It is also contended by the plaintiffs that the mortgage is invalid because usurious. The record discloses that Mr. Kiburtz the broker was to have $500 for financing the plaintiffs in the purchase of the farm. The bank’s records show that $500 of the money loaned to plaintiffs was retained by it as-a finance charge, and the uncontradicted testimony of Mr. Reisig, cashier of the bank, is that $100 of this sum was paid to Mr. Kiburtz for his efforts in attempting to secure the loan. The testimony of Mr. Reisig is to the effect that $400 of the $500 in question was treated as an advance payment of interest. This is contradicted by the plaintiffs, and we reach the conclusion from the bank’s own accounting that at least $400 of the $7,500 loaned was retained by it as a finance charge' and inured directly to its benefit. We find that this is out of proportion to any legitimate fee that the bank was entitled to receive, and, since the rate of interest was 7 per cent, annually, it amounted to more than can legally be charged and constitutes usury under 2 Comp. Laws 1929, §§ 9239-9241 (Stat. Ann. §§ 19.11-19.13). Therefore the plaintiffs claim the defendant has actually taken or received a usurious sum of money. If such, is the case, it subjects defendant to the penalty attached, that is, the loss of interest. See 2 Comp. Laws 1929, § 9240 (Stat. Ann. § 19.12). At the time the escrow agreement was entered into between plaintiffs and defendant on May 20, 1932, the plaintiffs were in default on their note and mortgage, even had they been given credit for the usurious amount retained by the bank, and therefore the execution and delivery of the deed in escrow could not be said to be without consideration. Until the penalty is incurred the defendant has the right to receive and enforce payment of lawful interest on the amount actually owed, and could have enforced payment of the same by foreclosure at the time of the execution of said escrow agreement. It cannot, therefore, be said that the defendant had collected more from plaintiffs by the retention of the $400 finance charge than lawful interest on the date of the execution of the escrow agreement. This transaction, that is, the making of the escrow agreement and the delivery of the warranty deed, amounted to a voluntary settlement between the parties. It was a sale by the plaintiffs of their equity of redemption to the mortgagee, the consideration being the forbearance to foreclose and the acceptance of the property in full satisfaction of the mortgage debt, the sale to become absolute as of April 1, 1933. At any time between the date the deed was placed in escrow until it became absolute, the plaintiffs could have cleared the property of the lien by the payment of the sum actually owed by them to defendant. Until such date, April 1, 1933, it was intended only as security, but after that date an absolute conveyance of the legal title. This the plaintiffs recognized by their subsequent conduct in making the lease of the premises in question above referred to and in their failure to pay any taxes assessed against the farm for a period of several years. Even though the contract of May 20, 1932, involved in part the payment of usury by the plaintiffs, its effect was a voluntary settlement of a usurious obligation. It was not necessary for the plaintiffs to pay this usurious sum and it was therefore a voluntary payment by them. The rule in this State is that one who has freely and of his own accord fulfilled a usurious contract cannot have relief or recover the money paid thereon. Dykes v. Wyman, 67 Mich. 236. Our research has failed to disclose a single case wherein the usurious debt was settled by taking the property, conveyed to secure it, where a court of equity has opened the transaction and allowed a redemption on the grounds of usury alone. In the instant case the plaintiffs are seeking equitable relief. They are not entitled to equitable relief at least until they show their willingness and ability to do equity, which in this case would be the payment of the amount loaned to them by defendant with lawful interest, and' the payment of taxes, which the defendant has paid to keep the premises in question from being sold for nonpayment thereof. The plaintiffs make no offer to do this. We find no showing by plaintiffs here that appeals to the conscience of a court of equity. We are also in accord with the findings of the trial court that if plaintiffs ever had a cause of action against defendant their laches is a bar to such action for the reasons given by said court. The decree entered by the trial court is affirmed, with costs to defendant. Sharpé, C. J., and Bttshnell, Boyles, North, Mc-Allister, Wiest, and Butzel, JJ.t concurred.

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Butzel, J. Herbert E. Drake, plaintiff, suffered a compensable injury to his back on August 19, 1936, and a final settlement was approved by the department of labor and industry January 8, 1937. Plaintiff resumed work on December 21, 1936, and worked continuously until July, 1938, when he was laid off. On November 4, 1938, he filed a petition for further compensation claiming that his physical condition had changed for the worse and that he had become totally disabled. Defendant proved at the hearing on the petition that on April 8, 1938, plaintiff, claiming the loss of Ms rigM eye through a subsequent accident, had received an award of $18 per week for 100 weeks from September 22, 1937. This award was subsequently redeemed for $1,400, the settlement being approved by the department. The amount of the settlement if divided into weekly payments of $18 each would cover a period of more than 77 weeks, ending on March 15, 1939, while the 100 weeks, for which the lump sum settlement was made, expired on August 30, 1939. At the conclusion of the hearing, Deputy Commissioner Black made an award denying compensation. He stated the compensation was “not in order at this time,” as plaintiff in the interim had been awarded compensation for 100 weeks from September 22, 1937, for the loss of an- eye, and the 100 weeks did not expire until August 30, 1939. Plaintiff filed an application for review of the order of the deputy commissioner but failed to press it any further. On February 9, 1939, the department entered an order dismissing’ the claim for review for failure to file a transcript of the testimony. The award of the deputy commissioner denying compensation thus became final at that time. Nothing further was done by plaintiff until September 1, 1939, when he again filed a petition for further compensation. Testimony was taken before a deputy commissioner. The evidence was very conflicting. In defendant’s attempt to impeach plaintiff’s credibility, it was shown that on October 5, 1932, plaintiff had been examined by the Kalamazoo city health department and the record in the latter’s files showed that plaintiff had made the statement at the time that the sight of his right eye was gone due to an accident in 1912; that he had worn a steel brace for 7 years and had a slight disability. A witness further stated that she made an eye test at the time and that plaintiff was blind in his right eye. At the conclusion of the hearing, the deputy commissioner denied plaintiff’s petition for further compensation and stated: “The case presents a clear issue of fact and the credibility of the witnesses forces the above-mentioned denial of further compensation.” A claim of review was filed and, notwithstanding the opinion of the deputy commissioner, who had an opportunity to see the witnesses, the department reversed his findings and awarded plaintiff full compensation dating from August 1, 1938, covering the larger part of the period for which plaintiff had received compensation through the cash settlement for the loss of his eye. Defendant, in appealing from this award granting further compensation, contends that the department had lost jurisdiction of the review of the case because plaintiff had not filed a transcript of the testimony within 20 days after filing application for review. On November 24, 1939, which was but a few days after the rendition of the award of the deputy commissioner denying plaintiff further compensation, the claim of review was filed. On February 16, 1940, defendant filed a motion to dismiss plaintiff’s appeal for failure to file a transcript of the testimony. Rule 10 of the department provides : “Sec. 1. * * * The party appealing * * * shall obtain * * * a transcript * * * and file the original of same with the commission within twenty days after an appeal is filed. The time for filing the transcript of testimony may be extended for good and sufficient cause upon application to any commissioner of the compensation division.” On February 19,1940, plaintiff filed a petition for an extension of time in which to file a transcript, set ting’ forth his inability to furnish it sooner. Notwithstanding defendant’s objections, the department on March 14, 1940, entered an order providing that plaintiff’s appeal would be dismissed unless the transcript was furnished within 10 days from the date of the order. Defendant contends that this ruling was erroneous and attempts to apply our decisions in regard to time specified in statutes to rules of the department.. We believe that the rule in regard to filing a transcript within 20 days, which is immediately followed by a provision for extension of time, leaves the matter within the discretion of the department. Sovey v. Ford Motor Co., 279 Mich. 313, cited by defendant, referred to the filing of a claim for review within a statutory 10-day period. Distinction between a statutory limitation and a rule of the department was recognized in that case for we stated that the court consistently held that statutory limitations of time in judicial proceedings, as distinguished from court rules, are imperative. In Guss v. Ford Motor Co., 275 Mich. 30, we held that the department might extend the time for filing the transcript of testimony upon a showing of good cause. Susan v. Universal Brewing Equipment Co., 291 Mich. 396; and Kalucki v. American Car & Foundry Co., 200 Mich. 604, cited by appellant, are distinguishable on their facts. ' We are not dealing in the present case with the mandatory provisions of a statute. We hold that the department was within its rights in construing its own rules and extending the time. Plaintiff filed the transcript on March 25, 1940, 11 days after the order, but the l’Oth day fell on Sunday. Section 9 of rule 3 of the department provides that when the final day for compliance with an order or notice falls upon a Sunday or a legal holi day, the party shall have the next business day to comply therewith. Inasmuch as Sunday was the last day, the filing of the transcript on Monday conformed with the rule. Appellee contends that plaintiff should be able to recover concurrent compensation for both the back injury and the eye injury notwithstanding O’Brien v. Albert A. Albrecht Co., 206 Mich. 101 (6 A. L. R. 1257). Plaintiff further claims that when the payments for the loss of the eye were settled by cash redemption, plaintiff was immediately entitled to further compensation for the previous back injury, compensation for which had theretofore been stopped by an agreement approved by the department from March 15, 1939; or, at least, plaintiff is entitled to compensation when the 77 weeks represented by the lump sum settlement expired. Ve need not consider these claims, for there was an adjudication by the order of Deputy Commissioner Black to the effect that plaintiff was not entitled to further compensation at that time since he had been awarded compensation for 100 weeks and the appeal from the order thereafter was dismissed. This became-res jtidicata and disposes of the claims for concurrent compensation during’ the 100 weeks. The department could not recapture the old appeal which had been previously dismissed. See Levanen v. Seneca Copper Corp., 227 Mich. 592; Anderson v. Ford Motor Co., 232 Mich. 500; Righi v. Robert Gage Coal Co., 269 Mich. 46; Hughsonv. City of Kalamazoo, 271 Mich. 36; Roe v. Daily Record, 273 Mich, 5; Guss v. Ford Motor Co., supra; Tulk v. Murray Corp., 276 Mich. 630; Fitzpatrick v. Olds Division of General Motors Corp., 282 Mich. 646. As there is testimony to support the finding of the department that plaintiff is entitled to further compensation on account of a change in physical condition, we must affirm 'such finding. Such compensation can only begin from August 30, 1939. The award of the department is set aside, with costs to defendant, and the case remanded for entry of an award in accordance with this opinion. Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred.

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North, J. Martin G. Hope, appellant herein, was charged with being guilty of committing a mis demeanor by recklessly driving a motor vehicle in violation of 1 Comp. Laws 1929, § 4696 (Stat. Ann. § 9.1564). On his first trial in justice court the jury disagreed; but upon the second trial he was convicted. The penalty imposed was payment of costs of $89 and in default thereof confinement in the county jail until the fine was paid, not to exceed 90 days. The defendant appealed and upon trial by jury in the circuit court he was again convicted. Thereupon the circuit judge sentenced the defendant to pay within 24 hours a fine of $100 and costs in the sum of $250, and in default of such payment within the time specified defendant should “stand committed to the county jail for 90 days.” The fine of $100 was paid and defendant took a receipt therefor from the clerk of the court. Later defendant because of noncompliance with the balance of the sentence was brought before the circuit judge on a bench warrant. Thereupon the circuit judg’e, being of the opinion that the amount of costs as fixed in the sentence was excessive, reduced such amount to $205.45. The circuit judge then made the following disposition of the case: “He (defendant) is now here, brought in on a bench warrant issued by the court. The defendant is now remanded to the sheriff for confinement for 90 days in accordance with the sentence of the court, in default of payment of costs as required by the sentence, costs in the amount of $205.45. Upon payment of the costs in that amount the revised order will provide for his release from further confinement.” Appellant’s position is stated in his brief as follows : “It is the contention of the defendant that the sentence imposed by the court was greater than authorized by law and that the same would be void as to the excess. “That the sentence as imposed is void as an alternative sentence. ’ ’ Passing appellant’s contention, later considered herein, that the amount of costs imposed was in excess of the amount sanctioned by law, we find no merit in either of appellant’s contentions: (1) that the sentence “was greater than authorized by law” or (2) that the sentence was void “as an alternative sentence.” The penal provision of the statute reads: “Every person convicted of reckless driving under section four of this act shall be punished by imprisonment in the county or municipal jail for a period of not less than five days nor more than ninety days, or by fine of not less than twenty-five dollars nor more than one hundred dollars, or by both such fine and imprisonment.” 1 Comp. Laws 1929, §4747 (Stat. Ann. §9.1616). Another statutory provision applicable to the instant case reads: “Whenever the accused shall be tried and found guilty, * * * the court shall render judgment thereon and inflict such punishment, either by a fine or imprisonment or both as the nature of the case may require, together with such costs of prosecution as the justice of the peace shall order; but such punishment shall in no case exceed the limit fixed by law for the offense charged, and in rendering such judgment and inflicting such punishment the court may award against such offender a conditional sentence, and order him to pay a fine with or without the costs of prosecution, within a limited time, to be expressed in the sentence and in default thereof to suffer such imprisonment as is provided by law and awarded by the court, in all cases where the of fender shall be convicted of an offense punishable at the discretion of the court, either by fine or imprisonment or both.” 3 Comp. Laws 1929, § 17447 (Stat. Ann. § 28.1213). See, also, 3 Comp. Laws 1929, § 17331 (Stat. Ann. § 28.1075). Obviously in the instant case the circuit judge under the statute could have imposed a fine of $100 and 90 days in jail. Instead, the sentence imposed was a fine of $100 and payment of costs in the amount fixed; but in default of payment commitment to the county jail was ordered until payment but not to exceed 90 days. The “conditional sentence” so imposed was not void as an alternative sentence, and it was not in excess of the penalty authorized by the statute, unless the amount of the costs fixed at $205.45 exceeded the amount which the court could lawfully require the defendant to pay. People v. Harrington, 75 Mich. 112. As bearing upon whether costs fixed in the amount of $205.45 were in excess of the amount of costs plaintiff could lawfully be required to pay, the following facts appearing in the record are pertinent. The costs fixed in the amount of $205.45 by the circuit judge were made up of the following items: witness fees, $29.95; officers’ fees, $6.50; costs assessed in the justice court, $89; and costs of the county in paying for one day’s service of a panel of 20 jurors at $4 each, $80. There is nothing in the record before us which in any way challenges the accuracy of the amount of the first three items above noted, totaling $125.45. But assessing costs against a defendant for a jury in a criminal case is not permissible under the laws of this State. People v. Kennedy, 58 Mich. 372. Every person charged with a criminal offense has a constitutional right to a trial by jury. In the opinion written by Mr. Justice Wiest in People v. Robinson, 253 Mich. 507, 512, he said: “and costs are expenses incident to a prosecution, and not inclusive of any of the expenses of holding required terms of the circuit court. ’ ’ The circuit judge was in error in including in the costs the item of $80 above noted. The case is remanded to the circuit court for the correction of the sentence by reducing costs to $125.45 and for enforcement by the circuit court of the sentence as amended. Sharpe, C. J., and Bushnell, Chandler, McAllister, Wiest, and Butzel, JJ., concurred. Boyles, J., concurred in the result.

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Butzel, J. Plaintiff, as sole dependent of Jacob Sutter, deceased, sought compensation under the occupational disease amendment to the workmen’s compensation law, Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-1 el seq., Stat. Ann. 1940 Cum. Supp. § 17.220 el seq.). Decedent had worked as a molder in the foundry of the Kalamazoo Stove & Furnace Company, defendant, for approximately 12 years. The testimony of the doctor who attended him in his last illness and the autopsy showed that he had suffered from a bilateral diffused pneumoconiosis and silicosis and active proliferated tuberculosis with cavitation; that he contracted the disease some eight years prior to his death. Decedent’s fellow-employees had noticed his frequent coughing in 1932 or 1933. Plaintiff testified that in the two years preceding decedent’s death, she had noticed that he was weak, suffered loss of appetite and had pains in his chest and lungs; that theretofore he had been strong and healthy. Defendant’s records showed that decedent first entered its employ on August 10, 1927; that on December 9, 1937, he was laid off and rehired on April 4, 1938, an interval of almost four months; he was again laid off on December 27, 1938, and was not again rehired until October 3, 1939, a period of over nine months. The laying off of the molders as a rule was due to lack of work. The employees, however, were free to work for others and were rehired as occasions arose. In 1928 or 1929, decedent worked for another company in Owosso, Michigan, for two months while defendant was shut down but then returned to the employ of defendant. Both the deputy commissioner and the department on appeal denied plaintiff compensation. The department based its decision on section 5 of the act, No. 61, Pub. Acts 19'37 (Comp. Laws Supp. 1940, § 8485-5, Stat. Ann. 1940 Cum. Supp. §17.224), which reads: “Neither the employee nor his dependents shall be entitled to compensation for disability or death resulting’ from such occupational disease, unless such occupational disease is due to the nature of his employment and was contracted therein, or in a continuous employment similar to the one in which he was engaged at the time of disablement, within twelve months previous to the date of disablement, whether under one or more employers. The time limit for contraction of the occupational disease prescribed by this section shall not bar compensation in the case of an employee who contracted such occupational disease in the same employment with the same employer by whom he was employed at the time of his disablement and who had continued in the same employment with the same employer from the time of contracting such occupational disease up to the time of his disablement thereby.” The department held: “The work record showed that he was not continuously employed. That statute expressly limits compensation in cases where a workman has worked for one or more employers within twelve months to diseases contracted within the twelve months. In cases of continued employment, where the disease was contracted in the same employment, he must have continued to work. During the periods of his lay-offs he was free to work elsewhere if he choose [chose]. He was not an employee of the defendant during those periods.” Plaintiff contends that the use of the words “continuous” and “.continued” in section 5 of the act shows that the legislature meant to give different meanings to the words, and that inasmuch as decedent did not work for any one else during this period he had continued in defendant’s employ. Appellant claims that any employer who foresaw the faintest indication that an employee might be afflicted with an occupational disease might purposely lay him off so as to avoid payment of compensation, and thus defeat the very purpose of the act. On the other hand, appellee states that if the lay-off or discharge was not bona fide, the court would give the employee relief. He points to a somewhat analogous situation in Smith v. Pontiac Motor Car Co., 277 Mich. 652, and contends that the court would hold that it was not a bona fide termination of the contract of hire, but that the employment, as a matter of fact, continued. It is unnecessary to pass upon this question in the present case inasmuch as compensation must be denied on another ground. Attention is called, however, to the claims of ambiguity so that, if any ambiguity exists, it may be removed if the law is amended. The testimony leaves no doubt that the room in which decedent was working was continually dusty. The sand used in the molding process was damp, so that the atmosphere was humid, and the air was filled with dust from the powders used by molders. There was no ventilation except from windows; it was difficult to reach and open them, and during the winter months they were usually closed up by being frozen. Another witness stated that the dust was so thick in the foundry room that one could hardly breathe at times. Adjoining the foundry room is the mounting room where emery wheel grinders are used at times in order to fit the parts together. There is a door connecting the two rooms. One witness testified that, while there is quite a bit of dust around or close to the grinding machines, it did not bother one over in the molding room. In the mounting room, they also used sand blasting to clean the larger castings, while the smaller ones were put in a “rattler,” a machine similar to a rotating barrel. The purpose of these machines is to remove the excess sand from the castings and the process has no effect on the metal. Quite a bit of dust emanates from the sand blast operation and some of it enters the foundry. Tuberculosis is not compensable under the act. Silicosis is only compensable under section 2 when it is caused by mining. Pneumoconiosis is the only possible disease for which plaintiff can recover. The department did not make any finding of fact as to what part, if any, pneumoconiosis played in decedent’s death. Pneumoconiosis is compensable under the act when it is caused by “quarrying, cutting, crushing, grinding or polishing' of metal. ’ ’ Although the department made no findings of fact, we will assume for the purpose of decision that the chief cause of death was pneumoconiosis which plaintiff claims was contracted by the inhalation of dust occasioned by the grinding of metal. Plaintiff contends, and the department agreed with her, that the limitation imposed by the words “caused by” appearing in the second column of section 2 does not confine recovery to cases where claimant is himself performing the work mentioned as a cause, but that it is sufficient if he is exposed to the disease by being, situated contiguously to workmen so engaged. Even if this is correct, and again attention is called to the uncertainties in the act, the grinding was done in a different room. The occupational disease statute is in derogation of common law, and is to receive a strict construction by the courts. It was aptly stated in Tews v. C. F. Hanks Coal Co., 267 Mich. 466: “The compensation act is in derogation of the common law and, therefore, its measure of relief may not be extended beyond its express terms; it is a legislative creation permitting no enlargement by principles of equity or common-law adaptations. It is arbitrary and where it speaks nothing can be added nor changed by judicial pronouncement. It imposes liability upon operatives under its provisions and measures exclusive relief in its own terms. ’ ’ Section 1 (c) of the act defines “occupational disease” as follows: “The term ‘occupational disease’ means a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment.” Thus, the causes enumerated in the second column of section 2 must be causes which are “characteristic of and peculiar to” claimant’s trade. Grinding of metal is not a portion of the trade of molding. In Lucier v. Pansy Hosiery Co., Inc., 286 Mich. 585, this court held that a manager of a hosiery shop was not suffering from an occupational disease when disability was caused by the escape of noxious fumes from the furnace. The court said: “The injuries which plaintiff suffered were not due to assuming a risk inherent in the nature of her employment by defendant company; the risk of injury to health from inhaling noxious fumes is not characteristic of, nor normal, nor constantly pres ent in, the occupation of managing a hosiery, shop. Such injuries resulted rather, from a fortuitous event which cannot he classified as one of the assumed risks inherent in the particular occupation in question, or as an occupational disease; and her remedy is under the workmen’s compensation act.” See, also, Dawe v. Norge Division of Borg-Warner Corp., 286 Mich. 90. The New York act is very similar to our own. In Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313 (12 N. E. [2d] 311), the New York court explained the restriction imposed by the second column of the New York act (pp. 318, 319): “Each disease is linked with the process used by the employee by which the disease is caused, such as lead poisoning contracted in a process involving the use of or direct contact with lead. Every such disease is thereby required to be actually caused in the course of the employment and from the particular work the employee is performing. * * * Thus an occupational disease is one which results from the nature of the employment, and by nature is meant, not those conditions brought about by the failure of the employer to furnish a safe place to work, but conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general. Thus compensation is restricted to disease resulting from the ordinary and generally recognized risks incident to a particular employment, and usually from working therein over a somewhat extended period. Such disease is not the equivalent of a disease resulting from the general risks and hazards common to every individual regardless of the employment in which he is engaged.” See, also, Sokol v. Stein Fur Dyeing Co., 216 App. Div. 573 (216 N. Y. S. 167). The fact that the second column of the New York act is entitled “Description of Process” while in the Michigan act it is captioned “Caused by” is a distinction of form and not of substance. Decedent’s death in the present case arose from the lack of proper ventilation in the foundry in which he worked. While the legislature has provided for the maintenance of sanitary conditions in foundries (2 Comp. Laws 1929, § 8341 [Stat. Ann. § 17.35]), it has not seen fit to predicate statutory liability thereon under the occupational disease amendment. We must enforce the act as we find it. Appellant contends that section 3 of the act sets up a cause of action which is independent of the limitations of section 2. The first portion of section 3 reads: “If any employee is disabled or dies and his disability or death is caused by one of the diseases mentioned in the schedule contained in section two of this part and the disease is due to the nature of the employment in which such employee was engaged and was contracted therein.” Section 3 follows section 2, provides for compensation, and must be read in connection with section 2. The opinion of the department of labor and industry disposes of this contention as follows: ‘ ‘ There is nothing to this contention. Each one of the occupational diseases listed is preceded by the words ‘disabilities arising from’ then follows a list of the diseases. Opposite each disease and preceded by the words ‘caused by’ are the occupations, processes, et cetera, by which the disease may be caused. Each listed occupational disease should be read as ‘disabilities arising from’ pneumoconiosis ‘caused by’ quarrying, cutting, crushing, grind ing or polishing of metal. Only the diseases listed and included within the qualifying words under ‘caused by’ are compensable. If the legislature had intended to provide compensation for all occupational diseases there would have been no occasion whatsoever for listing them by name and the limitation on the occupational diseases caused by the processes opposite each disease and under the words ‘caused by’ would be wholly unnecessary.” We agree with the reasoning of the department and hold that there is no merit in this contention since the act must be read and construed as a whole. Plaintiff’s decedent was not engaged in quarrying, cutting, crushing, grinding or polishing of metal and, therefore, plaintiff may not recover under the act. The award of the department is affirmed, with costs to defendant. Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred.

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Sharpe, C. J. Plaintiff, Frank H. Fuller, filed a bill of complaint to construe the will of his brother Mortimer S. Fuller, deceased. The facts are not in dispute. Mortimer S. Fuller died July 29, 1937. His will executed November 5, 1930, and codicils executed March 31,1931, and January 15,1935, were admitted to probate. The paragraphs of the will involved in this case read as follows: IV. “I am the owner, in my own name, of the title to the land described as: The south half of the south east quarter of section 22, town 2 south, range 15 west, being the township of Arlington, Van Burén county, Michigan; and also, of the east 60 acres of the south half of the northeast quarter; and of the north half of the northeast quarter of section 6, town 3 south, range 13 west, being the township of Antwerp, Van Burén county, Michigan. I am joint owner, with my wife, May W. Fuller, of the north half of the southeast quarter of section 22, Arlington township, and my wife and myself are also joint owners of other parcels of real estate, containing 47% acres. I am advised that my said wife, if I leave no will would inherit % of all of said real estate standing in my name, and that she has one year from the probate of my will to make her election whether she shall accept this will or accept the provisions of the laws of Michigan as to my estate. Therefore, on condition that my said wife accepts and abides by the terms of this will she shall have the full use, during her lifetime, of the said south half of the southeast quarter of section 22, of Arlington township, and she shall be absolute owner of said land described as being in Antwerp township, and the absolute owner of all the rest and residue of my estate, real and personal, after the above specific legacies are paid. This bequest to her is upon the express condition that after her death the south half of the southeast quarter of section 22 above described, and also the north half of said quarter section, being the entire 160 acres, shall pass to and belong to the conservation department of the State of Michigan. My said wife shall, within one year after the probate of this estate, execute and deliver to the said conservation department of the State of Michigan a deed to the north half of the southeast quarter of section 22 of Arlington township, retaining, however, the full use and control thereof to herself during her lifetime. “The conservation department is bequeathed the entire use and ownership of said lands, the title thereto to be in said department or in the State of Michigan, or in snch other manner as will best carry ont the purposes and desires of said conservation department, in said real estate. It may be used by said department, or by any other department of the State of Michigan, for educational purposes, or for ■reforestation, game preserve, experiment station, or any other purposes to which the said department, or the State of Michigan may desire to appropriate the same, it being the intent of this bequest that the State of Michigan is not limited as to title or use of said real estate. Y. “In case the conservation department or other proper authority of the State of Michigan refuses to accept this legacy; or, in case my said wife refuses to abide by this will, or fails within one year to execute deed, as above required, of the north 80 acres of the southeast quarter of section 22, Arlington township, then all the provisions of this will, except the specific legacies to Merrill S. Fuller and True A. Chandler, Walter Coffinger and James L. Webb, and also except the provision for the life use of the south half of the southeast quarter of section 22 of Arlington township, shall be null and void, and with the exceptions herein specified, all of my property, real and personal, shall descend to my heirs at law, the same as though no will had been made. ” During the lifetime of Mortimer S. Fuller, the 160 acres involved in this cause were owned as follows : The north 80 acres were jointly owned by Mortimer S. Fuller and wife, while the title to the south 80 acres was in the name of Mortimer S. Fuller, but not jointly with his wife. On August 3, 1937, the attorney for Mrs. Fuller wrote the department of conservation inclosing a copy of paragraphs 4 and 5 of the will, and stating: “Mrs. Fuller is very favorable to these provisions of the will, and quite anxious to carry out its provisions.” On August 30,1937, the will was admitted to probate by the probate court of Van Burén county and Mrs. Fuller was appointed administratrix with will annexed of the estate. On August 31, 1937, Mrs. Fuller executed her election to abide by the provisions of the will and also executed a warranty deed to the State of Michigan of the north 80 acres, reserving to herself a life interest. In January, 1938, Mrs. Fuller made a trip to Lansing and consulted with an official of the conservation department. She suggested to the department that she would give it immediate possession of the timber lot which consisted of the west 60 acres of the north 80 acres and the west 20 acres of the south 80 acres; and it in return was to deed to her the east 20 acres of the north 80 acres and the east 60 acres of the south 80 acres. Under date of February 15, 1938, the department of conservation wrote to Mrs. Fuller’s attorney advising him of its acceptance of. the legacy and of Mrs. Fuller’s proposition. As a result of these negotiations, on March 25, 1938, Mrs. Fuller executed a quitclaim deed to the State of Michigan conveying all her right, title and interest in the 80 acres agreed upon. On the same day, this deed and the warranty deed dated August 31, 1937, were mailed to the conservation department. They were recorded in the register of deeds office on June 13, 1938. On June 6, 1938, the department of conservation forwarded to Mrs. Fuller a deed from the State of Michigan conveying to her its interest in the 80 acres agreed upon. This deed was recorded June 20, 1938. On June 17, 1938, the acceptance of the department of conservation to the terms of the will and Mrs. Fuller’s election to abide by the provisions of the will were filed in the probate court. About June 13, 1938, Mrs. Fuller filed her final account as administratrix with will annexed of the estate of Mortimer S. Fuller and an ex parte order was entered allowing the account. Within 90 days from the entry of the above order, the probate court upon petition of Mrs. Fuller and Frank H. Fuller set aside the above order allowing administratrix’ final account and the final account was advertised for hearing in the regular way. After a hearing upon the final account, the probate court held that: “The provisions of the will as to time, relative to making elections, are found to have been complied with by the State of Michigan and May W. Fuller, and title vested in these parties. ’ ’ Plaintiff filed an appeal to the circuit court and later filed his present bill of complaint. Both cases were heard together. The trial judge entered an order reversing the order of the probate court and entered a decree setting aside the deeds of Mrs. Fuller to the State of Michigan and the deed of the State of Michigan to Mrs. Fuller; and ordered that the estate should be distributed in accordance with paragraph 5 of the will. Defendants appeal and contend that the defendant May W. Fuller and the defendant State of Michigan did comply with the terms and conditions of paragraph 4 of the will of Mortimer S. Fuller, deceased; and that the property passed to said defendants'by virtue of paragraph 4 as contained in said will. It is urged by plaintiff that paragraph 4 of the will contains the following conditions precedent: 1. “Therefore, on condition that my said wife accepts and abides by the terms of this will she shall have the full use, during her lifetime, of the said south half of the southeast quarter of section 22, of Arlington township, and shall be absolute owner of said land described as being in Antwerp township, and the absolute owner of all the rest and residue of my estate, real and personal, after the above specific legacies are paid.” 2. “This bequest to her is upon the express condition that after her death the south half of the southeast quarter of section 22, above described, and also the north half of said quarter section, being the entire 160 acres, shall pass to and belong to the conservation department of the State of Michigan. ’ ’ 3. “My wife shall, within one year after the probate of this estate, execute and deliver to the said conservation department of the State of Michigan, a deed to the north half of the southeast quarter of section 22, Arlington township, retaining, however, the full use and control thereof to herself during her lifetime.” In deciding this case we have in mind that, “The primary object in the construction of a will is to determine the intention of the testator.” Loomis v. Laramie, 286 Mich. 707. And “It is the duty of courts to effectuate the intention of the testator as to the disposition of his property, in so far as it is legally possible.” In re Richard’s Estate, 283 Mich. 485. In the case at bar the validity of the will is not questioned by any of the interested parties. The question, as we view it, may be stated as follows: Were the conditions named in the will carried out? To answer this question, we must determine the intent of the testator. It is plain that the testator intended that the widow would not file any statutory rejection of the will and would accept thereunder and carry out his intent and purposes. Testator also wanted his widow to convey her title to the north 80 acres to the State of Michigan reserving to herself a life estate therein; and he intended that the conservation department should eventually become tbe owner of tbe entire 160 acres. He expressly stated: “It being the intent of this bequest that the State of Michigan is not limited as to title or nse of said real estate.” He suggested, but did not limit, certain uses to which the real estate might be put; and stated: “or any other purposes to which the said department, or the State of Michigan may desire to appropriate the same.” An examination of the record shows that on August 31, 1937, the widow executed a formal acceptance of the will; that on February 28, 1938, the department of conservation, likewise, executed a formal acceptance of the will; that on August 31, 1937, the widow executed a deed of the north 80 acres to the State of Michigan as was required by the will; that both of the acceptances were filed in the probate court on June 17,1938; that the deed of the north 80 acres was recorded June 13, 1938; and that all of these acts were performed within the time prescribed by the will. It is urged that the acceptances were not made in good faith, but were made with an intent to circumvent the provisions of the will. An examination of the record does not sustain such a theory. Moreover, we may not infer that a department of State government would lend itself to such a proposition. Citation of authority is unnecessary for the proposition that the widow, as owner of the life estate in the property, could sell or convey all or any part of her interest to any person or to the State of Michigan ; and it likewise can be said that the conservation department, as owner of the fee subject to the life estate, could also dispose of its interest. Each had a legal right to do what was done in this ease ; and, in the absence of fraud, such conveyances will not be disturbed. The decree of the circuit court and the order in the probate appeal are reversed, with costs to defendants. Bushnell, Boyles, North, McAllister, Wiest, and Butzel, JJ., concurred. Chandler, J., did not sit.

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North, J. In each of these three cases, simultaneously submitted to the trial court, the constitutionality of the use tax act (Act No. 94, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 3663-41 et seq., Stat. Ann. 1940 Cum. Supp. § 7.555 (!) et seq.]) is challenged. In each case the plaintiff seeks injunctive relief and a declaratory decree holding the act unconstitutional. The particular grounds upon which the plaintiffs assert unconstitutionality of the act will be hereinafter noted; and the pertinent portions of the statute are printed in the margin hereof. In the circuit court a decree was entered in each case sustaining the constitutionality of the act. Plaintiffs have appealed. At the outset there should be noted, at least in general terms, the character of the business of the respective plaintiffs and the circumstances under which each is sought to be subjected to the use tax. The Banner Laundering Company is a Michigan corporation engaged in the laundry and linen supply business in this State. It purchases cotton and other textile goods and garments, laundry and office supplies, equipment and machinery, for use in its business; and a substantial part of such purchases are made outside of the State of Michigan and in the course of interstate commerce. Its customers con sist of restaurants, hotels, barber shops and others of like nature. It furnishes to these customers clean linens, towels, uniforms, et cetera; and at regular intervals calls for the soiled articles and replaces them with clean articles of like character. The articles so furnished remain at all times the property of plaintiff company. The Ford Building Company, a Michigan corporation, owns and operates in the city of Detroit two office buildings, the Ford building and the Dime Bank building. Incident to such ownership and operation the plaintiff in this case purchases for its own use and its tenants’ use'fixtures, equipment and supplies. In part at least such purchases are made outside the State of Michigan and reach this plaintiff in the course of interstate commerce. Plaintiff Henry H. Sills resides in Detroit. In February, 1938, he purchased at retail in Canada footwear at a price of $10.70. He brought his purchase to Detroit and paid the custom duties thereon. Also in February, 1938, and since that time, he has subscribed to and paid for various magazines and periodicals which have been delivered to him for his own use from without the State in regular course of mail. Each of these three plaintiffs denies that in consequence of the respective transactions of the character above noted there is a legal liability for the payment of the use tax. The first of plaintiffs’ contentions is stated in their brief as follows: “ (1) The statute seeks to impose a tax upon the owners of property. The tax is not a specific tax but is one imposed upon the property and its ownership. The statute contravenes the provisions of article 10 of the Michigan Constitution (1908).” The pertinent portions of article 10 read: “Sec. 3. The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide by law a uniform rule of taxation for such property as shall be assessed by the State board of assessors, and the rate of taxation on such property shall be the rate which the State board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for State, county, township, school and municipal purposes. “Sec. 4. The legislature may by law impose specific taxes, which shall be uniform upon the classes upon which they operate. * * * “Sec. 6. Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is to be applied. * * * “Sec. 21. The total amount of taxes assessed against property for all purposes in any one year shall not exceed one and one-half per cent, of the assessed valuation of said property.” We are not in accord with appellants’ contention that the statutory use tax is a tax on property, and not a specific tax. If appellants are wrong in the particular just noted, their assertion of invalidity because of lack of uniformity (Const. 1908, art. 10, § 3) or because the tax exceeds the rate of one and one-half per cent. (Const. 1908, art. 10, § 21) fails. Fundamentally the issue goes to the character of the tax, rather than to its lack of uniformity, or to its excessiveness. Appellants assert the use tax is not a specific tax, but instead: “This tax is merely a property tax of that nature (on property purchased without and brought within the State), and nothing more;” and further: “The name by which the tax is described in the statute is immaterial. * * * However, this court is not bound by the name given the tax by the legislature; it must inquire into the incidents of the tax, and from these incidents determine its nature.” The argument of appellants in support of their contention is that notwithstanding the nomenclature of the legislature, still the sq-called use tax is a tax upon ownership, therefore a property tax. The conclusion appellants reach is that since the act imposes upon them the duty to pay the tax upon certain personal property used, stored or consumed by them, and a like tax is not imposed on similar property owned by them or others, therefore the tax is not uniform and the act is unconstitutional. The fallacy, at least in part, of appellants’ reasoning is that they overlook the provisions of the act which confine the tax to a certain type or class of tangible personal property, and further that the act does not fix the amount of the tax on an ad valorem basis. Stated in concise terms and disregarding certain expressed exemptions in the statute, the class or type of property which if used, stored or consumed in this State subjects one to the payment of the tax in question is property on which a sales tax has not been imposed under the terms of Act No. 167, Pub. Acts 1933, as amended (Comp. Laws Supp. 1940, § 3663-1 et seq., Stat. Ann. 1940 Cum. Supp. § 7.521 et seq.). It is not a tax imposed upon the use or ownership of all tangible personal propT erty. Instead, one may own, use, store or consume any amount of tangible personal property without being subjected to the use tax, unless such tangible personal property falls within the specific type or class designated in the act. The Constitution of this State (Article 10, §§ 3, 4) plainly empowers the legislature to provide not only for so-called property or ad valorem taxes, but it may also “impose specific taxes, which shall be uniform,” upon the class or classes of property subjected thereto. If a valid reason exists for the segregation of the designated class of property to be subjected to a specific tax, the wisdom of so doing is for legislative determination, not for judicial decision. If there is a reasonable basis for selecting the class or classes, the only remaining constitutional limitation bearing upon the validity of specific taxes is that they ‘ ‘ shall be uniform upon the classes upon which they operate.” There is an obvious and just reason, approximating a necessity, for legislation of the type under consideration. Clearly its purpose is to equalize taxation as between the tangible personal property reached by the sales tax act and tangible personal property to which the use tax is made applicable. Under like circumstances, courts of other States, which have enacted a use tax statute as complementary to their sales tax systems, have held that the use tax is an excise or privilege tax, not a property tax. Douglas Aircraft Co., Inc., v. Johnson, 13 Cal. (2d) 545 (90 Pac. [2d] 572); Vancouver Oil Co. v. Henneford, 183 Wash. 317 (49 Pac. [2d] 14); Oklahoma Tax Commission v. Sisters of the Sorrowful Mother, 186 Okla. 339 (97 Pac. [2d] 888); National Linen Service Corp. v. State Tax Commission, 237 Ala. 360 (186 South. 478). "While it is true, as appellants urge, that the mere fact the legislature has designated the use tax as “a specific excise tax” is not conclusively binding upon the courts in determining whether in fact and in law the tax is a specific tax or an ordinary property tax, still such designation is entitled to “much weight.” Flint v. Stone Tracy Co., 220 U. S. 107, 145 (31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912 B, 1312). “Such statutory statement is to be accepted as true unless incompatible with the meaning and effect of the act as a whole.” Opinion of the Justices, 250 Mass. 591, 597 (148 N. E. 889). For the reasons hereinbefore indicated we conclude that the use tax is an excise tax (as contra-distinguished from an ordinary property or ad valorem tax) imposed on the privilege of using (in the statutory sense, see section 2, subd. [b]) tangible personal property which one has caused to become located in this State and which is not within the exemptions provided in the use tax act; and further, we conclude that the tax provided by this statute is uniform in its application to the tangible personal property on which it is imposed. It follows that this excise tax or privilege tax is not subject to the above-quoted article 10, § 21, of the Constitution, because it is not a tax “assessed against property,” but instead is a specific tax. As appellants’ second contention, they assert: “The statute is discriminatory in terms and as construed and applied by the defendants.” We quote from appellants ’ brief: “In short, in terms the statute purports to reach only a very small segment of the whole mass of property, indistinguishable in nature, which is imported into Michigan and which becomes merged with the common mass of property in Michigan, * * * [the statute] is not uniform per se or upon the classes upon which it operates. * * * “But in the stipulation of facts,, plaintiffs further offered to prove ‘that as [the use tax act] is construed and applied by the defendants, it imposes a tax upon Michigan merchants, manufacturers, processors and persons engaged in business enterprises on account of goods purchased by them, and upon persons doing business in Michigan on account of goods sold by them; but that persons resident in Michigan not engaged in business in that State, using, storing or consuming in Michigan tangible personal property acquired from persons not engaged in business in Michigan, generally make no returns and pay no [use] taxes.’ ” Appellants contend the trial court erred in refusing to receive testimony bearing upon their contention just above noted. We are in accord with the ruling of the trial court. If the use tax act as passed by the legislature has no inherent defects, and is not being administered in an unlawful manner as against appellants, they are not entitled to have the act decreed unconstitutional or to have its enforcement as ag’ainst them enjoined. In none of the three bills of complaint included in the record is there a sufficiently specific or definite allegation of maladministration of the act by the defendants to make that an issue in the cases being reviewed. In support of their contention that the use tax act “is discriminatory in terms,” appellants advert to the fact that the act in section 4 provides numerous exemptions, including the following: (1) Property merged into the common mass which was not acquired at retail sale in the State of purchase, (2) property upon which a retail sales tax was paid in the State of purchase, (3) a great mass of property which, after merger, is devoted to industrial processing, to agricultural producing, or to he resold. But nowhere in appellants’ brief is it persuasively pointed out that the exemptions contained in the statute are not justifiable exemptions, or that in consequence of the exemptions the act is rendered unconstitutional in that it does not operate uniformly or that it deprives appellants or others like situated of due process or equal protection of the law. Instead we think it is plain, at least the contrary is not demonstrated by appellants, that certain of the exemptions contained in the statute are justified by an obvious attempt on the part of the legislature to produce uniformity in the taxation imposed by the use tax act when considered, in connection with the closely related sales tax act. Other exemptions contained in section 4 of the act are of a type frequently embodied in taxation statutes, such as property sold to governmental units for public use, property sold to religious organizations, benevolent, charitable, scientific institutions and the like. But exemptions which render the operation of a taxation measure more just and uniform, or save institutions of the character above noted from the burden of the particular tax, do not render the act invalid for lack of uniformity or deprive persons subject to the tax of due process or equal protection of law, and this is true both of a specific tax and of a direct property tax. While it is not particularly stressed, appellants under this subdivision of their brief note that defendants construe the use tax act as imposing “a tax only upon property merged into the common mass after the effective date of the statute.” But it is not demonstrated that such construction is adverse to appellants’ interests; and whether the construction is right or wrong, it does not render the act unconstitutional. “A statute is to be, treated with that deference due to the deliberate action of a coordinate branch of government and is to be set aside only when it is apparent it was the result of action which the legislature was prohibited by the Constitution from taking.” C. F. Smith Co. v. Fitzgerald, 270 Mich, 659, 667. In recapitulation of this phase of the appeal it may be said that notwithstanding some imperfection may exist in the administration of the use tax act, or that by reason of exemptions (based on justice and sound public policy) the tax in specified circumstances is not imposed, still enforcement of this statute should not be enjoined nor should it be held constitutionally invalid as lacking uniformity or depriving those subjected to the tax of due process or equal protection of the law, as provided in Michigan Constitution (1908), art. 2, § 16; and United States Constitution, 14th amendment. In a Federal case involving the Constitution and statutory provisions of Michigan, the supreme court of the United States said: “It is manifest, therefore, that there are marked differences between the taxed and nontaxed companies, and the differences might be pronounced arbitrary if the rule urged by appellant should be applied, that is, that in the taxation of property no circumstance should be considered but its value, or, to use appellant’s words, 'each dollar’s worth should be treated alike.’ But such rigid equality has not been enforced. In Michigan the legislature has the power of prescribing the subjects of taxation and exemption, notwithstanding the Constitution of the State requires the legislature to provide a uniform rule of taxation, except on property paying specific taxes. People v. Auditor General, 7 Mich. 84; Board of Supervisors v. Auditor General, 65 Mich. 408; National Loan & Investment Co. v. City of Detroit, 136 Mich. 451. The power of exemption would seem to imply the power of discrimination, and in taxation, as in other matters of legislation, classification is within the competency of the legislature. We said in American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 92 (21 Sup. Ct. 43, 45 L. Ed. 102), that from time out of mind it has been the policy of this Government to classify for the purpose of taxation. * * * “Granting the power of classification, we must grant Government the right to select the differences upon which the classification shall be based, and they need not be great or conspicuous. Keeney v. Comptroller of New York, 222 U. S. 525, 536 (32 Sup. Ct. 105, 56 L. Ed. 299, 38 L. R. A. [N. S.] 1139). The State is not bound by any rigid equality. This is the rule; its limitation is that it must not be exercised in ‘clear and hostile discriminations between particular persons and classes.’ See [Quong Wing v. Kirkendall] 223 U. S. 59, 62, 63 (32 Sup. Ct. 192, 56 L. Ed. 350). Thus defined and thus limited, it is a vital principle, giving to the Government freedom to meet its exigencies, not binding its action by rigid formulas but apportioning its burdens and permitting it to make those ‘discriminations which the best interests of society require.’ ” Citizens’ Telephone Co. v. Fuller, 229 U. S. 322, 328, 329, 331 (33 Sup. Ct. 833, 57 L. Ed. 1206). Touching this phase of the law, in one of our earlier decisions it was said: “Courts cannot annul tax laws because of their operating unequally and unjustly. If they could, they might defeat all taxation whatsoever; for there never yet was a tax law that was not more or less unequal and unjust in its practical workings.” Youngblood v. Sexton, 32 Mich. 406, 414 (20 Am. Rep. 654). “Exemptions consistent with uniformity. — The principle hy which the requirement of equality or uniformity is held to prohibit exemptions from taxation is applied with varying degrees of strictness in the different jurisdictions in which it is in force, but it is nowhere enforced with literal exactness. It is almost everywhere held that the legislature may exempt property devoted to a public or semipublic use, or property of insignificant value and of such a character that it may be supposed to be owned by everyone alike, or property which is already taxed directly or indirectly in some other way. The requirement of uniformity does not compel the State to tax the instrumentalities of government, since such a tax would merely involve the payment by the same hand which was to receive the tax and would be a wholly nugatory act. * * * In most jurisdictions it is held that property devoted to a public use, for instance the property of religious and eleemosynary corporations, may be exempted from taxation, because the State is thereby relieved of a burden which it otherwise would be obliged to bear. * * * Property may be exempted by a State which has the constitutional power to tax it if it is lawfully taxed in another State.” 26 R. C. L. §§ 224, 225, pp. 253, 255. We quote the following from the syllabi of C. F. Smith Co. v. Fitzgerald, supra: “What classes of rights or property shall be assessed for taxes and what shall be exempt is a matter for legislative determination within constitutional limitations. “The State may classify property for purposes of taxation and statutes imposing taxes upon prop erty are not invalid if they operate uniformly against or upon each class or if some classes are exempted altogether.” The case last above cited is authority for holding that notwithstanding property incident to which a use tax is paid may also be subjected to the ordinary ad valorem tax, still this does not result in double taxation. Appellants’ contention to the contrary cannot be sustained. Appellants also challenge the constitutionality of Act No. 94, Pub. Acts 1937, on the ground that the title of the act “does not express its object,” and that the act “does not state the nature of the tax and the objects to which it is to be applied.” In other words, appellants assert the act is violative of the following provisions of the State Constitution. “No law shall embrace more than one object, which shall be expressed in its title. ’ ’ Article 5, § 21. “Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.” Article 10, §6. The title of the act in question reads: “An act to provide for the levy, assessment and collection of a specific excise tax on the storage, use or consumption in this State of tangible personal property; to appropriate the proceeds thereof; and to prescribe penalties for violations of the provisions of this act.” Tested in the light, of our numerous and recent decisions, the title is not defective. See Loomis v. Rogers, 197 Mich. 265; In re Lewis’ Estate, 287 Mich. 179; Baker v. State Land Office Board, 294 Mich. 587; Shivel v. Kent County Treasurer, 295 Mich. 10. Seventy-five years ago Mr. Justice Cooley, writing for the court, said: “There was no design hy this clause [Const. 1850, art. 4, § 20; Const. 1908, art. 5, § 21] to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number. * * * But this purpose [compliance with the constitutional provision] is fully accomplished when the law has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be .provided for by a separate act relating to that alone, would not only be senseless, but would actually render legislation impossible.” People v. Mahaney, 13 Mich. 481, 494, 495. In refutation of appellants’ contention that the act does not state the nature of the tax and the objects to which it is to be applied, it suffices to note that both in the title and in the body of the act the tax is definitely designated “a specific tax,” and in section 3 it is provided that it is a specific tax “for the privilege of using, storing or consuming tangible personal property,” et cetera; and further as to the disposition of taxes paid under the act, section 21 provides: “All moneys received and collected under the provisions of this act shall be deposited * * * in the State treasury to the credit of the general fund.” Appellants further assert that Act No. 94, Pub. Acts 1937, transgresses the following portion of the Federal Constitution: “The congress shall have power * # * (3) To regulate commerce with foreign nations, and among the several States.” U. S. Const, art. 1, § 8 (3). This contention is foreclosed by several recent decisions of the supreme court of the United States which are adverse to appellants’ contention. Henneford v. Silas Mason Co., 300 U. S. 577 (57 Sup. Ct. 524, 81 L. Ed. 814); Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 (59 Sup. Ct. 376, 83 L. Ed. 488); Southern Pacific Co. v. Gallagher, 306 IT. S. 167 (59 Sup. Ct. 389, 83 L. Ed. 586); McGoldrich v. Berwind-White Coal Mining Co., 309 U. S. 33 (60 Sup. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876); McGoldrich v. Felt & Tarrant Co., 309 U. S. 70 (60 Sup. Ct. 404, 84 L. Ed. 584). In the Henneford Case, supra, pp. 582, 583, the court said: “The tax (California use tax) is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end. “Things acquired or transported in interstate commerce may be subjected to a property tax, nondiscriminatory in its operation, when they have become part of the common mass of property within the State of destination. * * * For like reasons they may be subjected, when once they are at rest, to a nondiscriminatory tax upon use or enjoyment. * * * A tax upon the privilege of use or storage when the chattel used or stored has ceased to be in transit is now an impost so common that its validity has been withdrawn from the arena of debate.” We have considered other arguments and cited authorities contained in appellants’ brief, but we find they do not sustain appellants’ contention of invalidity of the act here involved. Instead, as against any of the reasons urged by appellants, we hold the act constitutional and in that respect affirm the declaratory decree entered in the circuit court. Since the foregoing opinion was written, two decisions in accord therewith have been rendered by the United States supreme court. See Nelson v. Sears, Roebuch & Co., 312 U. S. 359 (61 Sup. Ct. 586, 85 L. Ed. 888,132 A. L. R. 475); and Nelson v. Mont gomery, Ward & Co., 312 U. S. 373 (61 Sup. Ct. 593, 85 L. Ed. 897). A public question being involved, no costs are awarded. Sharpe, C. J., and Bushnell, Boyles, Chandler, and McAllister, JJ., concurred with North, J. "Section 1. This act may be cited as the ‘use tax act.’ "Sec. 2. Words and phrases when used in this aet shall be defined as follows: * * * “ (b) ‘Use’ means the exercise of any right or power over tangible personal property incident to the ownership of that property or by any transaction where possession is given. ‘‘(c) ‘Storage’ means any keeping or retention in this State for any purpose after losing its interstate character. * * * ‘‘(f) ‘Price’ means the aggregate value in money of anything, or things, paid or delivered, or promised to be paid or delivered by a consumer to a seller in the consummation and complete performance of the transaction by which tangible personal property shall have been purchased for storage, use or other consumption in this State. * * * ‘‘(g) ‘Consumer’ means the person who shall have purchased tangible personal property for storage, use or other consumption in this State. "Sec. 3. There is hereby levied upon and there shall be collected from every person in this State a specific tax for the privilege of using, storing or consuming tangible personal property in this State after June thirty, nineteen hundred thirty-seven, which tax shall be equal to three per eent. of the price of such property. For the purpose of the proper administration of this act and to prevent the evasion of the tax hereby levied, it shall be presumed that tangible personal property purchased on or after June thirty, nineteen hundred thirty-seven by any person for delivery in this State is purchased for storage, use or other consumption in this State. "Sec. 4. [Provisions for sundry exemptions]. "Sec. 6. Every person storing, using or consuming tangible personal property, the storage, use or consumption of which is subject to the tax imposed by this act, when such tax was not paid to a seller, and every seller collecting such tax from the purchaser, shall, on or before the fifteenth day of each calendar month file with the board a return for the preceding calendar month in such form as may be prescribed by the board, showing the price of each such purchase of tangible personal property during such preceding month, and such other information as the board may deem necessary for the proper administration of this act. At the same time each such person shall pay to the board the amount of tax imposed by this act with respect to the purchases covered by such return. Returns shall be signed by the person liable for the tax, or his duly authorized agent and shall be verified under oath. “Sec. 7. Each consumer storing, using or otherwise consuming in this State tangible personal property purchased for such purpose or purposes shall be liable for the tax imposed by this act, and such liability shall not be extinguished until the tax has been paid to the board. The payment to the board of the tax, interest and any penalty assessed by the board shall relieve the seller, who sold the property with regard to the storing, use or other consumption on which the tax was paid from the payment of the amount of the tax which he may be required under this act to collect from the purchaser. “Sec. 13. The board may bring an action at law to collect and recover the amount of taxes, interest and/or penalties due from any person, in addition to the other methods of collections herein provided. * * * “Sec. 20. The board shall have power to make rules and regulations for the enforcement of the provisions of this act, and the imposition and collection of the tax. * * * “Sec. 21. All moneys received and collected under the provisions of this act shall be deposited by the board, not later than thirty days after the receipt thereof, in the State treasury to the credit of the general fund, to be disbursed only by appropriations by the legislature.” For certain other provisions of the act see J. B. Simpson, Inc., v. State Board of Tax Administration, ante, 403.

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Chandler, J. The last will and testament of Joseph Hoag devised and bequeathed the residue of his estate to Grace Hoag, his daughter, now deceased. Jerome Hoag, appellant herein, is a brother of decedent and received only $50 under the provisions of the will of Joseph Hoag. The record shows that appellant was dissatisfied with the amount bequeathed to him by his father and it is claimed that Grace Hoag, prior to her death, agreed to pay him the sum of $5,000 on condition that he refrain from contesting his father’s will. After the death of Grace, appellant presented his claim in the probate proceedings involving her estate, where it was disallowed. An appeal was taken to the circuit court. At the close of appellant’s proofs, the trial court directed a verdict for defendant, and it is from the judgment entered in accordance therewith that this appeal is taken. Appellant’s wife testified as to an occasion on which Grace Hoag came to appellant’s home, at which time, in the course of an argument, it is claimed appellant told his sister that he intended to contest his father’s will. The two discussed the property involved, including’ some funds that were on deposit in closed banks, and it is claimed that Grace then agreed to pay appellant $5,000 when she got all the money out of said banks, if he would refrain from contesting the will. The foregoing is, in brief, the basis of appellant’s claim. The obligation of deceased, if one existed, was to pay appellant the sum of $5,000 when she, deceased, received the money from the closed banks. Aside from the fact that the inventory in the estate of Joseph Hoag showed assets of only $3,736.73, after deduction of expenses of administration, it is clear that appellant was not to be paid under the alleged contract until his sister had received the same from the closed banks. The proofs offered contained no evidence ■ showing that this event had occurred. There was nothing to be submitted to the jury for their consideration. Plaintiff did not make a prima facie case and the trial court was not in error in directing a verdict for defendant on this ground. After discovery of the defect in proofs, appellant moved to reopen the case to introduce additional evidence. Whether or not the motion should have been granted was discretionary with the trial judge and it does not appear that he abused his discretion in denying the same. The judgment is affirmed, with costs to appellee. Sharpe, C. J., and Bushnell, Boyles, North, Mc-Allister, Wiest, and Butzel, JJ., concurred.

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Sharpe, C. J. Ulysses Thompson died August 25, 1939. At the time of his death he was the owner of a farm in Tuscola county, Michigan. He left no will, but proceedings for the probate of his estate were begun in the probate court of Tuscola county. Roy J. Olds presented a claim against the estate as follows: “For services rendered and money furnished to said deceased at his request and on his promise to pay for such services and money so rendered and furnished, in, upon and about the farm lands, business and home of said deceased, from the fall of 1906 to the date of said decedent’s death. $7,664.10. “In the event of claimant’s inability to prove the express contract aforesaid then claimant will base his demand upon decedent’s implied promise to pay claimant the reasonable value of said services and money, with interest thereon, a bill of particulars whereof is hereto attached and marked Exhibit A. $7,664.10.” An itemized statement was filed showing a claim for services from-1907 to and including 1939 with the exception of the years 1922 and 1927. The total atnount claimed was the sum of $7,664.10. Upon appeal to the circuit court the trial judge allowed the claim in the amount of $2,500. The material facts are not in dispute. The claimant, Eoy J. Olds, came to the Thompson home about the year 1904 at the age of 14 or 15. Olds lived with and worked for Thompson from 1907 through 1921 with the exception of some months in 1918 and 1919 during the "World War and for some months in 1921. He was not paid like a hired man, but received clothes and spending money. He married about 1921 and from then on made his home elsewhere, but continued to help Thompson with his farm work until Thompson’s death in 1939. In addition to the clothes and spending money, claimant also received the sum of $50 per year for 14 years and an additional sum of $1,000 about the time of his marriage. Five disinterested witnesses testified in behalf of claimant that Thompson had told them that Eoy was to get the 40 acres of land when Thompson died. One of these statements made by Thompson was in the presence of claimant and all witnesses testified as to the high esteem in which claimant was held by deceased. The administrator of the estate appeals from the allowance of the claim and contends that there was no express contract between claimant and Thompson to pay for the services rendered. We are in accord with this claim. The record is barren of any testimony showing an express contract between claimant and Thompson that the services performed by claimant were in consideration of a promise that he would receive the farm upon the death of Thompson. It is urged by claimant that recovery may be had upon an implied contract, but the administrator urges that there may not be an implied contract where the parties stand in the relationship of father and son; and that services rendered by a member of a household are presumed to be gratuitous and no recovery can be had in the absence of an express contract. It is conceded that claimant was not in any way related to deceased and after 1921 did not make his home with decedent. “The courts regard with suspicion and disfavor claims brought against an estate for personal services rendered by relatives, especially where the latter are members of decedent’s immediate family or household, as the presumption is that such services between persons occupying such relations are intended to be gratuitous, and hence claims against the estate of a decedent made by near relatives for personal services require stronger proof to establish them than ordinary claims by strangers. The rule applies when the family relationship actually existed between claimant and decedent, although there was neither consanguinity, affinity, nor adoption.” 24 C. J. pp. 281, 282. See, also, In re Pierson’s Estate, 282 Mich. 411. In Harris v. Smith, 79 Mich. 54 (6 L. R. A. 702), we said: “"Where the services are rendered to one standing in loco parentis, there is no implied promise to pay for them, though such presumption may be overcome by the facts and circumstances of the case.” In the case at bar, a family relationship existed between claimant and decedent up to the time of claimant’s marriage and any services performed by him up to that date are presumed to be gratuitous. There is no evidence in the record supporting a contrary view, but about 1921 claimant married and made a home elsewhere. At that time claimant received $1,000 from decedent and also had received $700 representing 14 years of services at $50 per year. It appears to ns that the marriage of claimant and his living elsewhere ended the family relationship and the presumption of services rendered gratuitously no longer exists. In Miller v. Stevens, 224 Mich. 626, 632, we said: “A contract is implied where the intention as to it is not manifested by direct or explicit words between the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used or things done by them, or other pertinent circumstances attending the transaction. Where there is no express contract a contract may be implied in fact, where one engages or accepts beneficial services of another for which compensation is customarily made and naturally anticipated, and although there be no express stipulation between the parties for wages or price the law implies an understanding or intent to pay the value of the services rendered.” In Re Abel’s Estate, 173 Mich. 93, 105, we said: “If the facts and circumstances attending the performance of the work and in its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted under the understanding that they were to be paid for, the parent is liable.” See, also, In re Burg’s Estate, 282 Mich. 304. ,In the case at bar the facts and circumstances are such as would warrant the finding of an implied contract to pay for such services after the family relationship ceased to exist. The' administrator contends that the statute of limitations (3 Comp. Laws 1929, § 13976 [Stat. Ann. § 27.605]) bars claimant from receiving compensation for services rendered before a period of six years prior to the death of decedent; and limits Mm to receiving an amount not in excess of $480. In the case at bar there were statements made by Ulysses Thompson to the effect that the 40 acres were to become the property of claimant upon Thompson’s death, but there is not evidence that these statements were communicated to claimant or that claimant relied upon them. The lack of such evidence prevents the formation of an express contract, but we think the facts and circumstances in this case show that services were performed and that deceased intended to pay for them. An implied contract to pay for such services must be limited to a period of six years next preceding the death of Thompson. The claim allowed by the trial court covered a period of time much longer than that prescribed by the statute of limitations; in this there was error. The cause is remanded to the trial court to find the value of services rendered, if any, within the limits prescribed by tMs opinion. Appellant may recover costs. Bushnell, Boyles, and North, JJ., concurred with Sharpe, C. J. McAllister, J., concurred in the result.

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McAllister, J. Plaintiff filed an information in the nature of quo warranto, challenging the right of defendant to hold the office of supervisor for the township of Carp Lake in Ontonagon county. The parties were candidates for the said office in the spying election of 1940, and a recount of ballots showed defendant to be victor by a margin of five votes. Plaintiff contends that eight votes which were counted for defendant were not legal, and should not have been counted, and that he should be declared elected by a majority of three. The official ballot contained two tickets — the “Township Ticket” and the “Nomination Ticket.” Plaintiff’s name was printed on the ballot as a candidate for supervisor on the township ticket; no name appeared on the ballot as candidate for the same office on the nomination ticket. Defendant was a “slip” candidate. Plaintiff’s name, as printed upon each of the eight contested ballots, was obliterated by the pasting thereupon of a printed slip containing defendant’s name; on the contested ballots, no cross or mark appeared, either in the square before the name of the candidate for supervisor nor in the circle above the name of the party. It is the claim of plaintiff that the eight ballots in question are void under 1 Comp. Laws 1929, § 3111, as amended by Act No. 297, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 3111, Stat. Ann. § 6.400), the pertinent portion of which reads as follows: “Seo. 19. The elector shall then go directly into a booth which is unoccupied and indicate with pencil or pen on the proper ballot, the candidate or candidates for whom he desires to vote. * * * “(4) If the elector wishes to vote for a candidate not on any ticket, he may write or place the name of such candidate on his ticket, opposite the name of the office, and make a cross in the circle under the party name. ’ ’ The trial court held that inasmuch as there were no marks on the ballots indicating the party or candidate voted for on such ballots, they were void; and decreed plaintiff elected to the office. On appeal, defendant claims that the language of the statute above referred to is not mandatory by prohibitive terms; that the intent of the voters of such ballots to vote for defendant was clearly demonstrated by the affixing of stickers over the name of plaintiff; and that the court erred in holding such ballots void. It is contended that, inasmuch as courts look with disfavor on depriving a citizen of his vote because of technicalities, when his intention appears on the face of the ballot, it will not be defeated by too strict a construction of a statutory requirement, if there has been a substantial compliance with the law. Jonkman, ex rel. Shaw, v. Striplin, 255 Mich. 215. In support of defendant’s argument that the criterion is the ascertainment of the intention of the voter, her counsel rely upon Johnson v. Board of Canvassers, 101 Mich. 187, and Sawyer v. Hart, 194 Mich. 399. In the Johnson Case it was held that, where the official ballot contained the name of only one person for each and every office to be voted upon, the failure of a voter casting such a ballot to mark the same did not authorize the election officials to reject such ballot, inasmuch as such a mark did not add to the certainty of the voter’s intention or hazard the rights of anyone. In the Sawyer Case, it was held that where the name of one candidate only for any office appeared upon the ballot for a township election, a voter who pasted the name of one candidate over the name of another for a cer tain office, without making a cross at the top of the ballot, or before the name on the pasted slip, cast a legal vote for the candidate whose name he pasted, on the authority of Johnson v. Board of Canvassers, supra. In People, ex rel. Oatman, v. Fox, 114 Mich. 652, where a ballot having two tickets was voted, there was a candidate for the same office on each ticket. The name of a third candidate was pasted over the name of a candidate on one of the tickets. There were no marks on the ballot. The court held that such ballot did not express a voter’s intention to vote for the sticker candidate in the manner prescribed by statute, and that full compliance therewith required that a name not appearing on the ballot be pasted or written in the proper place, and also that it be marked with a cross. But even after placing the name of the sticker candidate on the ballot, there appeared the name of another candidate for the same office. From these adjudications we can conclude that under the statute in effect at the time of such decisions, if there was only one ticket on the ballot, even though one of the candidates thereon was a candidate whose name had been pasted over the name of another, the ballot must be counted for all candidates on the ticket, even though there were no marks at the top of the ticket or before the name of the candidates; and further that, if there were two tickets on the same ballot and the name of a third candidate was pasted over the name of one of the two candidates on the ballot for the same office, and there were no other marks on the ballot, no intention to vote for the third candidate could be said to be expressed. This case is different from any of those adjudicated by this court. Here, there were two tickets on the same ballot. Bnt the sole candidate for the office of supervisor, as printed on the ballot, was on only one of the tickets. Defendant’s name was pasted over the name of such candidate. No candidate appeared on the other ticket, and no cross was made either at the top of the ticket on which the name of defendant was pasted on or in front of her name. The remarks of the court in the Johnson Case, with reference to holding the vote valid on the ground of ascertainment of the intention of the voter, are cited in defendant’s support. Does the fact that there were two tickets on the ballot with no marks thereon, or does the present statute, distinguish this case from the Johnson Case and the Sawyer Case? There is much difference of opinion among the various jurisdictions of this country with regard to the question here involved. With regard to writing in names on a ballot, it is stated in 20 C. J. p. 160: “When an elector desires to vote for a person whose name is not on the ballot he may do so by writing his name on a line left blank in the appropriate place; and he is ordinarily required to place a cross in a space designated for that purpose, although in some jurisdictions the writing in of the name is sufficient without the addition of a cross mark.” However, the jurisdictions referred to in the above citation held that such ballots were to be counted, because a statute involved expressly required it. Do mandatory provisions of our statute require that the votes in question be held void? The general election law, after setting forth the qualification of voters, provides: ‘ ‘ Seo. 19. The elector shall then go directly into a booth which is unoccupied and indicate with pencil or pen on the proper ballot, the candidate or candidates for whom he desires to vote, as follows: “(1) If the elector desires to vote a straight ticket he may make a cross (X) in the circle under the name of his party at the head of the ballot. Nothing further need be done. * * * “(4) If the elector wishes to vote for a candidate not on any ticket, he may write or place the name of such candidate on his ticket, opposite the name of the office, and make a cross 'in the circle under the party name. “(5) A ticket marked with a cross in a circle under a party name shall be deemed a vote for each of the candidates named in such party column whose name is not erased or crossed off, except those candidates where a cross is placed in the square before the name of some opposing candidate on the opposing ticket, or when there is written or pasted on the party ticket a name which is not printed on any party ticket. * *. * “(6) If the name of any person who is not a candidate on any ticket is written or placed on the party ticket opposite the name of the office, and there is a cross in the circle under the party name, the name so written or placed shall be counted one vote for such person, whether the original name on the party 'ticket is erased or not, excepting cases where there is a cross in the square before the name of some opposite candidate on some other party ticket.” 1 Comp. Laws 1929, § 3111, as amended by Act No. 297, Pub. Acts 1931. , "With regard to the first paragraph of section 19 above-quoted, it is to be noted that the language thereof is part of an amendment (Act No. 297, Pub. Acts 1931) in which the words, “with pencil or pen,” were inserted in the statute in effect prior thereto. Does this provision command that the voter mark his ballot with pencil or pen under penalty of losing his vote upon failure to do so? If the cross were printed before the name of the sticker candidate, would this fact invalidate the vote, because it was not indicated by pen or pencil? Are such provisions mandatory, or must the statute, in order to void the ballot, prohibit the counting thereof in case of deviation from this provision? A review of many cases on the question indicates anomaly and a certain confusion. “Formerly, when voting was done in a less systematic fashion than at present, the rule that the intent of the voter was controlling was more generally adhered to. But under statutes adopting the official ballot, judicial consideration is in many instances confined to determining whether the marking complies with mandatory statutory require^ ments. Nevertheless, the voter’s intention frequently is important, for, as has been shown, if no mandatory provision of the election law is violated, any mark which fairly indicates the elector’s intention will be given effect and, under some statutes, a ballot will be rejected only in case a fraudulent intent is shown. The ballot is to be construed as any other writing, and the voter’s intention is to be gathered from the instrument itself, read in the light of the surrounding circumstances, extrinsic evidence of which is admissible. But extrinsic evidence is admissible only in aid of the ballot; it may not be received for the purpose of showing that the intention of the voter was in any way different from what plainly appears on the face of the ballot, nor may it be received when the ballot is too defective to express any intention whatever.” 18 Am. Jur. p. 310. ‘ ‘ Such requirements are as a general rule held to be mandatory, although they may be regarded as merely directory; and through all of the cases the general principle of construction is recognized that a voter should not be disfranchised where it is clear that he has made an honest effort to comply with the statutory requirements, although he may not have been entirely successful. * * * Except in those cases in which statutes prescribing rules to be observed by a voter in the preparation of his ballot are shown to be mandatory by prohibitive terms, inhibiting the counting of a ballot in case of deviation from the rules, the cases all recognize that the intent of the voter is the prime consideration in determining the validity of the ballot; but this intent must be determined by an inspection of the ballot itself, read in the light of surrounding circumstances.” 20 C. J. p. 154. It is further to be noted that in our election statute, while provisions are made for the writing in or placing the name of a candidate on a ticket, there is no provision for the voting for such a candidate alone, but only when a cross is placed under the party name, resulting in a vote for the entire ticket. 1 Comp. Laws 1929, § 3111, subd. (4), as amended. We have no doubt that a single candidate whose name does not appear on the ballot can be voted for. In the absence of any provisions for voting for a single candidate, where such a name is written in or placed on the ballot by the voter, it cannot be assumed, even by strict construction, or construing the provisions of the law as mandatory, that the statute here in question governs the instant case by virtue of the provisions relating to other methods of voting. A striking instance of giving effect to the intention of the voter is found in subsection (6) of the election law, above referred to, where it is provided that, when an elector votes a ticket by a cross in the circle under the party name and also writes in or places upon the ticket the name of a candidate opposite the name of an office, the vote shall be counted for such candidate, although the name of the original candidate, as printed on the ballot, is not erased therefrom. The effect of this provision of our statute is similar in principle to those adjudications which hold that, where a ballot is marked with cross marks in circles at the head of each of several tickets appearing thereon, it can be counted for no party, if all the tickets are complete, as such marks counteract each other; but that such ballots may be counted for the candidates on either of the tickets upon the other of which there are no opposing candidates. Caldwell v. McElvain, 184 Ill. 552 (56 N. E. 1012); People, ex rel. Feeny, v. Board of Canvassers of Richmond County, 156 N. Y. 36 (50 N. E. 425); 20 C. J. p. 160. We are of the opinion that the ballots in question disclosed the intention of the voters. They placed stickers containing the name of defendant over the name of the only other candidate for the office of supervisor. While there were two tickets on the ballot, the name of only one candidate for the particular office was printed on the ballot. There were no crosses made on the ballots, but neither were there any in the Johnson Case or the Sawyer Case, although the statutes in effect at the time of the decisions in these cases provided that the voter should' indicate on the ballot his choice of candidates. The voters in question apparently were interested only in this particular office. They signified no intentions with regard to any other of the candidates; they manifested their intentions with regard to this office by going to the trouble of placing a sticker containing defendant’s name on the ballot for the office of supervisor, leaving no other candidate on the ballot for the same office. It is impossible to escape the conclusion that their intention was clear and disclosed. No provisions of the election law designed for the safeguarding and purity of elections was violated; nor does the claimed nonobservance of statutory rules in this case relate to provisions to protect against fraud, the law in such cases being most strictly construed. There is no provision in the statute mandatory of the manner of voting for a single sticker candidate in an election; and the statute in none of its provisions is mandatory by prohibitive terms, inhibiting the counting of a ballot in case of deviation from the rules outlined therein. Many statutes of various States are drafted in such prohibitive terms. But in view of the fact that the legislature of this State has not seen fit so to provide, our conclusion is that the ballots in question are valid and should be counted for defendant. The judgment of ouster is reversed and set aside, with costs to defendant. Sharpe, C. J., and Bushnell, Chandler, and Butzel, JJ., concurred with McAllister, J.

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Butzel, J. Walter E. Madill and wife held title as tenants by the entirety to a theatre building in Chesaning, Michigan. On October 28, 1935, Mr. Madill entered into a written lease of the building and certain equipment therein with Fred A. Graham for a term of five years and with an option for an extension of five years and also for purchase of the equipment. Upon the death of Mr. Graham on August 27, 1937, Vera Graham, his widow and defendant herein, continued to manage the theatre and for over two years Madill accepted the rent from her without objection. On September 28, 1939, Albert R. Arrand and wife, plaintiffs herein, fully cognizant of the lease, and after being told that it would be up to them to remove defendant, purchased the property. Both Mr. and Mrs. Madill joined in the conveyance to plaintiffs. Shortly thereafter, plaintiffs served notice to quit and instituted summary proceedings to recover possession of the premises from defendant. The justice of the peace, sitting as a circuit court commissioner, found defendant “guilty” of unlawfully holding possession. IJe held that the lease was invalid because it was not signed by the wife of Mr. Madill; also that the defendant was never appointed administratrix of the estate of Fred Graham, the original lessee, and therefore could not claim rights under, the lease as a defense. On appeal by Mrs. Graham, the trial judge held the lease invalid because it was for a term of more than three years and not joined in by the wife of the lessor, one of the tenants by entirety. He relied largely upon Nurmi v. Beardsley, 275 Mich. 328, wherein it was stated that neither tenant by the entirety ‘ ‘ can alienate a moiety so as to defeat the title to the survivor.” That case, however, dealt with the necessity of notice of a mechanic’s lien to the wife as well as to the husband because the effect of the foreclosure of the lien might terminate the rights of both husband and wife in the title to the property. In the instant case both Mr. and Mrs. Madill are living, and as far as the record discloses, neither objected to the lease, nor to defendant’s tenancy. The only question appellant asks us to decide is whether the lease continued to be valid during the lifetime of Mr. Madill, who as husband would be entitled to the rents, profits, and usufruct of the property. Neither husband nor wife alone can sever the tenancy by the entirety, or convey a moiety to defeat the title of the survivor. But it does not follow that, because leases for longer than .three years are brought within the statutes relating to conveyances of real property by 3 Comp. Laws 1929, § 13309 (Stat. Ann. § 26.552), a lease for a longer term than three years executed by the husband alone is therefore invalid for the period during his lifetime. The right of the husband to control the tenancy by entirety is governed by the common law. "When the married women’s statute was enacted, 3 Comp. Laws 1929, § 13057 et seq. (Stat. Ann. § 26.161 et seq.), giving the wife a right to control and own a separate estate, the question arose whether the stat ute abrogated tbe common-law rights of the husband in respect to the tenancy. Two leading cases involving this issue under similar statutes are Hiles v. Fisher, 144 N. Y. 306 (39 N. E. 337, 43 Am. St. Rep. 762, 30 L. R. A. 305); and Pray v. Stebbins, 141 Mass. 219 (4 N. E. 824, 55 Am. Rep. 462). In Hiles v. Fisher, supra, Chief Justice Andrews held that the right of the husband to rents and profits was net an incident of tenancy by the entirety but rather the right of control which the common law gave the husband over the property of the wife. This right, he concluded, had been swept away as a necessary consequence of legislation investing her with the beneficial use of her own property, free from his control. Some States have followed this rule. Pray v. Stebbins, supra, held that the married women’s statute did not change the incidents given the tenancy at common law. Judge Field wrote (pp. 223, 224): “The rights of husband and wife in this estate must therefore be determined by the common law. By that law the right to control the possession of such an estate during their joint lives is in the husband, as it is when the wife is sole seised. ‘Neither could convey during their joint lives so as to bind the other, or defeat the right of the survivor to the whole estate;’ Pierce v. Chace, 108 Mass. 254; but, subject to this limitation, the husband has the rights in it which are incident to his own property, and the rights which by the common law he acquires in the real property of his wife. He has, during coverture, the usufruct of all the real estate which his wife has in fee simple, fee tail, or for life. By the great weight of authority, he has the right to make a lease of an estate conveyed in fee to him and his wife, which will be good against the wife during coverture, and will fail only in the event of his wife surviving him.” (Citations.) Michigan followed the rule of Pray v. Stebbins and rejected the reasoning of Hiles v. Fisher, supra, in the case of Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100). In Way v. Root, 174 Mich. 418, 424, the leading Michigan case on the subject, Judge Steere stated: “Neither a husband nor wife can alone convey or incumber the estate vested in them as tenants by entirety.” But, in regard to the husband’s right to lease the property, he further stated (pp. 429, 430): ‘ ‘ The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife’s estate, and had the usufruct, not only of real estate standing in both their names, but of that sole seised by his wife, whether in fee simple, fee tail or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of an estate by entirety. * * * He had a right to rent the property to others and collect the rent. * * * But he could lawfully collect rent from Way, and evict him in case of default, and Way could enforce a lease of the property given him by defendant alone. Pray v. Stebbins [supra]. We are well satisfied that defendant, being entitled to the rent, could maintain an action in his own name to collect it, and we think he is entitled to recover it as a counterclaim when sued by the party owing it, or his assign.” The inescapable conclusion is that when the court states that a husband cannot convey the tenancy by entirety alone, a conveyance that may divest the entire title is referred to, but it does not affect the validity of a lease during the lifetime of the husband. The anomalous character of the respective rights and liabilities of husband and wife in a tenancy by the entirety has been frequently commented upon. See American State Trust Co. v. Rosenthal, 255 Mich. 157; Marks v. Corliss’ Estate, 256 Mich. 460; Wuerth v. Wuerth, 270 Mich. 628; Dombrowski v. Gorecki, 291 Mich. 678; 1 Tiffany, Real Property (2d Ed.), § 194. While'appellees raise additional questions in their brief, they do not discuss them or the many collateral questions which must be considered in such discussion. The mere statement of a position without argument or citation of authority in support thereof is insufficient. See Dolby v. State Highway Commissioner, 283 Mich. 609 (117 A. L. R. 538) ; Court Rule No. 68, § 3 (1933). The further contention by appellees that the lease would become abrogated upon the sale of the property by the lessor to the plaintiffs is fully answered by the proviso in the lease that its covenants are binding upon the respective heirs, representatives and assigns of the parties. Judgment reversed, with costs to appellants. Sharpe, C. J., and Bushnell, Boyles, Chandler, and McAllister, JJ., concurred with Butzel, J. See, also, 3 Comp. Laws 1929, § 13278 (Stat. Ann. § 26.521). —Reporter.

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McAllister, J. Plaintiff filed his bill of complaint for construction of a written lease and an accounting. Defendant, in his answer and cross bill, asked reformation of the lease and an accounting. Defendant is the owner of a farm in Wheatfield township, Ingham county; and on February 25,1937, entered into a written agreement with plaintiff for a five-year lease of the premises. Among other stipulations, the contract of lease provided that defendant lease to plaintiff: “The following described premises, situated and being in the township of Wheatfield, county of Ingham and State of Michigan, to-wit: “The southeast % of section number 3 and the north % of the northeast % of section number 10 Wheatfield township, Ingham county, Mich. “Party of the second part is to pay $500 for the use of all of the equipment of said farm which includes the horses, tools, and the one half of all the livestock, cattle, sheep, hogs, chickens excepted party of the second part is to pay SO per cent, of all of his part of the proceeds of said farm at the time of the sale thereof with milk check exempted. “for the term of five years from and after the 1st day of March, 1937, on the terms and conditions hereinafter mentioned, to be occupied for farm purposes. “Provided, That in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, his certain attorney, heirs, representatives and assigns, to reenter into, repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out. “And the said party of the second part do hereby hire the said premises for the term of five years as above-mentioned, and do covenant and promise to pay to the said party of the first part, his representatives and assigns, for rent of said premises for said term the sum of Crop rent. . “Party of the second part is to furnish all the terms and tool? and is to do all the work, and is to have one half of all crops sown or planted. Each party is to furnish one half of all seed sown or planted, each party is to pay all the expense of all threshing bills, which includes grass seed. “Cattle: Each party is to have an equal interest in all cattle and each party is to have equal shares in all of the proceeds and increase from the above-named cattle, ‘ ‘Hogs: Each party is to have equal shares in all the hogs and is to have equal shares in all the increase and also proceeds from the hogs. “Sheep: Each party is to have equal shares in all of the sheep and each party is to have equal shares of all of the increase and wool. Each party is to pay one half of the shearing of the sheep. “Poultry: Each party is to have equal shares in all poultry and is to have equal shares in all the increase and proceeds from the same.” It is contended by plaintiff that by virtue of the lease he became entitled to the use of all of the equipment, tools, and horses on the farm and the owner of a one-half interest in all of the livestock owned by defendant, which were on the leased premises at the time the contract was made. The trial court reformed the contract “by eliminating therefrom the provision tending to indicate that plaintiff was entitled to a one-half interest in the cattle, sheep, and hogs on the farm on the 1st of March, 1937.” Plaintiff appeals, claiming the right to such an interest and contending that the contract should be construed to such effect. This is the only question before us on review. It appears from the evidence that defendant advertised in a newspaper that he had the farm for rent, and that plaintiff went out to the premises and discussed the matter with defendant. He testified that he found the livestock in poor condition and that there was no hay or grain on the premises. Plaintiff further states that at the time he had a good job at a Lansing dairy. Defendant at first wanted to sell the tools and horses to plaintiff, according to plaintiff’s account, and lease the farm. But after looking the place over, plaintiff and his wife decided not to take the farm and he thereafter wrote a letter to defendant informing him of his decision. Sometime afterward defendant came to see plaintiff. The interview is described in plaintiff’s testimony: “Q. "What was the next step in the negotiations? “A. Well, Linn came down there to my place and he said what is the reason that you were throwing it up. Well I said I have not got the finances to finance it, and I says it is a big undertaking and the stuff is in poor shape and I would have to have a good lay if I undertook it. “Q. All right. What else? “A. Well he said, I will, if you will take the stuff and build it up, he said, I am sick of it, 1 cannot maintain them, I have other business to look after, if you take it over I will give you a half interest in the cows and sheep. He said, if you will take it and take them all off of my hands he said I cannot handle them he said I am — I have other business and he said if it is money that is holding you back he said I will finance it. “Q. And the fact is that he did finance it, did he not? “A. Yes. “Q. Up until January, 1939? “A. Yes, he did. ‘ ‘ Q. What did he tell you with respect to financing it ? “A. He said I will put a two-hundred-dollar checking account in the bank as soon as you move there and he said ‘money is no object.’ And when I went there there was no hay there and no grain. I could see that and I could see that there was a lot of money to be spent right on the start, so I explained to Mr. Linn what I had, that was all set, I did not tell him. I had money because I did not have it. “Q. Now what discussion did you have regarding the half interest in the livestock, exclusive of the horses? Where did you first discuss it? Was it-when he came down to see you after your letter to him? “A.- No, we discussed that the second time I was there, the second time I was out there at the farm. “Q. Who brought up that matter first, you or Mr. Linn? “A. Mr. Linn brought it up. I told him he would have to give me a good proposition because I had a good job there and they were in poor condition and it is a lot of work and a lot more to put a herd up in shape and I could see what I was up against because it would take a lot of hard work and feed, that was what they needed more, and so Mr. Linn understood.” It would further appear from the evidence that the livestock was in a poor condition. Plaintiff testified: “Q. Now will you state briefly what the condition of the herd was and the other livestock that was there. Were there any dead animals there when you went there? “A. Yes, there was 5 or 6 dead calves laid out there and 7 or 8, or 8 or 10 sheep that were dead. “Q. Did others die after you first went there? “A. Yes. “Q. How many did you lose dead? “A. I think there was around 6 or 7, some died that spring. “Q. Calves or sheep? “A. Sheep. They were diseased and running out, it was a diseased and run out flock. ‘ ‘ Q. They had not been keeping it up — you are speaking of the sheep? “A. Yes. They never saved the lambs, they sold the lambs off and kept the same flock, the same buck.” Ezra Nealey, a brother-in-law of plaintiff, testified, without contradiction, to the following: “The barnyard looks better and clearer [cleaner?] I think. When Asher went there they were'pretty dirty. Some of the barns had not been cleaned out very recently for one thing, that is, the box stalls I mean. I helped clean them out. I presume out of the two stalls I hauled somewhere between 20 and 25 loads of manure, I could not tell exactly. ‘ ‘ The last I was in the barn and the barnyards they were pretty good, about three weeks ago. “The stock looks a good deal better than it did when we went there. When we went there the horses were not in any too good condition. They had not had care and were quite thin. I had something to do with the care of the horses. It took us quite a little while to get the horses clean, probably two or three weeks before we got some of the dirt off from some of them and it was not all off them until they shed.” Other witnesses testified that the stock was in poor condition when plaintiff went to the farm and since then there had been considerable improvement, especially in the cattle and care and condition of the premises. The trial court held that the language of the contract was ambiguous and contradictory; that there was no understanding between the parties that plaintiff would receive a one-half interest in the livestock on the farm at the time he entered upon the premises; that there was no adequate consideration for such an agreement with reference to the livestock, this last consideration, as the court indicated, having a bearing upon the probability of such an arrangement. A certain importance was attached also to the fact that the contract was drafted by a scrivener, who, as the court observed, “prepared the agreement to accord with the intention of the parties as he understood them;” and the scrivener testified that he understood that plaintiff was to have a one-half interest in the increase of the stock. But the important fact in the scrivener’s testimony is that he recalled no conversation with regard to this point. In reference to the making of the lease, he testified that he put a blank form into the typewriter. He stated: “I drew it as they directed it precisely, that they had already talked over before they came to the office and I drew it just exactly as they told me. 11Q. How did you actually draw it — did you put the blank in your typewriter? “A. Yes. “Q. And started off and they would tell you from time to time what to put down? “A. I took one paragraph and another, yes, sir. “Q. Had you talked it over fully, their entire agreement, before you started to type out the lease? “A. They talked it over, I did not have anything to do with that at all. “Q. So you started typing the lease with one or both of them telling you from time to time what to put in? “A. Yes. * * * “It was by their instruction and it was nothing that I hatched up at all.” If the scrivener only typed what the parties told him, his understanding of what they intended, especially in view of the fact that they did not discuss the matter before him or with him — other than to direct bim what to write — would be incompetent and irrelevant. Another small incident in the dealings of the parties, while not in itself conclusive, can be- said to be indicative of defendant’s understanding of the contract. A short time after plaintiff took possession of the premises, a calf, which was on the farm at the time of the execution of the lease, died. Defendant sold the carcass to a soap company and g*ave plaintiff credit for one half of the proceeds, which amounted to $1.25. Defendant’s explanation for this action was that it did not amount to much. But there had been a conversation between the parties with regard to these proceeds and it was agreed that instead of receiving one half of the money, plaintiff would receive credit. This transaction indicates a prior understanding that plaintiff had a one-half interest in the livestock on the farm when he took it over. We are of the opinion that the provisions of the contract that each party was “to have an equal interest in all cattle and that each party is to have equal shares in all of the proceeds and increase from the above-named cattle, ’ ’ together with similar provisions with reference to the sheep and hogs, entitled plaintiff to a decree awarding him a one-half interest in all such livestock on the farm at the time of the lease. This conclusion is strongly fortified by the fact that, after plaintiff had refused to take the farm, defendant came to see him and told him, “If you take it over I will give you a half interest in the cows and sheep.” This evidence is uncontradicted, and our construction of the contract, as above indicated, hardly does more than carry out what must have been defendant’s understanding and agreement, by which he, presumably, induced plaintiff to take over the farm. It is true that in another part of the lease some confusion might appear in the provision that plain tiff was to pay “$500 for the use of all of the equipment of said farm which includes the horses, tools, and the one half of all the livestock, cattle, sheep, hogs.” The use of the one half of the livestock could mean the use of defendant’s share for purposes of breeding and the production of milk and wool. Whatever obscurity may arise from this language and the testimony in regard thereto, it does not militate against the provisions of the contract above referred to, and our conclusions regarding them. The claim that defendant did not understand the contract and did not read it is without significance. He executed it and was given a copy at the time of execution of the lease. Whether defendant made a good contract or a poor one is irrelevant, as is also any discussion of the matter of consideration. The decree of the trial court is vacated and the cause remanded to the circuit court for an accounting and a decree in conformity to this opinion. Plaintiff will recover costs. Sharpe, C. J., and Btjshnell, Chandler, and Btjtzel, JJ., concurred with McAllister, J.

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Butzel, J. The loose and careless method of conducting the business of the Lapeer Farmers Mutual Fire Insurance Association and its mismanagement resulted in insolvency and the appointment of a receiver on September 17, 1935, in accordance with the petition of the commissioner of insurance. The ensuing receivership has given rise to much litigation and some has reached this court. See Simpson v. Goodrich, 280 Mich. 351; In re Dissolution of the Lapeer Farmers Mutual Fire Ins. Ass’n (Claim of Crawford), 280 Mich. 363; In re Gilliland, 284 Mich. 604; In re Dissolution of the Lapeer Farmers Mutual Fire Ins. Ass’n (Claim of Rice), 295 Mich. 218. In addition to the instant case, two additional ones involving other questions relating to. the dissolved association are pending in this court. The commissioner of insurance was appointed statutory receiver. Two different assessments were ordered. However, the first was held invalid in Simpson v. Goodrich, supra, and the second was also held defective by the lower court for failure to comply with the court’s order. After the receivership had extended over four years, John Gr. Emery was substituted as. statutory receiver and Charles R. Bowles was appointed deputy receiver. The latter presented a petition to the circuit court for the county of Ingham for instructions as to many of the problems that confronted him in making an •assessment. Appellants, members of the dissolved association, answered the petition and appeared at the hearing on April 26, 1940. Instructions-/were filed by tbe court on July 12,1940, in response to 16 questions propounded by the receiver. A petition for further instructions to the receiver was filed.by appellants and other members but dismissed by the court on August 22, 1940. On October 1, 1940, the court ratified and affirmed an order' for the 1940 assessment. The present appeal is mainly for the purpose of testing the validity of this order. Appellants’ brief presents 51 questions encompassed in 21 pages. Many of the questions are repeated a number of times with a slight rewording, and some are divided into many subdivisions. -A large number of the questions are repetitious with but a slight rewording. The first question is reasserted nine times. Stating a question nine different times with a slight rewording is not stating nine different issues. We appreciate the difficulty of counsel for appellants but the mere statement of their contentions, appearing in the questions and without any further argument except solely to reassert the contentions without proper argument in the body of the brief, will be wholly disregarded. Dolby v. State Highway Commissioner, 283 Mich. 609 (117 A. L. R. 538). An attempt to brief questions in this manner is contrary to the spirit as well as the letter of Court Rule No. 67, § 1 (1933). We, therefore, only review such questions as we believe have any merit and are properly briefed. We also exclude from present consideration questions which are raised in the two other cases concerning the association now pending in this court. Appellants contend that no valid assessment can be levied until there is another accounting and auditing of the company’s books and records. Excerpts of the testimony in this and other proceedings are incorporated into the record to prove gross mismanagement of the affairs of the company and lack of proper records. This seems to be admitted by the receiver, who, however, states that he has based his assessment on an audit of the books and accounts from 1926 to 1932 under the direction of George MaDan, certified public accountant; and audit from 1933 to the' date of the receivership in 1935 by Depuis & Ryden, certified public accountants of Flint; as well as a careful investigation conducted by the deputy receiver. From a review of the record, it appears that the receiver has carefully examined the affairs of the company and that another accounting and auditing would not serve any useful purpose. The trial court quite correctly stated, in referring to the books and records of the company, “Obviously, the receiver has no method of supplying the omission.” Appellants, in effect, oppose the assessment because officers were incompetent or neglectful in keeping proper records. This is not a tenable ground of opposition in an equity proceeding, since the petitioners herein were members of a mutual association in which they had equal voting rights. The practical result of this contention, if held valid, would be to prevent the receiver from ever 'levying an assessment to pay fire losses and creditors. We hold that the receiver had sufficient records so as to furnish adequate information upon which to base the assessment. The assessment was properly levied. One of the questions raised by appellants on appeal can be concisely stated in the question asked by the receiver in his request for instructions by the court: “A. Whether said association had authority to transact business after March 31, 1934, so that an assessment for a deficiency arising after such date should be made (1) against those persons who first became members thereof after March 31, 1934, or (2) against those who became members prior to said date bnt by payment of renewal premiums thereafter retained such membership?” Upon the revision, consolidation and classification of the laws of Michigan relating to insurance and surety business (Act No. 256, Pub. Acts 1917), commonly known as the insurance code, it is provided in part 4, chap. 4, § 10, referring to mutual fire, cyclone and hail companies (3 Comp. Laws 1929, § 12601 [Stat. Ann. § 24.451]), as follows: “No insurance company organized or operating under this chapter shall transact any business without a certificate of authority from the commissioner of insurance. All such certificates of authority shall expire on the last day of March of each year and shall be renewed annually upon full compliance with the provisions of this chapter, and such certificates of authority shall be revocable by the commissioner of insurance for violation of any of the provisions of this chapter after due notice, to such company and a hearing on the question of such violation. No insurance company hereafter organized under this chapter, except as herein otherwise provided, shall be granted a certificate of authority or shall commence business until bona fide agreements have been entered into for insurance with at least two hundred individuals covering property to be insured to the amount of not less than five hundred thousand dollars; no company hereafter organized under sections 4 or 6 of this chapter shall commence business until it shall be possessed of not less than sixty thousand dollars in premiums, upon which not less than twenty-five thousand dollars have been paid in cash, and the remainder in notes or agreements of solvent parties founded on actual bona fide applications for insurance; and no company hereafter organized under sections 7 or 8 of this chapter shall commence business until bona fide agreements have been entered into for insurance with at least two hundred individuals, covering property to be insured to the amount of not less than five hundred thousand dollars, which property in the first instance shall be located in not less than five counties, and not more than one hundred twenty-five thousand dollars of said property to be insured under such original applications shall be located in any one county. ’ ’ Part 4, chap. 2, § 2, of the insurance code (3 Comp. Laws 1929, §12568 [Stat. Ann. §24.418]) provides as follows: “All contracts of fire insurance upon property real or personal located in this State in companies not at the time of the mailing of such contracts duly authorized under the laws of this State to make such contracts are hereby declared to be void and unenforcible and no action at law or in equity shall be maintained on any such contract in any court.” Section 12574 (Stat. Ann. § 24.424), being part 4, chap. 2, § 8, of the insurance code, provides: “The provisions of this subdivision shall not apply to policies issued by mutual fire insurance companies organized or doing business under the provisions of chapter 4 of this part.” "While counsel for appellee claim that the provisions of section 12568 did not apply to mutual fire insurance companies because of section 12574, we find that section 12574 is limited to provisions of part 4, chap. 2, subd. 2 (3 Comp. Laws 1929, §§ 12572-12574 [Stat. Ann. §§ 24.422-24.424]), which does not apply to part 4, chap. 2, subd. 1 (3 Comp. Laws 1929 §§ 12567-12571 [Stat. Ann. §§ 24.417-24.421]), in which section 12568 appears. Appellee further claims section 12568 should not apply because section 12601 was adopted later and would be a duplication of section 12568. This was the view taken by the circuit judge. But even assuming that these two statutes are in pari materia and giving full force to each one of them, we nevertheless come to the same conclusion as did the circuit judge. Section 12568 holds all contracts to be void when made by companies not duly authorized to do so at the time of making such contracts. The circuit judge held that inasmuch as the formal certificate issued to the company expired on March ,31, 1934, new policies issued after that date were null and void; that the holders of such policies were not subject to assessment; and that upon due proof premiums paid by them should be returned. Neither party to the appeal questions this holding. He further held that those who had previously become members and continued as such after March 31, 1934, were liable for assessments covering the remainder of 1934 and 1935 up to the time receivership proceedings were instituted. It is true that with contracts of insurance in stock companies, a renewal operates as a new and distinct contract. Michigan Mortgage Investment Corp. v. American Employers’ Ins. Co. of Boston, 244 Mich. 72; Ladies of the Modern Maccabees v. Illinois Surety Co., 196 Mich. 27; Brady v. North Western Ins. Co., 11 Mich. 425. Renewal implies a fixed contract and the expiration of the original coverage. In a mutual company, however, there is no fixed term of membership. There is no new contract entered into or new policy issued as a matter of course from time to time. Upon the payment of membership fees, assessments and other charges, a member remains in good standing and his insurance continues in full force. Payment of such sums does not effect a new contract each year. Appellants claim that 3 Comp. Laws 1929, § 12601, automatically put the company out of business on March 31, 1934, when it failed to obtain a new cer tificate of authority, and, therefore, no assessments for the subsequent period may be made against former members. The circuit judge held that those who were insured in the company on the 31st day of March, 1934, and continued as members after that date, were members and subject to the assessment and that the language of 3 Comp. Laws 1929, § 12601, does not provide an automatic method for the cessation of all activities by the company. "While it does afford grounds for forfeiture or dissolution proceedings, the company still continues until appropriate action is taken to wind it up. The construction appellants assert would automatically put a company out of business if it were one day late in obtaining annual renewal. The case of Stamm v. Northwestern Mutual Benefit Ass’n, 65 Mich. 317, stressed by appellants, is not applicable. The company never obtained a certificate of authority to do business in this State and there was a voluntary abandonment of the field. The rule enunciated in Cahill v. Kalamazoo Mut. Ins. Co., 2 Doug. (Mich.) 124 (43 Am. Dec. 457), is still the law. It was there held that a cause of forfeiture of corporate rights could not be taken advantage of collaterally but only in a direct proceeding against the corporation for that purpose. The rule is stated in 1 Fletcher, Cyclopedia of Corporations (Perm. Ed.), p. 452, § 130, as follows: “If a corporation fails to comply with a condition subsequent, the State may institute proceedings to enjoin or oust it in the right to exercise the powers and privileges conferred upon it, but until such proceedings are instituted and a judgment of forfeiture rendered, the existence of the association as a corporation is not in any way affected.” We, therefore, hold that the acts of the association were binding in all respects upon the former members who continued as such until the appointment of the receiver in 1935. Appellants further claim that a receiver cannot levy assessments prior to exhausting “primary” assets and without proving the necessity and propriety thereof. There is no proof presented in this record that the present receiver has not been diligent in collecting the assets, nor is it necessary on the basis of the facts presented in the record herein that the receiver first bring suit against the officers and directors, and that the assessment should not be levied until the outcome of such suits and the collection of judgments, if obtained. We cannot go into the merits, if there are any, of claims against the officers and directors. The collection of the assessments and the winding up of the receivership should not be further delayed, almost six years having elapsed since the appointment of the receiver. If any moneys are so collected, proper refunds can be made, if a sufficient amount is collected through assessments to pay creditors. Appellants further contend that the receiver should be ordered to intervene in the case involving William E. Ivory’s claim. Ordinarily it is not the duty of the receiver to litigate as between adverse parties. Westgate v. Westgate, 294 Mich. 88. The attorney general is also plaintiff in the case involving Ivory’s claim and it is his duty to protect the rights of all parties.* Further claim is made that the company assumed liabilities on single hazards amounting to more than $2,500, this being forbidden unless such excess was underwritten in another comp any. No adequate proof of such violations appears on the record and we disregard the claim. Petitioners have failed to point out how, if true, this would affect the receiver’s assessments. The assessment is also assailéd on the grounds that the receiver failed to classify the risks into rodded or unrodded, and as to protected roofs under the charter of the association. The charter permits such classification upon application to the company and its approval. The record does not disclose any proof that the company failed to make such classification if there was any occasion to do so. Appellants contend that they were entitled to notice of: (a) receiver’s petition for confirmation and approval of his 1940 assessment; (b) making, filing and hearing of receiver’s 1940 assessment; and (c) the order of confirmation and approval of the assessment. It appears that the appellants did not receive notice of these proceedings until October, 1940. A receiver derives his authority from 3 Comp. Laws 1929, § 12269 (Stat. Ann. §24.46), and, while it is proper to ask the advice of the court in which he is an officer on an ex parte petition, the order confers no additional authority. He cannot act in contravention of or beyond the statute. Wardle v. Townsend, 75 Mich. 385 (4 L. R. A. 511). The petitioners received notice of the initial hearing and were represented by counsel. The lower court heard their arguments and gave consideration to the contentions of the present appellants. While, after intervening, appellants ordinarily would be entitled to notice of all further proceedings, the record shows that they had an opportunity to contest and did contest various stages of the proceeding. The error, if any, in failing to give appellants formal notice of the latter proceedings was not prejudicial. The brief of the amicus curiae presents substantially the same questions as have been heretofore discussed. It also raises the further question as to whether the form of the assessments is proper. It claims that assessments cannot be made against members who joined during the latter part of a year for losses that occurred in the earlier part of the same year and prior to their becoming members. Specific instances of where this occurred are not shown. The assessments as made were prorated, so that if a person became a member the latter portion of the year, he was assessed only for such proportion of the assessment for the year as the number of months in which he was a member bears, to the 12 months of the year. The brief does not disclose how anyone will be injured in this manner. Without any further information before the court, we have no reason to disturb the assessments on this ground. We have covered the principal questions that were presented in the brief of appellants in accordance with the rule. Others will not be considered as having any merit. The order of the trial court is affirmed, with costs to appellee. Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred. See post, 188.—Reporter. See 3 Comp. Laws 1929, § 12594 (Stat. Ann. § 24.444).— Reporter.

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Bushnell, J. This is an appeal from a decree dismissing plaintiff’s bill of complaint. Plaintiff Grace S. McClure is and has been the wife of Charles W. McClure since their marriage on January 2, 1906. Defendant Rex Oil & Gas Company is a Michigan corporation. On April 28,1909, Adoniram J. Stevens was the owner of an undivided one-half interest in lands situated in the township of Buckeye, county of Gladwin, described as the west one-half of the northeast one-quarter of the northwest one-quarter (W % of NE % of NW %) of section 11, township 18 north, range 1 west. Stevens and his wife on that date, executed and delivered to Charles W. McClure, a resident of the city of Saginaw, Michigan, a quitclaim deed to this undivided one-half of land. Plaintiff claims that she acquired an inchoate right of dower in the property by virtue of this deed. On November 12, 1915, McClure executed a quitclaim deed of his interest in this land to McClure-Stevens Land Company, a Michigan corporation of Gladwin, Michigan. This deed was recorded on November 23, 1915. Plaintiff did not join in this deed and alleges in her bill of complaint that the same was executed without her knowledge and consent and that she has not “at any time by deed, release, or conveyance of any kind, or otherwise, released or relinquished her right of dower in said land.” The record of these deeds in the office of the register of deeds was incorporated in plaintiff’s bill of complaint by reference. Plaintiff alleges that defendant has drilled one or more oil wells on the land and has taken and disposed of oil in large quantities continuously since 1936 without accounting to her and without regard to her inchoate right of dower. She claims that approximately one-half of the oil deposit has been removed and disposed of and that the land is practically without value except for the oil located thereunder. Plaintiff sought an accounting for the oil taken and that defendant be required to deposit with the clerk of the court a sum equal to one-sixth of the value of all oil taken, this sum to be impounded for the protection of plaintiff’s inchoate right of dower. Plaintiff asked that defendant be restrained from taking any more oil or that it be required to continue to deposit one-sixth of the proceeds thereof with the clerk of the court as oil is taken. Without filing an answer, defendant moved to dismiss plaintiff’s bill of complaint, setting up 10 reasons why the court should grant its motion. These reasons may be summarized as follows: That plaintiff’s husband, Charles W. McClure, took title to the land as trustee only; that he never had such title or interest in the premises to which dower could attach; that McClure is still living and that during his lifetime plaintiff has no right of action to preserve her inchoate right of dower in lands disposed of by McClure during coverture; and that an inchoate right of dower does not exist with respect to oil and gas. At the hearing on the motion to dismiss, and over plaintiff’s objections, the court received in evidence an abstract of title to the land, a certain land contract between A. J. Stevens & Company, and Staffeld Bros., and an affidavit by Theodore G. Bowler, attorney for Sun Oil Company, which is a defendant in a similar suit brought by this plaintiff. The evidence thus received shows the following: The deed from Adoniram J. Stevens and wife to Charles W. McClure, given April 28, 1909, describes the grantee as “Charles W. McClure, trustee of Saginaw, Saginaw county, Michigan.” The habendum clause reads: “to have and to hold the said above-described lands to the said parties of the second part, and to their heirs and assigns, to the sole and only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever.” On June 24, 1909, A. J. Stevens & Company, of Gladwin, Michigan, a copartnership formerly composed of Adoniram J. Stevens and 'William C. McClure, father of Charles W. McClure, entered into a land contract for the sale of the land in question to Staffeld Brothers. William C. McClure died testate on April 24,1904, A. J. Stevens was his sur viving partner. In February of 1912, A. J. Stevens, Charles W. McClure, and Clara B. McClure, a sister of Charles, formed a corporation known as McClure-Stevens Land Company. Its capital stock was issued to the incorporators as follows: Charles W. McClure, 399 shares; Clara B. McClure, 1 share; and Adoniram J. Stevens, 200 shares. The entire capital stock of the corporation was paid for in land, described in the articles of association, but the land involved in the present litigation does not appear as a part thereof. On February 28,1912, the copartnership of A. J. Stevens & Company assigned all of its interest in the Staffeld land contract to McClure-Stevens Land Company, and on March 24,1913, this corporation executed a warranty deed to Paul W. Staffeld and Reuben M. Staffeld to the land in controversy, which deed was signed by Charles W. McClure as president and Adoniram J. Stevens as secretary and treasurer. On November 12, 1915, McClure gave a quitclaim deed of this land to the corporation, describing himself therein as “Trustee, of Saginaw, Saginaw Co., Mich.” Defendant claims oil and gas rights in this land by virtue of a lease from a successor in title to the Staffeld brothers. Under the facts thus produced at the hearing on defendant’s motion to dismiss, the trial judge held that the seizin of McClure was merely transitory; that he was but an instrument to effectuate the transfer from the corporation to the Staífelds; that there was no merger of legal and equitable titles in McClure, and that he was not seized of an estate of inheritance in the land to which dower would attach. Plaintiff questions the propriety of the trial court’s action in granting defendant’s motion to dismiss and renews in this court her objections to the admissibility of the abstract of title, the land contract, and the affidavit on the hearing of the motion. The inquiry on this motion to dismiss, in so far as it is in the nature of a demurrer, is confined to charged infirmities which appear on the face of the bill of complaint. Otto v. Village of Highland Park, 204 Mich. 74. Those allegations of the motion which raise questions dehors the bill must be treated as in the nature of an answer to which reply may be made. Court Rule No. 24 (1933). On a motion to dismiss “the court should regard the allegations in the bill of complaint as true and in the most favorable light to plaintiff.” Marble v. Butler, 249 Mich. 276. Plaintiff alleged that a fee simple title became vested in her husband by the 1909 deed to him from Stevens and wife. There is nothing on the face of plaintiff’s bill to indicate that her husband’s interest was a bare legal title except the word “trustee” in each of the two deeds that were incorporated in the bill by reference. The designation “Charles W. McClure, trustee,” may be merely descriptio personae. Sanborn v. Loud, 150 Mich. 154 (121 Am. St. Rep. 614), Pungs v. Hilgendorf, 289 Mich. 46, and see 1 Bogert, Trusts and Trustees, § 45, and page 246. On the other hand, admissible testimony may show that McClure actually held title as trustee only. The issue as to the existence of a trust is the crux of plaintiff’s case. Such an issue cannot be fairly decided on a motion to dismiss, and determination of this issue cannot rest upon the type of evidence here submitted, viz., the abstract of title, land contract, and affidavit of counsel for a defendant in another cause involving similarly claimed rights of plaintiff. (McClure v. Sun Oil Co., post, 261, submitted at the same term as the instant case.) Where a doubtful question of this nature is raised in a bill of complaint to which no answer is filed, the court should not, on a motion to dismiss, subject the bill to an overcritical or minute analysis, but should require the cause to be brought to issue and proof. Justice is better served by reserving determination of the existence of the trust until after a trial on the merits. We confine decision to the propriety of determination of this issue on the motion to dismiss. The question whether plaintiff is entitled to relief must abide decision of whether she has an inchoate right of dower. The decree entered below is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. Costs to appellant. Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.

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North, J. Defendants are the executors of the estate of Elizabeth Miller, who died on December 10, 1937, and who was the vendor of the premises involved herein, plaintiff Sweitzer being the land contract vendee. These premises mil hereinafter be described as lot No. 240. On August 27, 1938, defendants commenced summary proceedings before a circuit court commissioner to regain possession of lot No. 240 from plaintiff, who was in default in payments due on the land contract. At that time plaintiff herein was in Florida, and service was made by publication under 3 Comp. Laws 1929, § 14978 (Stat. Ann. § 27.1989). See, also, Act No. 208, Pub. Acts 1939. On November 10, 1938, there was a hearing before the circuit court commissioner. No appearance having been made on behalf of Mr. Sweitzer, judgment by default was taken, and the commissioner found the amount of $838.26 to be due and unpaid. Writ of restitution was issued on February 14, 1939, and the same was executed on February 20, 1939. Plaintiff states that at the time the writ of restitution was executed he was still in Florida, and that the first actual notice to him of the summary proceedings was the receipt of a letter from defendants ’ attorney, dated March 8, 1939, and forwarded from Detroit, which requested him to vacate said premises. Plaintiff claims that as soon as his health permitted, he returned from Florida, employed counsel, and a petition for leave to make a delayed appeal from the judgment of the circuit court commissioner was presented to the circuit court. . This petition was filed on July 19, 1939, and the circuit judge, on July 24, 1939, granted leave to appeal, conditioned, however, upon plaintiff’s repaying to defendants $522.37 with interest within 30 days, the stated sum being the amount paid by defendants on back taxes on the lot after they had taken possession. This condition was not fulfilled; and on September 14, 1939, plaintiff filed the instant bill, praying that the judgment of the circuit court commissioner be set aside, that the land contract be decreed to be a mortgage and subsisting lien on the premises, that a warranty deed of this lot from plaintiff to Elizabeth Miller, to which reference will subsequently be made, be cancelled, and that possession be restored to plaintiff. Plaintiff’s bill alleges: That in 1921 he accepted from Elizabeth Miller a loan of $1,450 for use in his business, said sum to be repaid in five years with interest at 6 per cent, per annum; that to secure the loan, plaintiff executed a warranty deed to lot No. 240, and that the terms of repayment were set forth in an instrument purporting to be on its face a land contract, but which was in fact a real-estate mortgage. Plaintiff further alleges that on May 20,1932, the land contract above mentioned was surrendered, and at that time, since Elizabeth Miller did not feel secure as to the $1,450 loan, it was agreed that $1,000 of said loan be transferred to another loan secured by other property under a similar arrangement, and that as a result of such transfer there remained due only the sum of $508, the repayment of which was secured by a new land contract involving lot No. 240. By the terms of this land contract, the money was to be repaid within three months of the date thereof. The bill of complaint further states that a second land contract was executed on the same date, the purpose of which was to secure the $1,000 previously mentioned, that this second contract covered lots Nos. 292, 293, and 294, and that in 1934 Elizabeth Miller commenced summary proceedings to recover possession of lots Nos. 292, 293, and 294; that the proceedings were dismissed because the land contract was held in effect to be a mortgage, and shortly thereafter Elizabeth Miller filed a bill in equity asking that the land contract involving the three last-mentioned lots be decreed to be a mortgage, and that the same be foreclosed; and further that this relief was granted on March 23, 1935, the period of redemption thereafter expired, and Sweitzer was dispossessed. It is further alleged that the proceedings before the circuit court commissioner to regain possession of lot No. 240 were irregular, and that when the motion for delayed appeal was filed as above noted, it was granted on conditions which could not be performed by plaintiff within the time limited. The claim is also made that after defendants took possession of lot No. 240 under the circuit court commissioner’s judgment, they removed or caused to be torn down a building which was worth in excess of $700. Defendants answered the bill of complaint, denying the irregularity of the proceedings before the circuit court commissioner, admitting the removal of the building after they had gone into possession under the writ of restitution, but denying that it was worth over $700, and stating its value to be in the neighborhood of $50; and defendants disavowed sufficient knowledge to answer plaintiff’s allegation that the purported land contract was in fact a mortgage, and left plaintiff to his proofs. Defendants also filed a written motion to dismiss the bill of complaint. In support of the motion they assigned the following reasons: (1) that the bill of complaint does not make a case which warrants the intervention of the court of chancery, (2) that the plaintiff, who seeks equitable relief, does not offer to do equity, and (3) plaintiff has had an adequate remedy at law of which he neglected and refused to avail himself. This motion was heard and denied. Thereafter defendants filed a “further and additional” answer whereby the defenses of res judicata and laches were raised. Ample notice was given plaintiff of this proposed modification of the answer prior to the day of hearing. When the case was called for hearing in the circuit court defendants orally renewed their motion to dismiss. The court granted the motion and decree was entered accordingly. This appeal followed. Notwithstanding appellant’s contention to the contrary, we are of the opinion that the' proceedings before the circuit court commissioner, which resulted in a judgment in favor of the plaintiffs in that case, were regular. Plaintiff in the instant case asserts that the instrument upon which plaintiffs proceeded before the circuit court commissioner, notwithstanding it purported to be a land contract, was in fact a mortgage. Other than this, plaintiff in the instant case has not alleged any specific defect in the proceedings before the circuit court commissioner. The commissioner had jurisdiction of the subject matter set forth in the complaint filed in his court; and he obtained jurisdiction of the person of plaintiff herein by substituted service. At least plaintiff herein did not allege any-fatal defect in service. 'Further, by filing a motion for a delayed appeal in those proceedings, without having entered a special appearance for that purpose, defendant in the summary proceedings became a party to that suit. Thereafter he was bound by the order of the circuit court which granted him conditional leave to appeal. Granting leave was in the sound discretion of the court and the condition imposed was not an abuse of discretion. Failure to comply with the condition imposed resulted in the defendant in the summary proceeding's being bound by the judgment theretofore rendered in such proceedings. Nor was it an abuse of discretion on the part of the trial judge inferentially to permit defendants in the instant case to file a further and additional answer at the time the case was brought’ on for hearing and before any testimony was taken, especially since plaintiff had been given ample notice of defendants’ intentions so to do. A specific order or ruling allowing the amendment does not appear to have been made, but obviously the trial court thereafter considered the case as though the motion to amend had been granted. We consider this tantamount to a formal order permitting amendment. Further, it was within the power of the circuit court thereafter to entertain a renewal of defendants’ motion to dismiss, and to consider in connection therewith the additional issues of res judicata and laches which were raised by the amended answer. Lau v. Pontiac Commercial & Savings Bank, 260 Mich. 73; State Mutual Rodded Fire Ins. Co. v. Engel, 269 Mich. 348; Szostak v. Chevrolet Motor Co., 279 Mich. 603. Aside from the foregoing, we think dismissal of the bill of complaint can be and should be sustained on the ground, as was held by the circuit judge, that plaintiff has wholly failed to tender or to do equity. In part the trial court said: “Plaintiff has failed to tender or offer to pay the amount due and secured by the land contract alleged to be an equitable mortgage * * * and has failed to offer to do equity.” As bearing upon the above-quoted statement of the circuit judge, it may be noted this record discloses, and without contradiction, that there was past due and payable' from plaintiff to defendants upwards of $1,350; and we are of the opinion that the record fairly discloses the value of the property involved in the summary proceedings was less than the amount admittedly due from plaintiff to defendants. In open court before the circuit judge defendants offered to convey the premises in question to plaintiff upon payment of the amount due from him to defendants, provided plaintiff would waive any claim of liability on the part of defendants for the removal of the small building from the premises after defendants were placed in possession. The building referred to was old and decidedly of small value, apparently not to exceed $50. Plaintiff indicated no desire to work out an equitable adjustment along the lines above indicated. Neither has he made any tender of payment of the debt he owes defendants. After decree plaintiff made a motion for rehearing which was denied, but he made no offer to do equity in conjunction with this motion. Viewed as a whole, there is no equity whatever in plaintiff’s case. The trial judge was fully justified in dismissing plaintiff’s bill of complaint on the ground, among others, that notwithstanding he was in a court of equity he refused to do equity, and therefore was not entitled to relief. In an equity case involving in general somewhat similar circumstances, we said: “No actual tender is alleged or shown prior to filing this bill, nor into the court since, nor is ability to carry out the terms of the contract shown. Early in the hearing counsel for defendant stated during a discussion in open court that if plaintiff would pay the money into court they would terminate the suit right there, to which no direct reply was made. In the absence of any tender or some satisfactory assurance to the court of ability to at least promptly pay all then due and fully carry out the terms of the contract, the court was justified in the decree rendered [dismissing the bill of complaint].” William F. Nance Realty Co. v. Wood-Wardowski Co., 242 Mich. 110, 119. In view of the above it is not essential that we should consider here other grounds urged by defendants in justification of dismissal, among which are that the judgment rendered by the circuit court commissioner is not subject to collateral attack by a bill in equity, but instead the remedy is on the law side of the court by appeal; that the judgment in the circuit court commissioner’s court was controlling and res judicata of the rights now asserted in this equity suit by plaintiff; and that plaintiff has been guilty of laches which bar plaintiff from right to equitable relief. The decree entered in the circuit court is affirmed. Costs of this appeal to appellees. Sharpe, C. J., and Bushnell, Boyles, Chandler, McAllister, Wiest, and Butzel, JJ., concurred. Amending the seetion eited.—Reporter.

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Boyles, J. This is a proceeding instituted by the prosecuting attorney of Genesee county, under Act No. 389, Pub. Acts 1925 (2 Comp. Laws 1929, § 9093 et seq. [Stat. Ann. § 18.901 et seq.l), to have certain premises, in which defendant Lela Mae Carter has an equity, declared to be a nuisance. The circuit judge entered a decree declaring the nuisance and requiring the house to be closed and padlocked for a year on the ground of its use for vice and prostitution. The appealing party, Lela Mae Carter, seeks reversal on the ground that the decree imposes a penalty or forfeiture to which she cannot be constitutionally subjected because of having been subpoenaed and compelled to testify before a grand jury investigating the same house. For this immunity defendant relies on the provisions of section 453 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-453, Stat. Ann. § 28.708). This section is a part of the chapter in the penal code referring to prostitution and the use of premises for that purpose, and provides in part that no person shall be subjected to any penalty or forfeiture on account of any matter or thing concerning which he may so testify before a magistrate upon an investigation. Passing the question whether this case can be considered as subjecting the defendant to a “penalty or forfeiture,” the defendant has not brought herself within the immunity granted by the act. The only reference in the record concerning the appearance of the defendant before the grand jury is in the direct examination of the defendant testifying in her own behalf as follows: “Q. Were you subpoenaed to appear before the grand jury investigation in connection with your house at 313 W. 7th Street? “A. I was. “Q. Was that before or after this bill of complaint or suit was filed? “A. It was before. “Q. I wish you would state to the court whether you testified at that hearing as the result of a subpoena? “A. I did. “Q. And who ashed you the questions? “A. Mr. Roach, I believe. “Q. And did it involve this house? “A. Yes.” There is nothing in this testimony or in the record to indicate what questions were asked the defendant before the grand jury, whether any material questions were asked, or any questions tending to incriminate the defendant; or whether there was any compulsion to answer. The record merely shows that defendant was subpoenaed to appear before the grand jury and testified. Under defendant’s contention, every person who is subpoenaed and testifies before a grand jury in such an investigation would ipso facto be immune from prosecution or from subjection to any penalty or forfeiture. This contention would render nugatory the provisions of chapter 7 of the code of criminal procedure (Act No. 175, Pub. Acts 1927 [3 Comp. Laws 1929, § 17215 et seq. (Stat. Ann. §28.941 et seq.)1). Under the provisions of this chapter, a witness who is subpoenaed and compelled to testify before a grand jury may be granted immunity by the magistrate, but the questions and answers must be reduced to writing and entered upon the journal of the court. In order to obtain immunity, the witness must object to answering any question tending to incriminate. The witness can be compelled to answer such questions only upon receiving immunity. The record before us does not disclose that the defendant objected to answering any questions that might have been asked her before the grand jury. Under these circumstances and the decisions of this court, she is considered to have waived the privilege of immunity and to have been a volunteer witness. “No doubt the witness might have declined to answer under the acknowledged rule, that no one can be compelled to criminate himself. But this is matter of personal privilege which a witness may waive, and is not a ground of objection by the people, and here the witness did not object, and we cannot assume but that he was not only willing, but desirous to answer.” People v. Arnold, 40 Mich. 710, 713. In People v. Lauder, 82 Mich. 109, the defendant, indicted for bribery, interposed a plea in abatement asking that the indictment be quashed because he had appeared before the grand jury investigating the matter, in obedience to a subpoena, and had been required to give testimony. The defendant claimed immunity because his constitutional privilege had been invaded in compelling Mm to testify against himself. This court said (pp. 118-121): “The second ground for quashing the indictment, namely, that the grand jury violated Lauder’s constitutional right in compelling him to attend before them and testify against himself, presents a question of gravest importance, and is the only one upon which I have entertained any doubt. It has been presented to this court with great force and ability; but, upon mature consideration, I am obliged to hold that the plea does not make a case for quashing the indictment. The question presented is, does the fact that Lauder was subpoenaed to attend before the grand jury, was sworn, and gave testimony relative to the charge of bribery, which the grand jury was then investigating, and upon his and the other testimony the jury found a true bill, vitiate the indictment? * # # “This brings me to a consideration of the claim of a violation of a constitutional right or privilege. And, first, it may be premised that being subpoenaed and appearing before the grand jury was not a violation of his constitutional right, nor being sworn before that body, nor testifying upon any matter that did not criminate himself. All these the law compelled him to do under pains and penalties. But the law did not compel him to give testimony that would criminate himself. The fundamental law expressly declared that he should not be compelled to do so. It was therefore a personal privilege, and Mr. Lauder could claim it or not as he chose. If he gave such criminating testimony voluntarily, it is doubtful if it could be used against him upon the trial. If it was not voluntarily given, it could not be used against him upon the trial. In all cases where a personal privilege exists for a witness to testify or not, if such witness does testify without objection he will be deemed to have done so voluntarily. * * * “A party may waive personal rights, although secured to him by law or by the Constitution.” The same question was again before this court in People v. Willson, 205 Mich. 28. The precise question before this court in the instant case was there answered (quoting from pages 43 and 44) as follows: “But what questions were ashed respondent when a witness at that investigation or what answers, incriminating or otherwise, he may have made are not disclosed. His counsel’s assumption in that particular would seem to be based either on matters de hors the record, or a presumption that having been a witness at this investigation for discovery of crime, analogous to a grand jury inquiry, and after-wards prosecuted as the result of information discovered, he must have given incriminating testimony against himself. No such presumption obtains in law, or upon the facts in this case. * * * Counsel’s claim as to respondent’s constitutional and statutory rights resolves itself upon this record into the proposition that a person who is summoned to testify before a court of inquiry, or called as a witness in an authorized proceeding for the discovery of crime under Act No. 196, Pub. Acts 1917, and there gives testimony, whatever its nature, is thereafter immune from a prosecution based on information obtained during such inquiry, from whatever source it came. Such construction of the act or the constitutional rights of the accused cannot be entertained.” We have examined the other questions raised by appellant and find they are without merit. The denial of defendant’s demand that the bill of complaint be made more definite and certain, which was presented to the court after answer and at the opening of the hearing, was within the discretion of the court. We find no error in receiving or excluding testimony, and the record discloses ample proof upon which the court might well base the decree entered. We are not inclined to disturb the conclusion reached by the trial judge. Decree affirmed, with costs. Sharpe, C. J., and Bushnell, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.

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Wiest, J. This suit in equity, to have an account taken of the amount due on a note, secured by chattel mortgage, and foreclosure, was rendered necessary by the dealings of the parties and the claims set up by defendant. The circuit judge found the amount due and decreed foreclosure. Defendant reviews by appeal. Defendant company, prior to 1937, was in financial difficulties. Its president filed a petition in bankruptcy, and reorganization was sought under section 77B of the bankruptcy act. Under the reorganization plan, a creditors’ committee was appointed to take charge of affairs and operations until creditors were paid in full. Charles I. Stainton, Clair H. Scott, and John Turner were elected a creditors’ committee, with power of custody and control of all assets of the company, power to borrow money in the name -of the company, pledge its assets as security and appoint a general manager. The creditors’ committee elected John Turner general manager, with authority to carry on the business and to that end borrow money and give security. John Turner took over such management in February, 1937, and so continued until July 31, 1939, when all creditors, except three, had been paid. During John Turner’s management money was needed, financial institutions were loath to extend credit, and funds were obtained from Homer Turner, brother and partner of John. December 14, 1938, John Turner, as such manager of defendant company, executed a demand note for $58,513.84, payable to Homer Turner, bearing interest at six per cent, per annum payable semiannually, secured by chattel mortgage of even date and tenor covering the personal property of defendant company and here sought to be foreclosed. In answer to the bill, and upon the issue of amount due, defendant averred payment, want of authority on the part of John Turner to execute the note and mortgage, recoupment, set-off by reason of mismanagement, excess charges for supplies, negligent extension of credit, failure to make collections, improper charges for interest and expenses, excessive salary, and settlement of the obligation. Proofs were taken in open court. The court found $15,579.26 due plaintiffs and granted foreclosure. Under the evidence John Turner had authority to execute the note and chattel mortgage. Interest stipulated therein was legal and interest upon advances made in the course of transacting the business was proper. The grape crop, one season, had been injured by early frost and John Turner made the best possible use of the grapes, just like other wine makers did, and is not chargeable with mismanagement. Excess charges for claimed supplies cannot be found. Other claims in the nature of set-off and recoupment have been examined and do not command extensive statement. We agree with the findings made by the circuit judge relative thereto. The alleged settlement was a question of fact, with the burden of proof on defendant and, upon this issue, the trial judge had the advantage of seeing the witnesses and measuring the weight to be accorded their conflicting testimony, and found the claim not established. The record does not lead us to a different conclusion. The salary of John Turner, as manager, was fixed by proper authority and cannot be held excessive. We agree with the following holding of the circuit judge: “The execution of the mortgage was authorized and the salary of the manager was fixed by the committee and later by the stockholders. Measured by responsibility and results obtained the salary was fair and reasonable. The corporation was insolvent. It was in Federal Court for reorganization. The plaintiffs and the committee took over the management when the situation was desperate. They carried on, paid the debts, made improvements, increased the capacity of the plant, established credit, opened a market for the product, were diligent, faithful, and resourceful and placed the business on a sound financial footing and are entitled to the commendation of the creditors and the stockholders.” The decree in the circuit court is affirmed, with costs to plaintiffs. Sharpe, C. J. and Bushnell, Boyles, Chandler, North, McAllister, and Butzel, JJ. concurred. Now chapter 10 of the act, 52 Stat. at L. 840, 11 USCA, § 501 et seq.—Reporter.

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WHITBECK, C.J. I. OVERVIEW A. DOCKET NO. 259839 In Docket No. 259839, intervening defendant, the Wayne County Airport Authority (the Authority), appeals as of right the November 1, 2004, order granting summary disposition in favor of plaintiff, Wayne County (the County), and entering judgment for the County in this cause of action for a declaratory judgment and injunctive relief. We affirm. B. DOCKET NO. 259883 In Docket No. 259883, defendants, the Wayne County Retirement Commission (the Retirement Commission), the Wayne County Employees’ Retirement System Election Commission (the Election Commission), and the Wayne County Employees’ Retirement System (the Retirement System), appeal as of right the November 1, 2004, order granting summary disposition in favor of the County and entering judgment for the County in this cause of action for a declaratory judgment and injunctive relief. We affirm. II. BASIC FACTS AND PROCEDURAL HISTORY A. CREATION OF THE AUTHORITY On March 26, 2002, the Michigan Legislature enacted 2002 PA 90 (Act 90) to transfer the management and operation of qualifying airports from local government to a “public airport authority.” Act 90 defined a nonmilitary airport that has ten million or more enplanements within a twelve-month period as a “qualified airport.” At the time of the statute’s enactment, the Detroit Metropolitan Wayne County Airport (Detroit Metro) and Willow Run Airport were under the operation of the County and were the only two “qualified airports” in the state. Act 90 essentially combined the two airports into the Authority. The Authority was empowered by statute “to manage and operate” the qualified airports and their facilities. B. TRANSFER OF EMPLOYEES Act 90 gave Wayne County employees working at Detroit Metro and Willow Run Airport the option to transfer their employment to the Authority or to remain county employees and be reassigned within the county government. The majority of Wayne County employees working at those airports chose to become employees of the Authority. Under Act 90, an individual who chose to transfer employment to the Authority or who becomes a new employee of the Authority “shall remain or become a participant in the local government retirement system until the authority has established its own retirement system or pension plan.” About 714 employees of the Authority remained participants in the Retirement System because the Authority had not yet established a retirement system or pension plan. Under Act 90, the Authority was obligated to make employer contributions to the Retirement System on behalf of those employees who transferred employment to the Authority but remained participants in the Retirement System. Act 90 also required the Authority to assume the obligations of any collective bargaining agreements covering employees who transferred employment from Wayne County to the Authority. C. THE RETIREMENT SYSTEM Wayne County’s charter and enabling ordinances established the Retirement System to provide “retirement income to eligible employees and survivor benefits.” Wayne County Charter, § 6.111. The Retirement Commission is the administrative body responsible for overseeing the operational and administrative functions of the Retirement System. Pursuant to § 6.112 of the charter and § 141-35 of the Wayne County ordinances, the Retirement Commission consists of eight trustees, including the chairperson of the county board of commissioners, the county executive, and six other members who are elected to their seats. The Retirement Commission created the Election Commission to supervise the elections. Generally, nominations for office must be filed with the director of Wayne County’s Department of Personnel/Human Resources, who is responsible for certifying the eligibility of candidates. D. ELECTIONS TO THE RETIREMENT COMMISSION The term for one of the elected seats on the Retirement Commission represented by active members of the Retirement System was due to expire on December 31, 2004. On July 27, 2004, the Director of Retirement, Ronald Yee, posted a notice to all members of the Retirement System regarding an upcoming election for the open trustee seat. The notice informed the members that a primary election would be held on November 1, 2004, followed by a general election on December 13, 2004. Robert E. Murphy and Raymond J. Lambert, former Wayne County employees who transferred employment to the Authority, were two of five nominees for the active member seat. Murphy was an elected trustee of the Retirement Commission at that time. On September 27, 2004, Yee sent a letter to Pamela Travis, the chairperson of the Election Commission, certifying the names of the five individuals who filed satisfactory nominating petitions. Subsequently, the Election Commission approved the five candidates for incorporation on the primary election ballot. Lisa Laginess, a department executive in Personnel Information Services, then sent the original petitions, along with a letter containing information about the nominees, to Yee. Laginess also mailed letters to the nominees, including Murphy and Lambert, advising them that their names were to be placed on the primary election ballot. However, Timothy Taylor, director of the Department of Personnel/Human Resources for Wayne County, subsequently sent a letter to Yee rescinding Laginess’s letter and explaining that his office “inadvertently forwarded the original nominating petitions” to Yee’s office before the mandatory petition review process had been conducted. Taylor requested that Yee return the nominating petitions for completion of the review process. Taylor also mailed letters to Murphy and Lambert rescinding Laginess’s letters and advising that their names could not be placed on the ballot for the primary election because they were ineligible candidates since they were no longer Wayne County employees. Taylor further sent a letter to Travis requesting that she schedule an Election Committee meeting to approve the ballot for the primary election after completion of the mandatory review process. Taylor explained, “I have determined that two candidates are ineligible to participate in the election process because they are no longer Wayne County employees. .. . [T]he nominating petitions submitted by Mr. Lambert and Mr. Murphy are invalid and their names cannot appear on the ballot.” Yee responded to Taylor’s letter by e-mail, explaining that the Election Commission had already certified all five names for the ballot and that a legal review of the matter was pending. Yee refused to return the nominating petitions. Apparently, the Retirement Commission, with the Election Commission’s oversight, intended to continue with the primary election using ballots naming Murphy and Lambert as candidates. E. THE COUNTY’S COMPLAINT On October 12,2004, the County filed a complaint for a writ of mandamus, declaratory judgment, and injunctive relief against defendants. The County alleged that Authority employees who remained in the Retirement System were ineligible to vote in an election for and seek election to the Retirement Commission because they were not “active members” as defined under the Wayne County Charter, retirement ordinance, and election rules, and only names of “active members” may be placed on the ballot for elections to the Retirement Commission. The County also filed a motion for a temporary restraining order, show cause order, and preliminary injunction based on the irreparable harm that would result if the names of Murphy and Lambert remained on the ballots for the primary and general elections. Defendants opposed the County’s request, contending that the Retirement Commission had the authority to establish the rules and regulations guiding the elections of member representatives and that it was acting within its authority in seeking to conduct the contested elections. On October 12, 2004, the trial court entered an order temporarily restraining defendants from placing the names of Murphy and Lambert, or the names of any other individuals not certified as active employees by the Wayne County Department of Personnel/Human Resources, on the primary or general election ballots, printing the ballots, and holding the elections until the trial court ruled on the motion for declaratory judgment. The trial court also ordered defendants to show cause why a preliminary injunction should not be ordered and a writ of mandamus should not be issued in this matter. F. INTERVENTIONS On October 15, 2004, the Authority filed a motion to intervene, contending that, as the employer for approximately 750 employees participating in the Retirement System, it was interested in ensuring the rights, privileges, and benefits of its employees under Act 90. Also on October 15, 2004, Patrick Melton, one of the other nominees for the trustee seat, filed a motion to intervene as a defendant. Melton requested that the trial court dismiss the County’s claim and permit the election to proceed as scheduled. Moreover, the American Federation of State, County and Municipal Employees (AFSCME), the union representing several of the former Wayne County employees who transferred employment to the Authority, filed a motion to intervene as a defendant. AFSCME contended that, under collective bargaining agreements with the County that the Authority assumed, employees represented by AFSCME were designated and remained members of the Retirement System with the rights to fully participate in the Retirement System that included the ability to vote and seek election. After a hearing and oral arguments, the trial court granted the Authority’s motion to intervene as a defendant. However, the trial court denied Melton’s motion to intervene after finding that Melton failed to assert a position on the main legal issue of this case and “intervention would then serve no purpose.” The trial court also denied AFSCME’s motion to intervene after finding that the employees it represented lacked legal standing and that their interests were aligned with the interests of the Authority. The trial court also ordered that the temporary restraining order remain in effect until further order. G. THE TRIAL COURT’S DECISION On October 20, 2004, the trial court heard oral arguments on the County’s motion for a preliminary injunction. At the hearing, the trial court determined that the issue was a matter of law and that there were no operative facts in dispute. The trial court stated that it would “adjudicate this matter as a motion for summary disposition pursuant to MCR 2.116(I).” On October 25, 2004, the trial court issued an opinion. The trial court found that Authority employees were ineligible to seek election to the Retirement Commission and indicated that it intended to grant the County’s request for declaratory relief. Specifically, the trial court concluded: Based on the foregoing, this Court will grant the County’s request for declaratory judgment to the extent that the Court finds that, only active employees of the County are eligible to be on the ballot for the election for the Commission. Hence, in general, Airport Authority employees, and in particular, Murphy and Lambert, are not eligible to seek a seat on the Commission. Further, the Court will issue a writ of mandamus or an injunction that enjoins the defendants from placing on the ballot for election to the Commission the names of Airport Authority employees, specifically the names of Murphy and Lambert. On November 1, 2004, the trial court entered an order in accordance with its prior opinion, granting summary disposition in favor of the County pursuant to MCR 2.116(I)(1) and entering judgment for the County by granting its requests for a declaratory judgment, mandamus, and injunctive relief. Regarding the declaratory judgment, the trial court ordered that only active employees of the County of Wayne axe entitled to have their names placed on the ballot for the election for the Wayne County Retirement Commission, and specifi cally that former employees of the County of Wayne who are now employees of the Wayne County Airport Authority, including Raymond J. Lambert and Robert E. Murphy, are not eligible to have their names placed on the ballot for the election for the Wayne County Retirement Commission[.] Regarding mandamus and injunctive relief, the trial court ordered that the defendants, including their officers, agents, representatives and/or employees, are permanently restrained and enjoined from placing any names on the ballot for the primary and election of persons who are currently employees of the Wayne County Airport Authority, including Raymond J. Lambert and Robert E[.] Murphy. H. POST-DECISION PROCEEDINGS On November 1, 2004, the Authority filed a motion for clarification of the trial court’s opinion, contending that the trial court’s opinion failed to “fully address the rights of the Wayne County Airport Authority and its employees to participate in the Wayne County Retirement System.” The Authority requested that the trial court issue an opinion answering the following questions: (a) Can Wayne County Airport Authority employees vote in the election of the active trustee position on the Wayne County Retirement Commission? (b) Can retired Wayne County Airport Authority employees seek election and vote in the election of the retired trustee position on the Wayne County Retirement Commission? (c) Are Wayne County Airport Authority employees “members” of the Wayne County Retirement System entitled to receive the rights, privileges and benefits of membership in the Retirement System? (d) Can the Airport Authority and Airport Authority employees continue to make contributions to the Retirement System? On November 11, 2004, the trial court entered an order staying the proceedings pending appeal. The order provided that the judgment was stayed and the temporary restraining order continued pending this Court’s decision on the motions for expedited appeal and for immediate consideration. The order further provided that if these motions were granted, “then the stay shall remain in effect pending the final judgment of the Michigan Court of Appeals.” The order also provided that “[s]hould the term of the active employee trustee seat on the Retirement Commission expire on December 31, [2004], without a final judgment of the Michigan Court of Appeals, then the seat shall remain vacant until a superseding order is rendered by the Michigan Court of Appeals.” However, the order provided that if this Court denied the motion for expedited appeal, the stay would be vacated and the defendants must schedule primary and general elections according to the terms in the order. On November 15, 2004, defendants filed a motion for reconsideration. Defendants contended that they were not afforded the opportunity to file supporting documentation and offer appropriate evidence to support their arguments, and that there was recent, additional support for their position that would have changed the outcome of the case. On November 18, 2004, after hearing oral arguments on the matter, the trial court entered an order granting in part and denying in part the Authority’s motion for clarification of the opinion. The trial court clarified its prior order as follows: [T]he intervening defendant’s employees are not eligible to vote in the election for the active trustee position on the Wayne County Retirement Commission. . . . [Retired employees of the intervening defendant are not eligible either to seek election or to vote in the election of the retired trustee position on the Wayne County Retirement Commission. . . . [E]xcept as otherwise provided for by pertinent Michigan statutes, including MCL 259.119, for purposes of the Wayne County Retirement Ordinance, the intervening defendant’s employees are not members of the Wayne County Retirement Commission who are entitled to receive the rights, privileges and benefits of membership in the Wayne County Retirement System. The trial court refused to address the Authority’s request for clarification of whether the Authority and its employees may continue contributing to the Retirement System. On November 30, 2004, the trial court entered an order denying defendants’ motion for reconsideration. On December 20, 2004, defendants filed a claim of appeal from the trial court’s order granting summary disposition in favor of the County and entering judgment for the County. On December 21, 2004, the Authority filed a claim of appeal from the trial court’s order granting summary disposition in favor of the County and entering judgment for the County. On December 21, 2004, the Authority filed motions for peremptory reversal, immediate consideration, stay, and expedited appeal. On December 22, 2004, defendants filed motions for peremptory reversal, immediate consideration, and expedited appeal. On February 3, 2005, this Court entered an order granting the Authority’s motions for immediate consideration and for expedited appeal, but denying its motion for peremptory reversal pursuant to MCR 7.211(C)(4). Also on Febru ary 3, 2005, this Court entered an order granting defendants’ motions for immediate consideration and for expedited appeal, but denying their motion for peremptory reversal pursuant to MCR 7.211(C)(4). On its own motion, this Court ordered consolidation of the appeals in Docket Nos. 259883 and 259839. III. PARTICIPATION BY AN AUTHORITY EMPLOYEE IN THE RETIREMENT SYSTEM A. STANDARD OF REVIEW We review de novo a trial court’s decision to grant or deny summary disposition. This Court also reviews de novo a trial court’s decision concerning summary disposition in an action for declaratory judgment. Moreover, the interpretation and application of a statute is a matter of law that is subject to review de novo. B. STATUTORY INTERPRETATION When interpreting statutory language, the primary goal is to discern and give effect to the legislative intent that may reasonably be inferred from the language of the statute. When the language of the statute is certain or unambiguous, judicial construction is unnecessary, and a court must merely apply the terms of the statute as written to the circumstances of the given case. A court will not read into a clear statute that which is not within the manifest intention of the Legislature as derived from the statute itself. The appropriate standard for discerning if a statute is ambiguous is not whether reasonable minds could differ regarding the meaning of the statute. Rather, “a provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with another provision,... or when it is equally susceptible to more than a single meaning.” Under this traditional standard, “only a few provisions are truly ambiguous” and “a diligent application of the rules of interpretation will normally yield a ‘better,’ albeit perhaps imperfect, interpretation of the law . . . .” In construing a statute, courts must give the words of the statute their common and ordinary meaning. Moreover, a court must “give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.” When enacting legislation, the Legislature is presumed to have knowledge of existing laws and to have considered the effect of new laws on the existing laws. The rules of statutory construction apply to ordinances and city charters. C. THE ENACTMENTS AT ISSUE 1. ACT 90 The claim at issue requires consideration of three distinct but related legal authorities. The first is Act 90, which permits transferring employees to remain “participants” in the Retirement System. The statute provides in relevant part: (2) Local government employees employed at an airport from which operational jurisdiction will be transferred to an authority may agree to transfer to the employment of the authority on or before a date established by the authority. The date established by the authority shall not be later than the approval date. Local government employees, who do not agree to transfer to the employment of the authority, shall be reassigned within the local government. The local government shall not, as a result of the creation or incorporation of an authority for a period of not more than 1 year, layoff [sic] or reduce the pay or benefits of any employee of the local government into whose position a local government employee who was previously employed at the airport is reassigned. The authority shall consider any person hired by the authority to fill a position that had been previously filled with a local government employee who did not agree to transfer to the employment of the authority to be under the collective bargaining agreement covering, and to be represented by the collective bargaining representative of, the local government employee who did not agree to transfer to the authority. The authority shall accept the transfers without a break in employment, subject to all rights and benefits held by the transferring employees under a collective bargaining agreement. Transferring employees shall not be placed in a worse position by reason of the transfer for a period of 1 year after the approval date, or any longer period as may be required in connection with the assumption of any applicable collective bargaining agreement, with respect to wages, workers’ compensation, pension, seniority, sick leave, vacation, or health and welfare insurance or any other term and condition of employment that a transferring employee may have under a collective bargaining agreement that the employee received as an employee of the local government. ... Employees who elect to transfer shall not by reason of the transfer have their accrued local government pension benefits or credits diminished.... (3) If a local government employee described in this section elects to transfer to an authority or if a person is hired by the authority as a new employee after the date on which the authority assumes operational jurisdiction over an airport, the employee shall remain or become a participant in the local government retirement system until the authority has established its own retirement system or pension plan. During this period the employee remains or is a participant in the local government system, the employee’s post-transfer service with the authority during this period and his or her post-transfer compensation from the authority during this period shall be counted in determining both eligibility for and the amount of pension benefits that the employee will be eligible to receive from the local government system or plan. (4) If a local government employee described in this section elects to transfer to the authority, then the transferred employee may elect to remain a participant in the local government retirement system in lieu of participation in any retirement system or pension plan of the authority. By electing to remain a participant in the local government system, the employee’s post-transfer service with the authority and his or her post-transfer compensation from the authority shall be counted in determining both eligibility for and the amount of pension benefits that the employee will be eligible to receive from the local government system or plan... . Employees eligible to make the election described in this subsection shall be those employees who immediately before their transfer date were participating in the local government system and who agree to make any employee contributions required for continuing participation in the local government system and also agree to meet all requirements and be subject to all conditions which, from time to time, apply to employees of the local government who participate in the local government system. 2. THE WAYNE COUNTY CHARTER Second, Wayne County Charter, § 6.112 pertains to the structure of the Retirement Commission and the election of individuals to the Retirement Commission, and provides: The Retirement Commission is composed of 8 members: The CEO or the designee of the CEO, the chairperson of the County Commission, and 6 elected members. The members must be residents of Wayne County. Four members shall be active employees elected by active employees of the County in the manner provided by ordinance and 2 members shall be retired employees elected by retired employees of the County in the manner provided by ordinance. The term of the elected members is 4 years. The Retirement Commission shall administer and manage the Retirement System. The costs of administration and management of the Retirement System shall be paid from the investment earnings of the Retirement System. [Emphasis added.] 3. THE WAYNE COUNTY ORDINANCE Third, Wayne County Ordinance, § 141-35(a)(1)c, describing the composition of the Retirement Commission, states that it includes [flour members of the retirement system, who are residents of the county, to he elected by the members of the •retirement system [sic]. Each member trustee shall he from a different county department. .. : [several county departments are listed]. Employees of all other county agencies shall be considered collectively to be employees of one additional county department for the purposes of this provision. D. THE PLAIN LANGUAGE OF ACT 90 We conclude, as did the trial court, that it is unnecessary to look beyond the language of Act 90 to determine whether Authority employees and retirees are eligible to vote for and be elected as trustees to the Retirement Commission. Generally, courts must construe provisions of the law on the same subject or sharing a common purpose as harmonious. Because subsections 119(3) and 119(4) of Act 90 both relate to the retirement benefits of an employee who elects to transfer employment from Wayne County to the Authority, we must read them so that they harmonize. The plain language of the two subsections provides that those employees opting to transfer employment to the Authority and remain in the Retirement System, whether before the Authority creates its own retirement system or after such an event, do so as “participants” in the Retirement System. In addition, the transferring employees who remain in the Retirement System are to be subject to the “conditions” of that system. Act 90 therefore does not guarantee employees of the Authority the same rights and privileges they possessed while employees of Wayne County or the same rights as those enjoyed by current employees of Wayne County. A general principle of statutory construction is the doctrine of expressio unius est exclusio alterius, which means the express mention of one thing implies the exclusion of another. Act 90 enumerates certain rights protected, including “wages, workers’ compensation, pension, seniority, sick leave, vacation, or health and welfare insurance or any other term and condition of employment. . . .” Regarding a transferring employee’s pension, Act 90 specifically protects the employee’s right to have “post-transfer service” and “post-transfer compensation” counted toward eligibility for and the amount of pension benefits to be received from the local government retirement system. Act 90 also provides that transferring employees shall not have their “accrued local government pension benefits or credits diminished.” Therefore, Act 90 clearly protects transferring employees’ financial benefits. It does not provide transferring employees the right to vote in elections for the Retirement Commission or to seek and hold a position on the Retirement Commission. Similarly, Act 90 grants Authority employees the right to participate in “the local government retirement system.” However, it does not reserve the right to administer or manage that system through election to the Retirement Commission. Self-evidently, the rights of Authority employees regarding participation in the Retirement System exist only to the extent that Act 90 clearly grants them. Because the Legislature was silent regarding the voting and election rights under the Retirement System, it would be entirely improper for this Court to read into the statutory language a provision guaranteeing Authority employees such rights. Moreover, this Court is precluded from creating a provision that is not present in a statute merely because it may have made sense for the Legislature to do so. Accordingly, the participatory rights of transferring employees are governed by the local laws governing the local retirement system or, in this case, by the charter and the retirement ordinance for Wayne County. Because the statute does not contain provisions directly conflicting with the local law as provided in the charter and the retirement ordinance, the doctrine of preemption is inapplicable. E. APPLICATION OF THE CHARTER AND THE RETIREMENT ORDINANCE Pursuant to the Wayne County Charter, § 6.112, membership on the Retirement Commission for the open seat is explicitly restricted to “active employees... of the County.” Under the substantive provisions of Act 90, employees of Wayne County may elect to transfer employment to the Authority or remain employees of Wayne County. Accordingly, Authority employees are no longer employees of Wayne County and, under the charter, are ineligible to seek membership on the Retirement Commission. We note, as did the trial court, that the retirement ordinance defines the composition of the Retirement Commission in broader terms than the charter. According to the retirement ordinance, any “member” of the Retirement System may be elected to the Retirement Commission. According to the charter, membership on the Retirement Commission is expressly limited to “active employees ... of the County” and the election is to be conducted in “the manner provided by ordinance.” Although, in general, provisions of the law on the same or similar subject must be construed as harmonious, where an ordinance and a charter conflict, the express terms of the charter take precedence. Because the charter explicitly restricts eligibility to seek election to the Retirement Commission to employees of Wayne County, the retirement ordinance cannot provide for greater or lesser rights than those expressed in the charter. Therefore, we construe the two provisions to mean, with respect to election to the Retirement Commission, that membership in the Retirement System is synonymous with active employment with Wayne County. We note that, contrary to the Authority’s assertion, the charter and the retirement ordinance envision more than two classes of persons, that is, members and retirees. We further note that even before enactment of Act 90, the Retirement System contained participants without voting and election privileges. Both the charter and the retirement ordinance preclude participants who are not residing in Wayne County and who are spousal beneficiaries from voting in elections for or seeking election to the Retirement Commission. Therefore, the Retirement System can contain both employee members and nonemployee participants. Moreover, the trial court’s judgment and postjudgment orders do not prohibit the participation expressly provided under Act 90. The trial court refused to clarify its ruling by addressing whether Authority employees were permitted to continue making contributions to the Retirement System. The trial court reasoned that the issue of continued contributions was not raised before it and did not necessarily follow from its analysis of this case. The trial court further reasoned that the issue “is directly dealt with by the statute” and needed no clarification. Thus, the trial court allowed the “participation” expressly provided for in Act 90 while — properly, in our view — declining to rule on matters not before it. IV LACHES A. STANDARD OF REVIEW We review a trial court’s application of the doctrine of laches for clear error. “A decision is clearly erroneous where, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” B. APPLYING THE DOCTRINE “The doctrine of laches is a tool of equity that may remedy ‘ “the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.” ’ ” This doctrine applies to cases in which “there is an unexcused or unexplained delay in commencing an action and a corresponding change of material condition that results in prejudice to a party.” “Generally, ‘ “[w]here the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot ... be recognized.” ’ ” The basis for defendants’ claim of laches was that the County contested neither Murphy’s eligibility to remain a trustee on the Retirement Commission nor the voting rights of Authority employees who participated in the Retirement System immediately after the enactment of Act 90. The County, however, contended that the reason it brought this action at this time was that a controversy arose because of the impending opening of a trustee seat and the certification of a ballot for the related election with what the County deemed were candidates ineligible under Act 90. The trial court rejected defendants’ claim that the doctrine of laches precluded the County from filing this action because “defendants have not come forward with any showing that the delay of the County in asserting its position that Airport Authority employees may not seek to be elected to the Commission in any way prejudiced the defendants, the Airport Authority employees or those who presently sit on the Commission.” Even assuming that the County’s delay in filing this action was unacceptably lengthy, we conclude that the trial court properly refused to apply the doctrine of laches to bar the County’s lawsuit because there was no showing of prejudice to defendants. The County claimed that only employees of Wayne County were eligible to vote and seek election to the Retirement Commission under the applicable rules governing the Retirement System. As we have concluded above, the limitations on participation expressed in Act 90, the charter, and the retirement ordinance did not deny employees transferring their employment from Wayne County to the Authority the right to participate in their prior pension plans. Rather, these enactments made the participation of such transferring employees subject to the conditions of the Retirement System. One of the conditions of the charter, which was in existence at the time that the employees could elect to transfer their employment, precluded individuals not employed by Wayne County from seeking election to the Retirement Commission. Therefore, we conclude that seeking to apply this preexisting condition to Authority employees did not subject them to any new restrictions. It necessarily follows that transferring employees cannot claim prejudice from any delay in bringing this action. Affirmed. MCL 259.108 et seq., chapter VIA of the Aeronautics Code of the State of Michigan. MCL 259.109; MCL 259.110. See also Wayne Co Bd of Comm’rs v Wayne Co Airport Auth, 253 Mich App 144; 658 NW2d 804 (2002) (upholding the constitutionality of Act 90). MCL 259.109(n). MCL 259.110(2). MCL 259.119(2). MCL 259.119(3). MCL 259.117(1)(d). MCL 259.119(1). Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Breighner v Michigan High School Athletic Ass’n, Inc, 255 Mich App 567, 570; 662 NW2d 413 (2003), aff'd 471 Mich 217 (2004). Veenstra, supra at 159. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d681 (1995). Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). Lansing Mayor v Pub Service Comm, 470 Mich 154, 165-166; 680 NW2d 840 (2004). Id. at 166, quoting Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003) (emphasis in Lansing Mayor). Lansing Mayor, supra at 166. State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). Id. Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). Gora v City of Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). Detroit v Walker, 445 Mich 682, 691; 520 NW2d 135 (1994). 23 MCL 259.119 (emphasis added). See Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 648; 227 NW2d 736 (1975) (Williams, J., dissenting). MCL 259.119(3). MCL 259.119(4). Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997). MCL 259.119(2). MCL 259.119(3) and (4). MCL 259.119(2). MCL 259.119(3) and (4). Omne Financial, supra at 311. Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 152-153; 662 NW2d 758 (2003). MCL 259.119. Bivens v Grand Rapids, 443 Mich 391, 400-401; 505 NW2d 239 (1993). Id. City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 492; 608 NW2d 531 (2000). Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d 245 (2002), citing In re Attorney Fees & Costs (Septer v Tjarksen), 233 Mich App 694, 701; 593 NW2d 589 (1999). Dep’t of Public Health v Rivergate Manor, 452 Mich 495, 507; 550 NW2d 515 (1996) (citations omitted). Id. Kuhn v Secretary of State, 228 Mich App 319, 334; 579 NW2d 101 (1998) (citation omitted).

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Owens, P.J. Petitioner appeals as of right a judgment entered by the Michigan Tax Tribunal that resolved seven cases petitioner filed in 1993 and 1996, which were consolidated in 1997. The cases concern the assessment of fifty-three parcels in four “parent” parcels containing approximately 325 total acres, which petitioner bought in 1990, annexed, and then sold for various purposes, including private development. We affirm. The tribunal’s overview of the case summarizes the facts of the dispute: In 1990, Petitioner purchased 300 plus acres for City development. The parcels of property were not physically located within the boundaries of the City until they were purchased and annexed. From the time of purchase until the present, Petitioner has platted and marketed the parcels for development. The City Assessor, after requesting guidance from the Michigan State Tax Commission, placed the Bellows Place Subdivision and Preston Place Subdivision on the assessment roll for 1993. Petitioner argued that the properties were exempt from taxation pursuant to the provisions of MCL 211.7m; MSA 7.7(4j). Petitioner appealed to the local Board of Review, which affirmed the assessor’s decision. The Board of Review determined that Petitioner was not exempt from taxation on Bellows Place and Preston Place subdivisions, which Petitioner owned and developed for sale as residential property. Petitioner filed a Petition ... with the Tribunal on June 24, 1993 and alleged that the parcels held by Petitioner were tax exempt. Since then other properties have been added to the tax roll and other cases have been filed with this Tribunal, all of which have been consolidated in this proceeding. Petitioner first argues that land being assembled and marketed for future private development is land presently “used for public purposes” within the meaning of the tax exemption statute, MCL 211.7m, and that the tribunal erred as a matter of law in holding that petitioner’s land was not exempt. We disagree. Absent fraud, this Court’s review of a Tax Tribunal decision is limited to determining whether the tribunal made an error of law or adopted a wrong legal principle. The tribunal’s factual findings are upheld unless they are not supported by competent, material, and substantial evidence. Substantial evidence must be more than a scintilla of evidence, although it may be substantially less than a preponderance of the evidence. Failure to base a decision on competent, material, and substantial evidence constitutes an error of law requiring reversal. [Meijer, Inc v Midland, 240 Mich App 1, 5; 610 NW2d 242 (2000) (citations omitted).] Tax exemptions are construed narrowly. Skybolt Partnership v City of Flint, 205 Mich App 597, 602; 517 NW2d 838 (1994). MCL 211.7m provides, “Property owned by... a city... used for public purposes ... is exempt from taxation under this act.” If a public purpose use is a prospective use rather than a present use, it will not be tax exempt. Municipal Employees Retirement Systems of Michigan v Delta Charter Twp, 266 Mich App 510, 513; 702 NW2d 665 (2005), citing Traverse City v East Bay Twp, 190 Mich 327, 330-331; 157 NW 85 (1916). Nevertheless, petitioner argues that marketing property for sale to private purchasers is a current use for public purposes. It is true that economic development is a public purpose. Wayne Co v Hathcock, 471 Mich 445, 462; 684 NW2d 765 (2004). The Legislature offers several economic development programs that provide property tax exemptions. Petitioner claims that the programs define economic development as a public purpose and asserts it is entitled to the same exemption that these statutory programs provide, even though it did not engage in economic development under the state programs. Nevertheless, the existence of the specific economic development programs providing property tax exemptions suggests that the exemptions only exist under the terms of their enabling statutes. Accepting petitioner’s argument that it was entitled to the exemption for carrying out economic development activity would amount to a holding that portions of these enabling statutes were needless because MCL 211.7m would provide the necessary exemption. Thus, the issue becomes whether petitioner’s property was currently used for public purposes after petitioner bought it and during the period in which petitioner was marketing the land. The Kansas Supreme Court in In re City of Wichita, 255 Kan 838, 847; 877 P2d 437 (1994), considered the meaning of the word “use” in the context of the public purposes exemption and held that an owner must do more than market a property for sale to say that it is “used,” even where the sale revenue will unquestionably be used for a public purpose: “[T]he property at issue was not used in the sense that term normally is understood. Although ‘use’ also can mean purpose or end, the term ‘use’ typically contemplates some active, actual utilization of the property.” Id. Because the property here was not actively, actually used by petitioner, we conclude that the tribunal did not make an error of law or apply a wrong legal principle in holding that petitioner’s land was not exempt from ad valorem taxes while being marketed to private users. Petitioner next argues the tribunal incorrectly applied a legal principle when it found that petitioner omitted the property from the tax rolls by listing it as exempt and concluded that respondent was entitled to correct the tax roll for the challenged year and the two prior years pursuant to MCL 211.154. We disagree. At the time petitioner challenged the orders, MCL 211.154(1) stated in relevant part: If it shall be made to appear to the state tax commission at any time that as a matter of fact any property liable to taxation has been incorrectly reported or omitted for any previous year, but not to exceed the current assessment year and 2 years immediately preceding the date of discovery and disclosure of the incorrect reporting or of the omission, the state tax commission shall place the corrected assessment value for the appropriate years on the then current assessment roll. Relying on City of Ann Arbor v State Tax Comm, 393 Mich 52; 223 NW2d 1 (1974), this Court has suggested that MCL 211.154 applies to this kind of case. Detroit v Norman Allan & Co, 107 Mich App 186, 191-192; 309 NW2d 198 (1981). We find this reasoning persuasive. Moreover, we note that the plain language of the statute is not limited to incorrectly omitted property; it also includes incorrectly reported property. Petitioner next argues that respondent’s failure to act in 1992 signified approval of petitioner’s exemption claim, which precluded correction in 1996 of the tax roll under MCL 211.154, and the tribunal’s finding — that there was no evidence suggesting respondent was advised of the claim — was unsupported by substantial, material, and competent evidence. Because petitioner has not cited any cases from Michigan or elsewhere that support its conclusion that the failure to act signified approval or precluded respondent’s ability to take action under MCL 211.154 in 1996, we decline to address this issue. “It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.” [Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).] Affirmed. Petitioner also argues that the project was for a public purpose because it was intended to enhance its tax base so that it could continue to provide municipal services. Petitioner’s argument highlights the paradox created by its claim, which is that taking property off the tax rolls serves a public purpose because the property will then be sold for private uses that will enhance the property tax base. Thus, petitioner claims, a municipality is entitled to claim the exemption given for lands used for public purposes while it is marketing land to improve the tax base, although the beneficial use — the enhanced tax base — will not occur, if ever, until after the land is sold to private interests. We are not persuaded by this argument. MCL 211.154(1) was amended by 1996 PA 476, to read in relevant part: If the state tax commission determines that property hable to taxation... has been incorrectly reported or omitted for any previous year, but not to exceed the current assessment year and 2 years immediately preceding the date of discovery and disclosure to the state tax commission of the incorrect reporting or omission, the state tax commission shall place the corrected assessment value for the appropriate years on the appropriate current assessment roll. This amendment became effective two weeks after petitioner filed its challenges. However, the amendment does not affect our analysis.

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Per Curiam. These consolidated cases arise out of an audit by the Department of Treasury of plaintiffs records and subsequent assessment of taxes under the General Sales Tax Act (GSTA), MCL 205.51 et seq., and the former motor fuel tax act (MFTA), MCL 207.101 et seq. Plaintiff distributes and sells at retail gasoline and diesel fuel in St. Clair County and other eastern Michigan counties. Rex Pierce supervised and David Wagg conducted the audit, which began in May 1996. The audit culminated in the department issuing orders of determination on April 15, 1999. One order finalized a deficiency assessment for diesel motor fuel tax and interest of $46,249.22 for the period of January 1994 to the end of September 1996. Another order finalized an adjusted deficiency assessment for sales tax of $4,714 for the period of February 1994 through September 1996. Plaintiff paid these assessments under protest and commenced these proceedings. The trial court granted summary disposition for defendants, dismissing all of plaintiffs claims for tax refunds in the Court of Claims and for damages as well as declaratory and injunctive relief in the circuit court. Plaintiff appeals by right. We affirm. I. SUMMARY OF FACTS AND PROCEEDINGS Plaintiff filed a complaint in the St. Clair Circuit Court on July 1, 1999, seeking declaratory and equitable relief. Plaintiff also sought money damages and injunctive relief, alleging that Pierce and Wagg violated 42 USC 1983 (count I) by denying plaintiff its right to due process under the Fifth Amendment and the Fourteenth Amendment. Plaintiff further alleged (count II) that it was deprived of property without due process of law as guaranteed by Const 1963, art 1, § 17. In addition, plaintiff asserted in count II that defendants’ conduct during the audit, the department’s enforcement of its Revenue Administrative Bulletin 1991-12 (RAB 91-12), and the use of a “block sampling” auditing procedure, deprived it of “fair and just treatment,” for which plaintiff sought injunctive and “other relief.” Plaintiff also sought declaratory and injunctive relief in counts III, iy and V. It asserted that § 22 of the MFTA, MCL 207.122 was unconstitutionally vague and unlawfully delegated to the department the authority to specify necessary requirements for invoices that § 22 mandated for diesel fuel sales. Plaintiff also claimed that because RAB 91-12 was not adopted pursuant to the Administrative Procedures Act (APA), MCL 24.201 et seq., it was unenforceable. In addition, plaintiff contended that the department’s use of “block sampling” to determine an error rate to apply to plaintiffs tax returns over the entire audit period was not “fair and just treatment” and was in violation of Const 1963, art 1, § 17. On July 13,1999, plaintiff filed a suit in the Court of Claims in which it sought a refund of taxes, interest, and penalties it had paid under protest. Plaintiff asserted the same arguments it raised in the circuit court case. Specifically, plaintiff again alleged that § 22 of the MFTA did not provide reasonably precise standards and therefore unlawfully delegated legislative authority to the department; that the application of RAB 91-12 was unfair, unjust and unlawful; and that the department’s use of the “block sampling” technique was also unfair, unjust, and unlawful. Plaintiff added a claim that the department interpreted § 6a of the GSTA, MCL 205.56a (regarding prepayment credits) in an arbitrary, capricious, and, therefore, unlawful manner. After a series of motions in each court, and after appeals to this Court, plaintiffs circuit court action was transferred by an order changing venue to the Ingham Circuit Court, where it was heard with the Court of Claims action. Defendants subsequently moved for summary disposition in each case under MCR 2.116(C)(4), (7), (8) and (10); the trial court granted the motions and dismissed all of plaintiffs claims in each case. The trial court ruled with respect to the circuit court action that plaintiff had failed to plead a valid claim for damages and injunctive relief pursuant to 42 USC 1983 against the individual defendants for alleged violations of federal due process; that plaintiff had failed to plead a valid claim against defendants for injunctive relief for alleged violations of state due process rights under Const 1963, art 1, § 17; that § 22 of the MFTA does not unlawfully delegate authority to the department contrary to state due process of law requirements and the separation of state governmental power doctrine; that § 22 of the MFTA directly authorized the department’s adoption and enforcement of RAB 91-12 so that compliance with rule promulgation requirements of the APA was unnecessary; that the auditing method used by the department was fully authorized by the GSTA and not in violation of state due process rights; and that plaintiff failed to plead a valid claim for declaratory relief by alleging that § 22(2) of the MFTA, the RAB 91-12, and the “block sampling” auditing method were unlawful and unenforceable. In the Court of Claims action for a refund, the trial court ruled that plaintiff failed to state a valid claim because § 22 of the MFTA was a constitutional delegation of legislative authority to the department; that RAB 91-12 was not an unlawful enforcement of § 22; that the “block sampling” audit method did not unconstitutionally deprive plaintiff of state due process rights; and that the department’s interpretation of the “prepayment credit” provisions in § 6a of the GSTA was neither arbitrary nor capricious but, in fact, was consistent with and thus authorized by the statute. II. STANDARD OF REVIEW The interpretation, application, and constitutionality of statutes are questions of law that this Court reviews de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001). We also review de novo issues of constitutional construction and a trial court’s ruling on a motion for summary disposition. Carmacks Collision, Inc v Detroit, 262 Mich App 207, 209; 684 NW2d 910 (2004). The trial court dismissed plaintiffs claims under MCR 2.116(C)(7), (8), and (10). A motion for summary disposition under MCR 2.116(C)(7) asserts that a claim is barred by immunity granted by law; a C(8) motion asserts that the pleading fails to state a claim on which relief can be granted, and summary disposition under C(10) is proper where there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. A motion under MCR 2.116(C)(7) may be supported or opposed by affidavits, depositions, admissions, or other documentary evidence; the substance or'content of the supporting proofs must be admissible in evidence. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The allegations of the complaint are accepted as true unless contradicted by documentary submissions. Id., citing Patterson v Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994). A trial court properly grants a motion for summary disposition under MCR 2.116(C)(7) when the undisputed facts establish that the moving party is entitled to immunity granted by law. Poppen v Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003); MCR 2.116(I)(1). A motion brought under MCR 2.116(C)(8) tests the factual sufficiency of the complaint on the basis of the pleadings alone. MCR 2.116(G)(5); Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). The trial court must grant the defendant’s motion if no factual development could justify the asserted claim for relief. Id.; Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A C(10) motion tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley, supra at 278. The moving party must specifically identify the undisputed factual issues and support its position with documentary evidence. MCR 2.116(G)(4); Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). The trial court is required to consider the submitted documentary evidence in the light most favorable to the party opposing the motion. Corley, supra at 278. If the moving party satisfies its burden of production, the motion is properly granted if the opposing party fails to proffer legally admissible evidence that demonstrates that a genuine issue of material fact remains for trial. Maiden, supra at 120-121. III. DOCKET NO. 251201 We begin by reviewing the trial court’s rulings with respect to plaintiffs circuit court case for two reasons. First, that is the order in which the trial court proceeded. Second, plaintiffs circuit court case raises almost all the same issues that plaintiff asserts in its Court of Claims complaint as a basis for a refund and it names all defendants. A. 42 USC 1983 Plaintiff claims that the individual defendants violated state law and regulations governing the department’s conduct when auditing taxpayers and, therefore, they violated its federal right to due process of law. On this basis, plaintiff asserts that the individual defendants are liable pursuant to 42 USC 1983 for violating its federal rights under color of state law. Specifically, plaintiff alleges that the individual defendants violated its right to due process of law by failing to provide plaintiff a Taxpayers Rights Handbook, being “visibly unhappy” and expressing dissatisfaction while abiding plaintiff’s request that the audit be conducted through and at the office of plaintiffs accountant, failing to keep plaintiff or its accountant apprised of the audit’s progress, pressuring plaintiff to execute a waiver of the period of limitations to permit review of the audit results before the department issued its formal notice of intent to assess, and initially determining an amount of claimed tax deficiencies that contained errors. Plaintiff does not allege that it lacked notice or an opportunity for a meaningful hearing, and plaintiff does not contest that both predeprivation and postdeprivation remedies were available to it. The trial court rejected plaintiffs contention that allegations of noncompliance with state laws and regulations, standing alone, can support a federal claim of deprivation of property without due process of law. Noting that plaintiff failed to support its position with authority, the trial court quoted Harrill v Blount Co, Tennessee, 55 F3d 1123, 1125 (CA 6, 1995): “A state statute cannot ‘create’ a federal constitutional right.” In Harrill, the plaintiff sued police officers after being found not guilty on a charge of concealing stolen property. The Harrill court recognized that state law may create a liberty or property interest protected by the Due Process Clause, but a “violation of a right created and recognized only under state law is not actionable under § 1983.” Id., citing Sweeton v Brown, 27 F3d 1162, 1165 (CA 6, 1994) (en banc). “If states could vary... federal constitutional rights by statute or local ordinance, the federal constitutional law... would vary from state to state and from city to city.” Harrill, supra at 1125. Thus, principles of federalism discourage constitutionalizing state regulatory procedures. Sweeton, supra at 1165. Both the Michigan Constitution and the United States Constitution preclude the government from de priving a person of life, liberty, or property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17; Hinky Dinky Supermarket, Inc v Dep’t of Community Health, 261 Mich App 604, 605-606; 683 NW2d 759 (2004). The principle of fundamental fairness is the essence of due process. In re Adams Estate, 257 Mich App 230, 233-234; 667 NW2d 904 (2003). Due process is a flexible concept, however, and determining what process is due in a particular case depends on the nature of the proceeding, the risks and costs involved, and the private and governmental interests that might be affected. Genesco, Inc v Dep’t of Environmental Quality, 250 Mich App 45, 56; 645 NW2d 319 (2002). Generally, “[d]ue process in civil cases requires notice of the nature of the proceedings and an opportunity to be heard in a meaningful time and manner by an impartial decisionmaker.” Hinky Dinky, supra at 606, quoting Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995) (citation deleted). Because the collection of a tax constitutes a deprivation of property, a state must provide sufficient procedural safeguards to satisfy due process requirements. McKesson Corp v Div of Alcoholic Beverages, 496 US 18, 36; 110 S Ct 2238; 110 L Ed 2d 17 (1990). But states “are afforded great flexibility in satisfying the requirements of due process in the field of taxation.” Nat’l Private Truck Council, Inc v Oklahoma Tax Comm, 515 US 582, 587; 115 S Ct 2351; 132 L Ed 2d 509 (1995). Due process is satisfied when a taxpayer has “a fair opportunity to challenge the accuracy and legal validity of their tax obligation [and] a ‘clear and certain remedy’ for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one.” McKesson, supra at 39, quoting Atchison T & S F R Co v O’Connor, 223 US 280, 285; 32 S Ct 216; 56 L Ed 436 (1912). The Michigan statutory scheme at issue provides taxpayers with notice and an opportunity for meaningful hearings both predeprivation and postdeprivation. MCL 205.21; MCL 205.22; Kostyu v Dep’t of Treasury, 147 Mich App 89, 92; 382 NW2d 739 (1985). Plaintiff was accorded “a fair opportunity to challenge the accuracy and legal validity of [its] tax obligation” and was provided a meaningful, clear, and certain remedy to correct any unlawful tax collected. McKesson, supra at 39. As noted already, plaintiff has alleged no conduct by defendants that deprived it of notice or of an opportunity to be heard at a meaningful time and in a meaningful manner by an impartial decision maker. In re Adams Estate, supra at 234. Consequently, plaintiff has failed to sufficiently allege a violation of its federal constitutional right to due process of law. US Const, Am V, Am XIV Further, 42 USC 1983 is not itself an independent source of substantive rights; rather it merely provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes, and because plaintiff has failed to sufficiently allege a violation of its federal constitutional right to due process, plaintiff failed to state a claim for which relief maybe granted. MCR 2.116(C)(8); Spiek, supra at 337-338. The trial court properly granted defendants’ motion for summary disposition on plaintiffs § 1983 due process claim. Because plaintiff failed to state an actionable claim for a violation of a federal right under 42 USC 1983, it follows that plaintiff failed to state a claim for attorney fees pursuant to 42 USC 1988. Moreover, because adequate remedies are available under state law to aggrieved taxpayers, declaratory or injunctive relief is not available through federal district courts under § 1983. 28 USC 1341; Nat’l Private Truck Council, supra at 588 (“[I]t is clear that [federal courts] may not award damages or declaratory or injunctive relief in state tax cases when an adequate state remedy exists.”). This same rule applies to state courts hearing § 1983 claims because “Congress did not authorize injunctive or declaratory relief under § 1983 in state tax cases when there is an adequate remedy at law.” Id. Thus, irrespective of “[w]hether a suit is brought in federal or state court, Congress simply did not authorize the disruption of state tax administration in this way.” Id. at 590. In addition, MCL 205.28(1)(b) applies to the GSTA and the MFTA and provides: “An injunction shall not issue to stay proceedings for the assessment and collection of a tax.” Consequently, the trial court did not err in dismissing all of plaintiffs 42 USC 1983 claims for failing to state a claim upon which relief may be granted. For the reasons already discussed, the trial court also properly dismissed all of plaintiffs § 1983 claims against the individual defendants on the ground of qualified or “good faith” immunity. MCR 2.116(C)(7). See Harlow v Fitzgerald, 457 US 800, 818; 102 S Ct 2727; 73 L Ed 2d 396 (1982), and Guider v Smith, 431 Mich 559, 568; 431 NW2d 810 (1988). “If the undisputed facts show that the defendant’s conduct violated no clearly established constitutional standards, qualified immunity applies as a matter of law.” Id. Here, even were we to accept plaintiffs complaint as true, at best it alleges violations of state law that do not constitute violations of clearly established federal due process rights. B. CONST 1963, ART 1, § 17 The trial court concluded that plaintiffs circuit court complaint failed to allege a violation of either proce dural or substantive due process and also failed to state an actionable claim under the “fair and just treatment” clause of Const 1963, art 1, § 17. We agree. 1. PROCEDURAL DUE PROCESS Const 1963, art 1, § 17 provides, in pertinent part: No person shall... be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed. On appeal, plaintiff cites Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81; 141 NW2d 722 (1966), which held, “When an administrative agency promulgates a rule for the benefit of litigants and then deprives a litigant of this right, it is a violation of the due process clauses of both the 1908 and 1963 Michigan Constitutions.” Bohannon was a worker’s compensation claimant for whom the appeal board “inadvertently did not grant a hearing” contrary to the board’s own rules of procedure. Bohannon, supra at 82. The Bohannon Court engaged in no legal analysis beyond that stated above in reaching its constitutional conclusion, which this Court is not bound to follow. MCR 7.215(J)(1). In contrast, both our Supreme Court and this Court have held that this state’s Due Process Clause provides protection coextensive with its federal constitutional counterpart. People v Sierb, 456 Mich 519, 523; 581 NW2d 219 (1998); English v Blue Cross Blue Shield of Michigan, 263 Mich App 449, 459-460; 688 NW2d 523 (2004). “The ‘fundamental requirement of due process’ is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Id. (citation deleted). To the extent Bohannon correctly found a violation of due process rights, it was because there was no meaningful opportunity to be heard. Here, the statutory scheme accords constitutional due process, Kostyu, supra at 92, and plaintiff does not allege that it was in fact denied notice or an opportunity to be heard at a meaningful time and in a meaningful manner. The trial court correctly ruled that plaintiff failed to state a claim for which relief could be granted based on the department’s alleged failure to accord plaintiff with state procedural due process. MCR 2.116(C)(8). 2. SUBSTANTIVE DUE PROCESS Plaintiff next asserts that the trial court erred by dismissing its substantive due process claims under Const 1963, art 1, § 17 for injunctive (count II) and declaratory relief (counts III and V). Plaintiff contends that § 22 of the MFTA, MCL 207.122, unconstitutionally delegated legislative authority because it permitted the department to specify required details of invoices for diesel fuel sales without reasonably precise standards; therefore, the department could not enforce RAB 91-12. “One of the requirements of substantive due process is the existence of reasonably precise standards to be utilized by administrative agencies in the performance of delegated legislative tasks.” State Hwy Comm v Vanderkloot, 392 Mich 159, 169-170; 220 NW2d 416 (1974). The Vanderkloot Court held that the Legislature provided constitutionally sufficient standards to the highway commission to condemn private property for highway purposes in the single word “necessity.” Likewise, here, the trial court found the Legislature provided standards “as reasonably precise as the subject matter requires or permits,” Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956), in the single word “invoice.” The trial court therefore dismissed plaintiffs substantive due process claims pursuant to MCR 2.116(C)(8). Although the trial court reached the correct result, we find that the Legislature provided the department standards beyond the word “invoice” to guide its exercise of delegated discretion. Section 22(1) provides a discount of six cents a gallon of the tax imposed on diesel motor fuel pursuant to the MFTA “if the diesel motor fuel is delivered into the fuel supply tanks of a commercial motor vehicle licensed under the motor carrier fuel tax act [MCL 207.211 et seq.].” Plaintiff rests its constitutional argument on the language of § 22(2) that reads in pertinent part: The tax on diesel motor fuel sold and delivered in this state by the retailer into the fuel supply tanks of motor vehicles shall be collected by the supplier and paid over monthly to the department except that the retail dealer shall pay over monthly to the department 6 cents of the tax imposed. .. for each gallon sold for delivery into or supplied into the fuel supply tanks of a motor vehicle that is not a commercial motor vehicle... and eligible for discount allowed under subsection (1). Each diesel motor fuel retailer shall invoice sales of diesel motor fuel as prescribed by the department. .. . [MCL 207.122(2) (emphasis added).] The department exercised the delegated authority in the emphasized language by approving RAB 91-12 on October 10, 1991. The RAB stated the department’s belief that the advent of computerized card pump and key pump systems allowed abuses of the commercial motor carrier discount because the discount was “often being given to anyone with access to a card or a key.” To address these concerns, RAB 91-12 requires minimum invoice record keeping for retail sales of diesel motor fuel as follows: 1. Seller’s name, address, and account number. 2. Date of sale. 3. Name of purchaser. 4. Serial number of the current-year license fuel decal or serial number of the 5-Day Fuel Tax Permit in the driver’s possession. 5. Product sold. 6. Number of gallons. 7. Total price per gallon, including the current full Michigan motor fuel tax. 8. Indication of the 6 cent discount, shown as a separate item. RAB 91-12 requires additional details for card pump systems. It also provides that the “[f]ailure to meet any of these requirements will result in the disallowance of any discount given at the time of the sale.” Plaintiff contends that these invoicing requirements are arbitrary and capricious, especially the requirement of the forfeiture of the discount upon noncompliance. Therefore, plaintiff argues, RAB 91-12 violates substantive due process under Const 1963, art 1, § 17. In Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 51; 367 NW2d 1 (1985), our Supreme Court noted that it had earlier stated the criteria for evaluating a claim that the Legislature unconstitutionally delegated its authority in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). The Seaman Court set forth the following “guiding principles”: First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. .. . Third, if possible the statute must be construed in such a way as to “render it valid, not invalid, as conferring administrative, not legislative” power and as vesting discretionary, not arbitrary, authority. [Seaman, supra at 309 (citations and punctuation deleted).] The trial court began its analysis with the third criterion and the “well-established rule that a statute is presumed to be constitutional unless its unconstitutionality is clearly apparent.” McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999). “This presumption is especially strong where tax legislation is concerned.” Kostyu, supra at 93. Plaintiff faults the trial court for misapplying the standard of review by requiring plaintiff to prove the statute unconstitutional “beyond a reasonable doubt.” Although the trial court may have strayed into the lexicon of the criminal law, it surely captured the essence of our Supreme Court’s longstanding teaching regarding the judiciary’s duty of deference to statutes the Legislature enacts. A court must “exercise the power to declare a law unconstitutional with extreme caution, and ... never exercise it where serious doubt exists ... .” Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004), citing Sears v Cottrell, 5 Mich 251, 259 (1858). Furthermore, “ ‘[e]very reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.’ ” Phillips, supra at 423, quoting Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). The trial court ruled that plaintiff failed to overcome the presumption that § 22 is constitutional. We agree. With regard to the second Seaman criterion, that “the standard should be as reasonably precise as the subject matter requires,” the trial court reasoned that although “many aspects of sales taxation in general can be highly complex, the same is surely untrue of the specific power delegated by section 22(2) to Treasury, to prescribe departmental requirements for the invoicing of sales by diesel fuel retailers.” Thus, the trial court found that the single, well-known word “invoice,” having a generally understood meaning, provided adequate standards for the department to specify the details for the standardized form and content of invoices to be used by all diesel fuel retailers. The trial court likened “invoice” to the one- or two-word standards upheld as sufficient to satisfy due process, citing Vanderkloot, supra (“necessity” in the context of condemnation), G F Redmond & Co v Michigan Securities Comm, 222 Mich 1; 192 NW 688 (1923) (“good cause” to revoke a securities dealer’s license), and Klammer v Dep’t of Transportation, 141 Mich App 253; 367 NW2d 78 (1985) (the statute permitted a waiver of mandatory retirement from state service when “necessary”). We concur in the trial court’s reasoning, but also find additional reasons for concluding that the Legislature provided constitutionally sufficient standards to guide the department in the exercise of its discretion. Specifically, applying the first and third Seaman principles to § 22, we conclude that the legislative purpose of requiring that diesel fuel sales be invoiced is to ensure that the discount of § 22(1) is granted to only those sales that qualify, i.e., when “diesel motor fuel is delivered into the fuel supply tanks of a commercial motor vehicle licensed under the motor carrier fuel tax act. . . MCL 207.122(1). Thus, the purpose for which the invoice is required also provides standards to guide the department in exercising the authority delegated to it to “prescribe” the details required in the invoice by § 22(2). Furthermore, plaintiff concedes in its brief that the standards would be constitutionally sufficient if the Legislature had provided that the invoice the department prescribes required information reasonably necessary to determine the amount of tax due. Plaintiffs concession is fatal to its argument. Although the language plaintiff suggests is not found in § 22 of the MFTA, similar language is found in § 11(2) of the MFTA, MCL 207.111(2). At the relevant time, that section provided: Each supplier, exporter, wholesale distributor, carrier, terminal operator, liquid fuel carrier, and retail dealer shall maintain and keep, for a period of 4 years, suitable books, records, and accounts of all gasoline and diesel motor fuel received, manufactured, stored, used, sold, or delivered within this state, sold for export from this state, or exported from this state, together with all invoices, delivery tickets, bills of lading, and other pertinent records and papers as may be required by the commissioner for the reasonable administration of this act. [MCL 207.111(2) (emphasis supplied).] In sum, the Legislature provided constitutionally sufficient standards for the department to implement the invoice requirement of § 22(2). Accordingly, the trial court did not err by ruling that plaintiff failed to state a claim for either injunctive or declaratory relief on the basis of its assertion that the Legislature’s delegation of authority to the department to prescribe the details of the invoice required by § 22(2) violated state substantive due process. MCR 2.116(C)(8). 3. FAIR AND JUST TREATMENT Plaintiff next contends that the trial court erred by dismissing its claims for injunctive relief (count II) and declaratory relief (count V), alleging that RAB 91-12 and the department’s use of a “block sampling” technique during the audit violated the “fair and just treatment” clause of Const 1963, art 1, § 17. The trial court, citing Johnson v Wayne Co, 213 Mich App 143, 155; 540 NW2d 66 (1995), concluded that plaintiff failed to state a claim upon which relief could be granted because the “audit by an executive department implicated neither an investigation nor a hearing” within the meaning of Const 1963, art 1, § 17. We agree. “The primary objective in interpreting a constitutional provision is to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). Although technical or legal terms should be ascribed their technical or legal meanings, in general this Court’s task is to ascertain and give effect to the common understanding of the text at the time of ratification. Id. at 468-469; Carmacks, supra at 209. We must “attempt to give effect to the language in the Constitution as the ‘popular mind’ would have understood it at the time it was adopted.” Id.; People v Dean, 14 Mich 406, 417 (1866). “A collateral rule ‘is that to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered.’ ” Comm for Constitutional Reform v Secretary of State, 425 Mich 336, 340; 389 NW2d 430 (1986), quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). The text at issue in Const 1963, art 1, § 17 provides, “The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.” The plain text conveys that the protection of “fair and just treatment” applies only “in the course of,” or “during,” either a “legislative” or “executive” “investigation” or “hearing.” Johnson, supra at 155. Further, the historical context in which this clause was adopted suggests that it was intended to protect against the excesses and abuses of Cold War legislative or executive investigations or hearings. See Jo-Dan, Ltd v Detroit Bd of Ed, unpublished opinion per curiam of the Court of Appeals, issued July 14, 2000 (Docket No. 201406), slip op at 10-14. We doubt that the “common understanding” or “popular mind” at the time of ratification regarded this provision as a protection against the adverse consequences of a run-of-the-mill tax audit. Nevertheless, we examine the conduct that plaintiff alleges comes within its ambit to determine whether it might fit within the plain meaning of the constitutional text. Carmacks, supra at 211. First, plaintiff offers no argument or authority about how the department’s adoption of RAB 91-12 could possibly constitute unfair and unjust “treatment.” The word “treatment” clearly connotes some active conduct during the “course of” a hearing or investigation. An administrative agency’s interpretation or implementation of a statutory provision can hardly amount to a violation of the “fair and just treatment” clause simply because plaintiff disagrees with the agency’s interpretation or implementation. In any case, because plaintiff has not adequately briefed or argued this issue, it has abandoned it. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). The department referee who presided over the “informal conference” process pursuant to § 21 of the revenue act, MCL 205.21, explained the nature of the “block sampling” dispute and the parties’ positions in her report of January 29, 1999: The motor fuel tax audit involves a disallowance of less than 2% [1.76%] of the motor fuel discount claimed on returns filed. The disallowance is based on review of invoices for discounted sales made during the month of July 1994. A total of 825,625 gallons of discounted sales were [sic] reported for that month. The audit disallowed a discount on sales of 14,535 gallons. The department states that the discount was reduced because some invoices did not include the purchaser’s name, other invoices reflected an incomplete decal number while still other invoices reflected an invalid decal number. An error rate was projected over the total audit time period. The taxpayer objects to the auditor’s test sample with the contention that it was not conducted in accordance with widely recognized sampling methods. The auditor made mistakes during the audit as well. An error rate of less than 2% should be acceptable. The taxpayer implemented a computer system specifically for compliance purposes. Inaccurate discount slips were reported by one employee who left after the test month. Inclusion of exceptions which were caused by this one employee distort the test period. The State of Michigan has not implemented a system which allows sellers to verify decal numbers given by customers. The taxpayer has no way of knowing if a number accepted is correct. *** The department issued RAB 91-12 in response to [MCL 207.122(2)]. The RAB lists six requirements which must be met with each sales invoice in order to become eligible for the discount. Two of the criteria require that the invoices include the name of the purchaser and the serial number of the current-year license fuel decal or the serial number of the 5-day Fuel Tax Permit in the driver’s possession. Schedule 6 of the audit workpapers lists approximately 60 sales per page. The schedule is made up of 116 pages. Approximately 6,960 sales were reviewed as part of the department’s test period. Approximately 120 were disallowed. The taxpayer’s argument does not connect general sampling principles with the specific amount of sales reviewed or with the specific amount of sales disallowed. The law does not provide an exemption for an “acceptable” error rate. The trial court ruled that plaintiff has no right to choose the audit method employed by the department. We agree that the Legislature has granted the department wide discretion in the selection of auditing methods. MCL 205.21; Vomvolakis v Dep’t of Treasury, 145 Mich App 238, 244-245; 377 NW2d 309 (1985). The Vomvolakis Court observed that the department “is to make assessments only when it has reason to believe that a return does not supply sufficient or accurate information or when proper records are not maintained by a taxpayer. The state’s power to tax would be greatly eroded if [the department] could not make assessments on available information in situations where taxpayers do not maintain proper records.” Id. at 245. Although plaintiff proffered opinion testimony that the audit method used by the department was not the most reliable and should have been verified with test samples chosen from throughout the period audited, plaintiff failed to offer any evidence that the error rate determined by the “block sampling” method was actually inaccurate. Thus, plaintiff failed to demonstrate as a factual matter that any unfairness or injustice occurred. Further, we agree that the trial court correctly rejected plaintiff’s argument that the audit method the department selected violated the “fair and just treatment” clause of Const 1963, art 1, § 17. Because plaintiff contends the violation occurred during the department’s audit rather than during a “hearing,” the audit must be considered an “investigation” to come within the protection of the “fair and just treatment” clause. Carmacks, supra at 212. But defendants did not engage in a searching inquiry to ascertain facts. Id. at 210-211, citing Messenger v Dep’t of Consumer & Industry Services, 238 Mich App 524, 532-533; 606 NW2d 38 (1999). Rather, defendants conducted an administrative review of business records that plaintiff was statutorily obligated to maintain to substantiate its GSTA and MFTA tax returns and its claim to the six cents a gallon discount allowed by § 22(1) of the MFTA. MCL 207.111(2); MCL 207.122(2). An “audit” is defined as “an official examination and verification of financial accounts and records.” Random House Webster’s College Dictionary (2001). An “audit” is what occurred here, not an “investigation” within the meaning of the “fair and just treatment” clause. Carmacks, supra at 212; Johnson, supra at 155. Plaintiff's “fair and just treatment” claim fails. MCR 2.116(C)(8). C. THE ADMINISTRATIVE PROCEDURES ACT Plaintiff also argues that the trial court erred by not finding that RAB 91-12 was a “rule” as defined in § 7 of the APA, MCL 24.207, and therefore invalid and unenforceable because it was not promulgated according to the procedure dictated by the APA. MCL 24.243(1); Clonlara, Inc v State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993). Pertinent to plaintiffs position, MCL 24.207 provides: “Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency. Plaintiff contends that RAB 91-12 is more than an agency’s interpretative statement because it was strictly applied in plaintiffs case, resulting in the disallowance of certain discounts plaintiff had claimed. Accordingly, plaintiff argues, the RAB had the effect of law and must be a “rule” under the APA that is unenforceable because required procedures were not followed. The department asserts that it was granted specific Legislative authority, independent from the APA, to adopt RAB 91-12. It points to § 3(f) of the revenue act, MCL 205.3(f), which provides that “[t]he department may periodically issue bulletins that index and explain current department interpretations of current state tax laws.” Further, the department asserts that the Legislature granted direct authority for the RAB in § 22(2) of the MFTA, MCL 207.122(2), which provided in part: “Each diesel motor fuel retailer shall invoice sales of diesel motor fuel as prescribed by the department.” Even if RAB 91-12 would otherwise be considered a “rule” under the APA, the department argues § 7 of the APA provides a number of exceptions, two of which apply. After defining “rule,” § 7 of the APA continues: Rule does not include any of the following: *** (h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory. *** (j) A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected. [MCL 24.207.] Relying on Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App 563, 582-584; 609 NW2d 593 (2000), Auto Club Ins Ass’n v Sarate, 236 Mich App 432, 435-436; 600 NW2d 695 (1999), and Faircloth v Family Independence Agency, 232 Mich App 391, 403-404; 591 NW2d 314 (1998), the trial court determined that “[c]ertain portions of RAB 91-12 are clearly explanatory and interpretive, expressing Treasury’s position on its standardization of invoices as to form and content [and those] portions of the document are within the § 7(h) exclusion from the APA” rule promulgation require ments. We agree. The Legislature, not RAB 91-12, established the criterion that to qualify for the § 22(1) discount, diesel fuel had to be “delivered into the fuel supply tanks of a commercial motor vehicle licensed under the motor carrier fuel tax act...." Further, the Legislature, not RAB 91-12, established the requirement that diesel fuel retailers “invoice sales of diesel motor fuel as prescribed by the department ....” MCL 207.122(2). Our Supreme Court explained in Clonlara, supra at 240: Agencies have the authority to interpret the statutes they are bound to administer and enforce. Legislative rules have the force of law. Interpretive “rules” state an agency’s interpretation of a statute. Legislative rules are enforceable in and of themselves. But an agency must rely on the underlying statute to support its reading of a statute set forth in an interpretive “rule.” We find that RAB 91-12 comes within the narrow exception of § 7(h) of the APA because it is an “interpretive statement,” or a “guideline” that merely explains the requirements of MCL 207.122 that a taxpayer claiming the diesel fuel discount must satisfy. Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Services, 431 Mich 172, 184; 428 NW2d 335 (1988); Faircloth, supra at 403. In this case, plaintiff failed to qualify for a portion of the diesel fuel discount it claimed, not because it failed to comply with the department’s revenue bulletin but because it failed to maintain adequate invoices to substantiate that it satisfied the criteria of § 22(1) of the MFTA. Thus, RAB 91-12 is not a “rule” within the meaning of the APA and is not subject to the procedural requirements of that act. See, e.g., Catalina Marketing Sales Corp v Dep’t of Treasury, 470 Mich 13, 21; 678 NW2d 619 (2004) (RAB 95-1 was interpretive and could not adopt a rule conflicting with the applicable statutes). Moreover, we must also reject plaintiffs argument that because the department strictly applied RAB 91-12, it has the “force and effect” of law and must be a “rule” under the APA. The trial court also found that RAB 91-12 was exempted from the rule-making procedures of the APA by § 7(j) because the authority granted by § 22(2) of the MFTA to “prescribe” the invoice required by that section was a “permissive statutory power.” Again, we agree. Subsection 7(j) excepts administrative action from the APA’s definition of “rule” when the Legislature has either explicitly or implicitly authorized the action in question. Detroit Coalition, supra at 187-188. See also Michigan Trucking Ass’n v Pub Service Comm (On Remand), 225 Mich App 424, 430; 571 NW2d 734 (1997) (§ 7[j] applied to the agency’s action because a statute explicitly authorized it), and Village of Wolverine Lake v State Boundary Comm, 79 Mich App 56, 59; 261 NW2d 206 (1977) (§ 7[j] applied because the agency’s policy was the same as the statutory scheme’s implicit policy). Here, § 22(2) of the MFTA explicitly required the department to “prescribe” the invoice required by that section and did not mandate the department to do so pursuant to the procedural requirements of the APA. Compare Detroit Coalition, supra at 188 (in which the statute required that “rules” be promulgated) with Michigan Trucking Ass’n, supra at 430 (in which the statute permitted the adoption of a rule or order). Consequently, we conclude that § 7(j) of the APA exempted the department from the need to comply with the rule-making procedures of that act before adopting RAB 91-12 to “prescribe” the invoice required by § 22(2) of the MFTA. IV DOCKET NO. 251200 Plaintiffs complaint in the Court of Claims mirrored the claims it raised in the circuit court case discussed in part III. Plaintiffs Court of Claims case on these issues fails for the same reasons as the identical circuit court claims. The trial court correctly granted summary disposition for the department pursuant to MCR 2.116(C)(8). 1. SECTION 6a OF THE GSTA Plaintiffs last claim is that the department arbitrarily, capriciously, and unlawfully interpreted § 6a of the GSTA, MCL 205.56a. That section requires gasoline retailers to prepay sales tax to their supplier at the time of “purchase or shipment,” MCL 205.56a(1), but then permits the retailer to “claim an estimated prepayment credit... for prepayments made during the month for which the return is required” for the tax on sales by the retailer. MCL 205.56a(3). Plaintiff contends that the time of its purchase of gasoline supplies is when it pays its supplier’s invoice and that it is simply using cash basis accounting. The department argues that § 6a requires plaintiff to claim the prepayment credit in the month it actually receives gasoline from its wholesaler, i.e., that the statute implicitly requires accrual basis accounting of the prepayment credit. MCL 205.56a provides in pertinent part: (1) At the time of purchase or shipment from a refiner, pipeline terminal operator, or marine terminal operator, a purchaser or receiver of gasoline shall prepay a portion of the tax imposed by this act at the rate provided in this section to the refiner, pipeline terminal operator, or marine terminal operator for the purchase or receipt of gasoline. ... *** (3) A person subject to tax under this act who makes prepayment to another person as required by this section may claim an estimated prepayment credit on its regular monthly return filed pursuant to section 6. The credit shall be for prepayments made during the month for which the return is required and shall be based upon the difference between prepayments made in the immediately preceding month and collections of prepaid tax received from sales or transfers. [Emphasis added.] The trial court upheld the department’s interpretation of the statute by reasoning as follows: The GSTA states plainly that the tax accrues at the end of the month in which the sales transaction takes place, not the month in which the purchaser or receiver makes payment to the supplier. That is also when a return to Treasury is required and, therefore, when the prepayment of tax must be made for the claimed credit. The accrual method of accounting, as required by Treasury in its forms and instructions for claiming prepayment credits, is implicit in the GSTA and therefore lawful. Plaintiffs contentions to the contrary are without merit and must therefore be dismissed under MCR 2.116(C)(8). Our primary goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). We first attempt to ascertain the Legislature’s intent from the specific language of the statute. Roberts v Mecosta Co Gen Hasp, 466 Mich 57, 63; 642 NW2d 663 (2002). When the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). But, if reasonable minds could differ about the meaning of a statute, judicial construction is appropriate. Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). When judicial construction of a statute is permitted, we must construe the statutory language reasonably, mind ful of the purpose of the act. Draprop Corp v City of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001), citing Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1987). Unless defined in the statute or possessing special technical meaning, we must accord every word or phrase of a statute its plain and ordinary meaning, considering the context of its placement and purpose in the statutory scheme. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999); City of Kalamazoo v KTS Industries, Inc, 263 Mich App 23, 33; 687 NW2d 319 (2004). Pertinent to this case, an administrative agency’s longstanding, consistent interpretation of a statute within the agency’s responsibility is entitled to great weight and should not be overruled unless that interpretation is clearly erroneous. Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467, 471; 673 NW2d 95 (2003). Of course, an administrative agency’s interpretation of a statute cannot overcome the statute’s plain meaning. Catalina, supra at 23-24, citing Ludington Service Corp v Ins Comm’r, 444 Mich 481, 505; 511 NW2d 661 (1994). Applying these principles to the statute at issue, we conclude that the trial court reached, the correct result, although we do not agree completely with the court’s reasons. The GSTA imposes a tax on “all persons engaged in the business of making sales at retail... .” MCL 205.52(1). At the time pertinent to this case, “sale at retail” meant “a transaction by which the ownership of tangible personal property is transferred for consideration, if the transfer is made in the ordinary course of the transferor’s business and is made to the transferee for consumption or use, or for any purpose other than for resale ... .” MCL 205.51(1)(b); Univ of Michigan Bd of Regents v Dep’t of Treasury, 217 Mich App 665, 668; 553 NW2d 349 (1996). It is true, as the trial court noted, that § 6(3) of the GSTA, MCL 205.56(3), provides: “The tax imposed under this act shall accrue to this state on the last day of the month in which the sale is incurred.” But the question presented here is when does the statute require a retailer to prepay this tax to its supplier of gasoline. The answer is found in the text of § 6a(1), not § 6(3). MCL 205.56a(1) fixes the mandatory time when a retailer must prepay sales tax to its supplier that the retailer will subsequently collect upon ultimate sale of gasoline to consumers. “The word ‘shall’ is unambiguous and is used to denote mandatory, rather than discretionary, action.” STC, Inc v Dep’t of Treasury, 257 Mich App 528, 537; 669 NW2d 594 (2003). Under plaintiffs interpretation of the statute, the word “purchase” in the phrase “[a]t the time of purchase or shipment” must be the equivalent of “payment. ” But the plain and ordinary meaning of the word “purchase” conveys a much broader concept than mere “payment.” Rather, “purchase” means “to acquire” either by contemporaneous payment of money or promise of future payment or equivalent exchange. See Random House Webster’s College Dictionary (1992), which defines “purchase” as “to acquire by the payment of money or its equivalent; buy.” This broad definition of “purchase” is also consistent with its legal meaning. “Black’s [Law Dictionary (6th ed)] defines ‘purchase’ as ‘To own by paying or [by] promising to pay an agreed [. . . ] price which is enforceable at law. . . . The term ‘purchase’ includes any contract to purchase or otherwise acquire.’ ” Graves v American Acceptance Mortgage Corp (On Rehearing), 469 Mich 608, 616 n 5; 677 NW2d 829 (2004) (emphasis added). In Graves, the Court used this broad meaning of “purchase” to support its “finding that, upon signing a contract to purchase property and acquiring equitable title therein, the [land contract] vendee has purchased that property.” Id. Moreover, this broad definition of the word “purchase” is consistent with its placement in the broader statutory scheme of the sales tax. Under the GSTA, “to sell,” the mirror image of “to buy” or “to purchase,” means a transaction by which the ownership of tangible personal property is transferred for consideration, which “includes a conditional sale, installment lease sale, and other transfer of property if title is retained as security for the purchase price but is intended to be transferred later.” MCL 205.51(1)(c), before 2004 PA 173 deleted that subsection. We also find it appropriate to examine the Legislature’s use of the word “purchase” in the Use Tax Act (UTA), MCL 205.91 et seq. When statutes relate to the same subject or share a common purpose they are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998), citing Detroit v Michigan Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660 (1965). “ ‘A sales-use tax scheme is designed to make all tangible personal property, whether acquired in, or out of, the state subject to a uniform tax burden. Sales and use taxes are mutually exclusive but complementary, and are designed to exact an equal tax based on a percentage of the purchase price of the property in question.’ ” Catalina, supra at 19 n 3, quoting 85 CJS 2d, Taxation, § 1990, p 950. The UTA broadly defines “purchase” as “to acquire for a consideration, whether the acquisition is effected by a transfer of title, of possession, or of both, or a license to use or consume; whether the transfer is absolute or conditional, and by whatever means the transfer is effected; and whether consideration is a price or rental in money, or by way of exchange or barter.” MCL 205.92(e); see Kal-Aero, Inc v Dep’t of Treasury, 123 Mich App 46, 52; 333 NW2d 171 (1983). Because the Legislature, by adopting a sales-use tax scheme, intended to impose a uniform tax, whether from the perspective of the retail seller (sales tax) or the buying consumer (use tax), we conclude the word “purchase” was intended to have the same broad meaning in each act. In summary, the plain and ordinary meaning of the word “purchase” in § 6a(1) of the GSTA is to acquire possession of or legal or equitable title to gasoline, regardless of when payment is actually made to the gasoline supplier. This interpretation is also consistent with the other time-marker in § 6a(1), “shipment,” which likewise does not require actual payment to the supplier or shipper before giving rise to the mandatory requirement that “a purchaser or receiver of gasoline shall prepay a portion of the tax imposed by this act....” Because § 6a(1) establishes the mandatory time to prepay the tax as “at the time of purchase or shipment,” which may precede the time of actual prepayment, the statute implicitly requires accrual accounting when retailers calculate the “estimated prepayment credit” permitted by § 6a(3). Thus, the plain meaning of § 6a supports the department’s longstanding interpretation rather than plaintiffs view. Moreover, even if the statute is considered ambiguous, allowing judicial construction, we would still reach the same conclusion under the principles already discussed. The department’s longstanding, consistent in terpretation of the statute within its responsibility to enforce is entitled to great weight and should not be overruled unless clearly erroneous. Schmaltz, supra. Because the department’s interpretation of the statute is not overcome by the statute’s plain meaning, the interpretation has not been shown to be clearly erroneous. Catalina, supra at 23-24. Further, the department’s interpretation of the statute implicitly requires retailers to calculate estimated prepayment credits by using the accrual method of accounting for their acquisition of gasoline supplies and is both reasonable and consistent with the purpose of the sales-use tax scheme. Accordingly, the trial court correctly ruled that plaintiff failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). V. CONCLUSION For the reasons discussed, the trial court correctly granted defendants’ motion for summary disposition and dismissed all of plaintiffs claims in each case. We affirm. 2000 PA 403, MCL 207.1169, repealed this section and all of the MFTA, effective April 1, 2001. See unpublished opinion per curiam issued May 22, 2001 (Docket No. 230731), and unpublished order, entered June 6, 2001 (Docket No. 232733). This Court will affirm the lower court decision when that lower court reaches the correct result even if it does so for the wrong reason. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 150; 624 NW2d 197 (2000); Webb v First of Michigan Corp, 195 Mich App 470, 472; 491 NW2d 851 (1992). See MCL 205.4 and 205.5. See MCL 205.21(2)(b) and 205.27a(3). The department initially found an MFTA deficiency of $225,000 and a GSTA deficiency of $30,384. During plaintiffs review of the audit results before the department issued its notice of intent to assess, these initial findings were reduced to $36,116 and $24,268, respectively. Plaintiff contends the errors resulted from Wagg’s fading to review certain documents that he had been provided and basic math errors; defendants contend the errors resulted from plaintiffs not providing the documents during the audit. See York v Detroit (After Remand), 438 Mich 744, 757-758; 475 NW2d 346 (1991), citing Graham v Connor, 490 US 386, 393-394; 109 S Ct 1865; 104 L Ed 2d 443 (1989). This Court later held that providing oral argument before the Worker’s Compensation Appeal Board, at issue in Bohannon, was not required as a matter of either federal or state constitutional due process of law. Leonardi v Sta-Rite Reinforcing, Inc, 120 Mich App 377, 382-383; 327 NW2d 486 (1982). Likewise, in English, supra at 460, this Court held that “an oral hearing is not necessary to provide a meaningful opportunity to he heard.” Like the rest of the MFTA, this section was repealed, effective April 1, 2001. See n 1. In light of our conclusion that plaintiffs procedural and substantive due process claims lack merit, we agree with the trial court that “no matter how unpleasant or inconveniencing [the conduct of the department’s employees] may have been in other respects,” such conduct did not deny plaintiff “due process guarantees during the course of their tax audit.” Although plaintiff viewed the department’s agents’ conduct as arbitrary or rude, plaintiff “failed to identify and allege with specificity any unlawful conduct of constitutional magnitude that could support the claim that its state rights to due process had been violated.” Neither party addresses, nor do we opine, whether MCL 24.243(2) affects plaintiffs right to challenge the department’s 1991 revenue bulletin on the basis of noncompliance with the APA. That subsection provides, “A proceeding to contest a rule on the ground of noncompliance with the requirements of sections 41 and 42 shall he commenced within 2 years after the effective date of the rule.” This latter subsection was designated § 6(4) between the effective dates of 1998 PA 265 (July 17,1998) and 2004 PA 173 (September 1, 2004).

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Fitzgerald, J. In this action under the Michigan no-fault automobile insurance act, MCL 500.3101 et seq., plaintiffs no-fault insurer, defendant State Farm Mutual Automobile Insurance Company, appeals by leave granted the order granting defendant’s motion for a medical examination of plaintiff, subject to several conditions, pursuant to MCR 2.311. We affirm. FACTS AND PROCEDURAL HISTORY Plaintiff was involved in a motor vehicle accident on May 15, 2002. Defendant initially paid personal injury protection (PIP) benefits to plaintiff, but subsequently refused to pay benefits. Plaintiff filed the present action on February 11, 2003, alleging that defendant “unreasonably refused” to pay PIP benefits to which she, is entitled under the no-fault act, notwithstanding that “reasonable proof has been submitted.” In its affirmative defenses, defendant stated in part that plaintiff “is not presently entitled to any no-fault benefits as she has failed to supply the Defendant with reasonable proof of her claims and proof of the fact and amount of the loss sustained as required under the Michigan No-Fault Act, MCL 500.3142(1).” On July 10, 2003, defendant filed a motion to compel independent medical examinations pursuant to MCL 500.3151 of the no-fault act. Defendant alleged that it had “made many attempts to schedule the Plaintiff to undergo medical examinations, but the Plaintiff declined unless the Defendant agreed to enter into a Stipulation with numerous limitations that are contrary to the pertinent provisions of the Michigan No-Fault Act and prejudicial to the Defendant’s ability to investigate the Plaintiffs claims.” Defendant claimed that it had a statutory right under MCL 500.3151 to examine plaintiff and that the no-fault act did not authorize the imposition of conditions on the medical examinations. Plaintiff responded by arguing that MCR 2.311 allows the trial court to impose conditions on medical examinations and that the conditions plaintiff sought to impose were reasonable and did not prejudice defendant. The trial court allowed the medical examinations, but imposed several conditions, citing MCR 2.311. Of import to this appeal are the conditions that allow plaintiffs counsel to be present at the examinations, allow videotaping of the examinations, and preclude plaintiff from giving defendant’s examiners an oral account of the accident or her medical history. i Defendant argues that MCL 500.3151 gives an insurer a substantive right to examine a claimant and that a court has no authority to impose conditions on the medical examination under MCR 2.311 if the insurer’s request is reasonable. This case presents issues regarding statutory interpretation of the Michigan no-fault automobile insurance act. This Court reviews de novo as questions of law issues involving the interpretation and application of a statute or court rule. People v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003). The primary rule of statutory construction is that, where the statutory language is clear and unambiguous, the statute must be applied as written. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997). Similarly, where contract language is neither ambiguous nor contrary to the no-fault statute, the will of the parties, as reflected in their agreement, is to be carried out, and thus the contract is enforced as written. Cruz v State Farm Mut Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002). Michigan’s no-fault act is designed to regulate the insurance of motor vehicles in this state and the payment of benefits resulting from accidents involving motor vehicles. Cruz, supra at 595. PIP benefits are payable as loss accrues. MCL 500.3142(1). The claimant is obligated to provide “reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2); see Cruz, supra at 596. In furtherance of the obligation to provide reasonable proof of the fact and of the amount of loss sustained, MCL 500.3151 provides that a claimant shall submit to a medical examination if the claimant’s condition is material to a claim for past or future benefits. MCL 500.3151 states: When the mental or physical condition of a person is material to a claim that has been or may be made for past or future personal protection insurance benefits, the person shall submit to mental or physical examination by physicians. A personal protection insurer may include reasonable provisions in a personal protection insurance policy for mental and physical examination of persons claiming personal protection insurance benefits. MCL 500.3151 refers to a “mental or physical examination by physicians,” not to an independent mental or physical examination by a physician of defendant’s choice. The basis of defendant’s motion for an independent medical examination by a physician of defendant’s choice is the following contractual provision in the insurance policy: The person making claim also shall: a. under the personal protection injury protection. .. coverages: *** (2) be examined by physicians chosen and paid by us as often as we reasonably may require. This type of provision in an insurance policy falls within the ambit of discovery devices that enable an insurer to discover and eliminate fraud. See, generally, Cruz, supra at 597-599. Such contractual discovery devices are precluded only when they clash with the rules that the Legislature has established for mandatory policies. Id. at 598. In Cruz, supra at 598-601, the Court found that a policy that conditioned the payment of PIP benefits on the plaintiff submitting to an examination under oath (EUO) was void as against public policy to the extent that it imposed a greater obligation on the plaintiff than required by the no-fault act. But the inclusion of the EUO in the insurance policy was not itself deemed inappropriate, even though the no-fault act is silent with respect to EUOs. An EUO was characterized as a “prelitigation, complementary process to that allowed by [MCL 500.3159] during litigation.” Cruz, supra at 601 n 16. The Court did not find MCL 500.3159 of the no-fault act controlling with regard to whether the EUO requirement in the insurance policy could be enforced. Rather, the Court explained: EUOs, or other discovery methods that the parties have contracted to use, are only precluded when they clash with the rules the Legislature has established for such mandatory insurance policies. However, when used to facilitate the goals of the act and when they are harmonious with the Legislature’s no-fault insurance regime, EUOs in the no-fault context should be viewed no differently than in other types of policies. In light of this reasoning, we conclude that an EUO that contravenes the requirements of the no-fault act by imposing some greater obligation upon one or another of the parties is, to that extent, invalid. Thus, a no-fault policy that would allow the insurer to avoid its obligation to make prompt payment upon the mere failure to comply with an EUO would run afoul of the statute and accordingly be invalid. However, an EUO provision designed only to ensure that the insurer is provided with information relating to proof of the fact and of the amount of the loss sustained — i.e., the statutorily required information on the part of the insured — would not run afoul of the statute. [Cruz, supra at 598.] The present case also involves a provision in an insurance policy that provides a discovery device to evaluate plaintiffs claim. Defendant did not establish any substantive right under MCL 500.3151 to have a physician of its choice examine plaintiff. Defendant established only a contractual right that can be upheld if it does not contravene the no-fault act. Because MCL 500.3151 authorizes the insurer to include “reasonable provisions” for a medical examination of persons claiming PIP benefits, the touchstone for upholding the provision is one of reasonableness. No Michigan case addresses what constitutes a reasonable provision. But in Cruz, supra at 600 n 15, the Court approved the reasoning in Morris v Aetna Life Ins Co, 160 Ga App 484; 287 SE2d 388 (1981). In Morris, an insured brought suit against the insurer for failure to timely pay benefits under Georgia’s no-fault insurance law. The insurer delayed payment because the insured refused to submit to an independent medical examination and the insurance policy gave the insurer a right to request a medical examination as part of its investigation of the claim. The Georgia Court of Appeals held that the contractual right to request the medical examination was valid, notwithstanding the lack of statutory authorization for the medical examination, because it was reasonable and, accordingly, did not limit the insured’s right to collect a valid claim or violate either the public policy or Georgia’s no-fault act. Id. at 485. In a later case, the Maryland Court of Special Appeals addressed an insured’s claim, against the same defendant as in this case, that a similar contractual provision that allowed defendant to require a person making a claim to be “ ‘examined by physicians chosen and paid by [State Farm] as often as [it] reasonably may require’ ” was invalid under the state’s no-fault law. Huntt v State Farm Mut Automobile Ins Co, 72 Md App 189, 191; 527 A2d 1333 (1987). In Huntt, defendant had reimbursed the insured for medical expenses until October 1985, when it advised the insured that it would not pay any farther benefits unless she submitted to a medical examination by a physician that it selected. The insured’s benefits ended after she refused to submit to the medical examination. The insured then filed suit against defendant, arguing in part that Maryland’s PIP statute did not require an insured to submit to an examination by a physician chosen and paid for by the insurer. The Maryland court held: The statutory language requiring construction in this case is found in Md. Code, supra, Art. 48A, § 544(a), which provides in part: “All payments of benefits prescribed under § 539 shall be made periodically as the claims therefor arise and within 30 days after satisfactory proof thereof is received by the insurer....” (Emphasis supplied). .. . Section 539(a) permits an insurer providing loss of income benefits to require, as a condition of receiving such benefits, “that the injured person furnish the insurer reasonable medical proof of his injury causing loss of income.” Section 544(a)(2) permits an insurer to require “reasonable medical proof” when an injured person who received benefits under the coverage(s) described in § 539 seeks additional benefits after a lapse in the period of disability or in medical treatment.... *** . . . While § 539 was enacted in order to assure prompt payment of PIP benefits without regard to fault, this does not mean that PIP coverage was intended to provide a PIP claimant with a blank check. Maryland’s no-fault statute, like those of other states, places a control on inflated or spurious claims by limiting the insurer’s obligation to payment of “reasonable” expenses for “necessary” services arising from the accident in question. 5 M. Minzer, et al., Damages in Tort Actions § 47.12[2][b] (1987). In our view, it would be impossible in many cases for an insurer to determine whether a PIP claimant’s expenses were “reasonable” and for “necessary” services if the insurer could not require that the claimant be examined by a physician of its choice. Therefore, we hold that a policy provision permitting an insurer to require that a PIP claimant submit to a physical examination as a condition precedent to payment of benefits is consistent with the statutory mandate in § 544(a) that payment shall be made after the insurer receives “satisfactory proof” of the claim. [Id. at 192-194.] We are persuaded by the rationale of these cases and conclude that a contractual provision allowing defendant to require an insured making a claim to submit to a medical examination “by physicians chosen and paid by us as often as we reasonably may require” is permissible within the meaning of MCL 500.3151. The fact that the contract is silent concerning certain details of performance means only that a standard of reasonableness should be applied in a manner that would not clash with Michigan’s no-fault act. “[W]here contract language is neither ambiguous, nor contrary to the no-fault statute, the will of the parties, as reflected in their agreement, is to be carried out. . . .” Cruz, supra at 594. “So long as the essentials [of an agreement] are defined by the parties themselves, the law supplies the missing details by construction.” Nichols v Seaks, 296 Mich 154, 159; 295 NW 596 (1941); cf. Walter Toebe & Co v Dep’t of State Highways, 144 Mich App 21, 31; 373 NW2d 233 (1985) (holding that when a written contract is silent regarding the time of performance, a reasonable time is presumed without reference to parol evidence, and what constitutes a reasonable time under the circumstances is a question of fact). Our conclusion does not validate defendant’s claim that the trial court erred by applying MCR 2.311. The Legislature clearly has authorized reasonable provisions for medical examinations in insurance policies. MCL 500.3151. The right to include such reasonable provisions in an insurance policy is a substantive right. But the right created by the statute plainly is not intended to give the parties a right to determine how to proceed with discovery in a civil action. To the contrary, the Legislature has expressed a plain intent in MCL 500.3159 to give the trial court authority to issue a discovery order. MCR 2.311 is consistent with MCL 500.3159: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be présent at the examination. [MCR 2.311(A).] Because the discovery rule in MCR 2.311 and the contract rights authorized by MCL 500.3151 do not conflict, we reject defendant’s claim that MCL 500.3151 alone is controlling. It is only where there is an inherent conflict between a statute and a court rule that a court is required to decide if a statute is a legislative attempt to supplant our Supreme Court’s authority to control practice and procedure in the courts. McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999). In the context of plaintiffs cause of action, the trial court correctly treated the motion as one for a discovery device subject to MCR 2.311. ii Defendant argues that even if MCR 2.311 allowed the trial court to impose conditions on the independent medical examinations, plaintiff did not show good cause (1) to allow plaintiffs counsel to be present at the examinations, (2) to allow videotaping of the examinations, and (3) to preclude plaintiff from giving defendant’s examiners an oral account of the accident or her medical history. With regard to the first two conditions, defendant waived any challenge to the conditions because its attorney agreed to these conditions if the court rule applied. Error requiring reversal must be that of the trial court, and not error to which an aggrieved party contributed by plan or negligence. Phinney v Perlmutter, 222 Mich App 513, 537; 564 NW2d 532 (1997). A party waives an issue by affirmatively approving of a trial court’s action. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). With regard to the third condition, defendant challenges paragraphs 14 and 15 of the trial court’s order, which provide: 14. That Plaintiff will not be required to give any oral history of the accident. 15. That Plaintiff will not be required to give any oral medical history not related to the areas of injuries claimed in this lawsuit. This Court reviews a trial court’s decision with regard to a discovery order for an abuse of discretion. Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 224; 663 NW2d 481 (2002). A trial court may limit discovery to relevant issues. See Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 35-36; 654 NW2d 610 (2002). At the time of defendant’s motion for the medical examinations, defendant’s attorney argued that an oral history would assist the examiner to form an opinion whether any injuries were presented and related to the accident. The injuries in this case were broadly characterized as involving closed-head and psychiatric injuries. Plaintiffs attorney expressed concern that defendant’s ex aminer would conduct a de facto deposition. The trial court provided in condition 14 that “[p]laintiff will not be required to give any oral history of the accident,” and pronounced that the court considered impermissible under condition 14 questioning such as “who ran the red light, who ran the stop sign,” and “who had the right-of-way....” By its inclusion of condition 14, the court recognized that defendant, through the normal course of discovery, could obtain information regarding the accident itself. Contrary to defendant’s argument, there is nothing in condition 14 that suggests that the condition would preclude inquiries into plaintiffs mental or physical condition at the time of the accident, how the injuries occurred, or such matters as whether plaintiff suffered a memory loss in conjunction with the closed-head injury. The final condition, number 15, does not preclude plaintiff from giving an oral medical history related to the “areas of injuries” claimed in the lawsuit. Although the “areas of injuries” might be difficult to analyze when a psychiatric injury is in controversy, defendant has not explained why the stated condition constitutes an abuse of discretion. To the extent that defendant suggests that the examiner would be totally precluded from orally asking plaintiff about her medical histoiy, the language in condition 15 does not support this claim. Defendant has failed to establish that the trial court abused its discretion, by including conditions 14 and 15 in the August 25, 2003, order. Affirmed. SMOLENSKI, J., concurred. The trial court denied defendant’s motion for rehearing. Defendant did not allege in its answer or affirmative defenses that plaintiff refused to submit to an independent medical examination under MCL 500.3151 of the no-fault act. The accuracy of this allegation is suspect in light of evidence in the lower court record that plaintiffs attorney sent letters to defendant on December 16, 2002, January 10, 2003, and January 22, 2003, requesting defendant to schedule plaintiff for independent medical examinations. The letters make no mention of any conditions to be placed on the independent medical examinations. Contrary to the dissent’s assertion, no evidence was presented that plaintiff did not have a medical examination before submitting a proof of loss. 5 There is no language in MCL 500.3151 that supports plaintiffs view that the statute applies only to prelitigation medical examinations. The only stated condition in the first sentence of MCL 500.3151 is that the mental or physical condition of the person be material to the claim for PIP benefits. The second sentence authorizes the insurer to include “reasonable provisions” for the examination when the person claims PIP benefits, but likewise does not indicate that it is dependent on whether litigation commenced. MCL 500.3159 states: In a dispute regarding an insurer’s right to discovery of facts about an injured person’s earnings or about his history, condition, treatment and dates and costs of treatment, a court may enter an order for the discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest, and shall specify the time, place, manner, conditions and scope of the discovery. A court, in order to protect against annoyance, embarrassment or oppression, as justice requires, may enter an order refusing discovery or specifying conditions of discovery and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requires. Moreover, we note that defendant has not shown that it properly-presented any contract claim in the trial court. Neither defendant’s answer to the complaint nor its affirmative defenses raise this contract issue. Rather, it was raised only by motion. Defendant cites no authority for the proposition that an insurer can enforce a contract right by motion in a no-fault action brought by the insured in which the insured alleges that the insurer breached the insurance policy for a reason that does not involve any request to submit to a medical evaluation. Defendant cannot circumvent contract principles by bringing a contract action in the form of a motion under MCL 500.3151. Although defendant, through new counsel, later challenged the trial court’s decision in a motion for rehearing, defendant’s appellate brief fails to address the standards for rehearings. Defendant’s failure to brief this necessary issue precludes appellate review. Roberts & Son Contracting, Inc v North Oakland Dev Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987). Therefore, defendant may obtain plaintiffs version of the accident, and her medical history, through means such as interrogatories or deposition. Further, defendant had access to plaintiffs medical records. Consequently, defendant has not been precluded from obtaining the relevant, necessary information for the examiner.

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V. J. Brennan, J. In December of 1973, the Michigan Legislature amended the act regulating dentistry, MCL 338.201, et seq.; MSA 14.629(1), et seq., by adding § 9a, MCL 338.209a; MSA 14.629(9a), relating to dental assistants, dental hygienists and others. Pursuant to § 9a(3), defendant, the Michigan State Board of Dentistry (hereafter, the Board) was required to prescribe rules for the training and education of personnel covered under § 9a. In February of 1976, plaintiffs, Michigan Dental Assistants Association, et al., filed a writ of mandamus in the Court of Appeals seeking to compel the Board to promulgate rules pursuant to § 9a. This Court dismissed the action, whereupon application for leave to appeal was filed with the Michigan Supreme Court. In April of 1977, the Supreme Court in lieu of granting leave to appeal ordered: "[T]hat this action in the nature of mandamus be remanded to the Ingham Circuit Court to afford the Michigan State Board of Dentistry the opportunity to promptly complete and promulgate rules and procedures for training, certifying and delineating the duties of dental assistants. Upon that board’s failure to do so, complainants may propose such rules and procedures to the circuit court and the board shall be required to show cause why such proposed rules should not be adopted.” 399 Mich 886 (1977). At the time of entry of the above order the Board was engaged in the process of promulgating the rules in question pursuant to the Administrative Procedures Act, MCL 24.201, et seq.; MSA 3.560(101) et seq. A public hearing was held June 16, 1977, and the rules were certified by the legislative service bureau on October 27, 1977, as required by § 45 of the Administrative Procedures Act, MCL 24.245; MSA 3.560(145). The rules were certified by the joint committee on administrative rules on December 13, 1977. The rules were filed with the Secretary of State’s Office on February 8, 1978, and were officially considered promulgated on February 23, 1978. See 1978 AACS R 338.4101-R 338.4698. Plaintiffs then filed an action in Ingham County Circuit Court contending that the Board had failed to comply with the above Supreme Court order since the promulgated rules did not fully implement § 9a. The plaintiffs allege that the rules failed to provide for training and accreditation of office-trained dental assistants, described in § 9a(1), and thus did not discharge the Board’s duties under the act and according to the Supreme Court order. In a February 27, 1978, order Ingham County Circuit Court Judge Ray C. Hotchkiss concluded in part: "The Michigan State Board of Dentistry SHALL BE AND HEREBY IS ORDERED to adopt rules governing the training and accreditation of dental assistants not included in current rules, specifically including office-trained dental assistants, either by adopting the rules suggested and proposed by Plaintiffs-Appellants and placed of record in this cause, or, alternatively, by adopting other rules which will indicate the training and accreditation required for office-trained dental assistants.” It is from this order that defendants appeal. The case at bar concerns the interpretation of § 9a of the dentistry act, supra, which provides in pertinent part: "Sec. 9a. (1) A person may assist in rendering dental care to a patient under the supervision of a licensed dentist, excluding the diagnosing or prescribing for a disease, pain, deformity, deficiency, injury or physical condition, or the cutting of the human teeth, alveolar process, gums, jaws or attendant tissue, the removal of accretion and stains including calcareous deposits, deep scaling, root planing, restoration of hard or soft tissue and the independent administration of anesthesia, analgesia or acupuncture and other procedures prohibited by rules promulgated by the board. The provisions of this subsection shall become effective upon promulgation of the rules by the board. "(2) A licensed dentist may delegate certain dental procedures prohibited by subsection (1) which the board finds would not jeopardize the dental health of the patient to a person authorized by a certifícate of the board to perform such procedures except that the removal of calcareous deposits, deep scaling, or root planing shall not be delegated to a person other than a dental hygienist. The certificate shall be issued to a person who has satisfactorily completed a program designed to train him to perform these procedures in a school approved by the board and who has passed an examination that may be given by the board. If a program of training for dental hygienists provided for in section 9 qualifies a dental hygienist to perform any of the functions which the board authorizes a person to perform under this subsection, the board shall authorize and grant a certificate to a dental hygienist to perform those functions without further training. "(3) The board shall prescribe by rules * * * the training and education required to qualify for authorization to perform the procedures for which the applicant may apply. The board may prescribe which procedures shall be under the supervision and which shall be under the direction of a licensed dentist. If a person who has beén issued a certificate to perform certain delegated procedures applies for authorization to perform additional delegated procedures, the board shall determine what additional training shall be satisfactorily completed for an expanded certificate.” MCL 338.209a; MSA 14.629(9a). (Emphasis added.) The rules as promulgated by the Board are comprehensive and quite detailed with repetition here unnecessary. However, a summary of the rules as they apply to this controversy is in order. Under the rules, personnel performing the procedures under § 9a(1l) are described as "dental assistants”. Their functions are quite limited with supervision clearly defined. The personnel per forming the procedures under § 9a(2) are described as "licensed dental assistant” and "dental hygienists”. Each respectively perform wider functions (in relation to "dental assistant”) with less supervision. The rules set forth the requisite training, certification and accreditation for "licensed dental assistants” and "dental hygienists”. However, no formal training of "dental assistants” is necessary to perform the procedures allowed under § 9a(1). It is this latter deficiency which plaintiffs contend constitutes nonconformance with the Supreme Court order. We disagree. The rules as established by the Board are in accordance with the subject statutory scheme. Section 9a(1) does not express any requirement for education or training for persons who assist in rendering care under the direct supervision of a licensed dentist. Sections 9a(2) and 9a(3) contemplate certification by the State Board of Dentistry for persons to perform duties designated by licensed dentists. These duties would otherwise be prohibited under § 9a(1). Had the Legislature intended to require training and accreditation for all personnel assisting dentists, it could have expressed its intention. However, § 9a does not express such an all-embracing requirement. Instead, the Legislature expressed its intention that assistants performing limited functions under § 9a(1) need not obtain certificates indicating they had completed specialized training and education. To hold, as plaintiffs argue, that the Supreme Court order required the Board to establish a certification procedure for office-trained dental assistants would be contrary to the most fundamental rule of statutory construction, that statutory language be given a reasonable construction in order to implement the Legislature’s intent. King v Director of the Midland County Dep’t of Social Services, 73 Mich App 253; 251 NW2d 270 (1977). While the statutory language here is somewhat involved, its meaning is clear. The circuit court erroneously concluded that the Supreme Court’s order required the Board to promulgate rules prescribing training and certification for the persons described in § 9a(1) of the dentistry act. We hold that the Board has fully complied with the Supreme Court order of April 22, 1977, and with the requirements under § 9a regarding the promulgation of the rules in question. The lower court order is reversed. We retain no further jurisdiction. No costs, a public question being involved.

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Talbot, P.J. In this class action involving plaintiffs’ statutory employment rights, plaintiffs appeal as of right an order granting defendant’s motion for summary disposition. We affirm the trial court’s grant of summary disposition in favor of defendant. I. FACTS AND PROCEDURAL HISTORY Defendant, Wayne-Westland Community Schools, operates the public school system in the city of Wayne, parts of three other cities, Westland, Inkster, and Romulus, and part of Canton Township. Flaintiffs are various employees in defendant’s In School Suspension (ISS) program. Their position is referred to in school documents using various titles, such as “ISS facilitator,” “ISS supervisor,” and “suspension room teacher,” but each must be qualified as a “substitute teacher” under the program as it was adopted in 1993. The purpose of the ISS program is to keep suspended students in school and assure that they are supervised during the school day. Although each school has its own rules or description of its ISS program, in general, a student receives full credit for his or her schoolwork in the ISS program. The assignments are provided by, and eventually returned to, the student’s classroom teacher. ISS employees assist students with assignments and are encouraged to tutor the students. Plaintiff Dennis A. Wolfe filed this action on behalf of himself and other similarly situated ISS employees. Wolfe alleged that he worked each school year, commencing in the 1995-1996 school year, as a substitute teacher in the ISS program and was compensated at the prevailing rates for a substitute teacher. Wolfe claimed entitlement to the higher salary and other benefits paid to a regular teacher pursuant to MCL 380.1236(1) of the Revised School Code (formerly the School Code), MCL 380.1 et seq., alleging that he worked in excess of sixty days in the same specific teaching assignment. The trial court certified the class, which was defined as, “All persons presently or previously employed in the In School Suspension Program of the Wayne-Westland Community Schools who may have been employed for more than 60 days in the same assignment and who may not have been provided with the compensation and other benefits provided by M.C.L.A. 380.1236.” The trial court’s order identified twenty-one potential class members. Before the class certification, Wolfe, on behalf of himself and other potential class members (plaintiffs), moved for partial summary disposition under MCR 2.116(0(10) with respect to liability and, specifically, (1) whether ISS employees are substitute teachers within the meaning of MCL 380.1236 and (2) whether defendant had a purposeful practice of moving ISS employees between buildings before sixty days elapsed to avoid paying statutory benefits. Defendant opposed plaintiffs’ motion and moved for summary disposition under MCR 2.116(1) on the grounds that (1) ISS employees were not substitute teachers for purposes of MCL 380.1236, and (2) even if ISS employees were substitute teachers, the statute did not apply unless they worked sixty consecutive days in a single work assignment. The trial court determined that ISS employees were substitute teachers, but MCL 380.1236(1) did not apply unless they served in the position at one school for more than sixty days. The trial court rejected defendant’s claim that ISS employees did not work enough hours to count as a whole day, given that they were paid for a whole day, but it determined that the work must be consecutive, and that “absences from work,” including days missed because of sickness and “intervening assignments,” break up consecutiveness. The trial court granted summary disposition in favor of defendant. Plaintiffs moved for reconsideration with respect to the trial court’s determination that consecutive days were required, but the trial court denied the motion. Plaintiffs now appeal, arguing that they are entitled to the benefits provided under MCL 380.1236(1) because: (1) they were employed in the same assignments for more than sixty days and (2) they were employed as substitute teachers. We find that the trial court erred in determining that plaintiffs were employed as substitute teachers. Because this issue is dispositive in determining whether plaintiffs are entitled to benefits pursuant to MCL 380.1236(1), we do not address the issue of whether plaintiffs were employed in the same assignments for more than sixty days. II. PLAINTIFFS WERE NOT EMPLOYED AS “SUBSTITUTE TEACHERS” PURSUANT TO MCL 380.1236 We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Questions of statutory interpretation are also reviewed de novo. Id. When interpreting statutes, our primary goal is to give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). In doing so, our first step is to review the language of the statute itself. Id. The words used by the Legislature are given their common and ordinary meaning. Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643 (2002); MCL 8.3a. If the statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed, and further construction is neither required nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). As set forth in the current version of the statute, the disputed provision states: Subject to subsection (3), if a teacher is employed as a substitute teacher with an assignment to 1 specific teaching position, then after 60 days of service in that assignment the teacher shall be granted for the duration of that assignment leave time and other privileges granted to regular teachers by the school district, including a salary not less than the minimum salary on the current salary schedule for that district. [MCL 380.1236(1) (emphasis added).] Defendant does not dispute that plaintiffs are “teachers,” as used in subsection 1 above, or the trial court’s decision that this term does not require a properly certified or credentialed person. Rather, plaintiffs present questions regarding how to construe the statutorily required terms of their employment and, in particular, the “substitute teacher” and “teaching position” language. Plaintiffs suggest that subsection 1 can be broadly applied to a variety of situations, while defendant argues that it requires that a particular teacher be replaced. We find no irreconcil able conflict or equal susceptibility of meaning that would render the statutory language ambiguous. Mayor of Lansing v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). “[Statutory language must be read and understood in its grammatical context. ...” Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App 711, 720; 265 NW2d 711 (2005). The common and approved usage of the language is applied, absent a technical meaning or one that has acquired a peculiar and appropriate meaning in the law. MCL 8.3a. Effect must be given to the context or setting of a word in determining its meaning. Koontz v Ameritech Services, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002). Although determining whether a person is qualified to teach in a school plainly requires consideration of various statutory provisions, the common and approved usage of the word “teacher” is simply “a person who teaches.” Random House Webster’s College Dictionary (1997). The modifying word “substitute” has a number of meanings, but examined in the context of the setting in which a teacher is employed, the relevant definition is “a person. . . serving in place of another.” Id. The person for whom the substitute teacher acts is further modified by the phrase “with an assignment to 1 specific teaching position.” The only specific position that could apply to the facts of this case is the ISS position in each school building. Determining whether ISS positions are teaching positions requires a consideration of the specific terms of the employment contracts for the positions. Here, there is evidence that ISS employees are expected to at least help suspended students with assignments. But even assuming that ISS positions are “specific teaching positions,” ISS employees plainly are not assigned to the positions as substitute teachers, as the phrase is commonly understood, because they do not serve in place of anyone. The trial court adopted a strained interpretation of the phrase “substitute teacher” to conclude that ISS employees replace the student’s regular teacher. The regular teacher, or perhaps a substitute teacher if the regular teacher is absent, continues in the specific teaching position. Neither the ISS program nor its employees replace any specific teaching position. It is the suspended student, not the teacher, who is absent from the classroom. The fact that defendant chose to hire ISS employees who satisfy the qualifications of a substitute teacher is not dispositive of whether they were “employed as substitute teachers with an assignment to 1 specific position” within the meaning of subsection MCL 380.1236(1). Any doubt regarding the Legislature’s intent in subsection 1 can be resolved by considering the definition of “day” in subsection 5, renumbered from subsection 3 by 1995 PA 289. The contextual setting in which words and phrases are given meaning requires that they be assigned such meaning as is in harmony with the whole statute. Shinholster v Annapolis Hosp, 471 Mich 540, 570; 685 NW2d 275 (2004). Here, the definition of “day,” i.e., “the working day of the regular, full-time teacher for whom the substitute teacher substitutes,” plainly contemplates that the substitute teacher will act in place of another, rather than work in a distinct position, as in this case. The other authority cited by plaintiffs on appeal does not support a different result. Plaintiffs’ reliance on Detroit Federation of Teachers v Detroit Bd of Ed, 396 Mich 220; 240 NW2d 225 (1976), is misplaced. As conceded by plaintiffs, that case was decided before the effective date of MCL 380.1236, as established by 1976 PA 451. In Detroit Federation of Teachers, the defendant was following a resolution to fill all new teaching positions with emergency substitutes in regular positions (ESRPs). Id. at 222-223. The teacher’s union filed a class action on behalf of ESRPs working without a written individual contract. The teacher’s union argued that ESRPs were entitled to probationary contracts. Our Supreme Court concluded that ESRPs were entitled to written contracts under the now-repealed School Code, MCL 340.569, but the kind of contract was to be determined by agreement of the parties. Id. at 224. Specifically, it was covered by the collective bargaining agreement, which spelled out the possible kinds of contracts, i.e., tenured, probationary, and substitute, the teachers may receive. Id. at 227. The holding in Detroit Federation of Teachers is not material to how the specific substitute teacher provision in MCL 380.1236 should be construed because the statute does not permit parties to spell out the terms and conditions of employment. Rather, the statute mandates certain benefits for “teachers employed as substitute teachers” when the statutory conditions are satisfied. Although the terms of plaintiffs’ employment contract are relevant in applying the statute, this Court has the responsibility of interpreting and applying the law. See Hottmann v Hottmann, 226 Mich App 171, 179; 572 NW2d 259 (1997). Another question raised by the parties concerns the effect of the State Board of Education administrative rules. In their appeal brief, plaintiffs correctly argue that, under a longstanding rule, a person employed in a “secondary school with instructional responsibilities shall hold a certificate, permit or vocational authorization valid for the positions to which he is assigned.” 1999 AC, R 390.1105. But whether plaintiffs have instructional responsibilities as ISS employees within the meaning of this rule, and, if so, had the appropriate certificate, permit, or vocational authorization, is not at issue in this appeal. The more significant issue addressed in the parties’ appeal briefs, and the trial court’s decision, is the state board’s rule for substitute permits, which defines teaching on a substitute basis. The state board has long had rules governing substitute and other special permits. See 1999 AC, R 390.1141 et seq. In 1989, the state board modified the rule for substitute teaching permits to state: (1) An application for a substitute permit shall contain evidence that the candidate has completed not less than 120 semester hours of satisfactory credit in an approved teacher preparation program, which shall include a minimum of 6 semester hours of professional education credit. Persons who are currently enrolled in an approved teacher preparation program will be considered to have met the 6-semester-hour requirement. (2) A substitute permit is valid for teaching on a substitute basis for a maximum of 150 days during any school year. Teaching on a substitute basis means teaching when the regular certificated teacher is temporarily absent. Such permit is not valid for any regular or extended teaching assignment. (3) A substitute permit is renewable each year. [1989 AACS, R 390.1143 (emphasis added).] Before the 1989 change, Rule 390.1143 lacked a definition of “teaching on a substitute basis.” It also contained different educational requirements for a substitute permit. See 1979 AC, R 390.1143. On appeal, plaintiffs challenge the state board’s authority to define “teaching on a substitute basis” on the ground that the Legislature amended MCL 380.1233 in 1995 to specify that only ninety hours of college credit were necessary for a substitute teacher. The state board has two sources of authority to promulgate rules. Under MCL 380.1531(17), the state board (the superintendent of public instruction, 2000 PA 497), is authorized to promulgate rules to implement regulations pertaining to its duties to issue licenses and certificates for teachers. Under MCL 388.1015, the state board is authorized to prescribe rules and regulations to carry out provisions regarding its powers and duties under MCL 388.1001 et seq. Plaintiffs cite no authority to support their claim that the Legislature’s action in modifying the educational requirements for a substitute teacher invalidates a promulgated rule on a different point, especially when the general rule, Rule 390.1141, mandates issuance of a permit when statutory qualifications are satisfied. A properly promulgated rule has the force of law. Danse Corp v Madison Hts, 466 Mich 175, 181; 644 NW2d 721 (2002). Because plaintiffs have failed to cite any authority in support of their claim that the definition in Rule 390.1143 is invalid, plaintiffs have abandoned this claim on appeal. “A party may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, or give issues cursory treatment with little or no citation of supporting authority.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) (citations deleted). In any event, the only relevancy of the definition in Rule 390.1143 is that it reflects the state board’s understanding of the phrase “teaching on a substitute basis” for the purposes of its issuance of substitute permits. The trial court apparently considered the state board’s definition, giving deference to the state board’s construction of an act that it is charged to administer. But the rule at issue in this case does not attempt to construe MCL 380.1236. Further, “while an agency’s construction generally deserves deference, it is not controlling and cannot be used to overcome the statute’s plain meaning.” Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 544; 565 NW2d 828 (1997). Because the statutory language in this case is clear, it is unnecessary to consider the state board’s definition. Moreover, the trial court’s application of the administrative rule’s “temporarily absent” language was incorrect for the same reason that the trial court misapplied the statutory language. The trial court unreasonably evaluated the regular teacher’s absence from the point of view of the student suspended from the classroom. The fact that defendant established a program that requires suspended students to do school work, and makes an ISS employee available to assist him or her, does not render the regular teacher temporarily absent. III. CONCLUSION We conclude that plaintiffs were not employed as substitute teachers within the meaning of MCL 380.1236(1). Because MCL 380.1236 is the only statutory provision under which plaintiffs claim entitlement to benefits, the trial court’s decision to grant summary disposition in favor of defendant and dismiss the case is affirmed. Affirmed.

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N. J. Kaufman, J. This case involves the application of the "labor dispute” disqualification of the Employment Security Act, MCL 421.29(8); MSA 17.531(8), to locked-out employees. From a circuit court affirmance of an adverse determination by the Michigan Employment Security Commission (MESC), plaintiffs appeal as of right. We reverse. In May and June of 1975, plaintiffs, employees of Imerman Screw Products Company and members of UAW Local 212, were engaged in bargaining with the employer regarding a new contract to replace the old contract, which was to expire at 12:01 a.m. on June 22, 1975. Negotiations broke down in the evening of June 22, 1975. The company then informed the union that it was not willing to work without a contract and that the employees would be locked out the next day. Testi mony was undisputed that the union members, unlike the employer, were willing to work without a formal contract and to continue bargaining. The lockout began on June 23, 1975, and continued until July 28, 1975, when a new contract was ratified and became effective. During the lockout there had been no picketing by union members, and the union had made overtures to the company to have its members return to work pending ratification of a new contract. Also during this time period, some work had been carried out in the factory by supervisory and management personnel. Defendant’s general manager denied that the lockout was a layoff due to lack of work; he stated that there had been a possibility, but "nothing planned”, regarding a plant shutdown around the Fourth of July holiday, when such a shutdown had occurred the previous year. Based on these facts, the MESC denied plaintiffs’ applications for unemployment compensation benefits. The referee made a finding that plaintiffs’ unemployment from June 23-July 28 had been due to a labor dispute in active progress in which plaintiffs were directly involved. On appeal to the Michigan Employment Security Appeal Board, the referee’s determination was upheld, and this ruling was then affirmed by the circuit courts. The dispositive issue in this appeal is whether plaintiffs’ unemployment resulted from a "labor dispute in active progress”. The statute, MCL 421.29(8); MSA 17.531(8), provides in pertinent part: "An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by that labor dispute, in the establishment in which he is or was last employed, or to a labor dispute, other than a lockout, in active progress, or to shutdown or start-up operations caused by that labor dispute, in any other establishment within the United States which is functionally integrated with the establishment and is operated by the same employing unit.” In order for claimants to be disqualified from receiving unemployment compensation because of a labor dispute, a causal connection between the dispute and the unemployment must be established. Scott v Budd Co, 380 Mich 29; 155 NW2d 161 (1968). The employer bears the burden of proving that it is entitled to the labor dispute exception. Salenius v Employment Security Comm, 33 Mich App 228, 237; 189 NW2d 764 (1971). The trend is to construe narrowly the disqualification provisions of § 29 and to limit the definition of "labor dispute”, Salenius, supra, p 238, in light of the act’s remedial purpose to provide temporary assistance to workers who become unemployed through no fault of their own. MCL 421.2; MSA 17.502, Park v Employment Security Comm, 355 Mich 103, 123; 94 NW2d 407 (1959), I M Dach Underwear Co v Employment Security Comm, 347 Mich 465, 472; 80 NW2d 193 (1956). A number of other jurisdictions, in construing language similar to that in the Michigan Employment Security Act, have found "labor dispute” to include a lockout. See Anno: Unemployment compensation: application of labor dispute disqualiñcation for beneñts to locked out employees, 62 ALR3d 437, § 10. Courts in Indiana have asked whether the negotiations have reached an "impasse” prior to the lockout, while courts in California and Utah have employed a "volitional test” which asks whether the claimants were unemployed through some voluntary conduct on their part which precipitated the lockout. 62 ALR3d 437, §§ 10(b), 11. In Michigan, it is clear that a lockout is not entitled to automatic designation as a labor dispute in active progress. Salenius, supra, Michigan Tool Co v Employment Security Comm, 346 Mich 673; 78 NW2d 571 (1956). Michigan Courts have not confronted the precise issue presented in this case: whether locked-out employees who have not refused to work, but rather have indicated their willingness to continue in peaceful negotiations and to work without a contract, are disqualified from receiving unemployment compensation benefits pursuant to MCL 421.29(8). We think the better view in this situation is that expressed in National Gypsum Co v Administrator, Louisiana Dep’t of Employment Security, 313 So 2d 230, 233 (La, 1975): "In view of the strong public policy of the act designed to avoid crushing hardship on unemployed workers and their families, we think the more reasonable interpretation of the disqualification to be that unemployment due to 'a labor dispute in active progress’ includes only unemployment resulting from labor disputes in which the employee himself actively engages by refusing to work. "[T]he act was not intended to enforce a lock-out by the employer by denying unemployment benefits to employees who are available for work, but who are denied it by their employer. To deny compensation under such circumstances would not only be to deny benefits to employees unemployed through no fault of their own, but would be to add a sanction not contemplated by law to conduct by the employer designed to withhold subsistence from his workers and their families in order to force them to accept the employer’s terms. "We thus do not believe that a labor dispute is in active progress, insofar as disqualification for unemployment benefits is concerned, when the employees are exercising their legal right through peaceful negotiation to bargain for what they deem to be better working conditions. "The correct interpretation of the unemployment compensation act, in the light of its express policies and in the light of the general public policy in favor of peaceful bargaining negotiation, should not permit either party to provoke the award or denial of unemployment benefits in order to enforce the effect of a strike or of a lockout.” We agree with the above reasoning. The decision of the trial court upholding the appeal board’s denial of unemployment benefits is reversed and the case remanded to the trial courts for orders awarding such benefits to plaintiffs.

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D. F. Walsh, J. Plaintiff appeals the February 14, 1978, order denying its motion to amend its complaint and granting accelerated judgment for all defendants. On December 1, 1974, defendant Jacob Beitner, employee of plaintiff Drapefair, Inc., sustained an injury while visiting Irving’s Original Restaurant & Deli. Defendant Great Scott Supermarkets operated a retail food store near Irving’s. Defendants Congress Management and R. R. G. S. Management were owners or general managers of this commercial property. Because the injury arose in the course of Jacob Beitner’s employment, worker’s compensation benefits were paid to him totalling $15,852.70. In its July 27, 1977, complaint plaintiff alleged that defendants Irving’s, Great Scott, Congress and R.R.G.S. had breached their respective duties by failing to remove excessive accumulation of ice and snow, directly resulting in defendant Jacob Beitner’s falling and sustaining a broken leg. In Count I of its complaint plaintiff asked for judgment in the amount of $25,000, citing its "statutory lien and * * * statutorily prescribed right to pursue an action against and recover compensation benefits paid or payable from” the defendant tortfeasor. MCL 418.827; MSA 17.237(827). In Count II plaintiff alleged that, despite the June 2, 1975, notice to the parties of plaintiff’s asserted statutory lien, defendant Jacob Beitner, by and through his attorney defendant Elliot Beitner, "engineered a settlement with” the defendant tortfeasors. It was alleged that all defendants had wrongfully converted the settlement money rightfully belonging to plaintiff pursuant to its statutory lien. A judgment in the maximum amount of $15,852.70 was requested. Among the various answers filed in response to plaintiffs allegations was the claim by defendants Beitner that, if a lien existed in plaintiffs favor, it did not exist as to them but only as to the defendant third-party tortfeasors. The allegation that there was a settlement between Jacob Beitner and defendants Irving’s and Great Scott was admitted. In response to an affirmative defense raised by defendant Irving’s, plaintiff filed, on December 16, 1977, a motion to amend its complaint to include plaintiffs worker’s compensation insurance carrier as a party plaintiff. It was defendant Irving’s allegation that plaintiff Drapefair was not the real party in interest. Plaintiff also requested that a constructive trust be imposed upon defendants Beitner to the extent of money received in settlement of any claims arising out of the December 1974 incident and received after payment of compensation benefits. On December 19, 1977, defendants Beitner filed an "Amended Motion for Accelerated Judgment of Dismissal”, challenging Drapefair’s status as the proper party plaintiff. Attached to this motion was the affidavit of Joseph Merin, Drapefair’s president and chief stockholder, stating that he had never authorized the bringing of this lawsuit in Drape-fair’s name. Nor had he been informed that the lawsuit had been brought in Drapefair’s name. He concluded, "I specifically do not authorize such a lawsuit being filed on my behalf and do not wish the suit to continue.” In plaintiffs original complaint, Mr. Merin was referred to as Jacob Beit ner’s employer, owner and operator of Drapefair, Inc. On February 14, 1978, the order denying plaintiffs motion to amend and granting accelerated judgment for defendants was entered. The court found that the worker’s compensation insurance carrier was the real party in interest and that the action had been commenced on behalf of Drapefair without that company’s authorization and that the action was being continued against Drapefair’s wishes. The complaint was dismissed. In discussing the correctness of the trial court’s entry of accelerated judgment for all defendants we will address the two counts separately. Count I (claims against defendant third-party tortfeasors only) As to these defendants and Count I what is at issue is proper application of § 827 of the Worker’s Disability Compensation Act: "(1) Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and carrier. Any party in interest shall have a right to join in the action. "(2) Prior to the entry of judgment, either the employer or carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor. "(3) Settlement and release by the employee is not a bar to action by the employer or carrier to proceed against the third party for any interest or claim it might have. "(4) If the injured employee or his dependents or personal representative settle their claim for injury or death or commence proceedings thereon against the third party before the payment of workmen’s compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided. "(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or déath only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” MCL 418.827; MSA 17.237(827). Under paragraph 2 of this section, the right of an injured employee to settle his claim against third-party tortfeasors is recognized. Paragraph 3 provides that an employee’s settlement with a third-party tortfeasor does not extinguish the em ployer’s or insurance carrier’s right, as set forth in paragraph 1, to proceed against the third-party tortfeasor. Under paragraph 1, if an injured employee does not sue a potentially liable third party within one year from the date of injury, the employer or insurance carrier may sue to enforce the liability of the third party in the employee’s name. The substantive right to recover from a third-party tortfeasor in the name of an injured employee belongs to the employer or compensation insurance carrier who has paid compensation benefits; that is, the party who has paid benefits to the employee is the real party in interest in a suit brought in the name of the employee against a tortfeasor. Detroit v Spivey, 68 Mich App 295, 299-300; 242 NW2d 561 (1976). In the instant case it was plaintiff Drapefair’s workers’ compensation insurance carrier who paid benefits to defendant Jacob Beitner. The carrier, therefore, was the real party in interest. Under GCR 1963, 201.2, the action against the third-party tortfeasors should have been brought by the carrier. See Sinai Hospital v Sivak, 88 Mich App 68; 276 NW2d 518 (1979). It was in response to the contention that Drape-fair, who had not paid compensation benefits to Jacob Beitner, was not the real party in interest that the motion for leave to amend the complaint was made on December 16, 1977. Amendment of a complaint more than 15 days after an answer has been filed requires leave of the court or written consent of the adverse party. Leave to amend is to be freely given when justice so requires. GCR 1963, 118.1. The grant or denial of a motion to add a party is governed by the same standard as applies to motions to amend pleadings. Such motions are always addressed to the sound discretion of the trial court. Matson v Soronen, 57 Mich App 190, 193; 226 NW2d 52 (1974), lv den 394 Mich 762 (1975). We find that the trial court did not abuse its discretion in denying plaintiffs motion to amend its complaint as to Count I. On the contrary, a contrary ruling would have been improper. The injury which gave rise to the carrier’s right to recover from the third-party defendants under the theory set forth in Count I occurred on December 1, 1974. The provision of the Worker’s Disability Compensation Act which establishes the substantive right asserted in Count I incorporates the statute of limitations "prescribed by statute”. MCL 418.827(1). Since the carrier’s position vis-á-vis the third-party defendants, in Count I, is as subrogee of the employee’s right to recover for personal injury, the applicable statute of limitations is three years. MCL 600.5805; MSA 27A.5805. At the time the request to allow the real party in interest to join in the suit was made, the three-year limitations period governing Count I had run. GCR 1963, 118.4 controls relation back of amended pleadings: "Except for the purpose of demanding a trial by jury under sub-rule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” In Plowman v Satkowiak, 22 Mich App 425; 177 NW2d 641 (1970), the plaintiff, by her administrator, brought a dramshop action against one of the defendants. At the pretrial conference this defendant argued that the plaintiff’s action was not proper under the liquor control act and moved for summary judgment. In response, the plaintiff moved to add her parents as parties plaintiff. The trial court held that the plaintiff’s administrator had no right of action against the defendant and denied the motion to add the parents as plaintiffs. Summary judgment was entered for the defendant. On appeal this Court noted the trial court’s error in considering the administrator as the plaintiff. On the contrary, suit had been brought by the decedent through her administrator. The Court found that a clear right of action belonged to the plaintiff by her administrator. In addition, the Court discussed the denial of the motion to add the plaintiff’s parents as parties plaintiff: "The trial court denied plaintiffs motion to add new parties, having found that the administrator was not the proper party to bring an action in the present case. The trial court concluded that new parties could not be added as the two-year statute of limitations on actions brought under the liquor control act had run. This conclusion would have been correct had plaintiff’s administrator had no right of action against defendant Dropek. It is not true under the holding made here today.” Id. at 429. (Emphasis added.) The Plowman court cited Doan v Chesapeake & Ohio R Co, 18 Mich App 271; 171 NW2d 27 (1969). In discussing the grant of leave to amend pleadings so as to enable plaintiffs who have brought suit in the wrong capacity to sue in the proper capacity, the Doan court approved the following limitation found in 63 Harvard L Rev 1177, 1239 (1950): " 'However * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of suit, an interest in the subject matter of the controversy.’ (Emphasis supplied.)” 18 Mich App at 279. Under this limitation, accelerated judgment was properly entered on Count I for the defendant third-party tortfeasors. Plaintiff Drapefair paid no compensation benefits to defendant Jacob Beitner and, therefore, had no interest in the subject matter of the controversy. The affidavit of the president of Drapefair, which underscores the company’s lack of interest in the subject matter of this controversy, indicates that suit was perhaps actually begun by the legal representatives of the insurance carrier but in the name of the employer. Since the named plaintiff had at no time any interest in the controversy and since the limitations period had expired, the original action was void and the motion to amend was properly denied as to Count I. Count II (claims against all defendants) Under § 827(4), any money recovered by an in jured employee in settlement with a third-party tortfeasor is to be applied as provided in the Worker’s Disability Compensation Act. The following paragraph 5 describes the method in which settlement proceeds are to be disbursed: "Any recovery against the third party for damages * * * shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery * * MCL 418.827(5). In Gamble v American Asbestos Products Co, 381 Mich 105; 159 NW2d 839 (1968), the Supreme Court, in holding that a compensation carrier was entitled to a credit against future compensation benefits from the proceeds of the settlement received by the injured employee from the third-party tortfeasor, stated: "Plaintiff says the statutory requirement that the settlement moneys or recovery shall be used to reimburse the insurance carrier refers only to recovery through judgment for the employee in its action against the third party and not to recovery by way of settlement before judgment in such action. We find no language in the statute whatsoever that leads permissibly to such conclusion. In fact, the language that in the event the employee shall settle his claim any money so recovered shall be applied as in the act provided, coupled with the further provision that any such recovery shall first reimburse employer or its insurance carrier, means the very converse. "The statute says the employee may sue, settle with, and release the third party before judgment. The statute also says that any moneys so recovered shall be applied as therein provided, and thereafter provides that any recovery against the third party shall first reimburse the employer and its insurance carrier. We can see no lawful alternative to compliance with the express language of the statute by affirming, as we do, the decisions below.” Id. at 112. The right of reimbursement from settlement proceeds was also discussed by the Supreme Court in Transamerica Freight Lines, Inc v Quimby, 381 Mich 149; 160 NW2d 865 (1968), where the Court affirmed judgment against the injured employee who had settled with the third-party tortfeasors. In ruling against the employee; the trial court had stated that the compensation insurance carrier’s right to reimbursement from the settlement recovery did not depend on whether the carrier had intervened in a suit instituted by the employee against the tortfeasors. The Supreme Court agreed, citing the plain language of § 827(4) that any money recovered by the employee in settlement of his claim for injury or death must first be applied to reimbursement of the employer or insurance carrier. Id. at 160. Also see Arnett v General Motors Corp, 22 Mich App 658; 177 NW2d 704 (1970). Examination of the record convinces this Court that the trial court would not have abused its discretion in allowing plaintiff to amend its complaint as to Count II. The complaint and amended complaint clearly stated causes of action against all defendants. The foregoing cases conclusively establish the insurance company’s substantive right to proceed against defendant Jacob Beitner. And see the Supreme Court’s discussion in Quimby, supra, at 160-164 for a demonstration of the possibility of liability on the part of an injured employee’s attorney. With respect to the defendant third-party tortfeasors, it was alleged that, despite plaintiffs statutory lien, they "did wrongfully convert and disburse money rightfully belonging to the plaintiff, Drapefair, Inc., pursuant to said statutory lien”. Without expressing an opinion as to the merits of the carrier’s claims against each of the defendants in Count II, we note that, unlike those in Count I, these claims were not governed by the three-year statute of limitations for actions to recover damages for injury to persons and property. MCL 600.5805; MSA 27A.5805. Rather the general six-year statute of limitations applied to the claims set forth in Count II. MCL 600.5813; MSA 27A.5813. Although we conclude that the claims in Count II, if brought by the real party in interest (i.e., the insurance carrier), would not have been barred by the running of the applicable limitations period, we nonetheless affirm the trial judge’s denial of plaintiffs motion to amend its complaint to add the insurance company as a party plaintiff. The judge was presented with the affidavit of Drape-fair’s president which clearly indicated that company’s dissatisfaction with the bringing of suit in its name. Denial of the motion to amend was based on this affidavit. In light of the affidavit, the judge properly exercised his discretion in determining that amendment would not serve the ends of justice. On the contrary, justice dictates that the insurance company, the sole real party in interest, bring suit in its own name. The insurance company’s bringing of suit in the name of the employer, without the authorization of and against the apparent wishes of the employer, cannot be condoned. Accelerated judgment for all defendants as to Counts I and II is affirmed. Costs to appelles. Settlement between defendant Jacob Beitner and the defendant third-party tortfeasors was reached without Mr. Beitner filing suit against the tortfeasors. Plaintiff Drapefair’s claim that it is a real party in interest due to its interest in securing a credit against possible future liability to defendant Jacob Beitner is not persuasive. Worker’s compensation benefits were paid to Jacob Beitner pursuant to a redemption agreement. MCL 418.835; MSA 17.237(835). Jacob Beitner agreed, in exchange for a lump sum payment, to forego any right to proceed against Drapefair or its insurance carrier for further compensation benefits. The redemption agreement was a final settlement of Drape-fair’s liability under the Worker’s Disability Compensation Act. White v Weinberger Builders Inc, 397 Mich 23; 242 NW2d 427 (1976), aff'g 49 Mich App 430; 212 NW2d 307 (1973), Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 364 fn 2; 258 NW2d 227 (1977). The holding in Gamble, supra, in light of the time sequence there involved clearly indicates the inapplicability of the three-year statute of limitations. Also see Quimby, supra, at 172 (opinion of Black, J.). The conversion claim is also governed by the six-year statute of limitations. See Miller v Green, 37 Mich App 132; 194 NW2d 491 (1971).

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Per Curiam. Defendant was tried before a jury on a charge of negligent homicide, MCL 750.324; MSA 28.556. The jury found defendant guilty. The court sentenced defendant to 16 to 24 months imprisonment. Defendant appeals. In the late afternoon on December 8, 1974, defendant attempted to pass another vehicle on M-60 in Homer, Calhoun County. His automobile collided with an oncoming automobile driven by Gail Vroman. Gail’s sister Kathryn Jo Vroman was her passenger and died from injuries she received in the accident. The prosecution’s theory was that defendant was intoxicated and driving at an excessive speed. The defense contended that the Vroman automobile did not have its headlamps on and that defendant exercised due care in attempting to pass the vehicle in front of him. Testimony about defendant’s intoxication and his rate of speed conflicted. Also conflicting was testimony whether the headlamps on the Vroman automobile were illuminated. On appeal, defendant challenges only the court’s instructions to the jury. The court refused to give several instructions- that defendant requested, including one instructing the jury that in order to convict they must find that defendant’s driving was the sole and only proximate cause of Kathryn Jo Vroman’s death. The court did instruct the jury that a conviction required that they must find that Gail Vroman’s driving was not a proximate cause of the fatal accident. The court then defined proximate cause: "When I use the words 'proximate cause,’ I mean, first, that there must be a connection between that conduct of the defendant which the prosecution claims was negligent, careless or reckless, and the death of Kathryn Vroman, and, second, that the occurrence which is claimed to have produced that death was a natural and probable result of such conduct by the defendant, and the same definition of proximate cause also applies to the conduct of Gail Vroman, the driver of the other vehicle.” The court then attempted to explain further to the jury how their assessment of Gail Vroman’s conduct should affect their verdict. It is as to this explanation that defendant now assigns error. The court pointed out that there can be more than one proximate cause to an accident. If the jury found "that the defendant is guilty of negligent homicide as defined herein, and that his conduct was a proximate cause of the accident and therefore of the death of Kathryn Vroman”, they were told then to consider the conduct of Gail Vroman. If the jury found her "guilty of conduct for which you could find her guilty of negligent homicide, as defined herein”, and also found that her conduct was a proximate cause of the accident, then they could not return a verdict of guilty. A finding of two proximate causes of the accident, the court told the jury, prevented a verdict of guilty against defendant. In telling the jury that proximate cause was to be considered if they determined that defendant was guilty of negligent homicide and if they determined Gail Vroman "was guilty of conduct for which you could find her guilty of negligent homicide”, the court appeared to suggest circular reasoning. The court had earlier made clear to the jury, however, that causality must be shown before there can be guilt. Defense counsel did not request a clarification from the court. We think it proper to assume that he, as well as the jury, understood the court to mean that a finding of negligent driving, not negligent homicide, must precede a determination of proximate cause. Defense counsel did not object to the instruction on the basis that it unnecessarily asked the jury to make a difficult decision about Gail Vroman’s criminal culpability for the death of her sister. He himself had said, in closing argument, that "[TJhere is no reason why they couldn’t have prosecuted her just as well”. Review of the entire instructions indicates that where they were erroneous, the error was in defendant’s favor. It is possible that the Vroman vehicle was a cause of the accident and yet Gail Vroman’s operation of the vehicle might not be considered negligent. For example, an unexpected mechanical malfunction may have had something to do with the accident. But, in instructing the jury that if they found her negligent driving was a proximate cause of the accident, they must find defendant not guilty, the court provided defendant with a legally unwarranted basis for avoiding guilt. The notion that a defendant’s negligent driving must be "the sole and only proximate cause” of a fatal accident in order for him to be found guilty of negligent homicide is legally unsupportable. People v Scott, 29 Mich App 549, 558; 185 NW2d 576 (1971), initiated the recent view that for conviction of negligent homicide, defendant’s negligence must be "the only direct and proximate cause of the ensuing homicide”. People v Jeglum, 41 Mich App 247; 199 NW2d 854 (1972), and People v Buck, 71 Mich App 28; 246 NW2d 351 (1976), express approval for this "principle” found in Scott. But Jeglum and People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976), cases in which it was alleged that the deceased was contributorily negligent, reveal the error in Scott. Jeglum and Ebejer both recognized that contributory negligence of the deceased is no defense to a charge of negligent homicide. People v Clark, 295 Mich 704; 295 NW 370 (1940), People v McMurchy, 249 Mich 147; 228 NW 723 (1930), People v Fredericks, 30 Mich App 357; 186 NW2d 376 (1971). If the existence of another proximate cause of the fatal accident precludes a verdict of guilty against defendant, contributory negligence would be a good defense. In holding that reversible error occurred when the jury was told that conviction did not require that defendant’s conduct was the only proximate cause of the fatal accident, Scott placed heavy reliance on Commonwealth v Root, 403 Pa 571; 170 A2d 310; 82 ALR2d 452 (1961). Root, while unwilling to apply in criminal cases the attenuated causal connection that often sufficed for civil liability, certainly did not announce a rule that in negligent homicide cases the defendant’s conduct must be the sole proximate cause of the fatal accident. Chief Justice Jones wrote: "Of course there can be more than one proximate cause of death just as there can also be more than one direct cause of death.” 403 Pa at 578-579. Root requires that defendant’s conduct be the direct cause of the death in issue for a conviction; it is not necessary that a jury find defendant’s conduct to be the only direct cause. What Root rejects is the notion of proximate cause found in civil cases. The imprecise concept of proximate cause does not become precise by qualifying it with "sole” or "only”. Such qualification produces a phrase that, if not senseless, is at least extremely difficult to comprehend and utilize. It is sufficient to inform the jury that conviction for negligent homicide requires a finding that defendant’s negligence caused the fatal accident. People v Paulen, 327 Mich 94, 99; 41 NW2d 488 (1950). Defendant was deprived of no substantial right because of the court’s instructions. The instructions, instead, provided the jury with an unnecessary ground for finding him innocent. Affirmed.

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N. J. Kaufman, J. Appellants appeal from Wayne County Circuit Court Judge Harry Dingeman’s determination that six-year-old Eugene Siwik, Jr., should be in the custody of his mother instead of in the custody of his paternal grandparents. Eugene Siwik, Jr., was born on August 23, 1972. In September of 1976, his mother brought him to the Reppenhagen’s with the understanding that he would stay there until she "got her head together”. On November 10, 1977, the Wayne County Circuit Court granted plaintiff, who is not a party to the present dispute, a default judgment of divorce. The judgment also granted custody of the minor child to the Reppenhagens. Defendant filed a petition to modify the divorce judgment on February 3, 1978. A custody hearing was held on June 16 and 19, 1978, and the trial judge’s June 20, 1978, order changed custody to the defendant. The Reppenhagens appealed and, after reviewing the record, appellants successfully petitioned this Court to stay the proceedings and remand the case for a more complete record. Pursuant to this Court’s order, Judge Dingeman held a second hearing on September 11, 12 and 13, 1978. On September 28, 1978, the trial judge reaffirmed his earlier findings of fact and conclusions of law. The next day, this Court vacated the stay which it had ordered. Mrs. Frye attained custody of her son and took him to Kansas where he now lives with her and her new husband. Thereafter, appellants’ motion for a rehearing before this Court was denied and they now appeal. We affirm. Appellants raise three issues on appeal but each issue relates to the central question: Did the trial court properly interpret and apply the Child Custody Act in determining that the child’s best interests required a change in custody? These cases are not easy. The trial judge in the present case indicated that he "spent an uncomfortable weekend reviewing the testimony and reexamining the law”. We sympathize with the trial judge and recognize that "[a] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders”. Fritts v Krugh, 354 Mich 97, 101; 92 NW2d 604 (1958) (footnote omitted). We also note that our task is no easier than that of the trial judge. A reviewing court is obligated to consider a child custody case de novo and appraise the evidence apart from the trial judge’s findings. In so doing, it is important for us to remember that each case must be judged on its unique facts. As stated in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86 NW2d 166 (1957): "We have stressed, heretofore, in these zoning cases, the principle that each case must be judged on its own facts. Some confusion may have arisen from its frequent repetition. The statement is merely a truism in the law, applicable to all cases, from arbitration to zoning.” Additionally, in a custody case, we are bound by MCL 722.28; MSA 25.312(8), which provides that: "* * * all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” The guiding factor in all child custody matters is the child’s best interests as outlined in MCL 722.23; MSA 25.312(3): " 'Best interests of the child’ means the sum total of the following factors to be considered, evaluated and determined by the court: "(a) The love, affection and other emotional ties existing between the competing parties and the child. "(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any. "(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs. "(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. "(e) The permanence, as a family unit, of the existing or proposed custodial home. "(f) The moral fitness of the competing parties. "(g) The mental and physical health of the competing parties. "(h) The home, school and community record of the Child. "(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference. "(j) Any other factor considered by the court to be relevant to a particular child custody dispute.” In the present case, the trial court was also faced with two apparently contradictory legal presumptions. MCL 722.25; MSA 25.312(5) provides: "When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” The competing statutory presumption is contained in MCL 722.27(c); MSA 25.312(7)(c), which states in relevant part: "* * * The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” However, this apparent conflict has been resolved properly in Stevens v Stevens, 86 Mich App 258, 264-269; 273 NW2d 490 (1978), and Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). In each of those cases, our Court concluded that the basic inquiry must be into the best interests of the child. Further, the presumptions in MCL 722.25 and MCL 722.27(c) should be recognized equally, with the best interest of the child as the overriding concern, a concern sufficient to overcome any of the rebuttable presumptions in the statute. In the present case, the trial judge carefully considered each of the factors in MCL 722.23. Additionally, the judge recognized the presumptions in MCL 722.25 and MCL 722.27(c) and compared the existing home and the proposed alternative. It does not appear that he gave improper weight to one presumption over the other. In any event, in his September 28, 1978, opinion, the court specifically concluded: "* * * [I]t is the finding of this court that proper cause has been shown, and that clear and convincing evidence indicates that the best interest of Eugene Paul Siwik will be served by a change of the custodial environment of the child from the extended family relationship in which he now lives to that with his natural mother.” After a painstaking review of the entire record, we cannot say that the trial judge was in error. Appellants argue that the trial judge improperly ignored the child’s wishes by determining, after an interview, that the child was "not of sufficient age to express a meaningful preference in this matter”. We disagree. MCL 722.23(i) leaves this determination to the sound discretion of the trial judge and we find no abuse of discretion here. Even if the child stated that he wished to remain with his grandparents, the trial judge was not required to accede to that request. MCL 722.23 lists the child’s preference as one factor among many to be considered in determining the best interests of the child. Appellants also claim that the trial judge gave inadequate consideration to the testimony of the child psychologist. Again, we disagree. The psychologist testified against changing the custodial environment but also admitted that an extended family is not the best atmosphere in which to raise a child and that a major factor in mitigating the trauma of a change in custody would be the mother’s future behavior. MCL 722.27(d); MSA 25.312(7)(d) specifically permits a circuit judge to utilize "community resources in behavioral sciences” in determining a custody matter. But the statute plainly indicates that the decision to use such information is a matter of trial court discretion. Further, the weight to be given to the information is best left to the trier of fact. In the instant case, the trial judge heard the testimony of the psychologist and gave it some consideration. We cannot say that he erred in either respect. Finally, we note that the previous behavior of both parents leaves much to be desired. The father at the time of the divorce was imprisoned for a felony and was staying with his parents while on parole when the hearings for modification of custody were conducted. The mother had used alcohol to excess at times and was seen using controlled substances. At the hearings, however, Mrs. Frye stated under oath that she changed her mode of living, no longer abused alcohol or drugs, was happily married and wanted her child back. The court further stated: "As has been pointed out by counsel in final arguments this is the natural mother seeking custody of her child and the present custodians are third persons. She’s 24 years of age. The grandparents are 51, and 62 respectively. In another 10 years, the child in its early teens if it is to continue living with the grandparents would have a male figure head in the house in his 70’s, and a mother in her 60’s. Can this be construed as being in the best interests of the minor child, or would he be better off with younger parents. This Court believes the latter.” It is only natural for the grandparents to remember the mother as she was when she brought the child to them. And we commend them for taking the child and giving him love when it was necessary to do so. But the trial judge has concluded that the mother has changed her lifestyle and now is able to properly care for her child. We find no error in that determination. Affirmed. No costs.

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D. C. Riley, P.J. Defendant was arrested on September 2, 1977, and charged with possession of heroin in violation of MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). The undisputed facts show that on the evening in question, police officers stopped to investigate a parked car which appeared to contain two sleeping men. The vehicle’s passenger door was open and the inside dome light was functioning. As the police approached, the men roused themselves, at which time defendant removed a tinfoil packet from his pocket and dropped it to the floor of the automobile. One of the officers, familiar with the use of such packets as a method of drug dispersal, seized and opened the packet, which contained an off-white powdery substance later determined to be heroin. Defendant was immediately arrested and taken into custody. Following the preliminary examination, defendant brought a motion to quash the information and dismiss the case on the grounds that the police officer lacked sufficient probable cause to confiscate and open the tinfoil packet. The trial court granted this motion and the people appeal as of right. Initially, we observe that the expropriation of the packet cannot be sustained by reference to the "plain view” doctrine, which holds that the seizure of objects within the plain view of a police officer, in a place where he has a lawful right to be, is not constitutionally proscribed for lack of a valid war rant. People v Hunter, 72 Mich App 191, 199; 249 NW2d 351 (1976), People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976), lv den 397 Mich 842 (1976) . However, this exception is subject to the further limitation that only objects which the officer has probable cause to believe are evidence or implements of a crime may be seized and examined. People v Ridgeway, 74 Mich App 306, 311-312; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977) . Here there is no dispute that, under the circumstances at bar, the officers’ investigation of the vehicle was proper. The occupants of the automobile could have been in need of assistance for any of a number of reasons. Hence, the crucial question thus becomes not whether the officer was lawfully in a place to observe, but rather, did what he observe constitute probable cause to believe that the object seized was evidence or an implement of crime. At this juncture we reach plaintiffs contention that probable cause is no longer required for a limited search and seizure of the kind conducted by the police in this case, but that such an investigation may be premised upon a lesser standard of "reasonable grounds”. Plaintiff argues, erroneously, that the facts of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and United States v Martinez-Fuerte, 428 US 543; 96 S Ct 3074; 49 L Ed 2d 1116 (1976), indicate that, consistent with the Fourth Amendment, the police may, in cases such as this, conduct limited investigatory searches and seizures based upon grounds less than probable cause in the absence of any individualized suspicion. Terry involved the validity of a surface search or "frisk” of the outer clothing of a defendant with whom the officer had contact where the officer reasonably believed that he was dealing with an armed and dangerous person. In authorizing a limited intrusion to search for weapons, the holding in Terry was specifically premised upon, and limited to, the concern for the safety of law enforcement agents. Here it cannot be argued that any solicitude for the officers’ safety because of hidden weapons could justify opening the packet. United States v Martinez-Fuerte, supra, is also wholly inapposite as it deals with the dramatically different conditions relevant to a border search where a more relaxed Fourth Amendment standard has been held to apply. Nor does a review of the case law and remaning authority cited by plaintiff warrant imposition of a lesser standard than probable cause in the present case. Next, the state broadly urges us to hold that the time has come (in the evolution of the law) for the courts to realize that the use of tinfoil packets to facilitate drug trade is so widespread and well known among policemen that the mere sighting of such packets is sufficient to establish the requisite probable cause. We decline such a historical invitation. Defendant correctly points out that tin and aluminum foil have a vast number of legitimate and common uses; these commodities permeate American society resulting in almost daily contact with them in one form or another. Any inference of criminal activity derived from their mere possession is too expansive for purposes of the Fourth Amendment. We acknowledge that this Court has previously used language ostensibly favoring the people’s position. In People v Ridgeway, supra, at 314, where a police officer observed a tinfoil packet on the floor of defendant’s car, the Court stated: "We now consider the strongest support for a finding of probable cause, viz., the officer’s knowledge that tinfoil packets like the one on the floor of the car often contain narcotics. Given the officer’s experience in narcotics law enforcement, his suspicion that the packet contained some controlled substance must be respected. The question is extremely close, but we believe that the officer did have probable cause to believe that the packet contained a controlled substance.” However, in that case the officer also detected the odor of marijuana when defendant was stopped. The inference that marijuana users would be in possession of narcotics may be entitled to some weight according to the Court. The additional circumstance of marijuana smoke in Ridgeway renders it inadequate precedent for plaintiffs position. See also People v Falconer, 76 Mich App 367, 369; 256 NW2d 597 (1977), lv den 402 Mich 816 (1977), holding that a police officer’s suspicion that manila coin envelopes, being exchanged by a defendant for money, contained narcotics, did not by itself constitute probable cause for either arrest of the defendant or a search of the defendant’s car. Lastly, the people contend that the additional circumstances present in this case, taken in combination, are sufficient to establish probable cause, to wit: the officer’s prior experience with tinfoil packets, defendant’s furtive gesture, and the exigent circumstances of a potentially mobile vehicle. The latter ground merits only brief discussion. The exigent circumstances allowing immediate search of a movable vehicle is an exception to the Fourth Amendment’s warrant requirement. It does not serve to discharge the antecedent necessity of probable cause. Only where there is probable cause to believe that contraband will be found at the time the search occurs will the exception catalyze permissible investigation of the auto’s contents without the procurement of a warrant. People v Strong, 77 Mich App 281, 284-285; 258 NW2d 205 (1977), People v Daniels, 50 Mich App 754, 758; 213 NW2d 780 (1973), lv den 391 Mich 828 (1974). See generally, 1 Wharton, Criminal Procedure (12th ed), § 151, p 321. The remaining facts, however, are more troubling. Although insufficient standing alone, the use of tinfoil packets may be considered in combination with other elements in determining the existence of probable cause. One such factor is an evasive or "furtive” gesture by one aware that he is under police observation. As in the case of tinfoil packets, a mere furtive gesture, standing alone, does not create probable cause to search a vehicle. People v Howell, 394 Mich 445, 447; 231 NW2d 650 (1975), People v Boudah, 61 Mich App 563, 566; 233 NW2d 84 (1975), People v Obadele, 58 Mich App 139, 143; 227 NW2d 258 (1975), People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), lv den 388 Mich 791 (1972), People v Reeves, 23 Mich App 183, 188; 178 NW2d 115 (1970). See also Anno: Search & Seizure: Furtive Movement or Gesture as Justifying Police Search, 45 ALR3d 581. The rationale behind this rule was considered in People v Hall, 40 Mich App 329, 335; 198 NW2d 762 (1972), quoting People v Superior Court of Yolo County, 3 Cal 3d 807, 817-818; 478 P2d 449; 91 Cal Rptr 729 (1970): " 'The difficulty is that from the viewpoint of the observer, an innocent gesture can often be mistaken for a guilty movement. He must not only perceive the gesture accurately, he must also interpret it in accordance with the actor’s true intent. But if words are not infrequently ambiguous, gestures are even more so. Many are wholly nonspecific, and can be assigned a meaning only in their context. Yet the observer may view that context quite otherwise from the actor: not only is his vantage point different, he may even have approached the scene with a preconceived notion—consciously or subconsciously—of what gestures he expected to see and what he expected them to mean. The potential for misunderstanding in such a situation is obvious. " It is because of this danger that the law requires more than a mere "furtive gesture” to constitute probable cause to search or to arrest. ’ ” In People v Nelson Pitts, supra, police officers stopped the defendant’s car because it had no license plate light and saw a small prescription bottle in the defendant’s hand which he dropped between the seat and door as they approached. A search of the car revealed it to contain heroin. The Court held that the circumstances did not justify the search, stating that the movement by the defendant was not so obviously evasive that the police could infer criminality. The circumstances, said the Court, established no more than mere suspicion. In the instant case, the furtive gesture consisted of the defendant putting his hand in his pocket and either dropping or throwing a tinfoil packet to the floor of the vehicle. Such a gesture would seem to be closely akin to that in Pitts which was found to establish no more than mere suspicion. This gesture, combined with the suspicion aroused by the tinfoil packet, may have been sufficient to establish probable cause. Nevertheless, we refuse to overturn the decision of the lower court for the following reasons. First, we note that the record fails to supply us with an adequate description of the "tinfoil packet”. We are, therefore, left to speculate as to its bulk and configuration—whether large enough to hold a sandwich, or perhaps the size of a gum wrapper. Absent such evidence, we have no basis, apart from the officer’s naked allegation, for considering the argument that they are so readily identifiable as a means of drug conveyance. In the same vein, the extent of defendant’s "furtive gesture” is not apparent. Defendant either "dropped” or "threw” the packet to the floor of the vehicle. No other circumstances helpful to us are given surrounding the incident. As this Court noted in People v Strong, 77 Mich App 281, 286; 258 NW2d 205 (1977): " 'Furtive gestures’ have been defined as 'obviously evasive actions’. People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), People v Evans, 3 Mich App 1, 7; 141 NW2d 668 (1966). An inference of criminality may be drawn from circumstantial evidence only if it follows 'as an impelling certainty’. People v Davenport, 39 Mich App 252, 257; 197 NW2d 521; 56 ALR3d 942 (1972).” We are not constrained to say that, in light of the record before us, an inference of criminality follows "as an impelling certainty”. The similar facts holding of People v Nelson Pitts, supra, supports this conclusion. Further, we do not reverse a trial court’s ruling at a suppression hearing unless that ruling is found to be "clearly erroneous”. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), People v Ulrich, 83 Mich App 19, 21; 268 NW2d 269 (1978), People v Robertson, 81 Mich App 446, 449; 265 NW2d 365 (1978), People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977), People v Triplett, supra, at 535, People v Stewart, 25 Mich App 204, 206; 181 NW2d 14 (1970), People v Smith, 19 Mich App 359, 367; 172 NW2d 902 (1969). As the question in the present case is a close one, this standard does not mandate reversal of the court below. Affirmed. MacKenzie, J., concurred.

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Bronson, J. Defendant pled guilty to the crime of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and was sentenced to a prison term of 4 to 15 years. He now appeals as of right. Defendant was 17 years old at the time of the offense. Prior to trial, he was placed on two-years probation pursuant to the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. Less than one year later, the probation department alleged that defendant had violated the terms of his probation and petitioned the court for an order terminating defendant’s trainee status. The trial court granted the petition, revoked defendant’s trainee status and reinstated the criminal case against him. No hearing was held prior to the time defendant’s probation was revoked. Three months later, defendant pled guilty. The prosecution rightfully concedes that before a defendant’s probation status under the Holmes Youthful Trainee Act can be revoked a hearing must be held. People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The sole question on appeal is whether defendant’s subsequent guilty plea waived his objection to the failure to hold the revocation hearing. The question of what constitutional defects are waived by a guilty plea has undergone considerable revision in recent years. In Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973) , defendant sought to have his plea-based conviction overturned because he pled guilty to an indictment returned by an illegally constituted grand jury. The Supreme Court reaffirmed the traditional test set forth in the Brady trilogy and denied defendant relief stating that a guilty plea could only be attacked on the grounds that it was not voluntarily and intelligently made, thus precluding attacks based on constitutional defects not related to this issue. The rather narrow test set forth in Tollett was broadened, however, in the case of Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974) . In this case defendant challenged his plea-based conviction on the ground that the offense to which he pled guilty was barred by the double jeopardy clause. The Supreme Court reversed his conviction holding that a guilty plea did not waive defects which "went to the very power of the State to bring the defendant into court to answer the charge brought against him”. Blackledge at 20. Since a defendant could no more be brought into court on an invalid indictment (as in Tollett) than on an indictment barred by double jeopardy, the Court distinguished Tollett by stating the defect in that case could have been cured by a properly selected grand jury, while the constitutional defect in Blackledge was incurable. The Blackledge incurable jurisdictional defect test, however, has not been the final word from the Supreme Court on this issue. In Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975), the Supreme Court further expounded upon the meaning of Blackledge. The Court stated that a guilty plea was a reliable admission of factual guilt and removes this issue and alleged constitutional defects concerning factual guilt from subsequent attack. A guilty plea does not, however, constitute a waiver for those constitutional defects which are irrelevant to defendant’s factual guilt of the crime charged. Accord, Journigan v Duffy, 552 F2d 283 (CA 9, 1977). Applying this test to the present case it would seem that defendant’s guilty plea did not preclude him from attacking his conviction based on the failure to afford him a revocation hearing. A defendant has a constitutional right to a hearing prior to the termination of his trainee status and in the absence of a hearing, the criminal case against him cannot be reinstated. See People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The purpose for the revocation hearing is to give the defendant notice of the charges against him and make a determination, based on reliable information, of whether he has committed a probation violation. See Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). The hearing has nothing to do with determining defendant’s guilt on the underlying charge. Since the defect in failing to hold the hearing is totally irrelevant to the question of defendant’s factual guilt on the underlying charge to which he pled guilty, it was not waived by the guilty plea. Defendant’s conviction is reversed, and the case is remanded to the trial court for a hearing on the revocation of defendant’s trainee status. C. W. Simon, Jr., J., concurred. Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970). This same result could probably have been reached by using the Michigan Supreme Court’s decision in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). However, since the Federal cases concisely show the progression of the law in this area and Alvin Johnson contains much dicta which is unnecessary to the decision of this case and which we feel no need to address at this time, it was not used as the basis for this decision. MCL 762.12; MSA 28.853 (12).

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J. H. Gillis, J. Plaintiff appeals from a decision upholding his discharge from the Traverse City Fire Department. Defendant cross-appeals, claiming the Civil Service Commission improperly awarded plaintiff back pay for the period between his discharge by the city manager and the issuance of the commission’s opinion upholding the discharge. Plaintiff commenced work as a firefighter for the city in 1965. In 1969 he was convicted of reckless driving which resulted in the accumulation of 12 points on his driving record. He was thereupon suspended from driving all departmental vehicles. A second instance in which discipline was imposed occurred in 1972 when plaintiff was reprimanded for his involvement in an alleged assault at the "Abbey”. In 1973 plaintiff was convicted of assault and battery following an altercation at Bill’s Dills Cafe. He was again disciplined by the city and warned that any future violation of a criminal law or ordinance would result in his discharge. The incident giving rise to plaintiff’s discharge occurred on the evening of October 18, 1975. Plaintiff was on a weekend maneuver with his Army reserve unit when he and four other men, including his commanding officer, went to purchase some beer. On the way back to their bivouac area they decided to "shine deer”. A conservation officer stopped the pickup truck in which they were riding and all of the men, including plaintiff, were subsequently charged with illegally hunting deer with the aid of an artificial light. MCL 312.10; MSA 13.1339. Plaintiff initially pled guilty to the charge but was subsequently allowed to withdraw his guilty plea and, upon trial, was acquitted. Plaintiff argues that the discharge was not for "just cause” because the basis for it was unrelated to his duties as a fireman. There was sufficient evidence from which the commission could conclude that plaintiff had engaged in illegal activity. Plaintiff admitted possess ing a rifle and live ammunition while in the vehicle while one of his friends used a spotlight to look for deer. Furthermore, when apprehended by the conservation officer, plaintiff disposed of incriminating evidence by throwing the ammunition in his possession into the bushes. He later conspired to fabricate a false story and lied to the conservation officers until confronted with the previously disposed-of ammunition. We agree with plaintiff’s contention that, to be removed for cause, there must be some relationship between the charged misconduct and the plaintiff’s position. In Carroll v City Comm of Grand Rapids, 265 Mich 51; 251 NW 381 (1933), the Court, although dealing with the civil service provisions of the Grand Rapids charter, stated the following: "As noted above, appellant was in office under civil service provisions. He could not be captiously removed on trivial or technical grounds. If he was to be removed at all it must be removal for cause and that which is charged as a reason or justification for removing one-from office for cause must relate to and affect the administration of the office. It must be something which in a material way affects the rights and interests of the public.” Id., p 58. See also Isaman v Antrim County Supervisors, 348 Mich 84; 81 NW2d 426 (1957). The provision of the firemen and policemen civil service act under which plaintiff was disciplined reads as follows: "The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure to good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” (Emphasis supplied.) MCL 38.514; MSA 5.3364. The last clause clearly manifests an intent by the Legislature that the reason for discipline relate to plaintiff’s duties as a fireman. This is not to say that a person may not be disciplined for off-duty conduct. In Righter v Adrian Civil Service Comm, 1 Mich App 468, 470; 136 NW2d 718 (1965), a policeman was discharged for visiting a woman "at such hours and in such a manner as to bring discredit upon the police department”. In Kryvicky v Hamtramck Civil Service Comm, 18 Mich App 344; 170 NW2d 915 (1969), a policeman was discharged for creating a disturbance in a bar. Plaintiff’s actions in the instant case demonstrated at the very least disregard for the laws of this state as well as serious dishonesty which could be veiwed as obstruction of justice. There was also some testimony that plaintiff’s activities had damaged the prestige of the department and could interfere with plaintiff’s leadership abilities. Finally, due to the incident plaintiff missed some work while spending three days in jail. This evidence was sufficient to conclude that there was a relationship between plaintiff’s misconduct and his employment. Firefighters enter people’s homes under emergency conditions. Hence, public trust in the members of the fire department is essential for its efficient operation. Plaintiffs actions were detrimental to that trust and he could properly be disciplined for them. Plaintiff, secondly, argues that there was insufficient evidence to support the decision of the civil service commission upholding his discharge. The nature of a court’s review of the decision of a municipal civil service commission is to determine whether the decision is supported by competent, material and substantial evidence. The court is not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975), Werner v Macomb County Civil Service Comm, 77 Mich App 533; 258 NW2d 549 (1977). From our review of the evidence we find sufficient support for the commission’s determination that plaintiff had engaged in the activities for which he was disciplined. Plaintiffs own testimony indicates that he had a gun and live ammunition while his friend shined the light. In addition, he admitted conspiring to fabricate a story and lying to the officers. Plaintiff also argues that in determining punishment the commission improperly considered evidence of prior misconduct. In Konyha v Mount Clemens Civil Service Comm, 393 Mich 422; 224 NW2d 833 (1975), the Supreme Court held that prior uncharged conduct cannot be considered in determining the propriety of punishment for a current charge of misconduct. In the instant case the commission considered three prior incidents. The first incident involved plaintiffs conviction for reckless driving and subsequent suspension from driving departmental vehicles. The testimony indicates that plaintiff was not given written notice of the charge. While plaintiff was apparently aware of the driving suspension, the notice provisions of MCL 38.513; MSA 5.3363 were not satisfied. As was stated in Konyha, supra, p 428, "A written statement of [the] charges and the reasons for the disciplinary action must be furnished”. Since the misconduct was not properly charged, the commission erred in taking it into consideration. The other two prior incidents were not improperly taken into consideration. There is ample evidence that plaintiff was given written notice of the charges and that a copy was timely filed with the civil service commission. Moreover, contrary to plaintiffs argument, we see no reason why the charges and discipline may not be imposed by way of a single letter. Had plaintiff disputed the validity of these charges he had ample recourse under MCL 38.513; MSA 5.3363. Plaintiff cites Niazy v Utica Civil Service Comm, 45 Mich App 303; 206 NW2d 468 (1973), in support of his position. In that case the plaintiff was given a letter charging him with neglect of duty and discharging him. He requested a hearing. On the day of the hearing, he was furnished with charges of three other incidents of neglect of duty. The Court held that notice on the day of hearing does not comply with MCL 38.513; MSA 5.3363. However, there is no indication that there was any inadequacy in the method by which plaintiff was furnished with notice of the original charge, which was the same method used in the instant case. Plaintiff’s final claim is that "failure of good behavior” is an unconstitutionally vague standard. Examination of the context of these words indicates that the rule of construction known as ”ejusdem generis” is applicable. Where, in a statute, general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and be construed as restricted by the particular designation and as including only things of a similar kind, class character or nature as those specifically enumerated. People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975). While this rule is not to be invoked in every case where general words follow specific words, In re Mosby, 360 Mich 186; 103 NW2d 462 (1960), we believe it has application here. The statute provides: "[A]ny such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” (Emphasis supplied.) MCL 38.514; MSA 5.3364. We conclude that "failure of good behavior” is restricted to misconduct of the same nature as that specifically enumerated, and, as noted above, it must have some relationship to the position held by the employee. When so construed, the standard is, therefore, not unconstitutionally vague. The final issue before us concerns the award of compensation from the date the city manager discharged plaintiff until the date the commission ultimately confirmed that discharge, less 30 days. Relying upon § 13 of the act, the commission held that the city manager was without authority to terminate pay to plaintiff for a period in excess of 30 days. The circuit court upheld the commission’s decision. This issue was addressed by the Attorney General in a 1976 opinion wherein he stated: "Section 14 prescribes the manner in which an employee may be discharged from employment, or otherwise disciplined as therein provided. Such sanction must be for cause; the employee must be furnished a written statement of the charges and the reasons for such actions; the statement of charges must be filed within 90 days of the date of violation, with an exception for probationary employees; the employee may file an answer to the charges within 5 days after service; and if the employee demands it, a hearing must be held within 10 days from the filing of the charges. Section 14 expressly provides: " '* * * and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, * * "Throughout the section, reference is made to 'the person sought to be removed * * *’ [emphasis supplied]. Finally, the Legislature has expressly included the mandatory provision: " '* * * Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission the member shall remain in office * * V "The foregoing language contemplates that, although the appointing authority may initiate charges for removal, discharge, etc., it is the civil service commission which renders the final administrative decision, and the employee remains in his position until such decision is made, by express statutory requirement. The only language in the section that appears to be at variance with the foregoing is as follows: " '* * * In event that the civil service commission fails to justify the action of the removing officer then the person sought to be removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment, * * *.’ "Reference to reinstatement with full pay for a period in which the employee might have been prevented from performing his duties, suggests that the employee has been removed, which appears contrary to the requirement that the employee remain in office. However, the latter requirement is subordinated to a § 13 suspension in the following language: " '* * * Nothing in this act contained shall limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee or subordinate for a reasonable period, not exceeding 30 days: * * [Emphasis supplied.] "Such a circumstance was discussed by the Court of Appeals in Hunn, supra. Therefore, notwithstanding the requirement that the employee remain in office, the appointing officer may suspend for a reasonable period up to 30 days.” OAG, 1975-1976, No 4,960, pp 366, 367-368 (April 6, 1976). As the above opinion indicates, the member remains in office until the decision of the commission is rendered, although he can be suspended without pay for 30 days. Had the Legislature intended to disallow all pay pending the commission’s decision they could have inserted language comparable to that contained in MCL 51.362; MSA 5.1191(112): "Pending the period between the making of the charges as a basis for removal and the decison thereon by the commission, the member shall remain in office, but shall be suspended from duty without pay.” (Emphasis supplied.) In light of the Legislature’s failure to insert similar language in the statute under consideration here, we conclude that the Civil Service Commission acted properly in awarding plaintiff back pay for the time prior to the commission’s determination, less 30 days. Conclusion Since we are unable to say that the commission would have upheld plaintiffs discharge had they not considered the 1969 reckless driving incident, we must remand the case. The commission is to render its decision without taking that conduct into account. Remanded for proceedings consistent with this opinion. No costs, a public question being involved. “In all cases of reductions, layoff, or suspension of an employee or subordinate, whether appointed for a definite term or otherwise the appointing authority shall furnish such employees or subordinate with a copy of reasons for layoff, reduction, or suspension and his reasons for the same, and give such employee or subordinate a reasonable time in which to make and file an explanation. Such order together with the explanation, if any, of the subordinate shall be filed with the commission: Provided, however, That the employee or subordinate shall be entitled to a hearing before the commission as provided in section 14.”

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Allen, P.J., Do the provisions of MCL 418.351(1); MSA 17.237(351X1) limiting workmen’s compensation benefits to two-thirds of the injured party’s average weekly wage at the time of the injury place an absolute ceiling on differential benefit payments by the second injury fund resulting from increases in maximum benefits payable under MCL 418.355; MSA 17.237(355)? What method of calculation should be used to compute the 5% benefit reductions required by MCL 418.357; MSA 17.237(357) for the recipient of a total and permanent diability award who attains age 65? These questions, the second of which is of first impression, are raised on return of this case from the Workmen’s Compensation Appeal Board pursuant to remand in this panel’s unpublished per curiam opinion released August 9, 1978. In proceedings which are no longer disputed, plaintiff was found totally and permanently disabled from a work-related injury occurring on November 4, 1968. At the time of the injury, plaintiff’s average weekly wage was $150.80. Two-thirds of that amount is $100.53. The statutory maximum benefit limit then in effect was $69. Because of that limit, the initial award to plaintiff was $69 per week, payable in full by his employer’s insurance carrier. Between 1968 and 1973, the maximum benefit limit was increased on several occasions pursuant to MCL 418.355; MSA 17.237(355). These increases were absorbed by defendant second injury fund pursuant to MCL 418.521; MSA 17.237(521). During calendar year 1973, the total payment to plaintiff was $99 per week — $69 from the insurance carrier and $30 from defendant second injury fund. The statutory maximum benefit was again increased to $106 effective January 1, 1974. With this new increase, plaintiff’s total benefits reached (actually exceeded) the ceiling imposed by the two-thirds of average weekly wage limitation in MCL 418.351; MSA 17.237(351). Because of that ceiling, the imposition of which is contested by plaintiff in Issue I of this opinion, payment to plaintiff during calendar year 1974 was in the weekly sum of $100.53, i.e., two-thirds of his average weekly wage when he suffered the compensable injury. In 1975, 1976, and 1977, the maximum was increased to $112, $120 and $132 respectively but, because Of the two-thirds limitation, payments to plaintiff remained at $100.53. Then, on January 1, 1978, the maximum was raised to $147 and the minimum to $108. Because the minimum then exceeded the two-thirds limitation, plaintiff’s payments were raised. Meanwhile, on January 12, 1974, plaintiff reached age 65. At that point, the age 65 reduction provisions in MCL 418.357; MSA 17.237(357) — as interpreted by the WCAB — called for a 5% reduction in benefits. At that point a dispute arose as to whether differential benefits were subject to the 5% age reductions and, if so, which of several methods of calculation should be employed; The dispute came before the WCAB which, on December 21, 1976, issued the opinion referred to in footnote 1, and which was affirmed in part arid remanded in part to the WCAB by the unpublished per curiam opinion of this panel on August 9, 1978. The WCAB entered its opinion on the remand on August 25, 1978, and returned the cause to this panel. Issues posed by the August 25, 1978, opinion are the subject of this opinion. I. Does the Provision in MCL 418.351(1); MSA 17.237(351)(1) Limiting Beneñts to Two-Thirds of a Recipient's Average Weekly Wage at the Time of Injury Provide an Absolute Ceiling on Differential Beneñt Payments by the Second Injury Fund Resulting from Increases in the Maximum Beneñts Pursuant to MCL 418.355; MSA 17.237(355)? Plaintiff contends that § 351(1) only limits the employer’s contribution to two-thirds of the recipient’s average weekly wage at the time of injury, and that the section does not apply to the differential benefits required to be paid from the second injury fund. On remand, all WCAB members rejected plaintiff’s construction, saying: "Unresolved, and returned to this Board for an expression of its opinion, is the question of whether the provision in Section 351 [MCL 418.351(1)] limiting benefits to two-thirds of an injured employee’s average weekly wage is an absolute ceiling on both employer and Second Injury Fund payments (an absolute ceiling, that is, until such time as minimum rates for total disability exceed the two-thirds average weekly wage, at which time said mínimums become the floor beneath which total payments may not fall, per Jolliff v American Advertising Co, 49 Mich App 1; [211 NW2d 260 (1973)], and Vrahamdedes v McDonald's of Ann Arbor, 1978 WCABO 1624, No. 312, dated June 14, (1978). Believing the Court to have (correctly) answered this question in the affirmative on the only occasion the question was before the Court [Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974)], we answer 'yes’. Interestingly, both here and in Kunde, supra, the parties declined to raise the issue before the Board and introduced it instead at the Court.” The obligation of the second injury fund to pay differential benefits first appeared in § 9(a) in 1955 PA 250. Section 9(a) was amended by 1956 PA 195 to read that payments should be made "according to the full rate provided in the schedule of benefits”. This language was repeated verbatim when the statutue was amended by 1965 PA 44. The question of whether the statute as so worded required the second injury fund to pay in excess of the two-thirds limitation first arose in King v Second Injury Fund, 382 Mich 480; 170 NW2d 1 (1969). In June, 1966, the hearing referee held the limitation applied. That decision was affirmed in a 4-3 decision by the Workmen’s Compensation Appeal Board in 1967. 1967 WCABO 941. Bypass of the Court of Appeals was granted by the Supreme Court which, in September, 1969, reversed, holding that the two-thirds limitation did not apply because to hold otherwise would disregard the statutory words "according to the full rate provided in the schedule of benefits”. King v Second Injury Fund, supra. Within a few months following the split decision of the WCAB in King, legislation was introduced to amend the statute. In the amendment process, the words "according to the full rate provided in the schedule of benefits” were deleted. That legislation became law in 1968 PA 227, effective July 1, 1968. Elimination of the quoted words caused the fund trustees to request an opinion from the Attorney General as to whether the fund was still required to pay differential benefits without regard to the two-thirds limitation for injuries occurring after July 1968 (the effective date of the act). The Attorney General concluded that, as so amended, the two-thirds limitation would apply: "The King decision is no longer applicable where the injury occurred subsequent to June 30, 1968 because the statutory language that provided for payments from the second injury fund 'according to the full rate pro vided in the schedule of benefits’ was deleted by Act 277, PA 1968. Therefore, in respect to employees who are or become disabled because of an injury occurring on or after July 1, 1968, they shall receive differential benefits in accordance with the two-thirds limitation.” OAG, 1969-1970, No. 4711, p 187 (November 9, 1970). We agree with the Attorney General. Any other conclusion would disregard the basic rules of statutory construction. The constitutionality of the statute as interpreted by the Attorney General’s opinion was challenged on grounds of violation of equal protection of the laws in Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974). Our Court held that there were legitimate legislative purposes served by application of the two-thirds limitation to differential benefit payments for injuries occurring after June 30, 1968. We do not believe Kunde decided that the 1968 amendment imposed a two-thirds limitation on payments for employees injured subsequent to June 30, 1968. In this respect we disagree with the WCAB and agree with plaintiff. Kunde assumed that the Attorney General’s construction of the statute was correct and, based on that assumption, decided only the question of the law’s constitutionality. But our agreement with plaintiff on this narrow point is more than offset by the striking fact that although four years had elapsed since the Attorney General’s opinion no one, not even the claimants, challenged the construction given the statute. Only the constitutionality of the statute was questioned until the instant suit was commenced. The WCAB, the second injury fund and claimants have all accepted the two-thirds limitation on differential benefits for post-June 30, 1968, injuries. The interpretation given a statute by those charged with the statute’s administration is given great weight and is not to be overruled without the most cogent of reasons. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968), Miller v Dunn Paper Co, 47 Mich App 471, 478; 209 NW2d 519 (1973). The main thrust of plaintiffs claim that the Attorney General erred in ruling that the 1968 amendment reversed King is that to so conclude is inconsistent with the then legislative intent to increase benefits. Why should the Legislature create a plan to provide additional benefits for totally and permanently disabled persons — obviously to cope with rising prices — and then proceed to limit the amount to two-thirds of the injured person’s wage at the time of the injury. The argument is flawed in three respects. First, it is not true that the injured person’s benefits are held at two-thirds of the average weekly wage at the time of injury. Under the statute, the Director of the Bureau of Worker’s Disability Compensation establishes minimum weekly rates of compensation. Whenever the minimum rate as so established exceeds the two-thirds limitation, the minimum rate prevails. Stein v Director, Bureau of Workmen’s Compensation, 77 Mich App 169; 258 NW2d 179 (1977). In 1977, the minimum rate was $93 for a disabled employee with one dependent. In 1978, it was raised to $108. Immediately, the second injury fund increased its differential payment to plaintiff to $39 per week which is the difference between the employer’s basic weekly rate of $69 per week and the 1978 minimum benefit rate of $108. Second, plaintiff errs in construing § 521(2) as automatically allowing him the present-day maximum rate. Section 521(2) provides that a permanently and totally disabled person shall receive differential benefits equal to the difference between what he is now receiving from his employer under the provisions in effect at the time of his injury "and the amount now provided” by the act. No provision of the act allows a present-day applicant to receive the maximum benefit rate if it exceeds two-thirds of his average weekly wage. The present-day applicant is limited to two-thirds of the average weekly wage. Thus, if plaintiff were allowed to receive the present maximum rate without regard to the two-thirds limitation, he would receive more than is provided for a present-day applicant. While it is true that a present-day applicant’s average weekly wage generally would be greater than that of an applicant from previous years, the adjustment of the minimum rate, as explained above, remedies this situation. If the Legislature had intended so major a change we believe it would have clearly so stated. Third, sound policy reasons exist for imposing the two-thirds limitation. The limitation avoids the unfairness in giving all recipients the same yearly wage. In the absence of any limitation a party, who at the time of injury was earning less than the then average weekly wage, would receive the same increase as a party who was earning more than the average weekly wage at the time of injury. The two-thirds limitation avoids this unfairness. Further, as the Kunde Court pointed out, budgetary and other reasons may well have led the Legislature to impose the two-thirds limitation. "There are potentially many rational reasons why the Legislature constructed the classification it did. It may have anticipated the King, supra, ruling and its effects, and thus sought to equalize the compensation responsibility owed by employers and the Second Injury Fund. It may have felt that any added burden placed on the Second Injury Fund by requiring it to pay the full rate as set out in the schedule of beneñts might damage the fund, and thus destroy its effectiveness.” (Emphasis supplied.) Kunde, supra, at 557. This Court’s request in its opinion on remand that cost data be supplied was made for the purpose of possibly identifying legislative intent. The data so furnished in response to our request, and summarized in footnote 2, provides a sound basis for the Legislature to conclude that continuation of payments "at the full rate” would impose an excessive drain on the fund. II. Given the Following Sequence of Events, How Should Differential Beneñt Payments by the Second Injury Fund be Calculated? (1) Award for Total and Permanent Disability, (2) Increase in Maximum Rates Causing Differential Beneñts by the Second Injury Fund, (3) Recipient Reaches Age 65, (4) Maximum Rates are Further Increased and Minimum Rate Exceeds the Two-Thirds Limitation. Five proposed methods of calculating differential payments to a recipient who has attained age 65 were submitted for this Court’s consideration in its opinion August 9, 1978. The respective methods are labeled A, B, C, D, E. In our August 9, 1978, opinion we rejected method B as totally inconsistent with the statutory language and remanded the other proposals to the appeal board for further consideration. In its opinion on remand, the WCAB retained its separate positions on method C (board panel majority) and D (board panel minority). Plaintiffs method E was calculated on the assumption that the two-thirds limitation did not apply. In view of our discussion in Issue I, supra, that the limitation does apply, method E is rejected. This leaves only methods A, C and D as the viable alternatives for our consideration at this time. Under method A, the method supported by the second injury fund, the compensation payable by the employer on the claimant’s 65th birthday, and the compensation payable by the fund on the same date, are set down in separate columns. In the instant case, the respective totals are $69 and $31.53, or a total of $100.53, which is two-thirds of plaintiff’s average weekly wage of $150.80. On January 12, 1974, (the day after plaintiffs 65th birthday) the $69 is reduced by 5% ($3.45) and the $31.53 is reduced by 5% ($1.58). Thereafter, for nine consecutive years, the employer’s share is each year reduced by $3.45, and the fund’s share is each year reduced by $1.58. Thus, on the 10th year following plaintiffs 65th birthday, payments by both the employer and the fund will have been reduced by 50%. The differential benefit increases made prior to the 65th birthday continue to be paid by the fund but any such increases made after the 65th birthday are not included. However, if the total amount then actually paid by the employer and the fund combined, falls below the statutory minimum, the difference between that total and the minimum rate must be paid by the fund. In January, 1978, the minimum rate was raised from $93 to $108, an amount which for the first time exceeded two-thirds of plaintiff’s average weekly wage of $100.53. However, as will be discussed later, the fund claims that under method A the differential rate should be increased by the difference between the employer’s basic rate before the first 5% discount was taken ($69) and the minimum rate of $108 rather than the difference between the amount actually being paid by the fund, viz — the employer’s rate as then discounted ($55.20) — and $108. Method C, the method espoused by the appeal board majority, is the same as method A except that all incremental increases made during the 10-year period and to which plaintiff would be entitled had he not attained age 65, are added to the fund’s payment, with no reduction in those increases. Under method C, the injured party receives the incremental increases between ages 65 and 75, whereas under method A they are not paid. Method D was proposed by the appeal board minority. The total amount of benefits to which the claimant is entitled had his 65th birthday not intervened, is first determined. Of this total, the employer pays no more than the employer would have paid on the 65th birthday and is entitled to a 5% reduction each year. The difference between the employer’s amount and the total sum due if claimant’s 65th birthday had not occurred is added to the fund in a percentage equal to 100% minus 5% times the number of birthdays after age 64. Under method D, the claimant receives the incremental increases less 5% of the total amount the first year, 10% the second, etc. Thus, on his 75th birthday, the claimant receives 50% of the compensation which he would have received had he not become 65, rather than 50% of the amount to which he was entitled on his 65th birthday. The difference between the three methods may be summarized as follows. Under method A, the claimant receives no part of differential benefits paid while claimant is between age 65 and age 75. Under method C, the claimant receives such differential payments in full but the differential benefits due before age 65 are reduced 5% each year. Under method D, the claimant receives the differential payments, less 5% of the total payment the first year had the 65th birthday not occurred, 10% the second year, etc. The respective weekly payments due plaintiff in 1978 under each method is set forth below. The question posed is which of the three methods complies with the statute. The statutory authority for age 65 reductions is found in MCL 418.357; MSA 17.237(357) which reads: "Sec. 357. When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-ñfth birthday the weekly payments shall have been reduced by 50%; after which there shall be no further reduction for the duration of the employee’s life. In no case shall weekly payments be reduced below the minimum weekly benefit as provided by this act.” (Emphasis supplied.) Method D is conspicuously incompatible with the provisions of § 357 — an incompatibility noted in the appeal board majority’s analysis of method D: "Sec. 357 of the Act states in part: 'payments for each year following his 65th birthday shall be reduced by 5% of the weekly payment paid or payable at age 65.’ (Emphasis added.) It does not state that payments for each year following his 65th birthday shall be reduced by 5% of the total weekly payment payable in a year subsequent to the claimant’s 65th birthday. The statutory reduction is clearly a ñxed sum and is 5% of the payments paid or payable at age 65.” (Emphasis in original.) Method C is only slightly less conspicuously inconsistent with § 357. That section provides for a fixed sum reduction (viz — the same dollar amount reduction per year) calculated on the weekly payments "paid or payable at age 65”. If differential benefit increases under § 355 are paid after age 65, weekly payments will not have been reduced by 50% at age 75. Only method A complies with the express provisions of the statute. Accordingly, we find that the WCAB erred in applying a different formula in the instant case. Having approved method A as we have described it we nevertheless find an error in the way it has been calculated by the second injury fund. At page 321, and again in footnote 3, of this opinion we noted that when the minimum rate was raised to $108 in 1978, the fund immediately increased its differential payment to $39 per week, this being the difference between the employer’s basic rate before the first 5% discount was taken ($69) and the 1978 minimum benefit rate of $108. The language in the last sentence of § 357(1) "In no case shall weekly payments (emphasis supplied) be reduced below the minimum weekly benefit as provided in this act” is clear and unambiguous. To us, "weekly payments” means payments actually being made rather than weekly payments made at an earlier date years back when the employee first attained age 65. We believe that a proper application of the statute, and consequently method A, requires the fund to increase its payment by $52.80 — this being the difference between what the employer was actually paying on January 1, 1978, ($55.20) and $108. The employer’s actual payment of $55.20 plus a fund contribution of $52.80 (rather than $39) would total $108. This brings us to the question of retroactivity which, in our former opinion, we asked the parties and the WCAB to address on remand. At that time we did not know that when the case returned to us we would be approving method A, the method which has always been applied by the fund. Because the fund’s method has been approved except for the fund’s error in computing the amount due in cases where the injured party has attained 65, and since only 31 cases are being reduced, the fiscal problem of correcting past error is de mini mis. Legally, there is no question of retroactivity since this is the first case to construe the method of age-65 reductions required under MCL 418.357; MSA 17.237(357). This is not a case of further development of an old injury or an application for further compensation, thus neither the one-year back rule, MCL 418.833(1); MSA 17.237(833)(1), nor the two-year back rule, MCL 418.381(2); MSA 17.237(381)(2), apply. In Summary As to Issue I, we hold that the two-thirds provision of § 351(1) provides an absolute ceiling on differential benefit payments by the second injury fund resulting from increases in the maximum benefits made pursuant to § 355. We do so for the reasons set forth by the WCAB in the opinion on remand. We reject the argument that our holding is totally incompatible with the purpose for which differential benefits were authorized. When the minimum rates exceed the two-thirds limitation, the mínimums become the floor beneath which total payments may not fall. When minimum rates are properly applied, the increase in benefits is substantial. On Issue I the WCAB is affirmed. As to Issue II, we hold that method A is the only correct formula for calculating benefits for persons who attain age 65, with the correction that the fund is liable for the full dollar difference between the actual benefits then being paid by the employer and the established minimum weekly benefit rate. On Issue II, the WCAB is reversed and the cause remanded for payment by the fund in accordance with this opinion. Affirmed in part, reversed in part and remanded in accordance with this opinion. No costs, neither party having prevailed in full. The unpublished August 9, 1978, opinion affirmed in part and remanded in part a Workmen’s Compensation Appeal Board (WCAB) opinion dated December 21, 1976. As to three issues the WCAB was affirmed: (1) that under MCL 418.357(1); MSA 17.237(357X1) the 5% reduction in benefits commences on the recipient’s 65th birthday, and not on the 66th birthday; (2) differential benefit payments made by the second injury fund before the recipient reaches age 65 are subject to later 5% annual reduction under MCL 418.357(1); MSA 17.237(357X1); (3) Section 357(1) is not unconstitutional as violative of equal protection of the law as to recipients over age 65, or as to totally and permanently disabled recipients over age 65. Plaintiff filed leave to appeal these three issues to the Michigan Supreme Court. The application for leave was denied 405 Mich 835 (1979). On two issues, viz: — the two questions appearing above — the Court remanded to the WCAB which issued its opinion on remand August 28, 1978. This Court retained jurisdiction. In our opinion August 9, 1978, ordering remand, request was made that the fund advise the Court as to the number of cases which would be affected by the Court’s eventual decision. In response to this request, the fund stated that as of August 31, 1978, the fund was paying benefits on 1208, of which 721 involved injuries prior to July 1, 1968, and 487 cases involving injury after July 1, 1968. The 721 case claimants are receiving benefits "at the full rate” in accordance with King, supra, and the remaining 487 case claimants are paid subject to the two-thirds limitation until such time as the minimum rate for total disability exceeds the two-thirds limitation. Of the 487 cases, 101 are presently being increased each year to keep the claimant at the § 355 minimum rates. Only 31 cases are being reduced under the § 357 age 65 reduction. Without the § 351(1) two-thirds limitation, the fund estimated that for calendar 1978, the fund’s payments to present claimants would be increased by $360,262.24. Prior to plaintiffs 65th birthday, six incremental increases totaling $37 had been made. Plaintiff received all of these, subject to the two-thirds limitation which in plaintiffs case was $31.53. From 1975-1978, incremental increases of $6, $8, $12 and $5 were announced. Under method A none of the 1975-1978 increases are chargeable to the fund. On January 13, 1978, the fifth reduction of 5% was made on the compensation payable by the employer ($69) and the compensation payable by the fund ($31.53) on the claimant’s 65th birthday, January 12, 1974. On January 1, 1978, the minimum rate had been raised from $93 to $108. Since the minimum rate of $108 exceeded the total sum which otherwise would be due plaintiff, the minimum rate prevails. See footnote 2, supra.

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R. B. Burns, J. Defendant was charged with the first-degree murder of his wife. MCL 750.316; MSA 28.548. Defendant presented an insanity defense at his bench trial. The trial court found him guilty of second-degree murder, MCL 750.317; MSA 28.549, but mentally ill, MCL 768.36; MSA 28.1059. Defendant appeals. Evidence presented at trial indicates that defendant stabbed his wife to death, and then attempted suicide by stabbing himself three times. From defendant’s testimony and corroborating evidence it could be inferred that defendant believed his wife was possessed by a demon and that, when he stabbed her, he believed that she was already dead, and that he was attempting to cut the demon out and restore her to life. A psychiatrist who testified for the defense concluded that defendant was suffering from acute schizophrenia at the time of the incident and had been insane. Two psychia trists, called by the prosecution in rebuttal, expressed contrary opinions. The primary thrust of defendant’s argument on appeal is factual: that the trial court erred in finding defendant sane at the time of the homicide. The argument rests in part on several erroneous arguments concerning the law, raised in related issues. Thus, we will first discuss the related issues before reaching the primary issue on appeal. Defendant argues that he was prejudiced in the presentation of his defense by the trial court’s failure to grant his pretrial motion to dismiss the charge of first-degree murder because the trial court was inclined thereby to reach a compromise verdict. Defendant relies upon the preliminary examination and trial transcripts to argue that the evidence of mental illness was compelling and asserts that a person who is mentally ill is incapable of "wilful, deliberate and premeditated killing”. MCL 750.316; MSA 28.548. The issue of whether there was sufficient evidence to hold defendant for trial for first-degree murder was one addressed to the magistrate’s, discretion and is reviewable only for abuse of discretion. People v Karcher, 322 Mich 158, 162-163; 33 NW2d 744, 746 (1948). Review is limited to the preliminary examination transcript; testimony taken at trial cannot be considered. People v Charles D Walker, 385 Mich 565, 572; 189 NW2d 234, 237 (1971). While there was evidence presented at the preliminary examination from which it could be inferred that defendant was mentally ill at the time of the offense, there was also, evidence from which it could be inferred that the killing was willful, deliberate and premeditated. It does not necessarily follow that a person with a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”, MCL 330.1400(a); MSA 14.800(400a), is incapable of deliberation and premeditation. We find no abuse of discretion. Defendant argues that he should have been acquitted of second-degree murder because the trial court found that he was mentally ill at the time of the offense. The incorrect premise underlying this argument is that one who is mentally ill is incapable of forming the mens rea of murder. Mental illness and malice aforethought are not mutually exclusive mental conditions. While mental illness may factually negate a finding of malice aforethought in a particular case, see People v Lynch, 47 Mich App 8; 208 NW2d 656 (1973), it does not follow as a matter of law that a finding of mental illness necessitates a finding of not guilty of murder. Defendant contends that MCL 768.36; MSA 28.1059, creating the "guilty but mentally ill” verdict, is unconstitutional. First, defendant argues that the definitions of mental illness, MCL 330.1400(a); MSA 14.800(400a), and insanity, MCL 768.21a; MSA 28.1044(1), are so vague and overlapping as to confer upon the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. See People v Howell, 396 Mich 16, 20; 238 NW2d 148, 149 (1976). A reading of the statutes refutes defendant’s argument. Second, defendant argues that the evaluation and treatment provisions of the statute are illusory. This Court has previously held that such an argument is premature. People v McLeod, 77 Mich App 327; 258 NW2d 214 (1977), lv granted, 402 Mich 927 (1978). It would be inappropriate for this Court to possibly confuse the law by re-examining the correctness of the holding in McLeod where the issue is pending in the Supreme Court. We therefore do not reach the merits of the issue raised by defendant. In an extensive review of the facts presented at trial, defendant argues primarily regarding the insanity issue that the trial court’s findings of fact were clearly erroneous. GCR 1963, 517.1. Defendant also raises a collateral issue, arguing that the trial court’s findings of fact are inadequate to aid review. GCR 1963, 517.1, People v Jackson, 390 Mich 621, 627; 212 NW2d 918, 921 (1973). Plaintiff, equating the scope of review of bench trial findings of fact with jury verdicts, asserts that, because there was conflicting evidence on the sanity issue, the trial court’s conclusion may not be disturbed. See, e.g., People v Palmer, 392 Mich 370; 220 NW2d 393 (1974), People v Szymanski, 321 Mich 248; 32 NW2d 451 (1948), but see, People v Beath, 277 Mich 473, 482-483; 269 NW 238, 242 (1936). Additionally, plaintiff argues that the trial court’s opinion indicates it was aware of the insanity-mental illness issue, resolved it, and a remand is not necessary to facilitate review. People v Jackson, supra. Thus, the parties raise two procedural issues which we must resolve prior to reaching the substantive issue of sufficiency of evidence: the scope of review, and the degree of specificity required of the trial court’s findings of fact to aid review. GCR 1963, 517.1 requires the trial court, in actions tried without a jury, to "find the facts specially and state separately its conclusions of law thereon”. Fact findings are sufficient if "the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts”. In addition to requiring findings of fact, the court rule sets forth a standard of review of those facts: "Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.” Construing the court rule in the civil context, the Supreme Court has held that a finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). Under this standard of review, the evidence in a nonjury case is subjected to a more rigorour review than that in a jury case. Id., Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405, 408 (1957). Under GCR 1963, 517.1, as construed in Tuttle, this Court could be required to reverse even where there is conflicting evidence, if left with a definite and firm conviction that a mistake has been committed. Thus, the standard of review under GCR 1963, 517.1 is broader than that stated in People v Szymanski, supra, and advocated by plaintiff. It is unclear whether the Supreme Court has held that the clear error standard of GCR 1963, 517.1 applies in criminal cases. In People v Thomas, 387 Mich 368; 197 NW2d 51 (1972), the Supreme Court split over whether GCR 1963, 517.1 applied through GCR 1963, 785.1(1) to criminal cases. The primary focus of the plurality opinion taking the negative view was upon whether the fact finding portion of GCR 1963, 517.1 should apply to criminal cases, and there was no discussion of whether the scope of review in criminal cases ought to be expanded. However, the opinion did equate the scope of review in bench cases with jury cases, in discussing the lack of need for findings of fact. In People v Jackson, supra, the Court referred to People v Thomas, supra, stated that it was not binding under stare decisis, and held that in criminal cases, as well as civil cases, a judge who sits without a jury is obligated to articulate the reasons for his decision in findings of fact. The rationale for the holding was that findings of fact facilitate review by revealing the law applied by the fact finder. It could be inferred that the Supreme Court in Jackson did not hold that the clear error standard of GCR 1963, 517.1 applies in criminal cases. The Court did not explicitly tie the fact finding requirement to the court rule. The court rule addresses two issues — fact finding, and review, while Jackson addresses only the issue of fact finding. The rationale advanced for the rule is narrow — to reveal the law applied, rather than to reveal whether the trial court’s findings of fact are clearly erroneous. Nonetheless, we believe Jackson held GCR 1963, 517.1 applies in entirety to criminal cases. The reference to Thomas indicates the Court was addressing the same issue presented in Thomas— whether GCR 1963, 517.1 applies through GCR 1963, 785.1(1) to criminal cases. This Court has assumed that Jackson held that the court rule does apply in criminal cases. People v Brooks, 75 Mich App 448, 450; 254 NW2d 926, 927 (1977). Justice Levin, who authored the Jackson opinion, understood that to be the holding of Jackson, and has asserted that the clear error standard, as explained in Tuttle, applies in criminal cases. People v Garcia, 398 Mich 250, 271; 247 NW2d 547, 556 (1976) (Levin, J., dissenting). The majority in Garcia did not contradict Justice Levin’s interpretation of his opinion in Jackson. The rationale for a more exacting standard of review in bench cases than in jury cases enunciated in the civil context, that a jury is more likely to be right than a judge alone, Schneider v Pomerville, supra, applies with equal force to criminal cases. Finally, it would be hard to justify a lesser standard of review in a case in which a person’s liberty is at stake than in cases where only property is at stake. Since GCR 1963, 517.1 applies to criminal cases, we have a duty to review for clearly erroneous findings of fact, despite the presence of conflicting evidence in this case. However, we find we are unable to make that review, due to inadequate findings of fact. After concluding upon a review of the evidence that the prosecution failed to establish beyond reasonable doubt first-degree murder, the trial court stated: "However, I do find the Defendant guilty of second degree murder and I find him guilty but mentally ill of that charge. I do not find him legally insane. I find, based upon the testimony of all three psychiatrists, that he may have had a number of problems and he may have been agitated but that he was not legally insane.” Findings of fact serve two purposes. First, they demonstrate how the trial court resolved credibility issues and conflicts in evidence. Unless the trial court elucidates what it found to have happened, we cannot give regard to the court’s resolution of credibility issues, nor can we determine whether what the trial court found to be fact is clearly erroneous. GCR 1963, 517.1. Second, the findings of fact are necessary to reveal the law applied by the trial court. People v Jackson, supra. The trial court’s findings of fact do not suit either purpose. One might infer from the trial court’s statement that the psychiatrists were in agreement as to defendant’s mental state. They were not. Additionally, the validity of their various opinions necessarily turn upon a determination of accuracy of the facts relied upon in the formation of their opinions. This in turn depends upon an assessment of the credibility of the lay witnesses who testified as to defendant’s mental state. The trial court’s opinion is woefully inadequate to aid review. Besides insanity, defendant raises fact issues on appeal concerning proof of malice aforethought, diminished responsibility, and lack of concurrence between the mens rea and actus reas of the crime. The trial court’s opinion does not address these issues. Finally, the trial court has not stated with sufficient clarity the law applied in this case. Remanded for findings of fact. We retain jurisdiction. The majority resolved the sufficiency of evidence issue through application of the maxim that deference should be given the trial court’s assessment of credibility, a principle applicable to review under GCR 1963, 517.1. The standard of review stated by the majority opinion was a tautology — there was sufficient evidence to sustain the verdict if there was ample evidence to warrant a verdict of guilty. Garcia, supra, at 263; 247, NW2d at 552. It is unclear whether this tautology was intended as a statement of a lesser standard of review than that required by GCR 1963, 517.1.

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Per Curiam. While on bond awaiting disposition of other unrelated felony charges, defendant was arrested and charged with two separate offenses of breaking and entering an occupied dwelling. One of the offenses occurred on April 7, 1976. The other happened on May 8, 1976. The complaint as to the former was not sworn out until May 10, 1976. Defendant was sentenced on the previous felony charges to a term of from 5 to 15 years imprisonment. Subsequently, he pled guilty to the two breaking and entering charges and was sentenced to two terms of from 3 years and 9 months to 15 years imprisonment. The judge ordered each term to run consecutively, not only to the sentences for the prior unrelated felonies, but to each other as well. Defendant appeals as of right. He claims two errors in the court’s imposition of consecutive sentences. The issues raised by defendant’s appeal are framed by the following law in this state. A court lacks authority to order consecutive terms of imprisonment absent statutory authority. In re Carey, 372 Mich 378; 126 NW2d 727 (1964). Section 7b of the Code of Criminal Procedure for Trials provides: "When a person, who, has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.” MCL 768.7b; MSA 28.1030(2). "The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed.” People v Bonner, 49 Mich App 153, 158; 211 NW2d 542 (1973). The statute should be construed liberally to achieve the deterrent effect intended by the Legislature. People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977). Defendant concedes the trial judge had authority under § 7b to order the sentences for his April 7 and May 8 felonies to run consecutively to his sentence for the prior unrelated felonies. He submits, however, the trial judge had discretion under § 7b to make the sentences run concurrently. The court’s failure to exercise that discretion is alleged to be in violation of the policy of tailoring sentences to fit each case and each offender. Defendant further contends the trial court erred in ordering the sentences for his April 7 and May 8 offenses to run consecutively to each other. He argues that § 7b does not authorize those sentences to run consecutively, since the May 8 felony was committed before the April 7 felony had been charged. In response to defendant’s first claim, the state maintains that the transcript shows the trial court did recognize and exercise its discretion under § 7b. In answer to defendant’s second claim, the state contends that defendant’s construction of § 7b would thwart the statute’s purpose. "Under defendant’s interpretation,” the people argue, "he would have the security of knowing he could receive only one consecutive sentence, no matter how many crimes he committed while on bond.” We find defendant’s first claim to be without merit. No extended discussion of the issue is necessary. Taken as a whole, the record shows that the trial judge exercised his discretion. Defendant’s second claim, however, is valid and necessitates a remand for resentencing. We agree the trial judge lacked authority under § 7b to order the sentences for the April 7 and May 8 offenses to run consecutively to each other. The sentence for a subsequent felony cannot run consecutively to the sentence for an earlier felony unless the earlier felony is charged before the second is committed. This rule obtains even when both felonies are committed pending disposition of a third felony charge. Our construction of § 7b is supported by the statute’s clear language. Before a judge can impose consecutive sentences, it must be shown that the defendant committed a felony when he had been charged with another felony, and when disposition of the other felony charge was pending. Upon that showing, the statute provides that the sentences imposed for conviction of the prior charged felony and any subsequent offense may run consecutively. It does not further provide that the sentences for any subsequent offense may run consecutively to each other simply because they were all committed pending disposition of the first charge. Our construction of § 7b is also consistent with the statute’s purpose. Our interpretation does not achieve the greatest deterrent effect, but does achieve what we believe to be the intended deterrent effect. The intended effect of § 7b can best be seen by analyzing the deterrence situation that exists before and after a felony has been charged. In general, once a criminal defendant has been charged with a felony, the level of deterrence against his commission of a second felony drops. Section 7b restores the level of deterrence to its pre-charge plateau. It does not, however, raise the level of deterrence above that plateau. When a person has committed a felony for which he has not yet been charged, he has the security, under In re Carey, supra, of knowing that the sentence for any subsequent felony will run concurrently with the sentence for his first crime. The primary deterrent against his commission of a second felony at that point is the risk of being "caught”. The further risk of receiving an additional concurrent sentence is minimal. Logically, the risk of another consecutive sentence would heighten the deterrence against his commission of the second felony. For countervailing reasons, nevertheless, the Carey Court chose not to impose that added risk, except in legislatively proscribed situations. Once a person has been "caught” or charged with the commission of a felony, the threat of being "caught again” would have minimal deterrent effect, unless at that point it carried the additional risk of a consecutive sentence. Thus, § 7b authorizes consecutive sentences under the conditions specified above. Until the defendant is charged with a subsequent felony, however, he remains secure in the knowledge that the sentences for any subsequent felonies will run concur rently with each other. That is the security he enjoyed before he was charged with the first felony. It is the type of security In re Carey allows. Logically again, it can be argued that § 7b would achieve a greater deterrent effect if read the way the state would have us read it. That argument, however, is an indictment against the general rule favoring concurrent sentences rather than an indictment against our construction of § 7b. Under our interpretation of § 7b, a defendant does not have the security of knowing he will receive only one consecutive sentence, no matter how many crimes he commits while out on bond. Once a second felony is charged, the sentence therefor and the sentences for all offenses committed pending its disposition may run consecutively. Remanded for resentencing.

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D. F. Walsh, P.J. Plaintiffs, Richard and Sandra Green, appeal the entry of judgment for defendants, Robert and Pauline Ingersoll, in the amount of $5,758.51, plus 6% interest from July 20, 1977. The judgment was awarded on defendants’ counterclaim against plaintiffs; plaintiffs’ complaint was dismissed with prejudice. Defendant, Robert Ingersoll, a residential builder since 1951, purchased 14 parcels of property in Kent County. On November 4, 1970, the township issued a building permit to him for construction of a house on the lot at 7660 Hessler Drive, Rockford, Michigan. Construction was completed in May 1971, at which time a certificate of occupancy was issued. Mr. Ingersoll built a total of 13 houses on the 14 lots. The house at 7660 Hessler Drive was used by the Ingersolls as a model home. The garage of the house was used as a storage place for equipment and other items owned by defendants. Mr. Ingersoll and his son spent two nights in the house to protect it against Halloween vandalism. The house was at all times open for sale to the general public. During construction and after completion there were offers to purchase which did not result in sale of the house. In June 1972, plaintiffs and defendants entered into a buy-sell agreement for the house at 7660 Hessler Drive. The purchase price was $41,400. Plaintiffs assumed an existing mortgage and made a down payment of approximately $5,000. They also agreed to execute a second mortgage in favor of defendants in the amount of $6,400. This amount was reduced to $5,758.51 due to agreed-upon work done by Mr. Green on the house. It is undisputed that Mr. Ingersoll did not have a residential builders license during construction of the house or at the time of sale. Within a few months plaintiffs began to experi ence problems with the house. Mr. Ingersoll visited the house in an attempt to remedy the problems. On July 16, 1974, defendants filed an affidavit of lien with the Kent County Register of Deeds. In the affidavit they stated that plaintiffs had failed to execute the note and mortgage in accordance with their 1972 agreement. The affidavit’s purpose was to notify subsequent purchasers that defendants claimed a lien on the property in the amount still owing to them for the home. On July 11, 1977, plaintiffs sold the house to third-party defendants, Roy and Sharon Bennett. Because of the recorded affidavit of lien the title insurance company involved in the sale required delivery of $8,900 into an escrow account until the issue of liability on the mortgage mentioned in the affidavit was settled. Plaintiffs filed a complaint against defendants on July 20, 1977. They claimed, inter alia, that defendants could not enforce their claim against plaintiffs because Mr. Ingersoll did not have a residential builders license when the house was constructed and sold. MCL 338.1516; MSA 18.86(116). Plaintiffs asked the circuit judge to declare defendants’ lien illegal and void and to set aside the cloud on the title; to release the escrow funds to plaintiffs; to order defendants to pay the attorney fees and costs incurred by plaintiffs in removing the cloud from the title; to order defendants to release to plaintiffs all right, title and interest claimed by defendants in the property and to declare that defendants had no rights, title or interest therein; to bar defendants from maintaining any action against plaintiffs for money due on the home; and to grant such further relief as would accord with equity and good conscience. Defendants counterclaimed for the balance due on the agreed-upon but unexecuted second mortgage. After hearing the testimony of Mrs. Green and Mr. Ingersoll, the trial court found that Mr. Ingersoll had built the house "for sale but also for his own use and occupancy until that sale could be accomplished”. The judge found that the house had been "used and occupied by him [Mr. Ingersoll] as an office, storage facility and showcase for open houses; also overnight on two occasions”. The trial judge concluded that the transaction between plaintiffs and defendants was exempt from the requirements of the residential builders licensing act, MCL 338.1501 et seq.; MSA 18.86(101) et seq., for the reason that defendants came within the statutory exemption from the licensing requirement for "owners of property, with reference to structures thereon for their own use and occupancy”. MCL 338.1503(b); MSA 18.86(103)(b). Accordingly, the court ruled that § 16 of the act did not bar defendants’ counterclaim for a money judgment against plaintiffs. MCL 338.1516; MSA 18.86(116). On appeal defendants, in support of the result reached by the trial court, argue that, since they did not enter into a construction contract with plaintiffs, the residential builders licensing act does not apply to them. The act’s definition of residential builder, however, expressly includes a "person who erects a residential structure except for his own use and occupancy on his own property”. MCL 338.1502(b); MSA 18.86(102)(b). To come within the act’s purview, a builder need not enter into a contract for construction with a particular buyer. Unless one of the statutory exemptions applies, defendants are precluded from seeking a money judgment against plaintiffs in connection with the sale of the house. As noted above, the trial court relied on the statutory provision which exempts from the licensing requirement owners of property who build structures thereon for their own use and occupancy. MCL 338.1503(b). It is undisputed that defendants "used” the house. What is at issue is whether it was also "occupied” by them so as to remove them from the § 16 prohibition against suit by unlicensed builders. The trial judge adopted the following broad definition of occupancy: "to take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in”. Black’s Law Dictionary (4th ed 1968), p 1231. In construing the term "occupancy” as used in another section of the residential builders licensing act, the Attorney General, noting the significance of the act’s purpose to protect consumers, expressed approval of the following definition from American & Foreign Ins Co v Allied Plumbing & Heating Co, 36 Mich App 561, 565; 194 NW2d 158 (1971), lv den 387 Mich 753 (1972): "ordinarily a building is not * * * 'occupied’ until it is put to a practical and substantial use for which it was designed * * *.” OAG 1975-1976, No. 4782, p 70 (April 30, 1975). The Legislature hás described the purpose of the residential builders licensing act as the protection of homeowners and persons undertaking to become homeowners. MCL 338.1501; MSA 18.86(101). The provisions of the act must be construed with this legislative purpose in mind. Tracer v Bushre, 381 Mich 282, 290; 160 NW2d 898 (1968), Artman v College Heights Mobile Park, Inc, 20 Mich App 193, 199; 173 NW2d 833 (1969). According to the act, residential builders do not include those persons who erect residential structures "for [their] own use and occupancy on [their] own property”. MCL 338.1502(b). Construing the exemption section together with this definitional provision, it is clear that the Legislature intended to exempt only those builders who actually build residential structures on their own property for the purpose of personally using and occupying the structures. In view of the legislative directive that the act is to protect homeowners, we adopt the Attorney General’s approach and require the unlicensed builder claiming exemption under MCL 338.1503(b) to present evidence of his own practical and substantial use of the building for the purpose for which it was designed. The sole reasonable interpretation of the evidence presented by the instant parties is that Mr. Ingersoll built the house at 7660 Hessler Drive for the purpose of sale as a dwelling and not for his own use and occupancy. The two nights he and his son spent in the house cannot reasonably be interpreted as substantial use of the building for the residential purpose for which it was designed. Nor do the storage of equipment and other items and the use of the house as a model home constitute the "occupancy” clearly contemplated by the Legislature. Because Mr. Ingersoll was not licensed during the construction or sale of the house, the act divested him of the power to seek (by way of complaint or counterclaim) a money judgment against plaintiffs. Charles Featherly Construction Co v Property Development Group, Inc, 400 Mich 198, 203; 253 NW2d 643 (1977). Proper disposition of this case, however, does not end with reversal of the entry of judgment in defendants’ favor. The Supreme Court recently discussed the significance of the equitable nature of the plaintiff home-buyer’s suit as it relates to the defendant seller’s concurrent right to be treated equitably. In Kirkendall v Heckinger, 403 Mich 371; 269 NW2d 184 (1978), the plaintiffs filed suit requesting equitable relief in the form of either conveyance of a parcel of property, on which defendant Carl Heckinger had built a home at plaintiffs’ direction, provided plaintiffs pay a certain sum of money to defendants, or alternatively a money award from defendants to prevent unjust enrichment. The defendant builder, who was unlicensed, counterclaimed for a sum representing, inter alia, the cost of his labor and materials. Citing § 16 of the residential builders licensing act, the trial court dismissed the counterclaim. The Supreme Court concluded that the trial court correctly dismissed the counterclaim but nonetheless remanded to the circuit court for a determination of the amount of reasonable expenses the plaintiffs (Kirkendalls) were to pay defendants (Heckingers) on conveyance of the property: "Heckinger, whether a plaintiff or as here a counter-claimant, could not seek a money judgment against the Kirkendalls because of the statute. The trial court was consequently correct in dismissing the counterclaim. "That does not end our inquiry, however. " 'It is a cardinal principle that equity will not aid a party in doing that which is not equitable. He who seeks equity must be prepared to do equity.’ Goodenow v Curtis, 33 Mich 505, 509 (1876). "See, also, Bonninghausen v Hansen, 305 Mich 595; 9 NW2d 856 (1943). "The plaintiffs sought an equitable remedy. Before ordering the conveyance to Dennis Kirkendall, the trial court was obliged to determine the amount the plaintiffs were required to pay the defendants in order to do equity. As the equitable mortgagee, Heckinger was entitled as a condition to reconveyance to reasonable expenditures for improvements on the property made with the Kirkendalls’ consent (and in fact with Dennis Kirkendall’s active participation) while Heckinger had title to the property. Osborne, Mortgages, §§ 169-170; 4 Pomeroy’s Equity Jurisprudence (5th ed), § 1217.” Id., at 374. So too in this case, as noted by the trial judge, it was plaintiffs who first invoked the equity powers of the court. Although we disavow the trial judge’s definition of "use and occupancy” and hold that the court was precluded, under the statute, from granting defendants any relief on their counterclaim, he was bound to determine the relative equitable rights of all parties in fashioning the appropriate relief. We therefore reverse the judgment entered for defendants and remand this case to the circuit court for a determination of the equitable rights of the parties. If the court determines that plaintiffs are entitled to the equitable relief which they seek, it shall also determine what plaintiffs must pay defendants in order to do equity. Reversed and remanded for proceedings consistent with this opinion. No costs, each party having partially prevailed.

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Per Curiam. Plaintiff brought suit against defendant, a police officer, claiming personal injuries in the police station after his arrest for a traffic violation. Defendant filed a motion for summary judgment and then an amended motion for summary judgment, the gist of which is that defendant police officer is immune from tort liability under the Michigan statutes which reinstated such immunity. Although accompanied by defendant’s affidavit, the amended motion is, by its terms, brought under GCR 1963, 117.2(1). Plaintiff’s response to the motion asserted that the governmental immu nity applied only to municipal corporations and their agencies, e.g., police departments, and not individual police officers. In addition, plaintiff asserted that the common-law immunity of police officers (as distinguished from statutory governmental immunity which, by its terms, extends to "all government agencies”), extended only to acts within the scope of their authority. Plaintiff says that when defendant allegedly "assaulted, battered and falsely imprisoned” plaintiff, he exceeded his authority and, thereby, lost the common-law immunity he would otherwise enjoy as a police officer. The trial judge filed a written opinion, holding that, when making an arrest, police officers are performing a governmental function and that when performing a governmental function a police officer enjoys governmental immunity under the statute. The trial judge concluded that defendant arrested and charged plaintiff with driving a motor vehicle while under the influence of intoxicating liquor, that in so doing defendant performed a governmental function that rendered him immune from tort liability and, therefore, granted defendant’s motion for summary judgment. Plaintiff appeals as of right. The recent history of the law regarding the tort liability of police is said to be characterized by shifting sands and obscured pathways. While the citation is from a Federal case, certainly the characterization fits the Michigan events. After the Michigan Supreme Court undertook to outlaw prospectively the general, common-law doctrine of governmental immunity or sover eign immunity, insofar as it extended to municipal corporations, the Legislature undertook, by statute, to reinstate governmental immunity. By governmental immunity, we mean that immunity from tort liability enjoyed by the state, its agencies, counties, municipal corporations and other political subdivisions when engaged in the exercise or discharge of governmental functions. It should be noted that this statute is not limited to law enforcement departments or agencies, but is a governmental immunity statute of general application to all governmental agencies. These statutes have been interpreted to extend only to governmental agencies as defined in the statute and not to individual public officials acting in the line of duty. In Cole v Rife, plaintiff claimed damages for personal injuries in an automobile collision on the theory that the proximate cause of the collision was the negligence of a police officer in establishing a road block and directing traffic around it. This Court reversed the granting of a directed verdict in favor of the police officer at the conclusion of plaintiff’s proofs, holding that the statutory sovereign immunity did not extend to a claim that a police officer was negligent in performing his official duty. Of similar import is Lee v Utica. However, this general governmental immunity from tort liability enjoyed by governmental agencies is to be distinguished from the freedom from tort liability possessed by law enforcement officers when acting within the scope of their official du ties. Sometimes, this rule is cast as being conditioned upon acting in good faith with probable cause. For example, a police officer, acting in good faith with probable cause within the scope of his authority, is not liable for false arrest or false imprisonment even though the arrest is subsequently found to be baseless. Examination of the record in this case, with particular reference to plaintiffs complaint, does not indicate a factual basis that would support a claim of false arrest or false imprisonment against defendant police officer. Consequently, we affirm the grant of summary judgment in favor of defendant on that part of plaintiffs claim that seeks recovery on a theory of false arrest or false imprisonment. In short, we treat defendant’s petition as a motion to dismiss and find that, as a matter of law, plaintiffs complaint does not state a cause of action predicated upon false arrest or false imprisonment. The claim that defendant assaulted, battered and used excessive force upon plaintiff in the police station after arrest enjoys no such common-law freedom or immunity from tort liability. Insofar as the trial court granted summary judgment as a matter of law with respect to plaintiffs claim of assault and battery (excessive force), we find error, reverse the order for summary judgment and remand for trial. Affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this opinion. Defendant accompanied his amended motion for summary judgment with his affidavit indicating the arrest of plaintiff was for driving while under the influence of intoxicating liquor. MCL 691.1407; MSA 3.996(107). MCL 691.1407; MSA 3.996(107). See, Jones v Marshall, 528 F2d 132, 141 (CA 2, 1975). For a full historical exposition, see Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187 (1973). Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). The last or present such statute being MCL 691.1407; MSA 3.996(107). MCL 691.1401-691.1415; MSA 3.996(101)-3.996(115). 77 Mich App 545; 258 NW2d 555 (1977), also, Sherbutte v Marine City, 374 Mich 48; 130 NW2d 920 (1964). 83 Mich App 679; 269 NW2d 267 (1978). See, Manion v State Highway Comm’r, 303 Mich 1, 19-22; 5 NW2d 527 (1942), for careful delineation of distinction between sovereign immunity from suit and sovereign immunity from liability. 35 CJS, False Imprisonment, § 22, citing, Hammitt v Straley, 338 Mich 587, 594; 61 NW2d 641 (1953). In so ruling, we note that we are assigning a different basis for grant of summary judgment than that apparently expressed by the trial court.

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Cavanagh, J. This attorney discipline case requires us to decide whether respondent Underwood’s delayed petition for review was timely under MCR 9.118(A)(3). That rale directs the Attorney Discipline Board (adb) to treat the one-year limitation period in MCR 7.205(F) as a guideline, rather than as an absolute deadline. Because we hold that under the circumstances of this case, the adb did not abuse its discretion in considering respondent’s petition despite the one-year “guideline,” we must determine the appropriate sanction for Underwood’s misconduct. In light of our recent decision in Grievance Administrator v Lopatin, 462 Mich 235; 612 NW2d 120 (2000), adopting new guidelines for sanctions in attorney discipline cases, we remand this case for a determination of the appropriate sanction. i On July 15, 1991, David Underwood was admitted to the State Bar of Michigan. While he was working as a sole practitioner, two complaints were lodged against him with the Attorney Grievance Commission (AGO). The complaints alleged that Underwood misappropriated the proceeds of a client’s worker’s compensation award, and that he had failed to pursue another client’s cause of action. In response, the AGC began to investigate the allegations. It sent inquiry letters to Underwood, but he responded only to the letters about the alleged misap propriation. The AGO then subpoenaed Underwood to appear before it, but he failed to appear. As a result, Underwood was ordered to show cause why he should not be held in contempt for failing to comply with the subpoena. However, he failed to appear at the show cause hearing. These events culminated in the ago filing a formal complaint against Underwood on October 14, 1996. In five counts, the complaint charged Underwood with misappropriating $3,269.76 in client funds, neglecting a client matter, making false statements to the AGC during the investigation, failing to answer letters and comply with the subpoena, and failing to appear at the show cause hearing. Underwood did not respond to the formal complaint, and did not appear at the December 9, 1996, hearing on the complaint. Therefore, a default was entered against him. On February 7, 1997, the ADB entered an order revoking Underwood’s license to practice law. Later that year, Underwood retained counsel to represent him in this disciplinary matter. On November 20, 1997, counsel sent a letter to the adb requesting it to reconsider its decision and grant a stay of discipline until further judgment. The Adb Executive Director replied, but the content of that reply is not a matter of record. Counsel again contacted the adb by letter on February 13, 1998, inquiring about the status of the delayed petition for review, which he believed was initiated by the November 20, 1997, letter. On February 16, 1998, the Executive Director again replied, and apologized if he gave counsel the impres sion that the November 20, 1997, letter would be treated as a delayed petition for review. The Executive Director went on to clarify the filing requirements for a delayed petition for review, and advised that “[u]pon receipt of such a pleading, it will be forwarded to the Board chairperson for consideration in accordance with MCR 9.118(A)(3).” On March 6, 1998, Underwood filed a formal delayed petition for review. The AGC opposed the petition, arguing that it was untimely because the deadline for filing a delayed petition for review was one year after the revocation order’s effective date, which had passed. On April 6, 1998, however, the adb granted the petition. It noted that through the November 20, 1997 letter, the ADB was on notice that Underwood was seeking review, and that “[u]nder the circumstances, neither the public, the courts, the legal profession [nor] the [AGC] are prejudiced by a delayed review.” After considering Underwood’s responses to the misconduct charges, the adb vacated the revocation of Underwood’s license, suspended his license for three years, and imposed conditions upon his reinstatement. The agc appealed the adb’s decision, and this Court granted leave. 461 Mich 1212 (1999). n The Michigan Constitution grants to this Court the power to “establish, modify, amend and simplify the practice and procedure in all courts of this state.” Const 1963, art 6, § 5. Pursuant to that power, this Court has established rules to regulate and discipline members of the state bar, In re Schlossberg, 388 Mich 389, 395; 200 NW2d 219 (1972), which are incorporated into the Michigan Court Rules. Chapter 9.100 of our rules governs professional disciplinary proceedings, and provides: (A) Authority of Board. The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys. * * * (E) Powers and Duties. The board has the power and duty to (4) on request of the respondent, the administrator, or the complainant, review a final order of discipline or dismissal by a hearing panel .... [MCR 9.110.] The adb’s review of a hearing panel order is governed by MCR 9.118. Generally, petitions for review .must be filed within twenty-one days after the hearing panel’s order is served, MCR 9.118(A)(1), but delayed petitions for review are permitted under MCR 9.118(A)(3). That subrule provides that “[a] delayed petition for review may be considered by the board chairperson under the guidelines of MCR 7.205(F).” In turn, MCR 7.205(F)(3) provides that “if an application for leave to appeal is filed more than 12 months after entry of the order or judgment on the merits, leave to appeal may not be granted.” a When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with the plain language of the court rule. When that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Similarly, common words must be understood to have their everyday, plain meaning. See MCL 8.3a; MSA 2.212(1); see also Perez v Keeler Brass Co, 461 Mich 602, 609; 608 NW2d 45 (2000). We conclude that the plain language of MCR 9.118(A)(3) provides that MCR 7.205(F)’s one-year limitation period serves as a guide to the adb’s decision to hear a delayed petition, rather than as an unbending rule governing that decision. MCR 9.118(A)(3) provides that when the adb considers a delayed petition for review, it should do so under the “guidelines” of MCR 7.205(F), which provides for a one-year limitation period. The plain meaning of “guideline” is “an indication or outline of policy or conduct.” Merriam-Webster’s Collegiate Dictionary (10th ed), p 517. Thus, the rule directs the adb to consider the one-year limitation period as an “outline” or “indication,” rather than directing it to consider delayed petitions for review under the “mandate,” “regulation,” or “stricture” of MCR 7.205. Indeed, construing MCR 9.118 to simply incorporate the one-year limitation period would be contrary to the canons of construction. The maxim that every word of a court rule should be given meaning, and that courts should not render any part of a court rule surplusage, is well settled. See In re MCI, 460 Mich 396, 414; 596 NW2d 164 (1999). If we read MCR 9.118(A)(3) to do nothing more than direct the adb to follow the one-year limitation period, the word “guidelines” would become surplusage, because the rule would then effectively provide that “[a] delayed petition for review may be considered by the board chairperson under . . . MCR 7.205(F).” This Court will not ignore this maxim and read “guidelines” out of the court rule. Therefore, although recognizing that MCR 9.118(A)(3) incorporates the one-year limitation period of MCR 7.205(F)(3) as a guiding principle, we acknowledge that it does not set an absolute deadline for delayed petitions for review that must be followed without exception. B Because the one-year limitation period is a guide rather than a mandate, the adb has discretion to hear delayed petitions for review filed later than one year after the hearing panel’s order became effective. In determining whether to hear a delayed petition for review, the adb may take into account myriad relevant equitable considerations. Here, it considered that it had notice of Underwood’s intention to file a delayed petition for review, along with whether hearing the delayed petition would be prejudicial to the public, the courts, the legal profession, or the Grievance Administrator. Those are relevant considerations, and were appropriately considered by the adb. An additional factor favoring the adb’s decision to hear the delayed petition in this case was the Executive Director’s first reply to Underwood’s counsel, which created confusion about whether Underwood’s delayed petition was pending after counsel’s Novem ber 20, 1997, letter. Thus, the ADB appropriately exercised its discretion under MCR 9.118(A)(3) when it considered Underwood’s delayed petition under the guidelines of MCR 7.205(F). m Our holding that the adb was correct to hear Underwood’s petition for delayed review requires us to consider the appropriate sanction for his misconduct. As we noted in Grievance Administrator v Lopatin, supra, Michigan has not historically had a uniform system for determining sanctions in attorney discipline cases. Rather, “[o]nly our occasional opinion has provided guidance to the public, the disciplinary body, and the legal profession . . . .” Id. at 238. Otherwise, the AGC and adb were left to their own designs when imposing sanctions on miscreant attorneys. Because we decided that “a written set of principles will provide guidance during the process of fixing discipline for lawyer misconduct,” we directed the adb and hearing panels to use the American Bar Association Standards for Imposing Lawyer Sanctions until this Court could take final action adopting a uniform system of sanctions. Id. at 238-239. In the wake of our decision in Lopatin, rather than initially applying the aba standards to Underwood’s actions ourselves, we remand this case to the adb for that application. On remand, the adb is to follow the analytical framework of the aba standards, first identifying the misconduct involved by considering the ethical duty Underwood breached, his mental state, and the actual or potential injury caused. It then is to determine the recommended sanction under the aba standards, and account for any aggravating or mitigating circumstances when it imposes discipline. IV For the reasons stated in this opinion, we affirm the adb’s decision to entertain the delayed petition for review. We remand this case to the ADB to determine the appropriate sanction under the ABA standards. Weaver, C.J., and Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred with Cavanagh, J. The only information provided to this Court about the response is that the director advised counsel that a petition for review “filed in accordance with MCR 9.118(A)(3)” would be referred to the board’s chairperson.

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Kelly, J. This is an appeal by the Grievance Administrator of a decision by the Attorney Discipline Board (ADB). The adb affirmed a hearing panel’s finding that there had been misconduct but that there be no discipline. We remand to the adb for reconsideration in light of our adoption of the Aba Standards for Imposing Lawyer Sanctions. BACKGROUND Petitioner filed a three-count formal complaint against respondent for alleged misconduct that occurred when he represented Mr. Horace Sheffield and Mrs. Joyce Sheffield, husband and wife. The underlying causes of action were a personal injury claim on behalf of Mr. Sheffield and a loss of consortium claim on behalf of Mrs. Sheffield. Count I of the complaint against respondent alleged that he (1) failed to advise Mrs. Sheffield of alternatives to the contingent fee agreement they entered into, (2) failed to provide Mrs. Sheffield with a copy of that agreement, (3) failed to obtain Mrs. Sheffield’s consent before settling her claim, and (4) failed to witness Mrs. Sheffield’s signature on the final release, although signing the release as a witness. Count n alleged that respondent improperly directed his secretary to notarize Mrs. Sheffield’s signature on the final release, although neither had seen her sign it. Count m alleged that respondent (1) signed Mrs. Sheffield’s name to a settlement check without her authorization, (2) failed to inform Mrs. Sheffield when he received the settlement money, and (3) distributed Mrs. Sheffield’s settlement proceeds to Mr. Sheffield without her authorization. A hearing panel considered this case on March 4, 1998. It found that respondent (1) failed to advise Mrs. Sheffield regarding alternate methods of computing attorney fees and failed to obtain a signed contingency fee agreement, (2) directed his secretary to notarize the release, even though he knew she had not seen Mrs. Sheffield sign the document, (3) endorsed the settlement check for Mrs. Sheffield without her permission, and (4) failed to protect her interests when he distributed all the funds to Mr. Sheffield. The hearing panel concluded that respondent had violated MRPC 1.4(a), 1.15(b), and 8.4(a) and (c). The panel reconvened to consider the appropriate discipline to mete out to respondent. It concluded: [I]t is in the best interest of justice that, due to the following circumstances: (1) sincerity and candor of the Respondent; (2) no evidence having been shown of actual economic harm to the complainant; (3) no malice; and (4) the complainant testified to an openly harmonious and trusting relationship with Horace Sheffield [her husband], a well-regarded figure in both the civil rights and labor relations communities in Detroit, discipline would serve no purpose for it is believed Respondent will not repeat such actions, and the fact of the findings of misconduct are a matter of record. The panel cited Grievance Administrator v Deutch, and entered an order finding misconduct, but imposing no discipline. It assessed costs of $1,126.43 against respondent. The ADB affirmed the hearing panel’s order in all respects. This Court granted petitioner’s application for leave to appeal to consider two issues. The first is whether Deutch, supra, applies to cases commenced by a formal complaint. The petitioner in Deutch commenced proceedings by filing with the adb a copy of a criminal conviction. The second is whether the finding of misconduct in this case warrants discipline. ANALYSIS I We first consider whether the adb may enter an order of no discipline when misconduct is found following the filing of a formal complaint. This Court, in Deutch, supra, held that an order of no discipline could be entered when the complaint is initiated by filing a criminal conviction. Initially, the Deutch Court held that the filing of a criminal conviction requires a hearing panel to enter an order of misconduct. Id. at 162. Then the Court stated: In so holding, however, we note that while a panel has no authority to dismiss an action during the misconduct hearing when the administrator files a valid judgment of conviction, the requisite check on the administrator’s prosecutorial authority occurs at the second stage of hearing, where the panel determines the appropriate level of discipline. MCR 9.115(J)(3) does not require discipline where misconduct is established; rather, MCR 9.115(J)(3) requires a second hearing to determine the appropriate level of discipline, given all aggravating and mitigating factors. After considering such factors, the panel must then enter an order of discipline on a finding of “misconduct.” MCR 9.115(J)(3). Again, it should be noted that the order of discipline may, in fact, order no discipline at all. MCR 9.106 echoes the language in MCR 9.104, which states that a finding of “misconduct” is only “grounds for discipline,” not that a finding of misconduct requires the imposition of discipline in every case. Where notions of justice and fairness require, we hold that the order of discipline, required under MCR 9.115(<T)(1) and (3), could include an order that effectively imposes no discipline on an attorney. [Id. at 162-163.] While the complaint in Deutch arose from the filing of a criminal conviction rather than a formal complaint, that fact is not dispositive here. In Deutch, this Court observed that the option of entering an order of “no discipline” operated as part of a system of checks and balances. It provided a means of attenuating the authority of the Grievance Administrator. Id. However, petitioner points out that, when the Grievance Administrator commences a proceeding with a formal complaint, an order of no discipline as a “check” on the administrator’s authority is unnecessary. A “check” already exists when the hearing panel determines whether evidence supports the grievance. Thus, petitioner asserts that we should not recognize the option of an order of no discipline in this situation. We conclude that the distinction identified by petitioner generates no difference. This Court, in Deutch, did not rely solely on its theory of checks and balances to hold as it did. It also found that the language of the rules supported the position that discipline was not required upon a finding of misconduct. See id. Its focus was not on the procedural mechanism by which the administrator commenced a complaint. Accordingly, we hold that the filing of a formal complaint does not make discipline mandatory upon a finding of misconduct. ii We now address whether the adb properly determined in this case that respondent’s misconduct did not deserve a sanction. In Grievance Administrator v Lopatin, we adopted the Aba Standards for Imposing Lawyer Sanctions to “further the purposes of attorney discipline, help to identify the appropriate factors for consideration in imposing discipline and establish a framework for selecting a sanction in a particular case, and promote consistency in discipline.” At the time the adb made its decision, it did not have the benefit of our guidance in Lopatin. The standards we adopted in Lopatin “establish an analytical framework to guide the disciplinary body in determining the appropriate sanction in a case.” Lopatin, 462 Mich 239. Accordingly, we remand this matter to the adb for application of the Aba Standards. We also provide additional guidance for the adb in reconsidering its decision on remand, because this case is among the first in which the Aba Standards will apply. We draw the adb’s attention to Aba Standards 4.13, 4.63, and 6.12, which state: Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. [Aba Standard 4.13.] Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client. [Aba Standard 4.63.] Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. [Aba Standard 6.12.] These standards appear to apply to the misconduct involved in this case. After determining the recommended sanction, the adb must consider the relevant aggravating and mitigating factors identified in Aba Standards 9.1-9.4. Lopatin, supra at 239-240. Generally, a finding of misconduct should result in a sanction. See Aba Standard 1.3 comment. However, in the rare case where the mitigating factors clearly outweigh the aggravating factors as well as the nature and harm of the misconduct, an order of no discipline may still be appropriate. See Deutch, supra at 163, n 13. On remand, the ADB shall list both the aggravating and mitigating factors present here and explain their influence on its recommended action. CONCLUSION We hold that, in rare cases, the adb is not required to discipline an attorney upon a finding of misconduct. We remand this case to the adb for reconsideration of the order of no discipline. On remand, the adb is to apply the Aba Standards to determine whether discipline is warranted and, if so, the appropriate sanction to impose. Weaver, C.J., and Cavanagh, Taylor, Corrigan, Young, and Markman, JJ., concurred with Kelly, J. Mr. Sheffield is now deceased. “A lawyer shall notify the client promptly of all settlement offers, mediation evaluations, and proposed plea bargains.” MRPC 1.4(a). “Upon receiving funds ... in which a client . . . has an interest, a lawyer shall promptly notify the client .... [A] lawyer shall promptly deliver to the client . . . any funds . . . that the client ... is entitled to receive . . . .” MRPC 1.15(b). “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . .” MRPC 8.4(a). “It is professional misconduct for a lawyer to:... (c) engage in conduct that is prejudicial to the administration of justice . . . MRPC 8.4(c). 455 Mich 149; 565 NW2d 369 (1997). 461 Mich 1213 (1999). The Grievance Administrator can initiate proceedings in two ways. The administrator can file with the adb a copy of a criminal conviction under MCR 9.120(B)(3), or file a formal complaint under MCR 9.114(A)(2). MCR 9.115 identifies the procedure that a hearing panel must follow-in an attorney grievance proceeding. Most relevant to our discussion is subsection (J), which provides requirements for decision making. 10 MCR 9.106 is entitled: “lypes of Discipline; Minimum Discipline; Admonishment.” It provides that “[mjisconduct is grounds for: . . . revocation . . . suspension . . . reprimand . . . probation . . . restitution . . . or . . . admonishment.” (Emphasis added.) 11 MCR 9.104 is entitled: “Grounds for Discipline in General; Adjudication Elsewhere.” It provides that “[tjhe following acts or omissions by an attorney . . . are misconduct and grounds for discipline . . . .’’(Emphasis added.) 462 Mich 235, 238; 612 NW2d 120 (2000). An example of aggravating factors might be the allegation that additional probate proceedings were made necessary by respondent’s conduct. We endorse the following statement made by the adb: “The fact that a ‘no-discipline’ option exists does not mean that it should be employed often. . . . [The] option should ... be exercised quite sparingly by panels and the Board.” Grievance Administrator v McFadden, No. 95-200-GA (March 16, 1998).

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Campbell, J. Hartsig obtained judgment against Enright before a justice of the peace in Macomb county for overflowing his lands by stopping up a ditch that had been dug many years before by plaintiff and previous owners of the adjacent lands by common consent, and used ever since. The case was appealed to the circuit court where he prevailed again. It is now brought up on error. An objection is made to the declaration as not full enough. We think it contains every substantial allegation necessary to show tbe plaintiff’s cause of action, and that the objection has no force. If demurred to it could only have been on technical grounds, which would not affect its sufficiency in matters of substance. The testimony concerning the amount of damage was largely matter of opinion, and could only be got at by the good judgment of those acquainted with the premises and surroundings. In actions for damage to crops and similar injuries such opinions, based on sufficient facts, are always admitted, and there was no error, after the witnesses had shown the extent of mischief and their examinations of the premises, in receiving their several-estimates. It is difficult to see how else any light could be given to the jury on-matters not capable of such a description as would enable them to tell anything about the losses of plaintiff without such opinions. None but eye-witnesses could have made any safe estimate. It is lastly insisted that the case should have been taken from the jury for want of evidence that defendant had any hand in the mischief. It appears that his wife and young son were the persons seen in the act of filling up the ditch. But it appears that when plaintiff opened small trenches to let off the water into the main ditch below the obstructions, defendant not only filled them up again, but threatened the persons who were sent to re-open them. It also appears that he asserted his purpose not to allow the main ditch to be cleared out.for less than $1500. ~We think there was enough to go to the jury on the question whether liis wife and child were acting independently. The rules of law protecting the confidences of husband and wife make it difficult to determine such questions as arose here except by circumstances. There was some evidence that he knew where she was when she was at work. There was evidence that he approved the work and was unwilling to have it undone. There was evidence that he actively prevented plaintiff from, draining into the same ditch by filling np his trenches. We think the jury had testimony which entirely justified their finding. The judgment must be affirmed with costs. The other Justices concurred.' in justice’s court. ‘ County of Macomb, ss. William Hartsig, plaintiff, complains of James Enright, the defendant herein, in a plea of trespass on the case. Eor that whereas the defendant on to wit, the 14th day of July, at the township of Warren, and county aforesaid, dammed up, or caused to be dammed up and stopped a certain ditch upon a road or way situate and being on the southwest quarter of section ten, township of Warren, county of Macomb. Said road or way was laid out by the commissioners of highway of the tpwnsliip of Warren, they'causing the same to be surveyed, recorded or filed in tbe office of the clerk of said township of Warren, more tlian twenty years before tbe commencement of this suit, as a reference to tbe survey and books of tbe clerk will more fully appear to tbis court, and are evidence thereof. Said road is open or opens on tbe center line road, or highway; thence running east by or adjoining lands now occupied by the plaintiff upon the south and northeast, and on tbe north by lands occupied by the defendant, in section ten, in both instances for farming purposes. On said road a ditch was dug, part of the way on tbe south side of said road, thence crossing said road to tbe north side, and emptying into center line road ditch. The lands on this road, adjoining where said ditch is located, are flat, low lands. Said ditch was made more than twenty years before tbe commencement of this suit, to take tbe surface water off from the lands of tbe plaintiff, and lias been in use for that purpose more than twenty years last past. Said road and ditch are a necessity to the plaintiff; without the road the plaintiff cannot get to the lands east and north of said road, and without the ditch he cannot till and crop said lands. Yet the. said defendant, well knowing the facts in the premises, has wrongfully and unjustly dammed, or caused to be dammed or stopped, said ditch upon said road, or way; and by so damming, or procuring the same to be dammed to be done, said surface water has flooded the land of the plaintiff on the south and northeast of said road, to the great injury, loss and damage of wheat and grass, and increase of work and labor to crop the same. Damage of wheat, thirty dollars. • Damage of grass, forty dollars. Damage of work and labor, fifteen dollars. And whereas at the time of the commencement of this suit and before, plaintiff had the right and did use said right to the road and ditch more than twenty years before the commencement of this suit; and others used and enjoyed said right and use of said road and ditch, even before said plaintiff. And whereas, also, the said defendant gives out and insists before and since the commencement of this suit, that the plaintiff shall not take or run water along said road in said ditch above set forth, he, the said defendant, well knowing that the plaintiff has no other way to get said surface water from said lands, also well knowing that the plaintiff cannot got to and from said lands only by and upon said road; also, well knowing that without the use of said ditch the plaintiff cannot crop said lands; the defendant well knowing all the facts and circumstances in the premises, yet the said defendant interrupts the plaintiff in the use of said road and ditch aforesaid, to the great annoyance of the plaintiff, and in the loss, injury, destruction of wheat and grass, rotting and spoiling upon said lands, through the flowing of said lands by the outrageous conduct of the defendant in interrupting a personal right and use of both road and ditch which was enjoyed by the plaintiff and by others before the plaintiff, and also, before said defendant came into the township of Warren, or the county of Macomb. Yet the said defendant, well knowing the premises, has wantonly and without cause or provocation of any kind repeatedly and at divers times, both before and since the commencement of this suit (and it must be out of ill-will) injured, obstructed and otherwise interfered with the personal rights of the plaintiff. Wherefore the plaintiff saith that he is injured and hath sustained damage to the amount of one hundred dollars or under, and therefore he brings suit. WILLIAM HARTSIG-, Plaintiff. Dated at Warren this 21st day of July, A. D., 1880.

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Marston, C. J. The plaintiff in error was sued upon a promissory note given by it in its corporate name. The principal defence relied upon was that the company, by mistake, was not, at the time of giving the note, properly organized under any law of this State; that afterwards, upon ascertaining this fact, the corporation was dissolved and a new corporation formed under a different name. This corporation was one that could have been legally organized under laws existing at the time of its formation. The business for which it was organized, that of manufacturing, was one authorized, and having attempted to organize in good faith, and having, in the course of its business, given negotiable paper in its corporate name, it could not afterwards repudiate the transaction or evade responsibility when sued thereon, by setting up its own mistake, affecting its original organization. Merchants' etc., Bank v. Stone 38 Mich. 779. The dissolution would not deprive the creditors of still following and looking to the old organization for payment. Our statute allows three years after dissolution, for certain purposes, in winding up the affairs. 1 Oomp. Laws § 3435. The execution of the note sued upon was not denied at the time of joining issue, but it was still insisted that this did not admit or dispense with proof of the endorsements' thereon. Proof of the endorsements was given and the only question relates to the sufficiency of the same. The evidence introduced was competent for such purpose. A more stringent rule, is not required for the protection of the defendant. As we discover no error in the record the judgment must be affirmed with costs. The other Justices concurred. And the attorney for the plaintiff then called Abram S. Hall, as a witness for the said plaintiff, who being sworn on the part of the plaintiff, testified as follows, the stenographer being present and reporting the ease: (Examined by Mr. Sweet.) Q. Mr. Hall, look at that note (handing witness note) and state to the court, whether you have computed the amount of interest upon it? A. I have. Q. What is the amount? A. The amount of interest is $5.89. Q. The principal is $167.86? A. Yes, sir. Q. This is figured from what time, the maturity of the note, or the date of it? A. From the maturity of the note. It was drawn up for three months. It was figured at 7 per cent. • (Note read.) Q. Mr. Hall, are you acquainted with the handwriting of Henry H. Dennis, of the Farmers’ and Mechanics’ Bank, by correspondence or seeing his writing? A. I am to some extent. Q. Do you know what position he has as an officer of the bank? A. Assistant cashier. Q. What bank? A. The Farmers’ Mechanics’ Bank. Q. Look at that endorsement and state whether in your opinion it is his endorsement? Objected to on the ground that the witness is not proved to be an expert. The CourtI suppose the witness can state whether or not he knows the handwriting of Dennis. The Witness: — Yes, sir; I do. Q. State whether the endorsement is by him? A. Yes, sir; it looks just like his writing. Q. In your opinion it is his writing? A. Yes, sir. Q. State whether from correspondence and papers you are acquainted with the handwriting of J. S. & M. Peckham? A. I have seen letters that,came from their office. Q., You have had correspondence with them so you would know their signature? A. Yes, sir; Ido. Objected to as incompetent; objection everruled; exception taken. Q. State whether that is their endorsement? A. I think it is in their handwriting.

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Graves, J. The plaintiff having taken passage on a street car of tbe defendant fell from tbe car and tbe wheels crushed bis elbow. He was between forty and fifty years ■old, a butcher and dealer in fat cattle, bad lived many years in Detroit, was familiar with street cars and with that which injured bim. He brought this action to recover for tbe injury and when tbe evidence was closed, tbe learned judge being of opinion that it was too obvious to be questioned that tbe plaintiff’s own negligence was tbe material if not tbe exclusive cause of bis being hurt directed a verdict for defendant. It is now urged that in view of the state of tbe evidence tbe plaintiff was entitled to bave tbe sense of tbe jury on it. Tbe facts of negligence alleged as tbe cause of injury are claimed to present two separate grounds of recovery; and viewing tbe declaration under this theory, and as favorably as possible for tbe plaintiff, they may be stated substantially as — -first, assigning the plaintiff to a seat from which there was danger he would be thrown and injured in ease of a sudden jerk of the car and then causing such jerk by starting up the horse by a blow of the driver’s whip; and second, negligently running over the plaintiff after he had been thrown from the car to the track. Whatever color is found in the case for the claim made by the plaintiff’s counsel for a submission to the jury on the ground first mentioned, is confined to the plaintiff’s own testimony. He entered the car at the rear end, passed right through to the front platform where the driver stood, and sat down, with his back out, on the driving-bar, a thin iron rail not exceeding an inch in thickness. The car Was moving at a moderate pace, and when it had gone a short distance only, the plaintiff fell off backward and the wheels passed over his arm. There was no conductor except the driver and fare was paid at a box placed at the front door. Both doors were standing open, and the plaintiff, as he testified, went forward to pay his fare, at which the driver called him out and invited him to be seated on the bar and he seated himself accordingly. That there was abundance of unoccupied seating room inside the car and that he was not hindered by any one from sitting there. That the car had moved about one block when the driver struck the horse and “tipped” plaintiff over. That the blow caused the car to “jump him right off.” There is no evidence that the driving of the car was not according to the usual and proper mode. This part of the case is not much pressed; but the point is understood as being, that granting the driving bar to have-been, as the plaintiff knew, a dangerous seat, and also admitting that the fact of his occupying it was a proximate contributory cause of his injury; yet as his sitting there was on the driver’s invitation it ought not to be reckoned as contributory negligence. There is no doubt that it has been laid down as a rule that an assignment of the passenger by the carrier to a position of danger may in case of injuryestop the carrier from setting up the occupation of that position as contributory negligence. But the rule is plainly not one of universal application. Regard must be had to the passenger’s capacity to look out for himself ; to the opportunity there may be to get a safer position; to the distinctness, certainty and extent or degree of the peril, and so on. Take the case of a child, and the case of a man every way qualified to take care of himself; the case where the position given seems tolerably safe and no better one is perceived; and the case where it is manifestly one full of danger and a safe one is known which is equally accessible. It would be very unreasonable to apply the rule equally to all. May the ■ordinary passenger, with his eyes open and with abundant accommodations before him which are safe, accept an invitation from the carrier to ride on the cow-catcher, and then, if injury arise from it, be allowed to set up the invitation .as a legal answer to the charge of contributory negligence ? To conclude that he might would be to permit a person of full capacity to exempt himself from the duty and responsibility appertaining to him as a moral being and in substance to stultify himself in order to cast a liability on another. “ Judges cannot denude themselves of the knowledge of the incidents of railway traveling which is common to us all.” Siner v. Great W. Ry. Co. L. R. 4 Ex. 123 ; Dublin, Wicklow & Wexford Ry. Co. v. Slattery 3 App. Cas. 1155 : 24 Eng. 713; Lake S. & M. S. R. R. Co. v. Miller 25 Mich. 274. And in the example put the negligence would be so obvious and its commission so palpably and certainly inexcusable that a court would not be justified in treating the question of the. passenger’s responsibility as an open one. A direct charge would be called for. Other cases may be supposed where from the nature of the circumstances a blind acceptance of the carrier’s suggestion, however hazardous, would not so clearly reveal the passenger’s disregard of that primary .duty which rests on every one to exert his own will and judgment to guard against needless perils, as to justify the judge in taking the matter from the jury. No doubt the riding on a cow-catcher, would, to ordinary apprehension if not in fact, be an exposure to consequences more serious than any at all probable to arise from riding on the driver’s bar of a street car in the way in which the plaintiff rode on this occasion; but the unfitness of the situation and the fact that it involves great risk of some injury more or less severe and is therefore one of extreme danger, is just as conspicuous in the one case as in the other. Indeed the proposition is a plain one that different exposures • to material bodily injury may be equally great, whilst the severity of the injuries threatened by the exposures may be entirely different. Was there any proper case to be submitted on the second ground? The position taken here is that supposing the plaintiff’s fall to have arisen from his own carelessness, yet that the defendant w'as then bound to use ordinary care to avoid hurting him, and that there was evidence before the jury tending to show that he did not. The argument for this view concedes that the evidence given for the plaintiff affords no basis for it, and that the record contains nothing to countenance it except the testimony of IVIr. Whiting, a witness for the defendant. The various witnesses had different opportunities for seeing what took place, some noticing one incident and some another, and each has explained in his own style how matters looked to him, in his position and under his state of mind and attention. But as to the point under consideration the testimony of no one derogated from the current tendency. We shall not pause to examine the right of a trial judge to step aside from the plaintiff’s evidence and take up .and put to the jury as an account on which a finding for the plaintiff would be regular the statements of a witness on the other side who assumes to give only a part of the transaction and shows that he was not in a situation to see the rest and did not see it and whose testimony as far as it goes is reconcilable with the other evidence for the defence. The inquiry is unnecessary because the case may be well disposed of on the theory of plaintiff’s counsel. What were the circumstances so far as indicated by Mr. Whiting ? He sat on the front seat next to the platform and with his back towards it and on the same side from which the plaintiff fell. He was engaged in conversation with Mr. Dyer. His position enabled him by a “side glance” -to look out the window. The plaintiff fell backward from the rail and a noise occurred and the witness made a “side glance” and looking through the window saw the plaintiff clinging with both hands to the “ dash-board.” He was dragging on the ground nearly under the car and was so dragged about ten feet. The witness did not look towards the platform and did not see the attempt by the driver, as explained by other witnesses, to extricate or save the plaintiff. What he saw was by looking through the window and he did not see the driver. He says the car was going quite slow and when he discovered the plaintiff clinging to the “ dash-board” the brake was on and the car under check and he thought the car was stopped as quick as possible. When we consider that the plaintiff was a heavy man, that he fell off backwards, that the driver had his horse and the brake to attend to, and actually caught hold of the plaintiff and tried to rescue him, and that the space of time between the fall and the injury could not have exceeded five seconds, it is impossible to say that there were any facts on which the jury could find that the defendant, after the plaintiff’s fall, omitted to do, anything which a street railway company of ordinary care would have done in the like circumstances. I think the judge committed no error in ordering a verdict for the defendant, and that the judgment should be affirmed with costs. The other Justices concurred.

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Campbell, J. Plaintiffs sued upon a policy of insurance-issued to them jointly on a dwelling and personal property-contained in it, both of which were destroyed by fire. The house was occupied by both — being mother and son — but each occupied separate portions, and the son owned the fee subject to his mother’s life interest. The personal property was also owned in severalty, the son’s property being the largest part. The fire caught from a dry-house near the dwelling, as was shown by plaintiffs. The defense urged on the trial was — -first, that the property was not joint; second, that the policy was destroyed or suspended by default on assessments; and third, that the dry-house increased the risk, and was not described in the application. The circuit court ruled in favor of defendant on the question of joint interest, and did not decide the other points; but defendant claims that if any of these were well taken,, the judgment cannot be reversed. It appears from the record that after proof of loss, which in regard to the personal property, at least, showed a separate-title in Mrs. Castner to a part of it, the company refused to-pay on two grounds: first, failure to pay assessments; and. second, the use of a stove in a room without a chimney. The objection, therefore, that there had been an undue-concealment of the proximity of the dry-house cannot be-relied on, for the proof of loss showed its position, and the company by the notice seem to have treated it as part off the property insured, but as not properly heated. There- may be some question how far they were informed concerning the title. We do not think the objection based on the condition of the title is valid. It is quite common to require the insured to explain the exact state of the title, and of course where this is required it may become or be made material. But in the absence of such a requirement we think the law has not required so minute accuracy. The chief reason for looking to ownership is to prevent wager policies, and to confine the insurance to an indemnity. But it has always been competent for parties to insure property in their custody for the benefit not only of other present owners, but also notwithstanding changes of ownership. Factors, agents and consignees do this without objection. Rogers v. Traders’ Ins. Co. 6 Paige 583; DeForest v. Fulton Fire Ins. Co. 1 Hall (N. Y.) 84. Neither does it seem necessary that the precise nature of the interest should appeal’ in the application or policy, unless distinctly required. And if insurance is made for various parties, and they have several as well as joint interests, the policy is good for all. Foster v. U. S. Ins. Co. 11 Pick. 85. There was a time when it was of very little consequence what interest an insured party had. It is no doubt against public policy to allow mere gambling in insurance. But when the entire property belongs to the persons insured, it can make no necessary difference to the insurer in what way their interests are apportioned. If they deem it material they should inform the applicant before accepting his money. There is nothing in the record which would enable us to determine that there was anything wrong about the dry-house, even if the objection that its position was concealed had not been waived. Our attention has not been called to any provision of the corporation agreement or rules which binds a party by notice of assessments not brought home to him. But we could not properly pass upon a question of fact not submitted to the jury, and not admitted by the plaintiffs. Tlie judgment must be reversed with costs, and a new trial granted. Tlie other Justices concurred.

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Cooley, J. The defendants in error sued the plaintiffs in error in justice’s court and recovered judgment, which was afterwards removed to the circuit court by certiorari and there affirmed. It is assigned for. error that the justice erred in receiving in evidence a certain deposition which had been taken in New York, the purpose of which was to prove that plaintiffs in that court composed the firm of J. Moss & Co., in whose favor the claim sued upon appears to have been made. It may be that the justice erred in receiving the deposition in evidence; but if' the plaintiffs were identified as owners of the claim without the aid of the deposition, the judgment ought not to be reversed for that error. We should give judgment as the right of the matter may appear: Cheney v. Russell 44 Mich. 620; and the right is entirely plain in this case if the plaintiffs are identified. We think there is evidence that meets the requirements of the case. Mr. Chittenden, a witness for the plaintiffs, says he learned of a claim belonging to the plaintiffs as being in the hands of defendants, and he was sent to look after it and had conversations with the defendants about it. Their admissions were sufficient to establish their liability. Now there was no cross-examination of this witness to ascertain what his knowledge of the plaintiffs was, but the case on that branch of it was suffered to go by default, while the plaintiffs’ witnesses were particular to give full evidence of the acts and admissions of defendants. Surely such a general statement is sufficient pri/ma facie ; and there was no attempt whatever to disprove it, the defendants refusing to put in any evidence. The judgment should be affirmed with costs. Marston, C. J. and Campbell, J. concurred. Graves, J. The justice admitted in evidence against the objection of plaintiffs in error the deposition of Joseph Moss; and the principal question is whether the deposition was competent. It was taken in the city of New York, and the authority to take it is referred to the act of March 29, 1818 (Comp. L., p. 1699) as amended by Act 210 of the Laws of 1879, p. 191. The point of primary importance relates to the competency of the person who took it. lie is a commissioner of deeds appointed by the governor of this State under the act of March 19, 1815, which was continued in force and amended by later statutes (Comp. L., pp. 220-222) and whatever capacity he possessed to conduct the proceeding and certify it depended on the effect of the regulations referred to. On recurring to the last-mentioned provisions it will be seen that they authorize the commissioner to take and certify acknowledgments and proofs of the execution of certain instruments to entitle them to registry. They also confer power upon him to administer oaths and affirmations to any persons who are wilhng and desirous to make such oaths or affirmations before him, and they further provide that such affidavits or affirmations shall be as good and effectual, to all intents and purposes, as if taken by any officer authorized to administer oaths resident in this State. No other power is conferred. Nothing is said about taking depositions, and the inference is natural that the Legislature in framing this statute did not contemplate giving to these non-resident commissioners the power to examine witnesses and report the testimony. At that time the expedient of taking depositions as subsequently authorized had not been adopted. The practice in taking testimony beyond the State was by commission. The act of 1848 provided for taking depositions not only within the limits of the State but in other states also; but no notice was taken of these commissioners. They were not made use of as existing agencies qualified to serve in the taking of depositions under the act. It is very certain the Legislature did not recognize them as empowered to officiate in taking testimony. They were looked upon as provided to discharge other duties. The first purpose of this act of 1848 was -to prescribe a method for talcing depositions within the State, and it required in every case that the person to act should be a judicial officer. Comp. L. § 5892. In respect to depositions out of the State the provisions were brief and general, and instead of specifying in terms the kinds of officers to conduct the proceeding it was merely declared that the depositions should be taken in the “ same manner and under the same regulations, as near as may be, as are prescribed in this act * * for taking depositions of witnesses residing in this State.” But it was also provided that in such cases a certificate under the official seal of the county clerk of the county or of the clerk of the principal court of record for the county or of some other proper county officer should be attached to the deposition, showing the official capacity in which the person acted before whom the deposition was taken. § 5906. The amending act of 18Y9 sought to make the regulation more precise in regard to the persons to have authority to act in other States and it provided that depositions might “ be taken by and before any officer authorized by the lams of the place where the same may be taken to admvwister oaths.” But no change was made in regard to the certificate of official capacity, and the showing in that respect is the same now that it always has been. And there is no exception. In every case there must be a certificate, and no one whose official capacity is incapable of being certified by the local certifying officers mentioned, is authorized to act, and if in taking a deposition he is simply an official of this State his capacity cannot be so certified, as he is not one of the class of officers designated and is not competent. But the amending act has introduced a further condition. The person empowered to act must be one who is authorized by the local laws to adminster oaths, and it is obvious enough that no official qualification derived from the laws of this State can embrace that authority. The validity of depositions depends on the statute. There is no common-law authority for them, and they can have no validity unless they comply substantially with the provisions enacted by the Legislature. Whether a different statute or a different practice would not be better is immaterial. The method prescribed it that which is alone applicable. It seems clear that no one is authorized to take a deposition in another State under the act of 1848 who is not an officer of that State and empowered by its laws to administer oaths, and therefore that a commissioner of deeds under our statute of 1845 is not competent. The deposition admitted by the justice was hence invalid and its admission was error, and in my judgment- this is fatal. The evidence was material and it seems impossible to say that the result on the facts would have been the same had the deposition been excluded, and I cannot see how the judgment can be supported unless we assume to pass upon the weight of evidence.

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Cooley, J. The plaintiff in this case seeks to recover of the township for an injury sustained by him in consequence of a bridge on one of its public highways being out - of repair when he was lawfully passing over the same. The allegation of injury is that being traveling and passing along said highway on horseback, and in the act of passing across the bridge in a careful and prudent manner, the plaintiff’s horse, without any fault of the plaintiff, became entangled in loose planks of the bridge, and thereby tripped, stumbled, and became frightened and unmanageable, and threw the plaintiff violently to the ground, etc. The duty of the township to keep the bridge in repair is averred, and also that it had notice of the want of repair, and reasonable time and opportunity to repair it, but tbat it neglected to do so. Also that the highway had been ton years in use. A plea ■of the general issue was interposed, but on the trial the defendant objected to any evidence on the part of the plaintiff, on the ground that the declaration disclosed no ■cause of action, and the court sustained the objection. The case comes up on writ of error after judgment for defendant. It was held in Commissioners of Highways v. Martin 4 Mich. 557, that in this State townships were not liable at ■common law for injuries occasioned by neglect to keep highways in repair, and also that no existing statute had imposed the duty. The ground of the decision was that the duty to keep the highways in repair was not a township duty, but one which the statute had imposed upon certain highway officers. In 1861 the Legislature with a view, perhaps, to change this rule passed an act, the first section of which declared “that any person or persons sustaining bodily injury upon any of the public highways in this State, by reason of neglect to keep in repair any bridge or culvert by .any township or corporation whose duty it is to keep such bridge or culvert in repair, such township or corporation ■shall be liable to, and shall pay to the person or persons ■so injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent jurisdiction.” The second section extended the remedy to the cases of injury to horses and other property, and made provision for the levy of taxes to pay judgments against townships. Comp. L. §§ 1323, 1324. In Leoni v. Taylor 20 Mich. 148, the act of 1861 was held to be ineffectual so far as townships were concerned, for the reason that as yet no statute had imposed upon townships the duty to keep in repair the highways, bridges and culverts. That duty remained as it was before, the duty of certain highway officers, and not a township duty. The attention of the Legislature was again called to the subject in 1879, and a statute more careful and particular in its provisions was enacted. The first section provides, “ That any person or persons sustaining bodily injury upon any of the public highways or streets in this* State, by reason of neglect to keep such public highways or streets, and all bridges, cross-walks and culverts on the same in good repair, and in a condition reasonably safe and fit for travel, by the township,- village, city or corporation whose corporate authority extends over such public highway, street, bridge, cross-walk or culvert, and whose duty it is to keep-the same in good repair, such township, village, city or corporation shall be liable to, and shall pay to the person or persons-so injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent, jurisdiction.” The second section extends the right of action to the case of injury to animals or other property; the third makes provision for the payment of judgments; and the-fourth declares “ It is hereby made the duty of townships, villages, cities or corporations to keep in good repair, so that, they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-walks, and culverts that are within their jurisdiction and under their care and control, and which are open to public travel.” Also-that “ Highway commissioners, street commissioners, and all other officers having special charge of highways, streets, bridges, cross-walks or culverts, and the care or repairs thereof,, are hereby made and declared to be officers of the township, village, city, or corporation wherein they are elected or appointed, and shall be subject to the general direction of such township, village, city, of corporate authorities, in the discharge of their several duties.” The fifth section apparently limits the remedy to cases of injuries on highways-which have been in use for ten years. General Laws-1879, pp. 223, 224. It is said on behalf of the defendant that notwithstanding these broad provisions the duty in townships to keep highways in repair is not a township duty, but still remains as it was before, the duty of the highway commissioners. Indeed this fact is recognized and declared by the same Legislature which passed the act last mentioned — see General Laws 1879, p. Ill — and it must be admitted that highway commissioners are constitutional officers — Const, art. 11, § 1 — and that no provision has been made by law whereby these officers can be made subject to the general direction of the township, as this statute seems to contemplate. There can be no question, however, of the power of the Legislature to make the municipalities liable for such injuries, independent of any question where the duty to keep in repair is located, or upon whom it is imposed. The question is one of policy, not of power. And directing our .attention to this act of 1879, the question resolves itself into this: Has the Legislature by this act clearly evinced its intent that the townships shall be liable ? On this question we think there is no room for reasonable doubt. The duty of the township to keep its public ways in repair is declared in plain and positive terms for the very purpose of covering the defect in the previous legislation. In effect the fourth section of the act declares that the neglect of the highway officers shall be imputed to the corporation by whose people they are chosen and within whose limits they exercise their .authority. It follows that the judgment must be reversed, with costs, and the case remanded for trial. The other Justices concurred.

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Graves, J. "Wagner brought this action to recover damages on account of Eggleston’s alleged failure to convey his interest in certain real and personal property in pursuance, as claimed, of a contract therefor between the parties. The case was brought to trial last February before a jury in the circuit court for the county of Kalamazoo and under the rulings on points of law a verdict was given in favor of Wagner for $9000. Several objections were taken on the part of Eggleston during the trial and he asks a re-examination on writ of error and bill of exceptions of a portion of them. Before touching any of the questions of law some preparatory reference is expedient to certain facts and circumstances immediate and surrounding and many of which are not disputed. The parties in the latter part of the year 1878 formed a partnership at Kalamazoo for the purpose of carrying on what is called in the record the “ Kalamazoo-Spring & Axle Works.” The style of the firm was “Eggleston, Wagner & Oo.,” but the seat of business together with the enterprise were distinguished by the trade-name of the “Kalamazoo Spring & Axle Works.” A considerable-amount of real and personal property was invested, but the capital put -in by Wagner was somewhat less than what. Eggleston furnished. The business soon expanded into pretty large proportions and turned out profitable. The parties were also partners in a business at Mishawaka in Indiana. May 19, 1879, Eggleston delivered to Wagner the-following proposition in writing: “Kalamazoo Spring & Axle Works. Office of Eggleston, Wagner dc Go. L. Eggleston, (Established 1870.) J. K. Wagner. Kalamazoo, Mich., May 19, 1879. Office and Works on Portage Street. Mr. J. K. Wagner: Sir — -I will sell you my entire-rights, title and interest in the lands, buildings, stock, cash and accounts, and all assets whatever, belonging to the business of the Kalamazoo Spring & Axle Works, or standing-in my name, and bought for the use of said business, for the sum of forty-two thousand dollars ($42,000) — I will say-forty thousand. Provided, that you shall assume all liabili ties and all warrants, orders, contracts, and guarantees made in the name of Eggleston, Wagner & Co., and all liabilities made in my name and for the use of skid business. Lorenzo Eggleston. T.” This paper with the exception of the paragraph “ I will say forty thousand,” was in ink and was written at Eggleston’s personal dictation and in his presence by Mr. Tuthill, a clerk of the firm. The excepted passage was interlined in pencil by Mr. Eggleston. At this time and during the succeeding forty-two days or up to July 1st, the subject-matter referred to in this paper was variable. The parties kept the business going, and considerable changes were necessarily incident to any progress in it. June 9, 1819, it was mutually agreed that Wagner should retire from the firm, he being paid by Eggleston the money he had put in with interest at eight per cent., his salary $125 per month, and so much of the assets of the Mishawaka business as had been collected. The amount was then, figured up by McCamly, a clerk of the firm, and he swears that the amount on the account of the business at Mishawaka was $323.12, and that to be paid on account of “ spring business with interest and salary and Mishawaka business ” made a total of $13,126.65 and that this sum was immediately paid by check. ■ -Wagner admits that this “composed his whole interest in the business here ” (at Kalamazoo) “ and so much of the Mishawaka business as had then been collected in.” On the same day, McOamly, by Eggleston’s personal direction and in his presence, endorsed on the paper of May 19th the following writing: “ This offer is hereby confirmed and extended until July 1st, 1879. Business hereafter transacted to be upon this basis. Kalamazoo, Mich., June 9, 1879. L. Eggleston, per M.” In regard to the actual circumstances under which this endorsement originated the evidence is discordant. Wagner swears that it formed a part of the agreement for his retirement and the relinquishment of his interest to Eggleston and was a part of the consideration he, Wagner, exacted. Eggleston and 'McCamly, however, testify that it was a distinct transaction. Their explanations are materially different. Wagner testifies that Eggleston informed him on the 6tb of June that if he would withdraw the money he had in the firm and eight per cent, interest and $125 per month, that he would extend the time to July 1st, and would sell his interest in the business for $40,000. That the subject was renewed on the 9th of June and that he, Wagner, then inquired of Eggleston if he would include in his proposition a settlement of the Mishawaka business so far as the assets had been collected, to which he replied affirmatively, and that the extension was made in the same interview and before he, Wagner, left the office, and that the paragraph in pencil was still in the original paper. Eggleston testifies that up to the time of ascertaining and deciding on June 9th what sum was t.o be paid to Wagner for going out, nothing had been said about extending the time in case he would take out his money. That the subject was not mentioned until Wagner had received his check and .had started to go out of the room. That he, Eggleston, then said he was sorry it had turned out as it had as he was in hopes Wagner would take the property, and asked him if it would do any good to extend the time. That Wagner replied that he did not know as it would as he had tried about everybody to get the money, and he asked if he, Eggleston, would make the price any less, to which the latter said he would not, but if Wagner would pay him $42,000 by July 1st he might have it. That Wagner went away and some time afterwards returned, but on the same day, and inquired of Eggleston if he would put that agreement on the back of the contract; to which the latter replied that he would, and immediately dictated to McCamly the matter contained in the endorsement. That he, Eggleston, did not himself sign it and that McCamly had no authority in writing to sign his name. When produced on the trial the paper of the 19th of May had undergone some alteration. The paragraph in pencil had been rubbed out and the statement in ink of the sum to be paid had been reduced from $12,000 to $10,000. 'Wagner testifies that Eggleston made the change on June 2Jth at his request, and that he explained the object to be to remove a seeming ambiguity. Eggleston swears that some time after the 9th of June Wagner called and asked him if he would not make the price $10,000. and he refused, and that Wagner then requested him to rub off the pencil marks as it was rather ambiguous as it was ; and he thereupon “ rubbed it off partially and then Mr. Wagner took the rubber and rubbed it some more.” That no change was made at that time in the amount specified in ink, and that the alteration from 12,000 to 10,000 in that part of the paper set down in ink was not done by him, Eggleston, or in his presence or by any one with his authority. The testimony of McCamly tends to corroborate Eggleston in regal’d to these disputed matters. But under the charge given by the com! it is to be inferred that the jury gave credence to Wagner’s version. June 30, 1819, Wagner called on Eggleston at his office and informed him that he “ had come there with $10,000< in greenbacks to close up the trade” and produced the money and offered to count it but Eggleston waived it. At the same time Wagner produced a blank bill of sale from Eggleston to himself ready to be executed and delivered and three full covenant deeds running to himself from Eggleston and wife and ready to be executed, acknowledged and delivered. He held also and offered to execute and deliver his personal covenant-to Eggleston assuming and agreeing to pay “all liabilities and all warrants, orders, contracts and guarantees made in the name of Egglestop, Wagner & Co. and all liabilities made in the name of said party for the use of said business of said Eggleston, Wagner & Co.” All the papers bore date June 30, 18^9. The'deeds covered three separate parcels of land, one containing the shop buildings, and being on Portage street, north-west of the portage, the second not far distant on Jasper street, and the third further south and being on Portage street. There being no diagram, the want of uniformity in the references to these lands in the testimony prevents any separate tracing of them throughout the record. The specified consideration in the respective deéds was '$40,000, $1800 and $1500; that is to say, each deed contained one of these sums as the consideration. The bill of sale expressed $40,000 as the consideration and purported to transfer to Wagner “all and singular all rights, titles and interest in and to the lands, buildings, stock, cash, (in hand and in bonds) and all accounts, notes and drafts on hand or in course of collection, also my undivided one-half interest in and to the patent for the Ií. J. Gage' bolster spring, and all dioses m, action and assets whatever belonging to the business of the Kalamazoo Spring & Axle Works, (Eggleston, Wagner & do., proprietors,) or standing in my name and bought for the use of said business, and also all machinery, tools, coal, wood and each and every article used in and about the Kalamazoo Spring Works.” A covenant' to warrant and defend against all persons was inserted. Wagner testifies that he displayed the money and these papers and told Eggleston he “ wanted to close up the matter.” That he handed the deeds to Eggleston who took them and laid them on the table and observed that “ if there was only $40,000 we could not buy it,- — could not do anything. It will take $60,000, certainly, nothing less.” Wagner proceeds to explain what followed in these terms : “ I said what shall we do ? This is the last day. I came here with the money expecting to close it up. Eggleston said he did not expect to do anything; said he, you must bring $60,000; I don’t want any sharp business. I asked him whether he refused it or not. Tie said he did not refuse it, neither did he accept it. This he repeated several times, and he said that he did not want to be caught in the matter; and I told him that I did not intend to play sharp. I insisted to know what he wanted to do, and he said, I want the debts paid, and I said I will assume them by signing that paper; and he said that isn’t paying them. Eggleston said he shouldn’t sign any papers. I offered expressly to sign the paper assuming all liabilities of the concern. JHe said, Wagner, bring $60,000 and I think we can trade. I asked him if he wasn’t going- to accept the paper, and he said no, he couldn’t do it, but if I would bring $60,000 we might trade. He said he would not sign the deeds. I offered to sign this paper to. assume the debts.” The evidence of Mr. Wykoff who went with Wagner, is substantially to the same effect. Eggleston relates what occurred in this way: “When they came in Wykoff said something like this: Here is your filthy lucre;’ and they laid a bundle done up in a lap-robe on the table and Wagner said it was $10,000 and wanted me to count it, and I said it did not make much difference if it was $10,000 or $6,000. I said if they would add $20,000 to $25,000 we could probably fix it up. Wykoff said to Wagner, ‘I thought this fixed it all up,’ and 1 said it would take more than that. Wagner then produced some papers which he said were deeds, and I did not look at the deeds or papers, but said I did not want to sign them until we fixed up the other matters. Wagner said, I will assume them,’ and I said, assuming them and paying them are two different things. I shan’t refuse to sign the deeds when you come with money enough.’ I told Wagner that since we had had the talk before, I had paid Stockbridge, Eggleston & Co. considerable on a liability to them, and that he, Wagner, must pay back the $13,000 which I had paid him when we settled. I had paid Stockbridge, Eggleston & Co. .some $11,000 after the extension was made. He asked me how much of the liability had been paid, and I told him I couldn’t tell without looking over the books, but if he would come down in the morning we would look them over. He was there about ten minutes.” It will be acknowledged that the papers of May 19th and June 9th, assuming that they emanated from Eggleston, amounted to nothing more than a proposal to sell and that if any contract of sale was ever perfected on their basis it was not until June 30th. It maybe, and Wagner’s evidence tends that way, that on June 9th the parties did contract that the existing proposal should not be withdrawn prior to July 1st and that Wagner’s option might continue until that time. But if such was the fact it was a separate matter and subject to its own incidents and not the contract of purchase to arise on an acceptance of the proposal and which could be made only by such acceptance, and not by a continuance, or agreement to continue the proposal. The ground on which the action is laid is that by putting-together the papers of May 19th and June 9th and Wagner’s proceedings on June 30th in relation thereto, a contract of sale was immediately concluded between the parties, and that Eggleston by his conduct on the same occasion committed a breach of it. The point first noticeable relates to Eggleston’s connection with the writings of May 19th and June 9th. It is objected that he did not himself sign either of them; and that although they were in fact signed in his name and in his-presence and by his order, yet as the authority of the person who performed the manual act of writing the name was-only by parol and not in writing, the signature was not that of defendant in point of law and was not binding, and 2: Comp. L. § 4694 is cited. This position stands positively refuted by decisions of this court. Just v. Wise 42 Mich. 513; Johnson v. Van Velsor 43 Mich. 208-218. It is true that the mechanical act of signing was the act of another ; but it is equally true that it was the immediate dictate of the will of Eggleston and was performed under Ids actual personal supervision. The penman was as much Ms instrument in respect to the fact of' signing as the pen itself would have been had he actually held it. The signature was substantially his own. A further objection is that the proposal did not sufficiently describe the real estate to satisfy the statute of frauds. The general principle is not questioned. The degree of certainty with which the premises must be denoted is-defined in many books, and the cases are extremely numerous in which the subject has been illustrated. They are not all harmonious. But they agree in this, that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature; but they must be sufficient to fit and comprehend the property which is the subject of the transaction; so that with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended and to the exclusion of all other property. The circumstance that in any case a conflict arises in the-outside evidence cannot be allowed the force of proof that the written description is in itself insufficient to satisfy the statute. "Whether the description answers the requirement of the statute is a question which occurs on the face of the papers and is naturally preliminary to the introduction of testimony to connect the contract with the property, and the decision of it would regularly seem to be required on an inspection of the documents and before the arrival of opportunity for any conflict of the kind referred to. Moreover, it would hardly be deemed reasonable to allow the validity of the written description to depend on the ability of a party to bring about a conflict in the outside testimony. In my judgment the proposal was not open to this objection. A few cases are cited as examples of the view which other courts have taken of the subject: Tallman v. Franklin 14 N. Y. 584; Hurley v. Brown 98 Mass. 545; Scanlan v. Geddes 112 Mass. 15; Mead v. Parker 115 Mass. 413; Slater v. Smith 117 Mass. 96; White v. Hermann 51 Ill. 243; Nichols v. Johnson 10 Conn. 192 ; Colerick v. Hooper 3 Ind. 316; Waring v. Ayres 40 N. Y. 357; King v. Ruckman 20 N. J. Eq. 316; Ogilvie v. Foljambe 3 Meriv. 53-60; Bleakley v. Smith 11 Sim. 150; Owen v. Thomas 3 Myl. & K. 353; White v. Bradshaw 13 E. L. & E. 296 : 16 Jurist 738; Stuart v. London & N. W. Ry. Co. 10 E. L. & E. 57; Commims v. Scott L. R. 20 Eq. Cas. 11: 13 Eng. 576; Barry v. Coombe 1 Pet. 640; Dobson v. Litton 5 Coldw. 616. Thus far the case is with the defendant in error. But a more formidable objection is now reached and it involves a question which is independent of the point just considered. The case does not distinguish it in a very clear way, but the exceptions cover it and an opinion upon it is necessary. The question is whether on the facts stated by Wagner and not controverted by Eggleston a contract of sale was actually constituted; or in other words whether the acts of Wagner on June 30th were in any such sense responsive to the offer from Eggleston as to bring the parties into the alleged contract relation. The existence of a contract is a question independent of circumstances which may excuse its performance, and as no contract could come into existence without ■an agreement of minds it becomes a vital consideration whether the proposal made by Eggleston and the acts of Wagner relied on as acceptance had reference to the same ■thing or things in the same sense. If in answer to a proposal to grant Black Acre a person replies that he is ready to close the matter and will take White Acre there is no acceptance. Neither is there an acceptance where executory proceedings on each side are involved in the proposal and the party professing to accept intro dtices a variance and formulates his adoption of the offer with conditions and qualifications which essentially alter some of the constituents or materially vary the effect. In such cases no contract is brought into existence. Kyle v. Kavanagh 103 Mass. 356; Suydam v. Clark 2 Sandf. 133; Nat. Bank v. Hall 101 U. S. 43; Jordan v. Norton 4 Mees. & W. 155 ; Hussey v. Horne-Payne 8 Ch. Div. 610; 25 Eng. 561; Tilley v. County of Cook 103 U. S. 155. In order to convert a proposal into a promise the constituents of the acceptance tendered must comply with and conform to the conditions and exigencies of the proposal. The acceptance must be of that which is proposed and nothing •else and must be absolute and unconditional. Whatever the proposal requires to fulfil and effectuate acceptance must be accomplished and the acceptance must include and carry with it whatever undertaking, right or interest the proposal •calls for, and there must be an entire agreement between the proposal and acceptance in regard to the subject-matter and extent, of interest to be contracted. If the parties do not refer to the same things in the same sense the transaction is simply one of proposals and counter proposals. Pollock’s Principles of Contract cli. 1; Bisliop on Contracts cli. 14; 1 Parsons Cont. b. 2 cb. 2 sec. ii. The transactions relied, on as amounting to a contract of sale must be tested by these principles. What would have-been the effect if Wagner on June 30th had merely assented to the proposal is a question we are not required to consider. It may be that in that event the transactions would have been too uncertain to create any binding contract relations-Indeed it is probable that the parties failed to see and appreciate the incongruities which would naturally arise from any attempt to apply the scheme as drawn by the proposal, to-new objects and interests and changed conditions. We are to assume however for the purpose of the question which is presented, that a legitimate accession to the offer in accordance with its true sense, would, though given subsequent to material changes of interests and of circumstances, have brought into existence a practicable arrangement and one possessing the mutuality and certainty necessary for a valid contract. The first step is to identify the subject-matter with which the proposal dealt and to which it must be confined. -The surrounding circumstances have been noticed. The parties were partners. Each owned an interest and each was accountable for liabilities. In this-state of things Eggleston proposes to sell his interest to Wagner for $40,000, on the terms of an assumption by Wagner of all existing liabilities. This is on May 19th. Wagner does not accept, and both concur in pushing on the business and in bringing about substantial changes. Old debts are paid and new ones are made. The items of debt and credit are different and the debtors and creditors cease to be the same. There are variations in respect to the stock and tools and the interests are changed in point of value. On June 9th the parties concur in a much more radical change. Wagner sells out to Eggleston for some $13,000, and by the-payment to Wagner of that sum Eggleston increases his. interest to the same extent. Eggleston promises that the offer of May 19th shall continue up to July 1st and that subsequent business shall be transacted on that basis. Both understand that the business is not to be interrupted. Now the offer of May 19th was not an offer to sell future interests, but to sell such as Eggleston then held, and not on the terms of an assumption by Wagner of indefinite and uncertain future liabilities, but of ascertained liabilities then existing. Such was the transaction, and on June 9th the parties agreed that this identical- proposal should remain open until July 1st. It is not pretended that any new proposal was made or agreed on. Having given Wagner an option to buy on certain terms such interest as he, Eggleston, held on the 19th of May, it was arranged to prolong such option until the 1st of July. There was no agreement to give ■time for Wagner to come in and accept an offer of a present ■or different interest. There was no such offer to be kept open. The writings and the surrounding facts are positive in their meaning that the original proposal applied to no interest except that which was held by Eggleston on May 19th, and that the arrangement allowing it to run until July 1st did not cause it to cover subsequent interests. From the :9th of June this original offer to sell the same interest Eggleston held on May 19th was an offer for every instant until the disagreement of the parties on June 30th, (Boston & Maine R. R. v. Bartlett 3 Cush. 225,) but no agreement was made to expand it. Such then was the offer and the -only offer which Wagner had before him on June 30th. Hpon the question whether the circumstances relied on as ■constituting acceptance tallied with this offer or proposal, only a few words are necessary. Wagner tendered $10,000 •and offered to assume certain debts and liabilities, and he required Eggleston to execute the deeds and bill of sale. These offers and requirements were put forth and are now urged as amounting to a perfect acceptance. It is needless to inquire whether Mrs. Eggleston’s execution of the deeds could be called for, or whether he could be required to give the covenants which were inserted, or whether the covenant -offered by Wagner applied to the same debts and liabilities ■contemplated by the proposal. The deeds and bill of sale together applied certainly to all the property pertaining to ■the concern and field by Eggleston on June 30tfi, and on tfie admitted facts they covered many thousand dollars of interest beyond tfie interest to wfiicfi tfie proposal applied. 'Tfie whole interest recently field by Wagner himself and •amounting to $13,000 had been added. Without referring to other points of probable disagreement between tfie proposal and tfie alleged acceptance, a ■clear illustration of tfie difference under notice is presented, by supposing tfie money price ánd tfie amount of interest to be equivalents; and tfie fact may then be described by saying that Eggleston offered to sell an interest of $40,000 and Wagner, under tfie name of acceptance of that offer, insisted upon being granted an interest of $53,000 and no less. Tfie result is that tfie alleged acceptance was not an acceptance. In substance and effect it was an offer to accept upon terms varying from tfie proposal, and it produced no contract relation. Nat. Bank v. Hall, supra. See also tfie books •on contracts referred to. I am not satisfied that tfie judge •erred in allowing a reference as to tfie value of tfie goodwill, but no further opinion is called for. Tfie judgment is reversed with costs, and a new trial •ordered. Tfie other Justices concurred.

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Marston, C. J. The motion made in this ease raises two questions. Suit was commenced against' the relator before Samuel R. Rockwell, a justice of the peace. On the return day the parties appeared, joined issue and the cause was adjourned by consent. The following entry next appears upon the justice’s docket: “ On account of sickness "W". Fox tries the suit. S. R. Rockwell, J. P.” On the adjourned day the parties appeared and the cause was tried, without objection, upon the merits, before Justice Fox, and a judgment rendered by him against the defendant. We are of opinion that the judgment so rendered was valid and binding. The justice had jurisdiction over the subject-matter and the parties by appearing and going to trial, without objection, upon the merits, waived any and all questions of regularity. A transcript of this judgment was filed in the circuit, execution issued thereon and a sale of lands made thereunder. It is claimed that no affidavit was filed as required by Comp. L., § 5383, and therefore the proceedings subsequent to the taking of the transcript were void. It appears that an affidavit for a transcript was made and filed with the justice February 14th, and a return made by the justice on the 15th and on the same day filed in the clerk’s office. In this affidavit it was stated, “ that there is now due and remaining unpaid upon the judgment heretofore on the 8th day of February * * the sum of ninety-six 90-100 dollars exclusive of costs.” Sec. 5382 requires an affidavit of insufficiency of goods and chattels to satisfy the judgment to be made and delivered to the justice, and thereupon it becomes his duty to give a certified transcript of such judgment and proceedings, and the original affidavit by this section required. The next section makes it the duty of the clerk to file such transcript, on an affidavit being made stating the amount due upon such judgment. The party applying for such transcript is not required, in making the affidavit required by sec. 5382, to state therein the amount due upon the judgment. It is the following section that requires an affidavit stating the amount due to be filed with the clerk of the circuit court. This last named! affidavit, or more properly speaking evidence of the fact required to be shown thereby, viz., the amount due upon the judgment, is a necessary jurisdictional fact in order to give the clerk of the circuit court any authority whatever to act in the premises. This fact, viz., the amount due, must not, necessarily, be shown by a separate affidavit, but may be set forth in the affidavit filed with the justice. If set forth therein and filed with the transcript in the clerk’s office, without any such delay as would or might give rise to a presumption that payments, after the date thereof and before filing with the clerk, may have been made, it will be sufficient and no farther showing need be made. Udell v. Kahn 31 Mich. 196. This is not at all inconsistent with what was said in Bigelow v. Booth 39 Mich. 624. In that case eight days was. permitted to pass by after the affidavit was sworn to and before its delivery to the clerk of the circuit court — a time ample indeed in which the judgment might have been paid in whole or in part. In this case the affidavit was filed with the clerk of the circuit court the day after it was sworn to,, and had a new affidavit been made as required by sec. 5384 and filed with the clerk the day after it was sworn to we should have no hesitation in holding it good, and the same rule must be applied in this case. It is not the form of a second affidavit that the statute requires, but the substantive jurisdictional fact of the amount due, and this the affidavit made in the present case fully supplied. The writ applied for in the present case must be denied with costs. The other Justices concurred.

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Cooley, J. The question in this case is one of construction of the “ Act to provide for the regulation and enforcement of assignments for the benefit of creditors,” approved May 13, 1879. Public Acts 1879, p. 181. The first section of the act provides “ that all assignments commonly called common-law assignments for the benefit of «’editors shall be void unless the same shall be without preferences as between such creditors, and shall be of all the property of the- assignor, not exempt from execution, and unless such instrument of assignment, or a duplicate thereof, an inventory of the assigned property, a list of the creditors of the assignor, and a bond for the faithful performance of the trust by the assignee, shall be filed in the office of the clerk of the circuit court of the county where such assignor resides, or, if he is not a resident of this State, then of the county where the assignee resides; if neither are residents of this State, then of the county where the assigned property is principally located, within ten days after the making thereof. Such assignment shall convey to the assignee all property of the assignor not exempt from execution, and all rights, legal or equitable, of said assignor: provided, that no such assignment shall be effectual-to-convey the title to the property of the assignor to the assignee until such bond shall be executed, filed with, and approved by said clerk: and provided further, that no attachment or execution levied upon any assigned property of such assignor, after such assignment, and before the expiration of the time provided herein for filing such bond, shall be valid or create any lien upon such property.” The second section gives specific direction respecting the inventory, list of creditors and bond; the third declares that “ every such assignment shall confer upon such, assignee the right to recover all property, or right or equities in property, which might be reached or recovered by any of the creditors' of such assignor; ” the fourth provides for notices to creditors, and the fifth for the filing by the assignee of periodical reports. The sixth and last section is as follows: “In case there shall be any fraud in the matter of said assignment, or in the execution of said trust, or if the assignee shall fail to comply with any of the provisions of this act, or fail or neglect to promptly and faithfully execute said trust, any person interested therein may file his bill in the circuit court in chancery of the proper county for the enforcement of said trust; and the court, in its discretion, may appoint a receiver therein, and the court shall have power to order the summary examination before himself, or a circuit court commissioner, of any party or witness, at any stage of said cause relative to the matters of said trust, and enforce attendance and the giving of testimony therein, in the same manner as in the trial of causes in such circuit courts in chancery.” , The defendants Bichard E. Hasbrouck and James Hill, composing the mercantile firm of Hasbrouck & Hill doing business at Mendon in St; Joseph county, on the tenth day of January, 1881, made a general assignment for the benefit of their creditors to Orlando J. East. The assignment purported to give no preferences. Appended to it was a list of imsecured creditors, and also a list of debts amounting to-$5841.38, which, were represented to be secured by chattel mortgages. Fast accepted the trust, took possession of and invoiced the property, and gave due notice to the creditors, lie failed, however, to give the bond required by the statute. Immediately on the expiration of the ten days several of the creditors sued out attachments which they caused to be levied upon the property, and the secui-ed creditors also took possession under their several mortgages. Thereupon the complainants in this suit, who are unsecured creditors, filed their bill in equity, setting forth all the facts, questioning the good faith of the chattel-mortgages, and suggesting that they were made to give fraudulent preferences, and praying that a receiver be appointed by the court and the trust under the assignment executed by him. The assignors and the attaching and mortgage creditors were made parties defendant, and the bill prayed that they be enjoined from proceeding further in the enforcement of their respective pretended liens. The defendants demurred to this bill, and the demurrer was sustained and the bill dismissed. This seems to have been done on the supposition that the failure of the assignee to give a bond within the ten days rendered the assignment wholly nugatory and void for all purposes; and that there was consequently no trust created, and nothing to preclude the creditors making levies. It is very evident that this view of the statute renders the sixth section in part at least of no avail. That section expressly provides that in case the assignee shall fail to comply with any provision of the act, the court may proceed in the enforcement of the trust through a receiver. The neglect to file a bond was unquestionably such a failure; so that the case is within the very letter of the statute, and apparently within the intent also. If we look no further than the sixth section the case would seem to be clear: the contingency happened which entitled the court to intervene with its-receiver, and the complainants on a showing of the facts called for its intervention. But the view of the defendants would also defeat the general intent of the statute, and render it worthless if not positively mischievous. The general intent of the statute; is plain: it is to secure the equal distribution of the-property of insolvents among all their creditors. To this end it prohibits the giving of preferences and requires-security for an accounting and frequent reports from theassignee. If preferences are fraudulently attempted the-intervention of equity to prevent it is authorized, and if the assignee shall fail in any particular in the discharge; of his duty, equity may displace him with -a receiver who-shall discharge the trust impartially. If the statute fails to accomplish this intent, but on the contrary gives new opportunities for unequal distribution, the legislation has manifestly failed in its purpose. No facts could illustrate this more clearly than those which are set forth in this bill of complaint. The moment the ten days expired which are allowed to the assignee for giving bond, several of the creditors appeared on the stage with their attachments and seized upon the assigned property. They thereby acquired, as they claim, a lien upon the property which takes precedence of all other claims. What they have done in this case may be done in every case in which an assignee shall fail to give bond, and ordinary prudence will require of every creditor, as soon as he shall learn that an assignment has been made, that he sue out his-attachment, and have an officer ready to serve it the very-minute the time for filing bond shall expire. Even .if he-shall have assurances from the assignee that a bond will be-filed, he cannot rely upon it with safety, for any accidental circumstance that should prevent it would let others in ahead of him, and by collusion, while keeping a part of the-creditors satisfied that he would give bond, the assigneemight give the others the very preference the statute intends-to preclude. This would be an extraordinary -result of legistion designed to secure uniformity and equality; putting it, as it would, in the power of the assignee to defeat the trust, and to distribute the property unequally in every instance.. Other anomalous results might also be indicated if it were important. There is undoubtedly some difficulty in harmonizing all the; provisions of this statute. The statute declares the assignment “void” if the bond is not filed; hut this word is frequently used in the sense of voidable, (Beecher v. Marquette & Pacific Rolling Mills Co. 45 Mich. 103); and it must have that construction here if it shall be necessary to give other provisions of the statute effect. The assignment as an effective trust in the hands of the assignee undoubtedly becomes inoperative and will remain so, and in a certain sense void, unless creditors take steps to save the trust and have it enforced in equity. This in our opinion is what the statute means; and this construction puts a meaning in all its terms. But it is said that the statute in forbidding attachment and execution levies upon the assigned property within the ten days, by implication recognizes the right to make such levies afterwards if bond is not given. This may be; and such levies may perhaps be perfectly valid if creditors fail to invoke the intervention of equity; it is only when the execution of the trust under the last section of the statute is called for that they are displaced. In disposing of this case we intimate no opinion what might have been the result, if it had appeared that the assignee named in the instrument had never assumed the trust or done any act in furtherance of it. In this case there had been distinct acts of acceptance; possession taken and notice given; everything done, in fact, which could be done before the giving of the bond. Nor does any question arise here as to the effect of the suit in equity upon rights which may have become vested before it was instituted; as rights acquired by attachment are inchoate until judgment and execution levy. Nor is there any question here of the effect of laches in filing the bill; for in this case the bill was filed without any unnecessary delay.' It is a significant fact bearing upon the general intent of the statute to secure as far as possible the equal distribution of the property under all circumstances, that the third section enlarges very considerably the effect of the assignment, in making it pass to the assignee or to the receiver the right to question the previous conveyances of the assignor to the same extent that the creditors themselves might question them. The decree appealed from must be reversed, with costs, and the cause remanded with directions for the entry of an order overruling the demurrer, and for further proceedings in accordance with this opinion. The other Justices concurred.

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Marston, C. J. The evidence fully sustains the finding of facts in this case. Chubb leased the premises in question to Ayers Stoddard for the term of three years, with the privilege of five, upon shares. Stoddard was to do all the work, find all the seed and to deliver to the lessor one-third the crops. The farm was to be cropped in a certain specified way, and the lessee was to have the use of certain farm implements of the lessor, and was to take good care of them and repair them at his own expense during the term of the lease. This lease and his rights thereunder the lessee afterwards undertook to assign to the plaintiff in error, and under circumstances of questionable good faith, and these proceedings were instituted by the lessor to recover possession of the premises. The judgment of the court below was correct. The very nature and character of the lease or agreement shows that it was a personal one to the defendant, and could not be assigned by him to a third party without the consent of his lessor. The rent or share which the latter would receive, must depend very much upon the character of the lessee, and the latter could not place a party in possession of the premises, who might not be a good husbandman, and who might not be able to carry on the farm operations in a good, careful, and proper manner. Under such a lease the landlord has a right to choose his tenant, and he may be willing to lease upon shares to one man, and yet be wholly unwilling to let another have possession upon any terms. So with reference to the use of his farm implements, one might be a careful, prudent man, who would take good care of them, while another more reckless would not by the owner be permitted to use them upon any terms. The attempt to assign this lease and put another in possession thereunder worked a forfeiture thereof, and enabled the lessor to take immediate steps to regain possession. The judgment must be affirmed with costs. The other Justices concurred.

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Cooley, J. This is a bill in equity to enjoin the collection of an assessment for the improvement of certain portions of streets in Grand Bapids, known as Bronson street, Crescent avenue and Bostwick street, under proceedings of the common council which are supposed to be void. The bill was demurred to and dismissed, and complainant appeals. The ground of invalidity chiefly relied upon is that Crescent avenue and parts of two streets were all to be improved in a single proceeding and by a single assessment; which, it is insisted, is unauthorized by law; but there are also various minor objections. I. It appears by the map accompanying the bill of complaint that Bronson street extends from Canal street easterly, and is intersected by Kent, Division and Prospect streets, which cross it at right angles. About half way between Kent and Prospect streets is Bostwick street, which also intersects Bronson street at right angles. Before reaching Bostwick street, Bronson street, as it extends easterly across Kent and Division, branches or divides into two circular arms, which open out and extend into Bostwick, as shown by the .accompanying diagram, so that the travel along Bronson street must go around by one of these arms, and along Bostwick street to Bronson street again. These two circular aims of Bronson street constitute what is called Orescent street. From the exhibits attached to the bill of complaint it appeal’s that on February 2, 1880, the common council adopted a resolution “ that the grading, graveling, and paving the gutters of Bronson street from the east side of Kent street to Prospect street, including the two circular arms of said Bronson street between Division street and Bostwick street and known as Orescent avenue in said city of Grand Rapids, including the construction of the necessary bridges, culverts, gutters, cross-walks, man-holes, catch-basins, approaches, and cesspools therein, is a necessary public improvement.” This it will be perceived says nothing about the grading, etc., of Bostwick street, and treats Orescent avenue as a part of Bronson street. , On February 28, 1880, the council adopted another resolution, apparently to remedy a supposed defect in the one above given, and described therein the street or streets to be improved as “ Bronson street from the east side of Kent street to Prospect street, including the two circular arms of said Bronson street between Division street and Bostwick street known as Crescent avenue in the city of Grand Rapids, and also the space between the east ends of said two circular arms to the center of that part of Bronson street east of Bostwick street and said Bronson street, thence east to Prospect street in said city of Grand Rapids.” On March 1, 1880, both the foregoing resolutions were rescinded, and a new resolution' adopted of the same purport, but describing the street or streets to be improved as-follows: “Those portions of Bronson street in the city of Grand Rapids included within the following limits, namely : from the east line of Kent street east to the west line of Crescent avenue, and from the west line of Bostwick street to the east line of North Prospect street in said city; ” “ also-Crescent avenue” and “that portion of Bostwick street lying between the north line of the north portion of Crescent avenue produced easterly and the south line of the south portion of Crescent avenue produced easterly.” It was- under this last resolution that the work in question was done, and the objection to it is that three or more distinct improvements were provided for by- a single resolution, whereas by law each should have been provided for and made by itself. One cannot read the three resolutions above given without perceiving that the common council regarded the work they provided for as a single improvement. In the first resolution which apparently was intended to cover all that is embraced in the third, it was not thought necessary to mention Bostwick street at all, and Orescent avenue is treated as a part of Bronson street, as for all practical purposes it is. The second resolution was a little more particular, but the idea is the same, and it is only more fully expressed, apparently from abundant caution, in the third resolution. The “necessary public improvement” intended by each was the improvement of Bronson street from Kent street to Prospect street, including the passage ways around the space embraced by the two arms known as Crescent street. This space we might infer from the map is a little park or other public ground, but the record does not explain. It was decided in Arnold v. Cambridge, 106 Mass. 352, that it was not competent for the city to order the building of sidewalks on two streets and provide for the expense by a single assessment levied upon the abutting owners. It was found in that case that the statute under which the assessment purported to be made contemplated that each street was to be considered and treated by itself; and that being the case, there was no authority for making a single assessment district and a single assessment for two sidewalks. But in order to make that decision applicable it must appear that there are in fact two improvements, and not a single work only, in what is substantially a single public highway. It sometimes happens that a single street has different names for different parts; but this fact could not preclude the whole being graded or paved under a single resolution and the cost provided for by a single assessment. The unity of the work must determine the right to deal with it as a whole, and not the diversity of names that may be given to its vari ous parts. We should impute absurdity to the legislature if we were to conclude that they intended under any circumstances that a single improvement should be taken up and dealt with in divisions. In one sense the improvement in this case was apparently single. It was the improvement of what was substantially a single avenue from one part of the city to another, but divided at one point into two, where its-two branches passed' around a small piece of ground. The people along the line from end to end must have had a common interest in its improvement; and it is quite possible if not probable that the improvement of that part of the street on which they happened to live would have been of little or no importance except in connection with the improvement of the remainder. We may well suppose the improvement of a part only of JBronson street at the expense of adjacent owners would be grossly unjust when the improvement of the whole together with the connecting arms at their expense would be strictly just as well as highly beneficial. We do not know what the fact was in this case; but the circumstance that a single party only is heard complaining is strongly indicative of the consent of the others. If one assessment cannot be made to cover this case, then it would seem there must be four: one for each part of Bronson street, one for Bostwick street and one for Crescent avenue. But it seems highly probable that the four assessments would overlap each other, and that what are called Bostwick street and Crescent avenue ought to be improved in part at least by owners of property east and west of them on Bronson street. If this is so the purpose of the statute would be defeated instead of being advanced by the four assessments, and confusion would be created by the subdivision of that which the statute evidently meant should be considered as an entirety. No doubt the council may provide for the improvement of a part of a street at a time when only a part needs improving at that time or in the way provided; but to lay several assessments at the same time for improving different parts of the same street in the same way must often be highly inexpedient. In the case at bar the authorities have treated the improvement as a unit, and there is nothing in the record which conclusively shows that they erred. We must therefore assume that the conclusion was just. It is not disputed that they had ample power by statute to levy an assessment; and that being conceded, we cannot assume from any ambiguous facts that they erred in exercising the power. Stockle v. Silsbee 41 Mich. 615. II. It is objected to the resolution declaring the necessity of the improvement that included therein were “ the necessary bridges, culverts, gutters, cross-walks, man-holes, catch-basins and approaches therein and connected therewith,” without specifying what.were necessary, and that the effect was to delegate to those who should be entrusted with the duty of carrying out the resolution the discretion to decide upon the necessity. 'But the conclusion does not follow from the premises. The council declared in general terms the necessity of the work as a public improvement; but it did not undertake to settle upon the details; nor was it needful to do so in the action to be taken at that time. Details would be settled afterwards by the action of the council itself. Moreover, there is nothing in the record which' shows that there were any bridges or culverts to be constructed, or anything else that was not properly incidental to the improvement of the streets; and if there were no bridges or culverts there could of course have been no delegation of power in respect to them. III. The statute requires that an estimate of the expense of the proposed improvement shall be made by the board of public works and reported to the council before any assessment is made. The provision is as follows: “ When the common council of said city decide that the construction of any public work in said city is a necessary improvement, the board of public works, with all convenient dispatch, shall determine as to the particular kind and quantity of materials to be used therefor, and estimate the probable cost and expense of such work, and of the material to be used in detail, and cause to be prepared, so far as necessary, plans and specifications for such, work, and report their estimate to the common council as a basis for assessing or otherwise raising, according to law, the funds necessary to enable the board to go forward and complete such work.” Laws 1873, vol. 3, p. 57. The bill states that, as appeal’s by the minutes of the common council, at a regular session held April 12, 1880, the board of public works reported an estimate as follows: “ Grand Rapids, Michigan, April 10,1880. To the Hon. Board of Public Works: Gentlemen— I submit herewith the estimate of cost for the improvement of Bronson street and Crescent avenue, as follows: Contract price,......$14,500 00 Assessment, engineering, printing, etc., - - 450 00 Total,......$14,950 00 Respectfully submitted, A. C. Sekell, City Surveyor. Estimate of cost. Improvement of Bronson street and Crescent avenue. Approved by the board of public works, and ordered certified to the council. April 10, 1880. George W. Thayer, Bres’t.” The bill does not negative the making or reporting of any further or other estimate. Three objections are taken to this estimate: 1. That it is the estimate of the surveyor, and not of the board. But the board adopted, approved and reported it, and that was sufficient. It was very proper for the board to make use of the surveyor’s services in preparing it. 2. That the estimate was made in gross, and not in detail. If the paper above given was all that was reported, this objection, as matter of fact, appears to be well taken. Whether in that case it is fatal is another question. The board of public works must undoubtedly make a detailed estimate, but there is much reason for contending that if only the sum total is reported to the council, and that body sees fit to act upon it, the objection cannot be taken after-wards. The estimate is for the information of the council, to enable that body to determine how much money shall be raised; and if they have the sum total and act upon it without calling for further particulars, it may well be urged that the question is precluded. But we do not decide that point in this case, because the bill does not negative the submission of detailed information.. It is perfectly consistent with the bill and with this paper that details may have been submitted by the board with the summary which they handed in, or that there may have been a further report besides the one given. Indeed, some of the subsequent proceedings would indicate this; for while the paper given names Bronson street and Crescent avenue only, in a subsequent resolution of. the council an estimate is referred to as covering the whole improvement proposed to be made, The omission in the foregoing paper of all reference to Bostwick street may have been accidental, but in support of a bill in equity to restrain the collection of taxes we can make no presumption against the correctness of official action. 3. It is objected that the estimate includes the cost of engineering and printing. But these were legitimate expenses, incidental and necessary to the assessment, and were properly included. Beniteau v. Detroit 41 Mich. 116. IY. Several objections are taken to the resolution of the common council establishing an assessment district, but they are very technical, and require no special attention. The assessment is objected to on more plausible grounds. The resolution of the council directing an assessment contained the following clause : “ And that the board of review and equalization of the city of Grand Bapids, who by the charter of said city are constituted commissioners for that purpose, be and they are hereby directed to make said assessment upon all the owners or occupants of lands and houses within the district aforesaid, in proportion, as nearly as may be, to the advantage which shall be deemed to accrue by the making of such improvement, and that the said commissioners meet for the purpose of making said assessment on Tuesday, the 27th day of April, 1880, at ten o’clock in the forenoon, at the office of the city clerk.” The report made in pursuance of this resolution was made by two of the members of the board, who make and subscribe it as “ a majority of the-board of review and equalization of the city of Grand Bap-ids, and the commissioners named in the annexed order and subscribing the annexed assessment' roll.” There is no-doubt a majority of the board had the right to, act, and that their action is legal if all were notified of the meeting.. Comp. L, § 2. The bill relies upon the fact that the-report on its face purports to be that of a majority only; but as this may be correct it is manifest that no illegality is. shown by the mere fact that one of the board does not unite-in the action. Y. It is further objected that the contract which was let. was a contract “ to improve Bronson street and Orescentavenue ” only; and it is true as set out in the bill the contract does not mention Bostwick street. But the contract-refers to accompanying plan, specifications' and profile, and' makes them a part of itself; and these are not given. With ,'them the contract was probably complete; but if not, we do* not know the fact. Other objections are taken, but we find none that is substantial. The decree of the court of chancery dismissed the bill, and it must be affirmed with costs. The other Justices concurred.

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Campbell, J. Plaintiff sued defendants on a liquor dealer’s bond for a judgment she had obtained against Steele for damages on account of the sale of liquor to her husband. The bond, which was made to cover dealings in Bay City, was dated May 1, 1878, and declared on as approved June 3, 1878. It contained no sum written out as a penalty, and was set out in its precise words, with an averment of a penalty of one thousand dollars. The defence rested on the double ground of want of penalty, and want of approval. The statute (Laws 1877, p. 214) requires the bond to be for not less than $1000 nor more than $3000, and requires-the sureties to justify “in a sum equal to the amount of the bond.” In the present case, they justified in the sum of one thousand dollars. We think the omission of the penalty is supplied by the justification — especially as that covers only the lowest sum for which any bond could be given.. This defect may be disregarded. The. statute is very express that no bond shall be received •without written endorsement of the approval of the common council. This bond had on it a brief approval signed by the recorder, which we have no doubt could be connected with any legal action of the council authorizing it. But the proceedings of the council are not shown to have amounted to such an approval. The records show that the “ retrenchment committee ” were required by resolution in connection “with the city attorney” should “report on all liquor bonds for the ensuing year.” The council proceedings show that on the 3d of June the retrenchment committee, without any mention of the city attorney, reported the acceptance of eight bonds. Two others are mentioned, and it is not very clear whether the entry means that two others were referred by the' committee or were referred by the council, to the city attorney. There is no mention of any approval or other action on the eight bonds , by the council. A further report by the same- committee, on an entirely different subject, is followed . by the word “ adopted.” This cannot properly be made to cover two different reports as it stands. The council could not delegate to any committee the final approval of bonds, and while we are not inclined to doubt the validity of a single entry of approval of several bonds at once, we think under the statutes there must be some distinct evidence that the council acted. If, as is most probable, the reference of two bonds to the city attorney is to be regarded as made by the council itself, that shows distinctly there was no direct approval of the rest. If made by the committee it would probably indicate that until those were examined action on the rest would be suspended. In either case it is fairly to be inferred that action was postponed, or else that it was erroneously supposed that the council had legally delegated all its powers to the committee. We think the court below was correct in holding that no approval was shown. The judgment should be affirmed with costs. Marston, C. J. and Graves, J. concurred. Cooley, J. did not sit in this case.

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Marston, C. J. The defendant Phelps recovered in. the Superior Court of Detroit a verdict against the complainant on the 24th day of January, 1881, upon which judgment was entered March 12th. January 27th, 1881, a writ of garnishment was sued out of the "Wayne circuit by Louis Selling who claimed to be a creditor of Phelps, and such writ was on the same day served upon the complainant. February 11th, 1881, the complainant filed its disclosure, and on the 16th of February a demand of trial was filed by the garnishee plaintiff in such garnishee suit. March 10th, 1881, complainant was notified that the verdict above mentioned had been, on the 25th day of January, 1881, assigned to the defendant Reilly. The complainant thereupon filed its bill of interpleader in the Superior Court against these defendants, Reilly, Phelps and Selling, and an injunction was issued restraining the collection of such judgment and the prosecution of the garnishee suit. The injunction was after-wards set aside because the amount of such judgment had not been paid into court; but this having afterwards been done the injunction was renewed. A motion was afterwards made to dissolve the injunction and' an order made granting the motion, and from this order the complainant appealed. The suit in which the verdict and judgment against the complainant were rendered was for a libel. In • such a case until a judgment was entered up on the verdict there was no indebtedness that could be garnisheed. Hill v. Bowman 35 Mich. 191. As the garnishee proceedings were commenced after verdict but before judgment the complainant herein is not at all likely to be injured thereby. The order appealed from will be affirmed with costs. The other Justices concurred.

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Marston, C. J. Boyd brought an action to recover damages ■claimed to have been suffered by reason of a trespass committed upon his lands in removing an embankment, and thereby permitting surface water to flow over his lands into ■a pond or reservoir thereon, from off the highway and lands ■of an adjoining proprietor. The tendency of the evidence on both sides is so briefly and clearly set forth in the bill of exceptions, that we give the material parts thereof in a'note herewith. We also give herewith the principal portion of the instructions given the jury by the court. (See p. 60, note ). Some very nice and interesting questions are quite likely to arise concerning the flow of surface water, and we therefore fully concur with the court below in declining to attempt to lay down any rule of universal application. Confining ourselves strictly to tbe facts in this ease, we are of opinion that tbe evidence introduced on tbe part of tbe defendants tended to prove that tbe surface water bad run from off Dewey’s land over that of tbe plaintiff and into the pond upon his land for far more than twenty years; that the plaintiff and his grantors had knowledge of such flowage for the entire period, and that work had been done in clearing and improving the highway, the channel, and no objections made thereto. Now without attempting to lay down any rule as to the right of an owner of an upper field to have the water that falls thereon flow off upon the lands of another below, or of the right of tbe latter, or tbe extent to which, in the improvement of his own lands for agricultural purposes, he can «top or prevent such flowage, we are of opinion that if the jury had found the facts to be as the defendant’s testimony tended to prove, the plaintiff would not have been entitled to recover. "Whether a lower estate owes servitude to an upper or superior one in the first instance or not, we are of opinion, that snob an easement may be acquired by prescription, and that tbe evidence bearing upon this subject should have been submitted to the jury. The authorities are quite fully collected and discussed in Washburn on Easements 353 et seq., to which reference is made. The judgment must be reversed with costs and a new trial ordered. A difficulty appears on the record, but as it was- not argued by counsel and will not again arise we pass no opinion thereon. Graves, and Campbell, JJ. concurred. Cooley, J. did not sit, having tried the case in the circuit as special judge. And thereupon the counsel for the said plaintiff to maintain the issue on his part called as a witness Thomas Boyd, who, being duly sworn, gave testimony that he was the owner of the premises described in the declaration in this cause; that he was then in possession of said premises and had been since some time in the year 1873; that said premises front on the road on the north known as the La Plaisance Bay turnpike, a road running east and west or nearly so; that the lands lying north of the premises mentioned in said declaration are occupied by one Dewey; that the highway immediately north of the premises mentioned in said ■declaration as well as said Dewey’s said land is low ground; that intimes of high water Evans creek lying north of said Dewey’s said land and about one-half mile north of said highway would overflow, and that in connection with the rain and melting snow would flow off south towards the land mentioned in said plaintiff’s declaration and fill up a pond upon said Dewey’s land immediately north of said highway; that when said Dewey’s pond would become filled as aforesaid, said water would further flow across said highway and upon the land of said plaintiff mentioned in said declaration into a pond or basin of water upon the land described in the declaration in this case, some thirty-five or forty rods south of said highway, and cause said last-mentioned pond to overflow a portion of the land mentioned in said declaration; that the nature of the land between said Dewey’s pond on the north side of said highway and said pond upon said plaintiff’s land hereinbefore mentioned, was low swampy land with the exception of a ridge four or five rods south of said highway which was higher than either of said ponds and higher than the land immediately north of said highway upon said Dewey’s premises; that there was no regular water-course between said Dewey’s pond immediately north of said highway and said pond hereinbefore mentioned upon said premises described in said declaration where living water usually runs, but water was only there in times of high water, and then only surface water; that for the purpose of preventing said water from settling back from Evans creek into Dewey’s pond and from Dewey’s pond flowing upon the land mentioned in said declaration and overflowing the same, said plaintiff caused in the fall of 1877 an embankment to be made upon the premises mentioned in said declaration immediately south of said highway and south of the fence enclosing said land on the north of about fourteen rods long east and yvest and twelve or fifteen feet wide; said bank extended east and west entirely across the swail or low lands over which in times of high water the water flowed into said pond upon the land described in said declaration; that the effect of said embankment was to keep off the water flowing from the highway and Dewey’s land as aforesaid, thereby rendering several acres of land tillable that otherwise would not bo. The original width of the road was six rods, as appears from the examination of the maps furnished from the department at Washington. The section line runs to the south of the present culvert in that highway. The distance from the culvert of the highway to the dam where the cut was, is fifty-nine one-hundredths of a chain, to the middle of the dam fifty-six one-hundredths of a chain, to the east end of the dam forty-nine one-hundredths of a chain. The length.of dam is about fourteen rods. The height of dam above natural surface of water in the Dewey pond is 3 88-100 feet. On an average (the top of the dam not being quite uniform) the top of the dam is five or six inches higher than the top of the culvert. The dam is three feet higher than the road ditch. The highway on east side of the culvert is lower than the culvert, on the east side of the culvert at least a foot lower than the bridge over the culvert. The road at the culvert is four and one-half rods between the fences as they now stand. The witness also stated that he was there twice in October, 1879; once he made survey and second time the level. The water in the creek was low water then. It was a dry fall. The surface of the water in the Dewey pond was then four feet and some fraction higher than in the Boyd pond. The defendants also introduced testimony tending to show that there had been a channel there for water, though water did not always run there, from above the place called Dewey’s pond, down through that pond across the road down through the Boyd place, a regular channel above spoken of, to the Boyd pond, for more than fifty years; that a road had been laid out on the section line in 1830, and the United States road, six rods wide on section line, in 1832; that the road had been worked and grubbed out one hundred feet wide, and had been used by the public ever since as a highway, but not the full width before mentioned; that the Boyd lot was taken up from the United States land-office by Luther Rawson in 1824, was purchased by Simeon Dewey with five other lots in June, 1829, who moved his family on the land and occupied it until 1831; that Simeon Dewey sold the lot in 1831, to Bliphalet Wood, who occupied the same with his family until 1855, when it was sold by Wood to Jarvis Duller, who occupied it with his family until ho sold it to the plaintiff in April, 1873, who has owned and occupied it ever since; that the water run down the natural channel across Dewey’s place and across the road and down the natural channel on the Boyd lot into the Boyd pond, the greater part of the year and in wet seasons nearly all the year; that the water consisted of surface water and of water from the springs running from the hills west of the water-course or channel, and of a spring east of the water-course or channel, and sometimes also from water flowing over the banks of Evans creek at a point nearly north of Dewey’s pond in a high freshet, and running down the ravine and channel to Dewey’s and Boyd’s ponds; that this water has ran from the first settlement of the country, more than fifty years; that the turnpike had been built nearly fifty years with a culvert or passage-way through which this water has ran in times of high water as aforesaid, ever since; that the channel through Boyd’s farm down to this pond had never been closed up entirely until he built the dam in 1877, though he had by plowing after his purchase filled it up a part of the way; that Eliphalet Wood, during his ownership and occupancy, had employed a Mr. Pocklington to clear out an old gully from the culvert on the highway down to the Boyd pond, and this was just after he had dug and cleared out a ditch from the culvert north-west and then running north-east on the Dewey place down the natural channel; that this had been done nearly twenty-seven years before, and the ditch cleared out and made so as to give a clear passage to the water down to Boyd’s pond; that no one of the owners of the Boyd farm before Mr. J3oyd, ever stopped that channel to the Boyd pond; that Mr. Boyd’s first act in closing the channel so far as the evidence shows was in the fall of 1877, when he built this dam; that when in the spring ■of 1878, its effect was discovered in overflowing and injuring the road, Albert Hyde, the highway commissioner of Tecumseh, cut the dam through so the water could pass into its accustomed channel, and the road was relieved of the water. Now it is a familiar rule that no one shall be at liberty to interrupt a ¡natural water-course so as to set the water back upon a land proprietor above him, and for the purpose of this case, I shall instruct you that the highway authorities in their control of the highway may be considered as having the right of land proprietors and entitled to the benefit of this rule. The defendants insist that this familiar rule applies to this case and that the water-way from Dewey’s land to the Boyd pond, where from the evidence there seems to be a clearly-defined channel or passage-way, is to be regarded as a natural water-course. The plaintiff, on the other hand, insists that only is a natural water-course in a legal sense where living water continually flows. For the purpose of this case I shall instruct you that if you find that living water does gather on Dewey’s land from living •springs or other source and flow for any considerable portion of the year in an accustomed channel along by the way of the culvert in the highway •and upon the plaintiff's land, the i this is to be considered a natural water-course and defendants were justified in keeping it open by cutting •open any embankment erected to obstruct it. If you find, however, that there was no such flow of living water for any considerable portion of the year, you will next direct attention to the rights of the parties as regar'ds the waters that occasionally gather in this water-way. As to these it is shown that they sometimes in very high water overflow from Evans creek. Of course if the water continuously or usually flowed from Evans creek in this water-way, a water-course would exist which could not rightfully be obstructed; but the overflow from high water appears to occur only in rare cases. In my opinion Mr. Boyd is not under obligation to furnish a way for this water. Eights in respect to this would be reciprocal; if Mr. Dewey has a right to insist that Boyd shall receive the water flowing along as it naturally would after the overflow, that Mr. Boyd would have a corresponding right to insist that Mr. Dewey should not shut it oil and prevent its coming. If therefore Mr. Boyd deshed to have the water for any purpose, as for example, in order to keep his pond supplied with fresh water for the raising of fish, he might claim damage of Mr. Dewey should the latter, by raising slightly the banks of Evans creek, prevent these occasional overflows. But this would be entirely unreasonable and therefore not sanctioned by the law. Dewey may prevent the occasional overflows upon him without being liable to Boyd, and Boyd may prevent the water from the overflows coming upon him without being liable to Dewey. And now coming to the question of mere surface water, whether Dewey and the highway commissioners have a right to insist that this shall continue to flow in its accustomed way without obstruction from Boyd, I am not disposed to attempt to lay down any rule that shall be of universal application, but shall confine myself to the facts of this particular case. This case in my opinion does not present the broad question of the obligation of the land proprietor through whose land there is a natural waterway for surface water, to suffer it to pass upon and through his land in an accustomed channel. The case here is of a natural basin of perhaps 175 acres, 100 acres north, of the highway and 75 acres south of it, within which the surface water collects into the Boyd pond. Now there is no outlet to this pond, and the land south and between it and the river is considerably higher than in this basin; there is therefore no natural course for the flow of surface-water through Boyd’s place upon the land south of him and off towards-any stream of water, but only a natural course for the flow of water upon his place, so that the question is not whether he shall allow a natural passage for the flow of surface water through his premises to be kept open, but whether he shall against his will receive the surface water from the lands above him into his pond as a natural place of deposit. Now I think it is manifest from the evidence that the Boyd pond is to some extent filling up. This would be the natural consequence of its receiving the wash of 175 acres of cultivated land, and the evidence shows that the bottom of the pond is muck. The time will probably come, therefore, when this lake from natural causes will disappear, but whether this is so or not, I think Mr. Boyd, so far as it is fed by mere surface water, has a right to get rid of it if he can. It is now small or large according to the flow of water into it, but I think he has a right to get rid of it altogether by draining it or otherwise, as he may be able to do-without trespassing upon others. It is no legal wrong to Mr. Dewey or to the township if in order to do so he'finds it necessary to stop the flow of surface water into it from the north. He is not under obligation to keep this pond here in order that the surface water from other premises than his own may be run into it as a reservoir, but he may bring all his land including this under cultivation if he shall find it practicable to do-so, and the fact that stopping the flow of the surface water into it injures the highway by setting back water upon it is not one of any legal importance in this controversy. One further claim is made by the defendants, namely, that by reason of Wood, when he owned the Boyd place, cleaning out this water-way on. his land in extension of a ditch then cut by Dewey, and evidently on an understanding between them, Dewey has acquired a right in the nature of an easement to have the way left open. I do not find in the evidence, however, any proof of an understanding from which an easement would arise or any evidence that Wood cleared out the way for anybody’s benefit except his own. And the mere fact that something done by one person for his own advantage proves useful to another, can confer no legal right upon such other to its continuous enjoyment. In a new country people often do things which for a time are for the convenience of their neighbors, and submit to things for the benefit of neighbors which as the country improves they find it for their advantage to change, and thereby withdraw the neighborly favor, and they are entirely at liberty to do this, provided they have not precluded themselves from doing so by some legal grant or contract. And I know of no evidence of such a legal grant or contract in respect to keeping open this water-way.

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Marston, O. J. . "While the witnesses do not fully agree upon the facts, yet in the view which we are compelled to take, the dispute becomes immaterial. The court charged the jury in substance and effect, that if they found the facts to be as testified to by the defendant’s witnesses, the plaintiff coidd not recover, and the instructions given, as to the right of the company to a clear track, and the boy being a trespasser, that it could only be held liable in case there was gross and wanton negligence on its part, such negligence as would indicate an indifference to the safety of the boy, were undoubtedly correct. The important question in the case as submitted is whether the court should not have charged the jury, as requested, that under the evidence the plaintiff could not recover. Taking the testimony of the boy, and accepting it as true in every respect, and there is no evidence in the case more favorable to the plaintiff, and it fails to show, or tend to show, that the engineer knew or had reason to know that . he was there at all, and consequently there could have been no negligence on his part in starting the engine. Neither does the boy’s evidence tend to show that the fireman knew or had reason to suppose, that'he had fallen down, or was in any danger of being run over or injured — and certainly there is nothing in the whole ease tending to show that any of the defendant’s servants were wanton or willful in their conduct, or indicating a degree of indifference on their part as to the safety of the boy. Even should it be conceded that negligence on the part of the fireman would render the •company liable, yet tbe evidence does not fairly tend to •show that be had any reason to believe that the boy would not have ample time to clear the track, or that it was at all necessary for him to call the attention of the engineer to the fact that the boy was there. It is not claimed that the boy would have been injured had he not, in some unaccountable way, fallen down, but there was nothing in his age, appearance, or knowledge of trains, or in the height of the step upon which he was .standing from the track, to indicate or lead any person to suppose that he would fall. Falling under such circumstances would be an exception and not the rule, and cannot therefore be made the foundation for a liability against the •company without proof of actual knowledge, which is wholly lacking in the present case. The evidence is clear that the locomotive was in all other respects properly managed and under complete control of the engineer at the time of the accident, so that no charge •of carelessness can arise thereon. We need not therefore dispose of this case upon any mere question of pleading, or because of any variance between the allegations in the declaration and the proofs, or whether the negligence of the fireman alone would be ■ sufficient to charge the company. The evidence is all set forth in the record and it fails to indicate that degree of negligence, upon the part of any •servant of the company, necessary to create a liability. The evidence does show the boy to have been a trespasser ; that he was possessed of more than average intelligence for one of his age; he knew that he had no right there, and repeatedly had been ordered away on previous occasions, and warned by his parents against going on the track or in places of danger; that when ordered off; he would have escaped all injury but that he stumbled and fell, which was unknown to and could not have been anticipated by any person upon or in charge of the locomotive. In other words the injury resulted from an accidental fall •of the boy and without any carelessness or negligence of the company’s servants, and the jury should have been instructed that under the evidence the plaintiff was not entitled to recover. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

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Graves, J. Plaintiffs in error were tried for having created a public nuisance. The information contained five counts; but the circuit judge confined the jury to the first and fourth, and a verdict of guilty was returned. Judgment was given that each of the accused should pay a fine of fifty dollars and that the sheriff, under the direction of the board of health, and at the expense of the defendants, should abate the nuisance. In the recent case of Shepard v. The People, 40 Mich. 487, we suggested that before any judgment of abatement should be given there ought to be a specific finding of a present state of things showing not only the appropriateness but the necessity of a judgment of that kind. There is no occasion to repeat those observations. In the case before us the reasons against such a judgment are very obvious. Neither count alleged the nuisance to be continuing, and there was no basis for proceeding to give judgment on the supposition that it was. The King v. Stead 8 Term 142; The King v. The Justices 7 Term 464. In the next place the charge was not that the nuisance consisted of something permanent, as a wall or a building. It was alleged to arise from the use which was made of certain things wholly innocent in themselves; and hence the only necessary expedient for getting rid of the nuisance would be, in case of its continuance, to stop the objectionable mode of use. The case was not one, therefore, where it would be proper to destroy the instruments in order to effect an abatement, and there was hence no case to which proceedings to abate through the act of the sheriff could apply. The King v. Pappineau Strange 686. The fourth count alleged no offence. The substance of it is that the accused parties conveyed noxious matters from their glue works “ into a certain ancient stream of pure water there situated and flowing,” and thereby made the “ water unfit to drink ” “ to the common nuisance of the people.” To lay a criminal charge, sufficient facts must be stated to denote it, and where the public offence is the rendering the water of a stream unfit to drink the charge ought to be set out with circumstances to show how it is that the public is interested or affected. Unless this is done the court cannot say that anything amounting to a crime is imputed. Now the count under consideration is wholly wanting in facts to justify the conclusion that the causing of the water in this stream to be unfit for drink was “ to the common nuisance of the people.” The stream is not described as one in which the public have any right. For aught that appears it may be a stream in which no one except the plaintiffs in error have any right whatever. It is needless to go further. The judgment must be reversed. ¡ The other Justices concurred.

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Cooley, J. The defendant in error was recorder of the city of Wyandotte during the years 1877 and 1878. Hej claims that he has never been paid in full Ms salary for) those years, and as the common council refused to allowj and pay Mm what he demanded, he brought suit in assumpsit^ to recover. j By the city charter the recorder is elected for a term of two years. Laws 1867 vol. 2 p. 188. He is ex officio a justice of the peace for the city, with the usual powers and authority of justices; he is clerk of the common council, and is required to keep a record of their proceedings and an account of their receipts and expenditures, and to perform for the city all such duties as township clerks are required by law to perform for the several townships. Ibid. 206. He is also to possess the same powers and perform and discharge the municipal duties of mayor during the absence or inability, death, resignation or removal of the mayor. Ibid. 207. Por his compensation he is entitled to receive “ such sums as the common council may allow, not exceeding three hundred dollars per annum.” Local Acts 1875 p. 680. The facts in the case are stipulated, and the stipulation states that at the time of the election of defendant in error the salary of the office of recorder was two hundred and fifty dollars per annum; by which we understand that there was a standing resolution or order of the common council for the payment of compensation at that rate. This sum was paid to him for 1877, but for the next year the common council by resolution reduced the compensation to one hundred and fifty dollars, and that sum was received under protest. This suit is brought to recover the difference between that sum and the sum as previously fixed. The charter expressly gives to the recorder the customary town clerk’s fees for the duties performed by him which in towns are performed by clerks. Laws 1867 vol. 2 p. 206. He is also as justice of the peace entitled to charge and collect such fees as are chargeable and collectible by other justices. The annual compensation is therefore provided for such services performed by him for the city as fees are not given for. It is evident from the foregoing statement of his duties that these services must vary from time to time considerably, and there is wisdom, therefore, in leaving the compensation to be fixed by the council from a consideration of what these may have been or are likely to be in any particular year. It is claimed, however, that when the salary is fixed at the time when the office is accepted, the acceptance is presumed to have the salary in view, and a contract is thereby effected between the officer and the city which neither can change without the consent of the other. This is a position that has frequently been taken and almost as often overruled. Nothing seems better settled than that an appointment or election to a public office does not establish contract relations between the person appointed or elected, and the public. The leading case of Butler v. Pennsylvania 10 How. 402, has been universally regarded as having settled that question; and it has been followed by decisions in numerous cases. The salary or other compensation is there fore at tlie discretion of the legislative authority of the State, or of such other authority as the Legislature has seen fit to entrust it to. This was indirectly recognized in Chapoton v. Detroit 38 Mich. 636; a case which is in point here. It is said on behalf of the defendant in error that the principle above stated rests on the right of the officer to-resign and give up his office at any time; and it is further-said this right did not exist in the case of this officer because he could only resign to the common council — the very body that reduced the salary — and the council might keep him in by refusing to accept his resignation. Whether the council could in this way compel the recorder to continue in the performance of his duties we do not care to consider in this case, because we think the legislative authority over the subject does not depend upon the existence or non-existence of any such power. Offices are created for the public good at the will of the legislative power, with such powers, privileges and emoluments attached as are believed to be necessary or important to make them accomplish the purposes designed. But except as it may be restrained by the Constitution the Legislature has the same inherent authority to modify or abolish that it has to create; and it will exercise it with the like considerations in view. Whoever accepts a public office must accept it with this principle of constitutional law in view; and if his compensation is reduced below what seems to him reasonable, it may be a hardship, but it is not a legal wrong. The legislative power is ample, and he is' supposed to know when he takes the office that it is liable to be exercised. The legislative power to determine the compensation in respect to this office has been delegated to the common council, and that body has exercised it. This is conclusive. The judgment must be reversed, with costs of both courts. The other Justices concurred. Note. — See a large number collected in Cooley’s Const. Lim. 4th. ed. p. 336 note. See also the recent case of State v. Kalb 50 Wis. 178.

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Graves, J. This record is brought up as a case made after judgment, but it raises no question. It sets up the pleadings and informs us that the cause was tried by the court without a jury and that on the “ trial the following facts were proven,” and after reciting them it proceeds to say, that “upon the foregoing facts the said cause was submitted to the court, whereupon afterwards, and on the 21st day of December, A. D. 1880, the said court rendered judgment against the said plaintiff and in favor of the said defendants for their costs to be taxed and the said plaintiff did then file his written exception to the said judgment.” No special findings of any kind were asked for or made. The cause was tried before the judge on general evidence and he decided in accordance with his view of that evidence in the same manner in which a jury would have-'decided by general verdict, and his general conclusion on the effect of the evidence was followed by the only judgment which could be given on it. There was no more occasion for an exception than there would have been in case a jury had returned a general verdict for the defendants. The matters stated in the record as being the “facts proven” are deductions made from the evidence' since the judgment, for the purpose of constructing a cáse for review in this court. They were not constituents of the record when the judgment was given and a writ <of error would not have brought them up, and it would be extravagant to suppose they could be reviewed as though they were the foundation of the judgment. The provisions for deciding-cases on agreed facts have no application: Comp. L. §§ 4947, 6191, and of course the proceeding has no relation to the case where the question is whether there is any evidence on some specified point. The practice has been misconceived. Chatterton v. Parrott, at the last June term, ante p. 432, is exactly parallel. The irregularity is doubtless of small consequence because no foundation is discovered in what are represented as the “ facts proven ” for any different judgment. The judgment is affirmed with costs. The other Justices concurred.

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Campbell, J. Gertiora/ri having been brought in the circuit court for the county of Shiawassee upon a judgment rendered by the recorder of Corunna, acting as a justice of fhe peace, the circuit court dismissed it as returnable on Sunday. Plaintiff in certiora/ri brings error. The writ was clearly irregular, but it is claimed the court should have allowed an amendment. It appears, however, from the return, which we must assume to be correct, that the certiorari was never allowed by any one. The writ is never a matter of right, and can only issue upon satisfying the ■circuit court commissioner, or circuit judge, that there has been an error committed. Comp. L. § 5166. And the court in deciding finally on certiorari in such cases is bound to disregard all defects not affecting the merits. § 5171. This being the case the party could have gained nothing by an amendment if allowed; and we need not consider whether or not such an amendment could be regarded as ■one which the court could in a certiorari case be bound to grant, or whether if so, this is a proper method of objecting to the refusal. The judgment must be affirmed with costs. The other Justices concurred.

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Campbell, J. David C. Briggs and William Coffron presented a claim against George Tozer’s estate for damages from the failure of title of a steam pump the title of which it was insisted he had guaranteed. The pump had been sold by him as town treasurer on a tax levy, and bid off by one Jerome Warren. Plaintiffs desired to purchase and did purchase it of Warren, but being doubtful of Warren’s responsibility, they applied to Tozer, who as they claim promised to guaranty them from all harm in case any difficulty arose, and to be responsible for the title. It appears from the plaintiff’s testimony uncontradicted that they bought from Warren alone, and that the promise of Tozer was on no consideration moving to him and had reference only to such purchase. When the case went to the jury the court presented the question of responsibility in these words: “ If Tozer stepped in there and said to Briggs and Coffron ‘You buy that pump of Jerome Warren, I will guaranty the title,’ and they would not have bought it without that guaranty, he would be liable. If he stepped in then, and said that ‘ I, in my individual capacity, will guaranty the title to that pump,’ then he is holden, and it is an original undertaking on his part.” This promise was very clearly a promise that Warren’s contract should convey a good title, and that if it did not Tozer would be responsible. Our statutes declare void unless in writing, “ every special promise to answer for the debt, default, or misdoings of another person,” and they forbid any action on any favorable representation or assurance concerning the “dealings of any other person,” unless in writing. Comp. L., §§ 4698, 4101. "Whether the transaction with Tozer was a representation or assurance, or whether it was a promise, it related to a contemplated contract with "Warren to which Tozer was not a party, and under which a warranty of title was implied by the rules of law. It is impossible to regard it as anything but a collateral undertaking involving no liability until "Warren’s contract failed. The case is a very plain one and we think the court erred in holding otherwise. The judgment must be reversed and a new trial granted. The other Justices concurred.

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Marston, C. J. The plaintiff in error is organized under chapter 9fi of the Compiled Laws. The act authorizes any number of persons not less than five to organize as a corporation, for the purpose of securing “to the family or heirs of any member upon his death ” a certain sum of money, to be paid out of the corporate funds or by an assessment upon the members in the class to which the deceased belonged. The principal facts in this case are, that Isaiah Phair, on the 22d day of November, 1819, made a written application, upon one of the blank forms of the association, for a five thousand dollar certificate, to be made payable to Enos Hoyt. In this application Phair was asked to state “relation of the beneficiary (Hoyt) to the applicant” and the answer given thereto was “No relation.” The proper medical report was made, money premium paid, and a certificate issued on the 25th day of November, a copy of which is given in a note herewith. Phair died March 4, 1880, and at the time of his death there were but 1135 members of the association in the class in which he was insured. The association declined to pay upon several grounds, the most important, and the only one we shall consider, being that Hoyt was not a member of Phair’s family or one of his heirs. As showing the relations existing between Phair and Hoyt, the testimony of the latter is given in full herewith. This case seems to be peculiar, and if not one of fraud,, then from the very inception, it would appear at least to be delusive and deceptive. While the insurance, if such it may be called, was for five thousand dollars, and the premium paid was for tins sum, yet the actual amount was fixed by the number of members in the class to which the assured belonged, which turned out to be but a little over eleven hundred, so that the amount to be recovered was thus cut down. Again, the application, signed by Phair, and delivered, to the company, and upon which the certificate was issued, showed clearly, and without any ambiguity or uncertainty, that the certificate to be issued was to be made payable to Hoyt who was no relation to the applicant. The certificate issued three days after the date of the application, referred to the application and made it and each of the statements therein a part of the contract, and the promise made in the certificate was “to pay to Enos Hoyt, friend, of Isaiah Phair, of Jackson * * the sum of five thousand dollars.” It is thus clearly apparent that the association in accepting the application, receiving the premium, and issuing the certificate, well knew that Hoyt was not a relative, and was not claimed to be a member of Phair’s family or an heir, within ■even the most liberal construction. So that the association issued this certificate under circumstances which most strongly call upon the courts to enforce performance of their agreement, if certain imperative rules of public policy do not forbid. The defence set up in this case must be considered as that of the public and not that of the defendant, as it stands in no position to interpose such a defence. Lyon v. Waldo 36 Mich. 353. We need not discuss the other facts at length. The testimony of Hoyt shows that this contract was in the nature ■of a mere wager policy, and that his interest could not be ! promoted by prolonging the life of Phair. Such contracts | are so clearly contrary to public policy that they cannot be ■upheld, and must be declared absolutely void. The judgment in this case must be reversed with costs of both courts. The other Justices concurred. The Mutual Benefit Association of Michigan — Certificate No. 4051 — Age at issue, 33-7-8 — Amount of Certificate, $5000. In consideration of Uie application for this certificate, which is hereby-referred lo and made part of this contract and of each of the statements made therein, and in further consideration of the first payment (four dollars), receipt whereof is hereby acknowledged, and of the further payment of the semi-annual dues of one dollar, on or before the first days of July and January of each year, and upon the notice of any assessment and the prompt payment of the same (said assessment never to exceed one dollar and ten cents) during the continuance of this contract, does promise to pay to Enos Hoyt, friend of Isaiah Phair, of Jackson, in the State of Michigan, his executors, administrators or assigns, the sum of five thousand dollars within ten days after duo notice and proof of the death of Isaiah Phair; provided, there be five thousand members.of the association in good standing. In case the number of members of the association shall be less, then a sum of as many dollars as there shall be members at the death of Isaiah Phair. If the above-named dues or assessments are not paid as provided for in the articles of incorporation and by-laws, of the association, then this certificate shall be inoperative and void. In witness whereof, the Mutual Benefit Association has caused this certificate to be signed by its president and secretary at its office in the city of Detroit, this 25th day of November, 1879. J. W. McGrath, Secretary. Geo. O. Langdon, President. 1 am the plaintiff in this case. Phair first came to board with me in December, 1878, and stayed till April 25, 1879. He returned on September 7, 1879. He came back as a boarder, and stayed as such boarder till December 25th. Question. State whether there was any arrangement or agreement between you and Mr. Phair as to his becoming a member of the family and remaining in the family during his life-time? Objected to by defendant as incompetent and immaterial; also incompetent to contradict the statement of no relationship set out in the application ; also because the certificate purports to insure a friend, and it cannot be shown that the family relationship existed; also as irrelevant to the issue. Objection overruled. Exceptions for defendant. A. He was to live with me as long as he lived. As long as I had a home he was to have one with me ; after that he was treated as a member of the family. This arrangement was made about the time the policy was got out. I was keeping hotel at that time. Q. What, if anything, did lie do around the hotel after this arrangement ? A. He was not obliged to do anything. He used to do chores. Q. Seemed to take an interest in it and work around as the rest of you? A. Just about the same. Q. Whether during that time and after this arrangement and up to his death he worked at your house around doing chores as .your wife would call on him? A. Yes, sir. Q. And between the two places lived with you as a member Qf your family? A..Yes, sir; just the same. Q. And under an agreement with you to that effect? A. Yes, sir. Q. You say he came and went, and in all respects conducted himself toward you, and you treated him, as one of the family? A. Just about the same, sir. He went away in December to Eaton Bapids and came hack the latter part of January. When he came back I needed a man, so I told him if he wanted to, I would give him $10 a month, the same as I would have to pay another man, so he stayed there as night watch until he got so-sick he could not work. Q. So that from the time he came hack, in addition to treating him as a member of the family, you allowed him $10 a month for some work he did? A. Yes, sir. Q. Who took care of him? A. Some of the help in the house. Q. Under whose instructions? A. Mine. Q. Who paid the bills? A. I did. Q. Who called in the doctor? A. I did. Q. Who paid them? A. I did. Q. Who paid the expenses of burying him? A. I did. Q. State whether Phair was indebted to you at the time of the issuing of the policy. Objected to for the same reasons as like testimony of the witness Foster. Objection overruled. Exception for defendant. A. Yes. He was owing me about $200; don’t know exactly how much. Q. And if you had charged up for all you did for him after he-became a member of the family, how much would he have owed you at the time of his death? A. About $600. Cross-examination. Phair was not in any business when he first- came to my place. Did not know where he came from. He was to pay me $5 per week. He never paid mo anything. He did not do anything; had no employment. I kept my account with my boarders in a large book; charged them with board and gave credit for payments. Q. Why didn’t you charge Phair with his board? A. I did have him charged with his hoard until after he was insured. After he was insured I gave him his account. He was square. I gave him his hill. Q. You say you gave him a square account after the insurance? A. I gave him his bill. Yes, sir. It was just stated in the book Ike commenced to board such a date, so much per week. I tore the leaf out, and gave it to him. Q. He never paid you anything? A. No, sir. Q. Any others around you had boarding like that? A. I had one — George Proudfit. I did not know where Phair went after he left April 5, 1879. Didn’t keep any track of him. Never dunned him for my pay while he was gone. No-arrangement was made when he came back in September, ’79; just came and stopped. Q. You had at the Sheridan House Mr. White (bar-tender) and this man (Phair) working around? A. No, sir. I did not have thia man working around the Sheridan House. He was there, but not working- for me. I moved from the American to the Sheridan May, ’79, and from there to the Central City House, December, ’79. When he was staying with me from December, ’78, to April, ’79, I did not charge up his board in the books. Q. You charged the other boarders? A. No, sir. I didn’t have any regular boarders. Q. Why did you keep him? A. He had been so long with me. Q. From December to April, between three and four months, do you call that a long time? A. Wouldn’t you call it a long time if you had a man boarding with you and he did not pay? Q. So you kept him along because he had not paid you? A. I kept him along so as to get my pay. When he left me at Christmas time, after the insurance, he went to Eaton Rapids in a livery barn. He earned wages but did not pay them to me. Q. This was after he became a member of your family, wasn’t it, according to your statement? A. Yes, sir. Q. When was it you tore his account out of the book and gave it to him? A. When 1 got the policy there; before he went to Eaton Rapids. He used to do a chore around once in a while. I have him charged with $33 for clothing — some clothes of mine had at different times. I made no charge of anything till this suit was commenced. Q. When you gave it to him you intended it as a gift, did you? A. Yes, sir. At any time when he worked for mo before he came back from Eaton Rapids, I paid him five and ten cents a chore. Q. You have charged him in this memorandum with $5 a day for taking care of him the last ten days of his life. He was only confined to his room about four days before his death, was he not? A. That is all. Q. Was it worth $5 per day for the last ten days of his life? A. Yes, sir. Worth that to have him around. Q. Why didn’t you send him to the hospital or pest-house? A. Because I had an insurance on him, and was to take care of him as long as he lived. Q. How old was he? A. Thirty-one, or 32, or 33, I think. Q. You stated a minute ago, didn’t you, that at that time he was an able-bodied man? A. Yes, sir. Q. And you were going to take care of him all the remainder of his life for the insurance? A. I was to give him a home. Q. Was that the agreement? A. The agreement was that he was to have a home as long as I had it. He could go out and work as he had a mind to, and he could come home as he had a mind to. Q. So that, for the remainder of his life, 30 or 40 year's, if it might be so long, you were to give him a home at any time? A. We did not expect this man was going to live there all his life at that time. If ho wanted to go to work he could. Q. But he need not do it? A. No, sir. Q. So you agreed to board him for that insurance? A. I agreed to let him have a home. Q. Who paid for this insurance? A. I did. Q. So that for the insurance you were not only to give him a home, but.you were to pay for the insurance itself? A. That was what I was to do. I don’t think I swore anything before the coroner about Phair’s being indebted to me. I don’t recollect that the question was asked me. I understand the cause of Phair’s death was congestion of the lungs. Q. What did you swear before the coroner’s inquest was the cause as you understood it? A. Whisky, I think. Q. Why did you swear whisky at that time? A. From the very fact I heard the doctors talking. Q. You knew he was a drinking man, didn’t you? A. Yes, sir. I knew he was a drinking man. I did swear before the coroner that he had free access to the bar. That meant my bar. Yes; that was true. He did have free access. Q. And from all you knew he was a drinking man at the time he was insured? A. Yes, sir. There ain’t many men insured who are not drinking men. Show me one, and I will show you a white blackbird. I did swear before the coroner’s jury that I paid him $10 a month and board. Q. Why did you swear to that if he was a member of your family? A. I did. Q. What for? A. Eor being night-watch. Q. Did you swear before the coroner that he owed you anything? A. I don’t recollect the question was asked me. Q. Did you swear he was a member of your family? A. I don’t think the question was asked me. Q. They asked you how he was living there, and you said you were paying him $10 a month and board. You did not say he was a member of your family? A. The question was not asked me. I have been convicted several times of keeping a disorderly house. I paid all the fines I have ever been fined. Yes, sir. I was convicted once in the circuit court of keeping a house of ill-fame. Q. Did you swear before the coroner that Phair worked for you on and off for a year? A. I did. I meant that he had done chores for me on and off for a year. I paid him five or ten cents for what chores he did. Q. Do you mean to say that if he was owing you all this money, that nevertheless whenever he did a little work you paid him for it? A. Yes, sir. Minutes of evidence of witness before coroner’s jury here read as follows: Deceased has worked for me about two months; has worked off and on for about a year. He acted as night watch. Understood his complaint was whisky. He was a man who drank pretty freely. I gave him $10 a month and board. Do not know of his having a family; understand he has a brother. I also have George Proudfit insured in my favor. Mr. Hoar found Phair dead this morning. He was filling Phair’s place while he was indisposed. Phair' had free access to the bar. Think he drank some outside of my place. I knew he was drinking when I had him insured. Captain Proudfit had his life insurance in my favor, and I mine in his. But when it came to paying for the policy he could not pay for mine, but I have kept his up. It was talking about this in Phair’s presence the way I happened to get his policy. Q. Now, Dr. Crawford swore, Mr. Hoyt, that he attended Phair some time before the insurance, and that you paid him. Is that correct? A. Think I paid him 75 cents then. I was thinking that was at the American House; that is my impression. I don’t remember any other time. I don’t recollect how long this was before we moved from the American to the Sheridan; but I recollect paying him 75 cents. Q. Then you were not only allowing him his board without getting any money, but you were paying his doctor’s bills? A. I paid 75 cents. I don't know what was the matter with Phair for which the doctor prescribed. Phair was not a man of any property that I know of. Some of the clothes were furnished before the insurance. Q. So that you were not only boarding him, but giving him clothes before? A. Yes, sir; a little.

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Bandstra, J. Defendant appeals as of right the Court of Claims order granting summary disposition in favor of plaintiff. Specifically, defendant contests the court’s determination that the use tax, MCL 205.93(1), did not apply to the promotional activities of plaintiff at issue here because they did not occur “in this state” under the statute. We affirm. The facts in this case are not in dispute. Plaintiff is a Delaware corporation with its principal office in Muskegon, Michigan. Defendant imposed a use tax on certain items (bowling balls and accessories) that had been withdrawn from plaintiffs Michigan inventory and given away to professional bowlers and customers, or otherwise used for promotional or advertising purposes, as opposed to being sold at retail. Defendant imposed the use tax on plaintiff regardless of whether this occurred in Michigan or in other states. Plaintiff contested only the use tax imposed with respect to non-Michigan activities. Plaintiff appealed to the Court of Claims defendant’s tax liability determinations. Defendant moved for summary disposition pursuant to MCR 2.116(0(10), arguing that no genuine issue of material fact existed and that it was therefore entitled to judgment as a matter of law. The Court of Claims denied defendant’s motion for summary disposition and granted plaintiff summary disposition under MCR 2.116(I)(2). It concluded that defendant’s imposition of the use tax on plaintiff was not authorized by law, and that, if plaintiff were liable under the Use Tax Act, it could potentially be taxed by two or more states on the same transaction in violation of the Commerce Clause of the federal constitution. Defendant argues that the Court of Claims erred as a matter of law in its determination that plaintiff is not liable for use tax on inventory withdrawals. We disagree. We review de novo a decision by the Court of Claims on a motion for summary disposition and issues requiring statutory interpretation. Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App 711, 719; 697 NW2d 539 (2005). With regard to the Court of Claims interpretation of the Use Tax Act, MCL 205.91 et seq., our review is subject to the general rules of statutory interpretation. Herald Wholesale, Inc v Dep’t of Treasury, 262 Mich App 688, 693; 687 NW2d 172 (2004). This Court has explained: “The primary objective of judicial construction is to ascertain and give effect to the Legislature’s intent. The language of the statute is the best source for ascertaining intent. An act must be read in its entirety and the meaning given to one section arrived at after due consideration of the other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. Long-standing administrative interpretations by those charged with administering a statute are entitled to considerable weight. However, an administrative interpretation is not conclusive and cannot be used to overcome a logical reading of the statute. If an act is clear and unambiguous, then judicial construction or interpretation is unwarranted. If a statute is ambiguous or susceptible to two or more constructions that could cause reasonable minds to disagree as to its meaning, the statute must be interpreted.” [Id. at 693-694, quoting Stratton-Cheeseman Mgt Co v Dep’t of Treasury, 159 Mich App 719, 724-725; 407 NW2d 398 (1987) (citations omitted in Herald Wholesale).] Moreover, “[t]ax laws generally will not be extended in scope by implication or forced construction,” and “[w]hen there is doubt, tax laws are to be construed in favor of the taxpayer.” Sharper Image Corp v Dep’t of Treasury, 216 Mich App 698, 702; 550 NW2d 596 (1996). “The use tax is complementary to the sales tax and is designed to cover those transactions not covered by the General Sales Tax Act [MCL 205.51 et seq.].” Sharper Image, supra at 701. MCL 205.93(1) provides that “[t]here is levied upon and there shall be collected from every person in this state a specific tax for the privilege of using, storing, or consuming tangible personal property in this state ....” MCL 205.92(b) defines “use” as “the exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given.” Plaintiff does not dispute that its use of inventory for promotional purposes in Michigan is subject to the use tax. See, e.g., Guardian Industries Corp v Dep’t of Treasury, 243 Mich App 244, 251-252; 621 NW2d 450 (2000). Thus, plaintiff has not contested imposition of the use tax with respect to the promotional use of bowling inventory in Michigan. The question raised in this appeal is whether plaintiffs shipment of items elsewhere constitutes a “use” in Michigan. Defendant maintains that plaintiffs withdrawal of items from its inventory constitutes a “use” in Michigan, thereby implicating the use tax. That is, the withdrawal of items from Michigan inventory with the intent to give them away in other states constitutes a “use” in Michigan because plaintiff exerts control over the inventory while it is in Michigan. Plaintiff maintains that the items in dispute are not withdrawn from inventory until they are given away in other states. That is, the items remain in plaintiffs control and custody when they are transferred outside the state, and are not “removed from inventory” until they are given away. Plaintiff emphasizes that, if the promotional items are not given away in another state, they are returned to plaintiffs Michigan inventory; thus, no “use” has occurred in Michigan. As noted above, the Use Tax Act applies to every person in this state “for the privilege of using, storing, or consuming tangible personal property in this state. . . .” MCL 205.93(1). At issue here is the term “use,” which MCL 205.92(b) defines as “the exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given.” This Court has explained that “[u]nder the plain meaning of the statute, in order to be taxed under the [Use Tax Act], a taxpayer must perform in Michigan one of the activities listed in the definition of ‘use.’ ” Sharper Image, supra at 702. In Sharper Image, the plaintiff taxpayer, a foreign corporation, challenged the Department of Treasury’s imposition of a use tax on catalogs shipped by mail into Michigan. Id. at 700. This Court concluded that the lower court erred in its determination that the use tax was applicable because, under the plain meaning of the statute, a taxpayer must perform one of the activities listed in the definition of “use” in Michigan. Id. at 702. This Court reasoned that, because the plaintiffs exercise of a right or power over the catalogs ended when they were delivered to a post office in Nebraska, no taxable “use” of the catalogs by the plaintiff occurred in Michigan. Id. Applying the logic of Sharper Image here, the dis-positive question is whether plaintiff maintained a “right or power” over the contested items as they were transferred to other states to be used or given away for promotional purposes. Plaintiff clearly did. The term “use” as set out in the statute does not encompass the withdrawal of inventory and subsequent distribution of such items in another state. Because the items in dispute remained in plaintiffs control and possession when they were sent to other states for potential promotional or giveaway purposes, their “use” for these purposes did not occur in Michigan. Defendant’s argument that it was sufficient that the items in dispute were “withdrawn from inventory” and “resold” to plaintiffs retail or promotional divisions in Michigan before being shipped out of state is misplaced; any such intracorporate transfers or redesignations of the status of the items in dispute did not affect plaintiffs possession or control over them. The Court of Claims properly denied defendant’s motion for summary disposition and properly granted plaintiff summary disposition on the basis of its determination that the use tax did not apply to plaintiff in this case. Defendant additionally argues that the Court of Claims erred in failing to accord due deference to defendant’s longstanding position on use tax liability for items withdrawn from inventory. Defendant relies on a 1977 case in the former Michigan Board of Tax Appeals, Wilson Sporting Goods Co v Dep’t of Treasury, issued November 10, 1997 (Docket No. 1297), to support its position. It is questionable whether that case is factually on point and addresses the legal question raised here. In any event, although “ ‘[l]ong-standing administrative interpretations by those charged with administering a statute are entitled to considerable weighty ... an administrative interpretation is not conclusive and cannot be used to overcome a logical reading of the statute.’ ” Herald Wholesale, supra at 693, quoting Stratton-Cheeseman, supra at 724. See also Guardian Industries, supra at 254. Defendant further argues that its position is entitled to deference, relying on a “revenue technical tax training” document from July 2002, as well as an earlier version from September 1997. However, “[i]n order for an agency regulation, statement, standard, policy, ruling, or instruction of general applicability to have the force of law, it must fall under the definition of a properly promulgated rule. If it does not, it is merely explanatory.” Danse Corp v Madison Hts, 466 Mich 175, 181; 644 NW2d 721 (2002). While the “tax training” document may be used as a guide, it was not promulgated as an administrative rule and therefore does not have the force of law. Id. Because we conclude that the Court of Claims properly determined that defendant’s imposition of the use tax was unauthorized, we need not address plaintiffs argument that applying the use tax in this case violates the Commerce Clause. We affirm. Defendant does not claim that the storage of the contested items in Michigan, before they are transferred for promotional purposes, is subject to the use tax. The affidavit of plaintiffs manager of financial reporting and analysis indicated that the howling balls that plaintiff supplies to its sponsored PBA (Professional Bowlers Association) bowlers are shipped directly to bowling tournament sites or to local distribution centers. There, a contractor hired by plaintiff takes possession of the bowling balls and has them stored on shelf space that is leased by plaintiff from the PBA. When necessary, the contractor takes a ball from plaintiffs leased storage space, drills it and otherwise prepares it for use, and gives it .to a plaintiff-sponsored professional bowler for use in a tournament. Thus, the bowling balls that plaintiff gives to PBA bowlers are under the control of plaintiffs contractor until they are given away. Similarly, any promotional items given away at trade shows are in the possession and control of an employee of plaintiff until they are given away. Additionally, any bowling balls or promotional items that are not given away are returned to inventory at plaintiffs Michigan facility.

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Marston, C. J. The record in this ease is not as full, clear and distinct in some respects as we could wish it to be. We are unable to find anything in the act under which the complainant company was organized, or in the rules appearing in the record, which would take away from John Priest the right and power of disposing of this fund by last will and testament in the ordinary manner. While section 9 of the rules and regulations of the complainant provides that the fund on the death of a member shall be paid to the person or persons last named by the deceased, and entered by his order on the Will Book of the company, yet this does not, nor did the will as entered upon the complainant’s books, attempt to deprive Mr. Priest of the right to make some subsequent disposition of the fund differing from that therein made. Indeed in the will made upon the complainant’s books, full right was reserved to make a different disposition thereof. This was done by the second will, which does not, in our opinion, violate rule 9 of the complainant, and if it did we might not be prepared to hold the testator’s disposition invalid because thereof. Very clear and binding provisions must be shown to deprive a person of the right given him by the laws of the land to dispose of such a fund by his last will. In our opinion the provisions of this second will, in so far as it names the persons and the amount to which each shall be entitled, must govern. This being a beneficiary fund, does not become a part of the property or estate of the deceased subject to his debts, but is exempt therefrom in accordance with the provisions of the act of incorporation. It does not therefore go to the administratrix of the estate, but should be paid direct to the beneficiaries named, if of age, and if not, then to their legal guardians. The decree will be modified, so as to give Mary Priest, the appellant, the sum of five hundred dollars, and in all other respects the decree shall stand confirmed, and a decree to this effect, and directing the payment of the minor children’s shares to their lawful guardians, will be entered in this court. This is not a case where costs should be allowed against the children and none will be. The other Justices concurred.

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Marston, C. J. ¥e can discover no valid objection to the plaintiff’s right of recovery in this case under the declaration and claim as made. In the instructions given the jury, the court most carefully protected the defendant, by limiting the plaintiff’s right of recovery to a finding that her mother received the money as a special deposit, and that it after-wards came into the defendant’s hands. The claim is made that the court erred in excluding the inventory filed in the probate court by the defendant as the guardian of Ellen Martin, and the evidence of James Grace, the clerk of defendant, as to what particular sums of money were set forth or included in such inventory, and the good faith of defendant in connection therewith. There was no error in rejecting this evidence. The inventory was made by the defendant and he could not, by including therein the moneys of plaintiff, cut off her rights thereto or transfer the same to his ward. He made no offer to show that acting in good faith he had paid out these moneys for the benefit of his ward or done any act that would prevent him from having full protection on the settlement of his guardianship account in the probate court. If he, in good faith, included the plaintiff’s money in the inventory of his ward’s property, and afterwards was obliged to pay over the same to the plaintiff, the probate court, upon a showing to that effect, would permit a correcting of his account or inventory, and thus save him from injury. The court properly excluded all evidence tending to prove the value of plaintiff’s board while she lived in the house of defendant. There was no evidence in the case tending to show a state of facts under which the defendant could charge the plaintiff, who was his sister, for board. We discover no error in the record and the judgment must be affirmed with costs. . , The other Justices concurred.

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Graves, J. Prior to July Id, 1859, the defendant Innes contracted a certain body of land to Ernst & Nixon and also another one to W. & E. Trill, and Berry claims that Innes on that date through his attorneys Ives & Martindale assigned to him the said contracts and bound himself to convey to him the property, subject only to such rights as were held by said purchasers under their contract. In July, 1861, lie filed his bill against Innes for specific performance, and joined Ives & MartindaLe and a person by tbe name of Price as defendants. Tbe purchasers by contract, Ernst, Nixon and the Trills were not made parties. On the 23d of August, 1873, the court made a decree in Berry’s favor; which, after finding and adjudging that the interest possessed by Innes at the time Berry became assignee, amounted to $1200, proceeded to decree that Innes should convey to Berry by deed containing the usual covenants of a warranty deed, but saving from the operation of the covenants whatever rights existed or might arise in favor of said purchasers by contract, or their privies. The case had proceeded without the filing of any notice of its pend-ency and on the 21st of February, 1868, the premises were conveyed by Innes and wife to George Jerome. April 10, 1874, the decree was allowed to be altered ex parte ; and a year later the court adjudged Innes guilty of contempt for not having made conveyance in accordance with the decree. An appeal was taken from that order to this court and the proceeding for contempt was reversed. Berry v. Innes 35 Mich. 189. After saying that Innes was not bound at his peril to prepare and execute such a deed as the decree ' called for, the court added these material observations: “But we also think the decree could not lawfully have been amended without notice; and though the amendment could not injure this defendant, yet as the decree itself appears to be in some particulars not warranted by the case made, we think the defendant should be allowed to take advantage of the error. The order appealed from will, therefore, be reversed, with costs, and leave given to file a bill of review. If the parties cannot now agree what their respective rights are, and settle them without further litigation, Nixon, Ernst and the Trills ought in some manner to be brought before the court.” The order of reversal was made October 25, 1876, and a certified copy was filed in the court below on the 7th of September, 1877, and the case implies that Innes filed a petition for leave to bring a bill of -review and attached thereto a copy of the . bill he desired to bring. No other proceedings were taken in that suit and on November é, 1819, Berry commenced the present action at law; the suit being a special action on the case to recover damages for the alleged neglect and refusal of Innes to execute and deliver the deed in accordance with the before-mentioned decree. The hearing proceeded without a jury and the judge on special findings decided in favor of defendants and the plaintiff seeks a review of the decision on a case made. The action is a novel one. Nothing like it is mentioned by; counsel or is remembered by the court. Still, if the principle is sound the bare fact that this is the first example ought not to defeat the plaintiff. But is the principle sound? "We think not, and many reasons are suggested for this opinion. But it is idle to multiply objections. We shall not presume to overhaul the practice in the equity case. We are not sitting in review of that suit and the occasion is not a proper one for inquiring in regard to errors and irregularities alleged to have been committed in it. It is sufficient for the present purpose to give attention to the views expressed on the hearing of that cause on the appeal. The real position of the plaintiff is that the original decree by the circuit court is valid, and that Innes committed an actionable grievance in neglecting to obey it. That it imposed a duty on Innes, which the courts are bound to regard, to execute, the deed to Berry; and that his failure to perform the duty by deeding as directed by the decree, created a ground of action at common law for the recovery of damages. Now if the duty supposed did not arise upon the decree, the action at law falls to the ground on its own theory, and recurring to our ruling on the occasion of reversing the order in the contempt proceeding, it is seen that we then held in substance that it did not. We thought that the case was too faulty and defective to warrant any coercive steps against Innes and that further proceedings of some kind would be necessary to place him at fault for not deeding as directed by the decree. That determination is consequently decisive against the very principle relied on to justify this action. In the present state of the controversy the plaintiff must loqk to some proper use of the suit in equity in the court of equity to obtain any substantial relief. The judgment is affirmed with costs. The other Justices concurred.

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Campbell, J. Plaintiff'who resides in Mecosta county, •sued defendants, who reside in another State, on contract, the suit being brought in Kent county and service made there. Defendants pleaded in abatement showing their non-residence and that of plaintiff, and claiming that under our statutes they could only be sued in Mecosta. On demurrer this plea was sustained, and plaintiff brings error. It was held in Haywood v. Johnson 41 Mich. 598, that a. resident of the State could not be sued in a transitory action in a county where neither party resided. It was held in Turrill v. Walker 4 Mich. 177, that the circuit courts could get no jurisdiction unless one defendant is served in the county. It 4 results from these decisions that a suit in Mecosta would have been fruitless unless a defendant should be found there, and that unless a suit can be brought where a non-resident defendant is found, he cannot be sued •at all, in many eases, and could not have been in this case. Reliance is had by defendants on section 5970 of the Compiled Laws of 1871, which requires transitory actions to be tried in the county “ where one of the parties shall reside at the time of commencing such action.” This was held in Haywood v. Johnson, to require suits to be commenced in such county. And if .the section applies to non-residents of the State, the decision below was correct. But if correct it follows that there are many transitory actions on contract, as well as in tort, where such persons can always evade the justice of this State by keeping away from counties where their creditors reside. The Constitution gives jurisdiction without any exception, in such cases, to the circuit courts. It would not be competent for the Legislature to take it away. And if the statute in question would have any such effect according to its ordinary meaning we are compelled to-choose between holding it to that extent void, or construing it according to what was no doubt its real intent, as not applicable here. We have no doubt the section in question was intended to-be a beneficial section in the direction of saving defendants from vexatious suits in places remote from their homes. It accordingly saved them the privilege of being sued at home, or in the home county of the plaintiff, who was regarded as entitled also to some consideration. It is evident that in so-legislating the law-makers had no idea of granting a privilege to non-residents against being sued at all. The natural inference is that those who were entitled to be sued in the-forum of their residence, are persons whose residence contains one of the courts of the State; so that suits may be brought under our laws. (The language of the statute only applies to trials of actions brought under our laws; and if' any case arises under our laws it would be absurd to hold that the Legislature meant to say it should not be tried at all. Those who claim the privilege must point out a Michigan forum where they can be found for service of process. The statute applies to no others.^ This has been the uniform practical construction, and this-is the first case brought to our notice, in which any nonresident defendant has claimed exemption from process. This practical construction of nearly forty years cannot be disregarded. "We think that the case is not within the statute, and that service on the defendants in any county of this State is valid when suit was commenced in that county. Judgment must be reversed with costs of both courts and •the demurrer sustained, with leave to defendants to answer over and plead issuably in twenty days. The other Justices concurred.

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Marston, C. J. An appeal having been taken to this court from the decree rendered in this cause, counsel for appellant, without any order from this court or special reason existing therefor, before return made, placed the originaL minutes of the oral testimony, which had been taken in open, court, in the hands of a printer, to have the record printed,, on his promise to save and return it; but, when printed, the-original manuscript was then destroyed by the printer.. Upon such a showing a motion is made for leave to file a. copy of the evidence in lieu or as a substitute for the original destroyed. The motion is very reluctantly granted, and only to save the rights of the appellants, who do not seem to have had any knowledge of such use being made of the testimony. Such a use is wholly irregular and should not be permitted, and the granting of the motion in this case must not be taken as an approval of the course adopted, or relied upon as a precedent in cases hereafter arising. The other Justices concurred. Henry F. Severens for defendant in error. The contract was not sufficiently definite to warrant specific performance: Browne St. Frauds, §§ 452, 492-3; Gosse v. Jones 73 Ill. 508; Taylor v. Staples 8 R. I. 170 ; Williams v. Morris 95 U. S. 444; Wright v. Wright 31 Mich. 380 ; Jones v. Tyler 6 Mich. 364; Case v. Peters 20 Mich. 298. Cooley, J. Specific performance is prayed in this case of an oral contract alleged to have been made by complainant with Hugh Lamb, bis father, now deceased. The defendants are the administrator and heirs at law of Hugh Lamb. The case made by the bill is that on or about October 12, 1872, Hugh Lamb owned a certain eighty-acre lot of land in the township of Weesaw, of the value of about $2400, ' upon which he lived alone; that he was then seventy-two years of age, and very infirm; that among his infirmities was an ungovernable temper which rendered it difficult for others to live with him; that he had been letting his land on shares and had not succeeded well in so doing; that he had no team, little live stock and few farming utensils; that com* plainant was then a married man, living with his wife and two children about a mile from his father; that his father went to see him, and after talking over his affairs and circumstances, entered into a verbal agreement with him' in substance and effect, as follows: On the part of complainant it was agreed that as soon as suitable preparations could be made, complainant with his wife and family should remove to his father’s dwelling-house on the land aforesaid, and live with him during the remainder of his life, and should give him suitable care and attention, and should farm the land, rendering to his father annually two-fifths of all the wheat and one-half of all the corn raised on the land, all to be delivered on the land, the wheat in the half bushel and the corn in the shock or row; that complainant should furnish the seed, farming utensils and team for use on the farm, and supply his father with suitable board, lodging, washing and mending, and on the part of said Hugh Lamb it was agreed that he should pay annually to complainant seventy-five dollars, and let complainant have the south 10 acres of the land, and give him a good and sufficient deed thereof; that this agreement was fully performed on his part to the satisfaction of his father; that complainant tcfok possession of the south forty as his own in July,-1873, and has since cultivated and improved the same; that his father often promised to give complainant a deed of said south forty, but neglected to dó so, and died without having given a deed, in September, 1878, and that since his death the heirs at law and the administrator appointed to settle his estate refuse to recognize and perform the agreement; wherefore complainant prays the aid of the court. The defendants answered, denying 'that Hugh Lamb ever made such an agreement, and the ease was. brought to a hearing on pleadings and proofs. We are convinced by the proofs that a contract substantially as set up in the bill was made by the parties, and that complainant has strong equities in his favor which should be recognized if no inflexible rules of law forbid. The evidence that proves the contract discloses little discrepancies in the understanding of particulars, but not such as to make us doubt the parties having agreed upon the terms of an arrangement as complainant now describes them. If “there is any doubt as to the precise terms of the contract, it concerns the time when the deed was to be given. The complainant seems to have expected his father would give him a deed without any great delay; but the agreement fixed no time; and as the retention of the title constituted the father’s security for the performance by complainant, it was not unnatural that he should delay putting the security out of his hands. If the contract had been in writing, Hugh Lamb -would have had the legal' right to decline to part with the title so long as he lived; and it is no reason for declining specific performance of the oral contract that complainant had expected his father would so far confide in him as to make the deed in person instead of leaving it to be made by Ms heirs. We think, therefore, that so far as proof of the contract is concerned, the case is sufficiently made out to answer the requirements of cases relied upon by defendants. Case v. Peters 20 Mich. 298; Wright v. Wright 31 Mich. 380. But it is said there has been no such part performance as can take the case out of the statute of frauds. The most important act of part performance was the taking possession of the land, occupying and cultivating it during the father’s life. But this it is said was not in fact the complainant’s possession, but the possession of the father; so that on this branch of the case there is substantial failure to make out any recogmzable equity. The reason why taking possession under an oral contract is recogmzed as a ground for specific performance when payment of the purchase price is not, is that in one case there is no standard for the estimate of damages when the contract is repudiated, and in the other there is a standard that is definite and certain. A purchaser who takes possession of land under an oral purchase is likely in so doing to change very considerably — perhaps wholly — the general course of his life as previously planned by him; and if he is evicted on a repudiation of the contract, any estimate of his loss by others must, in many cases, be mere guess-work. The rule, therefore, rests upon the element of uncertainty, and not upon any technical ground of exclusiveness in the possession. And upon this point no case on its equities could be plainer than this. Complainant abandoned one home and made a new one in reliance upon the oral contract; .occupied the land bargained for and cultivated it for six years in confidence that the contract would be performed; and it is not too much to say that the whole course of his subsequent life was probably changed in consequence. To deny relief under such circumstances for no other reason than that he did not occupy exclusively, would be to make the whole case turn upon a point in itself unimportant as affecting the real equities. The case is within Kinyon v. Young 44 Mich. 339. The decree of the court of chancery was in favor of complainant, and it must be affirmed with costs. The other Justices concurred.

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Campbell, J. Harrison filed his bill to get relief, as- a retired partner, concerning his claims against the firm assets. From 1872 to 1877 he was a partner in a business in which there were some changes of ownership. In July, 1877, the firm consisted of Harrison, Dewey, Lane, Charles Palmer, and Foster B. "Warren. The capital stock was $22,500, and the actual assets as inventoried were about $88,000, subject to not far from $16,000 debts. Assuming them to be worth their face, the assets beyond debts and capital would reach nearly $50,000, leaving each partner nearly $10,000. In July, 1877, the defendants desired to form a new concern, and bought out "Warren for the sum of $12,500, he accepting as his share beyond his capital stock $7500 as his interest in the profits. Harrison was also applied to, to sell out, and upon all the testimony we have no doubt that was the purpose of the arrangement which is set up in the bill, although he claims his sale was partial. Dewey insisted at this time that Harrison had overdrawn his accounts sufficiently to use up all his profits. Harrison claimed on the other hand that there was a very large balance in his favor. After an offer of $1000 had been refused, he finally accepted $2500. This he claims to have done under false representations from Dewey as to the state of the accounts and assets • and this bill is filed, practically for the purpose of rescinding that arrangement and obtaining an account of his proper share. We have found much inconvenience resulting from the manner in which the testimony was put in. Instead of transcripts from such parts of the books as became material, the books were put in bodily, and no statement whatever was laid before us of Harrison’s account, in the way in which it appeared on the books. It is not desirable or proper in ordinary cases to have the books themselves introduced and filed, unless there is something in their appearance which it is necessary to consider on questions of fraud or forgery, or some special difficulty. But where no such issue is raised, parties ought not to be deprived of the custody of their own books, and such accounts as are required should be transcribed. In the present case the only issues presented by the pleadings or on the argument, which involved the correctness of the books, related to particular, charges. It was not claimed the books themselves had been wrongly kept, or manipulated. The chief item of dispute was a set of charges against Harrison for deficiencies in the proceeds of some securities which he turned over to his firm to be used in payment for some property purchased of Mr. Johnston. These securities amounted to $11,300 as credited. They were guaranteed to 3ohnston by the members of the firm; and when the deficiency arose they were charged back, so' far as necessary, to Harrison. The testimony is not as clear as it should be on these items. It is admitted that Harrison, when the difficulty arose, took back the title to one portion of the mortgaged premises, and we think it very clear that as to this the charge back was right. The exact amount of the other deficiency is not shown, but it seems to have been not far from $2000. No other charges claimed to be wrong have been brought to our attention. Allowing the full amount of these Johnston charges to stand, the books show that in July, 1877, at the time of settlement, Harrison was indebted to the firm in excess of all his credits, in the sum of about $9639.71. That is the balance shown, and subject possibly to some miscalculations, is correct or nearly so. Dewey’s statements, therefore, as to the condition of the books were not seriously erroneous. The additional $2500 which was paid to Harrison made the share which he drew of the profits more than $12000, and in excess of his proper share on the basis of the inventory, more than $2000, and more than $4500 beyond what Warren about the same time received for his equivalent share. No items or specifications have been pointed out to us to indicate that there is any error in these figures. If they are correct he has on his own theory sustained no wrong, while on defendant’s theory he has been largely overpaid. We have referred to these figures chiefly for the purpose of showing that if there was a fair compromise, it ought not to be disturbed. It appears from Harrison’s own showing that he knew the Johnston deficiencies had been charged against him some time before the settlement. He knew that Dewey, who acted for the others, claimed that there was nothing coming to him. On this dispute there was one' offer made and rejected, and then a larger offer of a round sum of $2500 accepted. We see no reason to believe Harrison could not have informed himself fully at the time. Since this suit was commenced he has had access to the books, and has pointed out no false charges, and no definite omissions of specific credits. ¥e cannot assume that any exist; and we cannot properly speculate on peculiarities in the books which Harrison does not criticise or seek to have explained. Whether the settlement was a better one or a worse one than Harrison was entitled to ask can make no difference if it was deliberately made. We think it was so made, and should stand. The decree must be affirmed with costs. The other Justices concurred.

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Campbell, J. Atkinson sued for a libel, which contained reflections upon his conduct in relation to certain dealings and transactions connected with Gardner K. Clark. Mr. Clark’s action, with which Atkinson was claimed to have been involved, was in brief as follows: Clark was a dealer in grain and grain contracts in Detroit, and bought and sold in considerable amounts. . On April 5, 1878, Clark had in various dealings issued checks to the amount, as outstanding at the close of the business day, of $11,096.39. At the same time on that day he had on deposit at the Mechanic’s Bank, $9867.51, and a check of Gillett & Hall, of Detroit, for $1014; leaving a deficiency or loss on the day’s balances of $214.88. That evening he called on Col. Atkinson for professional advice. His statement is that he had reason to fear that his bank account would be garnisheed by parties in Chicago, and his business facilities be crippled so that he could not pay his checks; and that he asked Atkinson whether he would incur any criminal liability by drawing his money, so as to make a uniform settlement. He says that being informed he would not, he' then told Col. Atkinson he proposed to go to Toronto for a few days until it was settled, and that Atkinson did not advise him to go. The next morning Clark went with Atkinson and drew out his money from the bank, a messenger with a check for the balance not designated having been previously refused payment on such a general voucher. They then went to Atkinson’s office, each carrying a part of the packages of notes, and at that place the Gillett & Hall check, which Mr. Clark had handed to Mr. H. E. McNeil to present at the 2nd National Bank on which it was drawn,'was brought back with the statement that the bank would only pay it in the regular course of bank exchanges. This check was handed to Col. Atkinson for collection, and he was given a list of Clark’s outstanding checks, and Clark desired him, if he could, to settle at one-fourth cash and the remainder on time. Clark went over to Windsor, and missing the early train on which his wife had started, remained in the immediate vicinity at Walkertown until the noon train, on which he left for Toronto, but stopped at Hamilton that Saturday night. While in Windsor or Walkertown he entrusted the bulk of the money to McNeil, who during the day came back to Detroit, and delivered the principal part, of it to Atkinson, who left it for safe-keeping in the People’s Savings Bank, and on Monday took certificates of deposite for all but $1000, which sum he deposited in the Detroit Savings Bank. The amount of money received from McNeil is shown to have been about $8750. A portion of the balance is not fully explained. Atkinson met the creditors three times during the day, and telegraphed to Clark without getting any reply until in the afternoon. He went to Windsor'to find him, but failed to do so. At these meetings various conversations concerning settlement occurred, on which there is some conflict, but which are not important except in connection with the justification of the libel, to which reference will be made hereafter. At the last meeting he offered the terms given birm by Clark in the morning, but they were rejected. The communications concerning the settlement are among the matters involved in some controversy, both as to time and circumstances. Atkinson left the Gillett & Hall note at the People’s Savings Bank, and took therefor a certificate of deposit. Gillett & Hall stopped its payment, and Atkinson took it back and informed Gillett & Hall it would not be used to their prejudice. Hpon the terms of this communication some questions also were made at the trial, as raised by the libel. Two of Clark’s creditors, Messrs. Lasier and McDonald, visited him at Hamilton and induced him to return to Detroit, agreeing to see that he was not molested there. They reached Detroit early Monday morning, first calling on McNeil and then going to Col. Atkinson’s house, where they remained a while and appointed a meeting at - Clark’s house at a little later hour, with the expectation of coming to an arrangement. At the agreed time it was found by Lasier and McDonald that the other creditors stood out, and were disposed to prosecute, and accordingly they took Clark back to Windsor. In tbe meantime some creditors had sent to Clark’s brother in Boston, and on Tuesday morning he arrived. Atkinson made a settlement and turned over the money and securities. This settlement is also involved in the libel. Clark, through his brother, settled for 75 cents cash, and got time for the balance. On Tuesday, the 16th of April, one week after the settlement, the libel complained of was published. The managing editor before publishing it had interviews with various creditors and other parties concerning its correctness. Some opposed and some did not oppose its publication. It was not published at their instance. After its publication a communication was published signed by Mr. Clark, and approved — -so far as his knowledge went — by Col. Atkinson. In publishing it the editors of the Free Press commented on it at some length, referring to facts outside of it, and in conclusion said: “It is difficult to see wherein the Free Press statement of Tuesday needs to be corrected in the interest of that truth which Atkinson wishes to spread before the public.” This last publication was introduced to show malice in repeating and adhering to the charges before made, and is not made the ground of action by itself. The publication sued on consisted of a continuous narrative, with a conspicuous heading, purporting to give a full account of the entire dealings of the parties said to have been involved in Clark’s affairs. The whole libel is set out as a single grievance, the account being so drawn up as to prevent any convenient separation of Atkinson’s part from the rest. But the grounds on which the principal grievances appear to be based are chiefly these : — The heading was in these words : “ An inside view — Some hitherto unpublished facts respecting the Ola/rk affad/r — The figure which several pa/rUes cut therein — The movements of Ola/rk and the action of his attorneys — OlarFs misfortunes* the biggest kind of grist for his lawyer — Rather slight services for a very la/rge fee — $125 gathered in for cprevious ser vices ’ — A plain, unvarnished tale from which each reader cam, draw his moral. These references to professional misconduct, which are undoubtedly libellous on their face, appear from the body ■óf the publication, and are also averred by the innuendoes to relate to Col. Atkinson. It is claimed, and I think justly, that they indicate that Atkinson took advantage of Clark’s circumstances to make extortionate charges for services and pretended services. In the body of the principal article, the chief indications of an offensive character, as apparent from the words alone or as applied by the innuendoes, seem to include a series of acts, which are declared to “ reflect no credit on the parties of the second part, who have figured more or less prominently in the affair.” Atkinson and McNeil are the only persons mentioned, and it is averred the reference was made to plaintiff, who is also connected by averment with a previous reference to a “ ‘power behind the throne,’ which moved in a mysterious way.” Proceeding with the narrative, reference is made to Clark’s claim that he heard Chicago parties meant to garnishee his deposits, and it was stated that on Friday evening or Saturday morning, at McNeil’s suggestion, Clark called on Atkinson. Then follows this sentence, which is by averment alleged to mean that Atkinson gave advice which was improper, dishonest, and discreditable to him professionally: “ The advice that was given to Clark by Atkinson is of course not positively known to any beside those two, but the subsequent visit of Clark and Atkinson on Saturday morning to the bank, and their drawing out the money, to be followed almost immediately by Clark’s departure for Windsor, caused certain inferences to be drawn, too obvious to mention.” The article then stated that, “ On withdrawing his money, $9867, from the bank, Clark passed part of it to Atkinson, which, on arriving at the head of the stairs, leading to Atkinson’s office, was, Atkinson stated, passed back to Clark.” This last phrase, “ Atkinson stated,” is averred to mean that Atkinson retained a part of the money, and at the close of tbe article is a further statement, with similar averment of' its reference to Atkinson, that “ some one has in the neighborhood of $500, which is, as yet, not present or accounted for.” In the narrative of the proceedings of Atkinson and the creditors on Saturday reference is made to the concealment from Atkinson by the creditors of their knowledge of Clark’s movements in Canada, as reported to them by Captain Sogers, the chief of police, who happened to be in his company, and also to certain matters connected with the' Gfillett & Hall check, concerning which it was intimated that Atkinson made false suggestions as to his own course in saving Gillett & Hall from responsibility. There are also further descriptions of Atkinson’s statements concerning the amount and whereabouts of the money drawn, and a reference to information derived from Clark by Lasier and McDonald, as to his communications with Atkinson and his transmission of the money to Atkinson, with further intimations, as drawn from the language directly, or implied by averment, that Atkinson made false statements to the creditors concerning this money, and concerning his authority. There is then a passage stating that Clark when found by Lasier and McDonald “ showed his lack of confidence in his home representatives by offering to telegraph and have a detective shadow the man who had his creditors’ money, until they could get hack to Detroit.” This is averred to refer to Atkinson, as also a further statement that Clark “finally consented to return to Detroit, and endeavor to regain possession of his, or rather, his creditors’ money.” In describing the subsequent occurrences in Detroit when Lasier & McDonald visited Atkinson, it is said that Clark informed them, that McNeil said he had given the whole money to Atkinson, but that Atkinson claimed it was $500 short, and this is averred to mean that Atkinson claimed he received so much less than he really did. It is subsequently stated that Clark’s brother was informed when he reached Detroit by three persons named T. P. Hall, Alexander Lewis and John G. Erwin, that the credit ors were unwilling to trust Atkinson, and they thought a speedy settlement could be made if Clark could be got out from his influence. This is connected with an allegation that it meant to indicate that Atkinson was unworthy of credit in his profession. This was followed by a reference to-the final settlement, when Atkinson is averred to have rendered an account of which it is said “ a copy of its most important items is appended.” This reference gives special attention to an item italicised as for “previous ” services, which is alleged to mean that the charge was false and discreditable. It then is followed by a series of calculations including similar intimations as to charges-for services, and ending with the remark previously mentioned that “ some one has in the neighborhood of $500, which is, as yet, not present or accounted for.” This is alleged as “meaning-that plaintiff, in his employment as aforesaid, has dishonestly failed to account to his client for $500 entrusted to him.” There are two counts in the declaration, but for present purposes I need not refer to them at large. The defendant put in the general issue, with a general justification. The effect of the various statements claimed to be libellous was to charge Atkinson with giving dishonest and unprofessional advice, with making false statements in 'professional dealings, with incurring loss of confidence by misconduct, with embezzling moneys, and with making false charges for services, and extorting excessive compensation. All of these are in the declaration alleged as appearing in the libel, and intended to be conveyed by it. "When no defence is put in except the general issue, the language of a libel may be shown to fairly bear a mitigated sense. But when a libel is justified generally the doctrine is well settled that so far as the justification is concerned, it is justified as applied or explained by the innuendoes, and therefore there is no justification made out by the evidence unless the facts are proven true as alleged in the declaration, and with the meaning there averred, unless with the aid of the colloquium such meaning is repugnant. Townshend on Libel and Slander §§ 212, 214, 215, 357, and notes; Bissell v. Cornell 24 Wend. 354; Fidler v. Delavan 20 Wend. 57; Tillotson v. Cheetham 3 Johns. 56; Gage v. Robinson 12 Ohio 250 ; Helsham v. Blackwood 5 E. L. & Eq. 409; Lewis v. Clement 3 B. & Ald. 702: 3 Br. & B. 297; Lake v. King 1 Wms. Saund. 130 and notes; 1 Chit. Pl. 433; Weiss v. Whittemore 28 Mich. 366; Cresinger v. Reed 25 Mich. 450; Bailey v. Kalamazoo Pub. Co. 40 Mich. 251. Unless every material item of defamation is established the plaintiff must recover his damages for so much ’ as is not fully justified. The truth of one part cannot deprive him of his action for that which is not shown to be true. It has not been suggested in this ease that any of the averments of the defamatory meaning of parts of the libellous article are repugnant or not maintained by the article itself as read in the light of the other averments. As to such statements as refer to hearsay, or are claimed to be capable of a double sense, the averment of their offensivé meaning makes them libellous if justified. Giving defamatory statements as coming from other persons does not deprive them of their defamatory character. Burt v. McBain 29 Mich. 260. A considerable number of the errors assigned are supposed to depend on these principles. Others relate to the reception or rejection of testimony. While the record is long, the questions • presented may be to some extent dealt with so as to avoid the necessity of great repetition. So far as the objections refer to the admission of testimony, they are chiefly based on the ground, which is undoubtedly correct as far as it may be applicable, that nothing was properly at issue that- had not some tendency to show the charges against Atkinson himself, well or ill founded in fact, or else credibly represented to be so, and published in that belief. How far the matters affecting hito personally can be separated from the rest is therefore one of the questions of some difficulty in the case. The record is free from some complications that have caused difficulty in other causes. While the good faith and probable cause of belief of the managers of the defendant, corporation appear to be involved here as they are in most similar cases, there is no controversy concerning the deliberate and intentional character of the publication, and therefore no dispute as to the persons responsible. The repetition in the supplementary article, and the knowledge and approval by the managing editor, remove any such question from the issues. Neither is the article connected with any matter concerning which it could be regarded as privileged.. It does not relate to facts which could be lawfully published except as true. The first class of objections to evidence included some-extended narrations of Clark’s dealings on the fifth day of' April. There is nothing in the libel either in direct language or as made out by averments or innuendoes, which, charges Atkinson with any complicity in these dealings. A general notice of justification must undoubtedly be construed as covering all the ground which could be covered by special pleas. But no plea would be proper which attempted to-prove by way of justification facts not charged against the-plaintiff. If Clark had been plaintiff, the testimony of his-dealings on the 5th would be very material. The admission of this could only be pertinent to create a belief that there-was some dishonesty which bore upon the plaintiff. It. could hardly fail to prejudice him by coloring the whole case with matter to which he was a stranger. The libel begins his connection with Clark after the close of business-on the 5th, or in the morning of the next day. It was not disputed that it might be shown what was the condition of' his bank credits and checks out at that time, and who held them. But the details of his business dealings which led to-that condition of things could have no legitimate bearing on anything alleged against Col. Atkinson, and the justification cannot go beyond the charges. A second class of testimony objected to is the statements- and conversations of Clark with and to various other persons, while in Canada, including McNeil, McDonald and Lasier. The court allowed all of the conversations to be shown.. And the reason given is found in what was said by the judge when McNeil was sworn, although similar rulings had been made before during the examination of McDonald and Lasier. "When McNeil was inquired of concerning the transaction between him and Clark, the court used this language : “ The claim in the article is, as I understand it, that McNeil and Atkinson and Clark were all together in this matter, and I think myself that what any one of' them did, •or any two of them did, would bind Col. Atkinson. It was -a part of the res gesta as I look at it. And it is a part of the article, I believe; it has been so stated.” Here the ■counsel for defendant was proceeding to show the court was mistaken as to the tenor of the article, when he was interrupted by the court, who proceeded as follows: “ As far as ■there is anything in the case at all — and of course it is a ■question for the jury — the testimony shows that McNeil and Atkinson and Clark met together, and that McNeil and Atkinson and Clark were together in the matter, and the .article, perhaps, substantially charges they were all together in the transactions; and I think you have a right to show [what] the conversations and transactions of the parties were ■at the time, to show what the real transaction was.” On further objection that it was not shown in any way that Atkinson had any knowledge of the conversations, the court nevertheless ruled that all the testimony might be let in. In a part of this ruling the court seems to have held, and the admission of testimony from McDonald and Lasier evi■dently could only be explained on this theory, that the fact that the article charged complicity between all three of thesp parties made the statements of any of them admissible. If all three had joined in this libel suit, there might be some difficulty in drawing lines very closely. But this suit is brought by Atkinson for libellous allegations against himself .alone, and hearsay evidence is no more admissible against him in this than in any other case. If charged as a conspirator, the charge cannot be assumed as true until proven, ■and it certainly is not competent to prove a conspiracy by •the declarations of a portion of the persons alleged to have conspired. The conspiracy and its extent must be definitely and positively proved by legal evidence, before court and jury can give heed to any act or statement of persons not parties to the suit as to particular acts done under it. In this class of cases it is not permissible — on any theory of the order of proof — to allow hearsay that has not already been shown to be within some rule of agency. If, when the evidence is offered, there is not already in the case enough to show the agency, the admissions and statements of the supposed agent must be lcept out. Agency or conspiracy is the first thing to be shown. The evidence was not admitted on the ground that the order of proof was discretionary, but on broader and absolute grounds. The question therefore arises in a double aspect: First, whether there was any charge in the libel which was justified on any such basis • and second, whether any such conspiracy had been shown by legal evidence, on which it would have been competent for the jury to have found it. The principal if not the only questions raised here do not relate to the transactions while Clark was in Detroit, but to the transmission and reception of the money from Canada and dealings subsequent thereto, or to Clark’s departure from Detroit on April 6th. It is very plain that evidence of an agreement or combination, even for an unlawful purpose, has no tendency to prove such agreement for other purposes, and that where a conspiracy for wrong purposes is clearly proved, there is no responsibility for mutual conduct between the scope of that agreement. This is sufficiently explained in People v. Knapp 26 Mich. 112. Our attention has not been called to anything which indicates a charge in the libel that Atkinson was in any way implicated in any arrangement for the return of the money from Canada, or to any suggestion that when Clark left Detroit any such return was thought of. Nor is it pointed out in the argument in what way that return was calculated or intended to injure any one. The possession of the money by Atkinson prior to the last meeting of creditors on the 6th, and the purpose for which he held it, did become material in view of otlier allegations concerning bis statements and course at that meeting. "But it does not appear that he was accused of any conspiracy to get it back into his-hands, or that it was returned in furtherance of any such conspiracy. In regarding the proof, therefore, we must not confound the testimony as to the fact of its return with that-which is hearsay. So far as McNeil’s testimony is concerned, it contains no statements of any consequence by Clark as to any act or declaration of Atkinson, and except for the ruling of the court that all were bound by each other’s acts, it would not. be very important. So far as it explains the purpose and conditions on which the money was put in McNeil’s hands, it had no tendency to prejudice Atkinson, and being uncontradicted has a strong bearing in his favor, as it shows no authority whatever for giving him the money, and indicates-that it was only given him as a safe custodian. But in regard to McDonald and Lasier the case is different. Both were allowed to give their impressions, although neither was positive on the subject, that Clark said he-directed the money to be put into the hands of Atkinson.. This, taken in connection with his other statements in regard to his fears about the money, and distrust of its safety, must-necessarily, in view of the ruling concerning joint liability,, have operated to Atkinson’s prejudice. Aside from these statements, there is nothing in the record tending to show that Clark was in any way concerned with Atkinson’s obtaining possession of the money. And leaving out these statements, the testimony introduced by the defendant and not-explained by any opposing proofs, tends to show that Atkinson did not receive the money for Clark himself or subject-to his disposal, but as the property of Mrs. Clark, to whom he gave vouchers for it. Some of these statements and suspicions, if they referred to Atkinson at all, upon which it will be necessary to dwell a moment hereafter, were made for a hostile purpose and in concert of action with the creditors. Upon what theory such declarations could be regarded as res gestee in a con spiracy with Atkinson it is impossible to imagine. It is quite evident that the court below deemed it desirable to have all the transactions of Clark explained, as connected with the libel, on the same basis as if Clark himself were plaintiff. But I do, not think this identity of interest is within any proper theory of the case. In this connection it is proper to refer to testimony not merely in reference to the statements in the libel as to-Clark’s lack of confidence in his agents, but also as to the opinions of the creditors. No doctrine is better settled than that a person has no more right to put in circulation the opinions; or statements of other persons concerning private character than he has to publish Ms own. When such publication is made it cannot be justified by the proof that such views were expressed or entertained. Every justification must stand on facts and not on opiMons or hearsay. Any inferences warranted by evidence may be drawn by the jury, and of course may be pressed on their attention, but no man’s character can lawfully be assailed, and the object of every plea of justification is to directly assail it, by proof that other men do not have confidence in him, or speak evil of him. Burt v. McBain 29 Mich. 260; Fowler v. Gilbert 38 Mich. 292; Watkin v. Hall L. R. 3 Q. B. 396; M'Pherson v. Daniels 10 B. & C. 263; Townshend on Libel and Slander §211. . For similar reasons evidence of the conduct of the creditors among themselves, and not in Atkinson’s presence, and not commumcated to or acted on by him, can in no proper sense be treated as part of the res gestae to his prejudice. It is only his dealings that are in issue in this cause, and except as he is shown to have been in connection with others., their acts and sayings are outside of the controversy. I think, subject to such exceptions as would exclude hearsay evidence, and matters otherwise irrelevant, that it was not improper to allow testimony of the whole course of negotiation and correspondence which resulted in a settlement. It was substantially one train of transactions begun by Atkinson and completed by Charles F. Clark, and Atkin son was more or less connected with the business until he turned over the funds and rendered his accounts. The terms of the settlement itself and whether it was complied with by Clark were not relevant. I also think it was proper to allow Mr. Quinby and the others connected with the publication to show the circumstances which induced them to publish it. These matters bore upon the motives of the publishers, and, while no complete justification, would be properly open to consideration on the question of damages, if not justified by other proofs. I see no good reason for rejecting- proof of the value of Atkinson’s legal services. Overcharging under peculiar circumstances was one of the most offensive suggestions of the libel. And a portion of the testimony excluded seems to have been relevant to the fact of garnishee proceedings as having once been had against Clark. The charge of the court throughout disregarded the rule that a justification cannot be made out without proof that the plaintiff was guilty of the acts charged against him in the sense averred in the declaration. As this error pervades the entire charge, it is not necessary to refer specifically to the various instances in which particular portions were referred to specially and either declared not libellous or left to the jury to interpret. The case was left to the jury with such instructions as would have authorized them to find, as they did find, a complete justification. This could only have been done by allowing weight to facts not proven by any legal evidence, and probably in accordance with the theories before referred to. But a plea of justification is an affirmative charge, to be made out by proof as strictly as if the defendant were a plaintiff seeking to enforce a liability. The libel itself is no proof, and no help to proof. Upon some very important charges there was no proof whatever, and upon some the defendant’s testimony exculpated the plaintiff directly. There was no proof tending to show that Atkinson had any money not accounted for. There was none that he and Clark had any difference in regard to the funds, or that he had done anything with- them not authorized. IJpon other points the testimony was more or less subject to the infirmities before referred to. The result of the trial and the size of the record indicate that whatever may be the facts upon the issues properly in the case, it has been tried upon, other facts and different issues to a sufficient extent to render it impossible to sustain the verdict. The judgment should be reversed with costs, and a new trial ordered. Graves,. J. It is my opinion that the declaration discloses a cause of action and that the record contains evidence tending to support it, and sufficient to warrant consideration by a jury. In regard to the ruling and proceedings relating to •the objections against the conversations in Canada between Clark and McDonald and Lasier I agree with Mr. Justice Campbell, and I agree that a new trial is unavoidable. Concerning the other topics brought under discussion I reserve my opinion. Marston, C. J. concurred.

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Cooley, J. TMs is an equity case heard on pleadings and facts stipulated. The facts are as follows : By an act approved March 15,1861, the Legislature of the State granted to the defendant 25,000 acres of State swamp lands to aid the defendant in erecting buildings for its use. The lands were to be selected by defendant and conveyed to-it, but the act contained a proviso “ That if said seminary shall fail to erect bmldin-gs, in pursuance of the terms of the lease- or grant made by the city of Detroit of land to said seminary, and witMn the time therein mentioned, said seminary shall in such event forfeit the swamp land, by this act granted, to-the State of Michigan, and the same shall absolutely and forever revert to the State, against all and every person claiming to hold the same or any part thereof, and the patent or deed issued by the State of said lands shall state in substance this proviso of forfeiture.” Laws 1861 p. 283. By an amendatory act passed in 1863 this proviso was changed so-as to read as follows: “ That before the issuing of the patents- or conveyance, the trustees of said seminary shall deposit with the State treasurer a .bond to the people of this State, with sufficient security, to be approved by the State treasurer, in the sum of twenty-five thousand dollars conditioned that the net proceeds of the sales of said lands shall be faithfully and forever applied to the purposes contemplated in this-grant.” Laws 1863 p. 59. The bond provided for by this act was given by defendant, and complainants became the sureties therein. The lands granted were duly selected, patented to and the most of them sold by defendant, and thé sum of $16,205.34 real ized therefrom. In April, 1861, while defendant was without buildings for its use, it was consolidated with the German-English school of Detroit, and received therefrom a •school building and lot of the value of ten thousand dollars, to which defendant three years later made additions at a cost •of ten thousand dollars, and since that time has expended in repairs and improvements the sum of five thousand five hundred dollars. Of the sums realized from the sale of -swamp lands defendant has expended $2123.96 for buildings and repairs, $3726,53 for taxes, insurance and legal ■ expenses, and $6954.85 for stationery, books, school utensils •and teachers’ salaries, and claims a right to expend any sum .so received for the current expenses of its school. The bill, to protect complainants against liability as sureties on the bond so given to the State, prays for an accounting by defendant of the moneys received from sales of said ■ swamp lands, and that defendant may be enjoined from making use of any of such moneys for any purpose whatsoever except for the purpose of aiding the defendant to erect-buildings for its use and occupancy. It is admitted by the stipulation that the school buildings ■of defendant are now in a good state of repair, and as large .as the wants of the school require. On these facts the court of chancery granted decree in favor of complainants as prayed. It is objected to this decree that, on the theory of the bill, the swamp lands were conveyed to the defendant in trust, .and the bill seeks to compel the execution of the trust. But the conveyance of the land to defendant was for its own benefit, so that if the conveyance was charged with a trust ■defendant was both cestui que trust and trustee, which is impossible. Bolles v. State Trust Co. 27 N. J. Eq. 308. In ■such a case, it is said, if the fund donated is not applied according to the directions of the donor, there can be no redress, for the donor, by making absolute conveyance to the beneficiary, has trusted wholly to his good faith and ¡sense of duty. See Emigrant Co. v. Adams County 100 U. S. 61, 69. Tbe bill, however, does not proceed on the theory of a trust. Its theory is that the donor in making a gift for a specific purpose has required the donee to give security against misappropriation, and the complainants, as the donee’s sureties, are entitled to the protection of equity. There is an implied agreement between them and the defendant that the moneys shall be faithfully applied according to the intent of the gift, and a misappropriation would be a species of fraud. Nor is it any answer to say that the State, having ■conveyed absolutely, cannot possibly be damnified and therefore cannot in any event recover on its bond. The State, as ■donor, in releasing the condition of forfeiture contained in the act of 1861, had an interest amply sufficient to support the bond, and the bond was intended to accomplish the same purpose which the provision of forfeiture had in view. This was, to restore the property, or an equivalent, to the State in case of attempted misappropriation. The vital question in the case, however, is whether any misappropriation, actual or threatened, is shown. The question must be solved on a consideration of the purpose of the grant, and the use which has been or is proposed to be made ■of the proceeds. The general purpose of the grant is made very plain by the statute. It was to aid a private educational institution to accomplish the object for which it was ■established. That object was to give instruction to those who should apply for it. To do this it must have buildings, means of illustration and teachers, and to obtain these it must have money. The State deemed it wise to provide that the moneys to be realized from its donations should be applied, not in the payment of teachers’ wages, or for current expenses, but to the procuring of necessary buildings. If under any and every conceivable circumstances the ap]3li•cation must be made according to the very terms of the grant, the agreed facts show that the corporation is already in default for some of them have been used otherwise. The general rule undoubtedly is, that public grants are to be construed strictly as against the grantees. United States v. Arredondo 6 Pet. 691; Charles River Bridge v. Warren Bridge 11 Pet. 544; Martin v. Waddell 16 Pet. 367; Dubuque etc. R. R. Co. v. Litchfield 23 How. 66; Baltimore v. Railroad Co. 21 Md. 50; Bradley v. Railroad Co. 21 Conn. 294; Richmond v. Railroad Co. 21 Grat. 614; DeLancey v. Ins. Co. 52 N. H. 581; La Plaisance Bay Harbor Co. v. Monroe Walk. Ch. 155 ; Pennsylvania R. R. Co. v. Canal Com'rs 21 Penn. St. 22. The grantee shall take nothing which is not plainly granted, and as is said in the case last cited, “ every resolution which springs from doubt is against ” him. But there is no question in this case in respect to the grant; its terms are clear and precise and its extent undisputed; the controversy arises upon the terms of a restraint imposed by the grant, and which is in the nature of a condition subsequent, and tends to a defeat of the grant by way of forfeiture. If the grant is to be construed strictly as against the grantees, the condition is to be construed strictly against the State; and the State is entitled to enforce it only when a forfeiture would be fairly within the intent of the act whereby the grant was made. The purpose of construction is to give effect to an instrument; not to defeat it: Rice v. Railroad Co. 1 Black 358; People v. Burns 5 Mich. 114; Tabor v. Cook 15 Mich. 322; and in a public grant especially, more than in any other, we should expect to find provisions looking to the- permanent enjoyment of the right or property granted as against mere technical breaches of contract or condition on the part of the grantee, not tending to defeat the general purpose. The general intent of the grant, as has been said, was to aid the incorporation in accomplishing its objects, but the funds realized must be expended in buildings. Buildings ■would be permanent and could not be wasted, and by requiring their construction, the State would guard as far as was practicable against its bounty being lost. But suppose the corporators when the lands were received had deemed it wise to withhold them from market for a term of years in anticipation of a rise in value consequent upon the improvement of the State, and by the donations of themselves and their friends, had procured all necessary buildings; would they thereby have lost the benefit of the grant and entitled the State to demand a reconveyance % This, as we think, is in substance the question now before us. A liberal, and technical construction of the grant would require the very moneys realized from the lands to be applied to the purchase or erection of buildings. But the view consonant with the generosity which prompted the donation looks beyond the technicality, and finds the purpose substantially accomplished if the grant has enabled the donee to procure buildings for its purposes, whether exactly in the method contemplated or otherwise. If buildings were procured of a value equal to the fund donated, the condition of the grant would be kept in spirit, and it would be beneath the dignity of the State to raise technical objections and demand a forfeiture based upon a failure in literal compliance under such circumstances. Sovereignties do not deal with the objects of their bounty in that spirit. In this case the grantee did not purchase or erect buildings, but it accomplished what was equivalent: it was enabled by consolidation with another organization formed for the same purpose to procure the buildings it needed. The value of these was equal to the grant, and it is conceded that they supply the corporate needs. The end, therefore, that was to be accomplished by the State grant, is now accomplished. Confessedly the defendant might still invest the State bounty in further buildings, but it has no need for them, and the fund would be wasted if made use of in that way. The State intended the fund should benefit the defendant, and we find nothing in the act which justifies us in saying that the State contemplated that under any circumstances the alternative would be presented to the defendant of either wasting -the grant or restoring it. The restraint imposed by the grant was meant_to prevent waste; not to invite or .encourage it. It may be said that if the money is not needed for buildings now, it is the duty of the defendant to keep it for that purpose until the time when it shall be needed. But if the statute had contemplated the erection of buildings at some indefinite time in the future after those first erected or obtained had gone to decay or been destroyed, it would have contained quite different provisions. It is entirely safe to say the State would not have accepted personal obligations as security for the application of the moneys at a distant and indefinite time when all the sureties would be likely to have passed away. The conclusion is that the fears of the complainants are groundless, and their bill should be dismissed. We are inclined to think, however, there should be no costs awarded. The other Justices concurred.

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Bandstra, J. Defendant appeals as of right his jury trial conviction of assault with intent to do great bodily harm less than murder, MCL 750.84. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 47 months to 15 years in prison. We affirm in part, reverse in part, and remand for resentencing. Defendant first argues that the prosecution failed to present sufficient evidence to sustain his conviction. Specifically, defendant contends that the prosecution failed to refute his claim of self-defense. We disagree. We review de novo challenges to the sufficiency of the evidence in a criminal trial to determine whether, when viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found all of the elements of the charged crime to have been proven beyond a reasonable doubt. People v Bowman, 254 Mich App 142, 151; 656 NW2d 835 (2002). Defendant argues that he honestly and reasonably believed that his life was in danger. It is well-settled that “ ‘[t]he killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.’ ” People v Fortson, 202 Mich App 13, 19-20; 507 NW2d 763 (1993), quoting People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). “Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt.” Fortson, supra at 20. Here, there was evidence presented that when defendant opened the door to a storage closet in the basement, the victim lunged at defendant and hit him on top of the head. However, there was also evidence presented that defendant secured the victim in a headlock, dragged him upstairs, and was able to call 911 twice while still restraining the victim. Although there was evidence presented that the victim was able to break away from defendant at one point (i.e., there was arguably a perceived threat), defendant punched the victim twice, causing the victim to fall to the floor. Indeed, there was evidence presented that the victim remained immobilized in the fetal position when defendant began to stomp his face and chest; therefore, any perceived threat was no longer imminent. Two witnesses testified that defendant stomped the victim several times and that the victim did not attempt to fight defendant. One of the witnesses also testified that the victim did not possess a weapon at the time of the incident. Additionally, defendant weighed nearly 100 pounds more than the victim. The evidence, when viewed in a light most favorable to the prosecution, was sufficient for the jury to find that defendant did not have an honest and reasonable belief that he was in imminent danger or that the victim posed a threat of serious bodily harm. Therefore, defendant is not entitled to relief on this issue. Defendant next argues that the trial court erroneously scored prior record variable (PRV) 5 and offense variable (OV) 7. “A sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score.” People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). Further, “ ‘scoring decisions for which there is any evidence in support will be upheld.’ ” Id. (citation omitted). “This Court shall affirm sentences within the guidelines range absent an error in scoring the sentencing guidelines or inaccurate information relied on in determining the defendant’s sentence.” People v Leversee, 243 Mich App 337, 348; 622 NW2d 325 (2000); MCL 769.34(10). We find that the trial court abused its discretion in assessing two points for PRV 5, where defendant did not have a prior misdemeanor conviction: MCL 777.55(1)(e). The record indicates that defendant was previously charged with possession of marijuana and sought deferred sentencing under MCL 333.7411(1), which provides that “[w]hen an individual who has not previously been convicted of [a controlled substance offense] pleads guilty to . . . [certain controlled substance offenses], the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation .... Upon fulfillment of the terms and conditions [of probation], the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and ... is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime .. . .” Defendant pleaded guilty of possession of marijuana under MCL 333.7411(1), had to serve two years of probation, and subsequently fulfilled the terms and conditions of his probation. Defendant argues that because he was discharged and the proceedings were dismissed upon fulfillment of the terms and conditions of his probation, he did not have a conviction for which the trial court could assess points under PRV 5. We agree. We review de novo questions of statutory construction. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999). In doing so, our purpose is to discern and give effect to the intent of the Legislature. Id. at 329-330. “We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written. ... We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature’s intent.” Id. at 330. The Michigan Sentencing Guidelines Manual (2003), p 7, defines “conviction” as “an adjudication of guilt in a criminal matter.” MCL 333.7411(1) specifically states that the discharge and dismissal procedure that it authorizes is “without adjudication of guilt” and “is not a conviction for purposes of... disabilities imposed by law upon conviction of a crime ...Thus, defendant’s misdemeanor guilty plea cannot be used to enhance his sentence in this case. To do so would be to impose a “disability]” against him upon his conviction of this offense. Under the plain language of the statute, defendant did not have a prior misdemeanor conviction, and the trial court abused its discretion in assessing two points for PRV 5 under MCL 777.55(1)(e). Because the evidence did not support a score of two points for PRV 5, the trial court’s scoring decision was error, and defendant is entitled to resentencing on this basis. We find that the trial court did not abuse its discretion in assessing 50 points for OV 7, concerning aggravated physical abuse, where the victim was “treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety... suffered during the offense.” MCL 777.37(1)(a). “Sadism” is defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3). Here, the record indicates that defendant repeatedly stomped the victim’s face and chest after the victim was lying unconscious on the ground. Additionally, the victim was deprived of oxygen for a period of four to six minutes, causing him to have anoxic encephalopathy, i.e., significant brain damage from lack of oxygen, and currently remains comatose with little or no chance of ever regaining consciousness. Defendant treated the victim with sadism, torture, excessive brutality, and conduct designed to substantially increase the fear and anxiety the victim suffered during the offense. Because the evidence supports a score of 50 points for OV 7, we find no error in the trial court’s scoring decision, and defendant is not entitled to relief on this basis. Finally, defendant argues that his sentence was imposed in violation of the United States Supreme Court decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). However, our Supreme Court and this Court have concluded that Blakely does not apply to sentences imposed in Michigan. People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004); People v Wilson, 265 Mich App 386, 399; 695 NW2d 351 (2005). We affirm in part, reverse in part, and remand for resentencing. We do not retain jurisdiction. We acknowledge the contrary holding of the United States Court of Appeals for the Sixth Circuit in United States v Hawkins, 969 F2d 169, 173 (CA 6, 1992). However, we are not bound to follow, decisions of federal courts of appeals, Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004), and we find the Sixth Circuit’s analysis unconvincing.

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Per Curiam. In these consolidated cases, appellants Michigan Electric Cooperative Association (MECA), Michigan Electric & Gas Association (MEGA), Consumers Energy Company, and The Detroit Edison Company claim appeals from orders entered on November 25, 2003, and January 29, 2004, by appellee Michigan Public Service Commission (PSC) adopting and approving administrative rules governing service quality and reliability standards for electric distribution systems and authorizing automatic penalties for the failure to meet those standards. We affirm in each case. I. UNDERLYING FACTS AND PROCEEDINGS On January 3, 2000, the PSC directed its staff to review methods designed to improve the reliability of service rendered to Michigan’s electric power customers by regulated electric utilities and to propose performance standards for those utilities. The matter was docketed as Case No. U-12270 and was initiated as a nonrulemaking proceeding. On June 5, 2000, while Case No. U-12270 was pending, 2000 PA 141, the Customer Choice and Electricity Reliability Act (CCERA), MCL 460.10 et seq., became effective. The Legislature enacted the CCERA as part of its decision to deregulate the electric utility industry in Michigan. Attorney General v Pub Service Comm, 249 Mich App 424, 426; 642 NW2d 691 (2002). The stated purposes of the CCERA included: (a) ensuring that retail electric power customers have a choice of electric suppliers, (b) allowing the PSC to foster competition in the provision of electric supply and to maintain regulation of that supply, (c) encouraging the diversification of ownership of electric supply, (d) ensuring that all the people in Michigan are provided reliable electric power at reasonable rates, and (e) improving opportunities for economic development in the state and promoting competitive and financially healthy utilities. MCL 460.10(2). The CCERA required the PSC to establish service quality and reliability standards for electric transmission and distribution systems of regulated utilities. MCL 460.10p(5) provides: The commission shall adopt generally applicable service quality and reliability standards for the transmission and distribution systems of electric utilities and other entities subject to its jurisdiction, including, but not limited to, standards for service outages, distribution facility upgrades, repairs and maintenance, telephone service, billing service, operational reliability, and public and worker safety. In setting service quality and reliability standards, the commission shall consider safety, costs, local geography and weather, applicable codes, national electric industry practices, sound engineering judgment, and experience. The commission shall also include provisions to upgrade the service quality of distribution circuits that historically have experienced significantly below-average performance in relationship to similar distribution circuits. In addition, the CCERA authorized the PSC to penalize a utility’s failure to comply with performance standards established pursuant to MCL 460.10p(5). MCL 460.10p(8) provides: The commission shall be authorized to levy financial incentives and penalties upon any jurisdictional entity which exceeds or fails to meet the service quality and reliability standards. In light of the enactment of the CCERA, the PSC concluded that implementation of performance standards by way of the rulemaking process provided in the Administrative Procedures Act, MCL 24.201 et seq., was necessary and submitted a request for rulemaking along with the required Regulatory Impact Statement (RIS) to the Office of Regulatory Reform (ORR). MCL 24.239(2), 24.245(3). The ORR approved the request, and the PSC initiated a formal rulemaking proceeding. The PSC’s proposed rules included provisions for the automatic imposition of penalties for a utility’s failure to meet the performance standards. The automatic penalty provision rules provide: R 460.744 Penalty for failure to restore service after an interruption due to catastrophic conditions. Rule 44. Unless an electric utility requests a waiver pursuant to part 5 of these rules, an electric utility that fails to restore service to a customer within 120 hours after an interruption that occurred during the course of catastrophic conditions shall provide to any affected customer that notifies the utility of the interruption with a bill credit on the customer’s next bill. The amount of the credit provided to the residential customer shall be the greater of $25.00 or the customer’s monthly customer charge. The amount of the credit provided to any other distribution customer shall be the customer’s minimum bill prorated on a daily basis. R 460.745 Penalty for failure to restore service during normal conditions. Rule 45. Unless an electric utility requests a waiver pursuant to part 5 of these rules, an electric utility that fails to restore service to a customer within 16 hours after an interruption that occurred during normal conditions shall provide to any affected customer that notifies the utility of the interruption a bill credit on the customer’s next bill. The amount of the credit provided to a residential customer shall be the greater of $25.00 or the customer’s monthly customer charge. The amount of the credit provided to any other distribution customer shall be the customer’s minimum bill prorated on a daily basis. R 460.746 Penalty for repetitive interruptions of the same circuit. Rule 46. (1) Unless an electric utility requests a waiver pursuant to part 5 of these rules, a customer of an electric utility that experiences and notifies the utility of more than 7 interruptions in a 12-month period due to a same-circuit repetitive interruption shall be entitled to a billing credit on the customer’s next bill. The amount of the credit provided to a residential customer shall be the greater of $25.00 or the customer’s monthly customer charge. The amount of the credit provided to any other distribution customer shall be the customer’s minimum bill prorated on a daily basis. (2) Following provision of the billing credit to a customer experiencing more than 7 interruptions in a 12-month period due to a same-circuit repetitive interruption, the electric utility’s interruption counter shall be reset to zero to ensure that another credit to the customer will be processed only after the occurrence of another 8 interruptions in a 12-month period. In an order entered on November 25, 2003, the PSC approved administrative rules governing service quality and reliability standards for electric utilities. The PSC rejected appellants’ contentions that it lacked the statutory authority to impose automatic penalties and that automatic penalties were arbitrary and capricious, observing that the rules allowed a utility to seek a waiver of a penalty and entitled a utility to request a hearing before placing a credit on a customer’s bill. Appellants filed a claim of appeal from the PSC’s November 25, 2003, order (Docket No. 252949). Subsequently, on January 29, 2004, the PSC entered an order formally adopting the rules. Thereafter, appellants filed a claim of appeal from the PSC’s January 29, 2004, order (Docket No. 253899). We consolidated the appeals for purposes of hearing and decision. II. STANDARD OF REVIEW The standard of review for PSC orders is narrow and well-defined. Pursuant to MCL 462.25, all rates, fares, charges, classification, and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co v Pub Service Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, the appellant must show that the PSC failed to follow a mandatory statute or abused its discretion in the exercise of its judgment. In re MCI Telecom, 460 Mich 396, 427; 596 NW2d 164 (1999). An order is unreasonable if it is not supported by the evidence. Associated Truck Lines, Inc v Pub Service Comm, 377 Mich 259, 279; 140 NW2d 515 (1966). A final order of the PSC must be authorized by law and be supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Attorney General v Pub Service Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987). We give due deference to the PSC’s administrative expertise and will not substitute our judgment for that of the PSC. Attorney General v Pub Service Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999). We give great weight to any reasonable construction of a regulatory scheme that the PSC is empowered to administer, Champion’s Auto Ferry, Inc v Pub Service Comm, 231 Mich App 699, 708; 588 NW2d 153 (1998), but we may not abandon our responsibility to interpret statutory language and legislative intent, Miller Bros v Pub Service Comm, 180 Mich App 227, 232; 446 NW2d 640 (1989). We do not afford the same measure of deference to an agency’s initial interpretation of new legislation as we do to a longstanding interpretation. In re Procedure & Format for Filing Tariffs Under the Michigan Telecom Act, 210 Mich App 533, 538; 534 NW2d 194 (1995). Whether the PSC exceeded the scope of its authority is a question of law that we review de novo. In re Complaint of Pelland Against Ameritech Michigan, 254 Mich App 675, 682; 658 NW2d 849 (2003). The PSC possesses only that authority granted it by the Legislature. Authority must be granted by clear and unmistakable language. A doubtful power does not exist. Attorney General v Pub Service Comm, 231 Mich App 76, 78; 585 NW2d 310 (1998). Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998). The object of the rule is to give effect to the legislative purpose as found in the harmonious statutes. Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273, 280; 597 NW2d 235 (1999). If two statutes lend themselves to a construction that avoids conflict, that construction should control. House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993). III. ANALYSIS A. STATUTORY AUTHORITY Appellants argue that the PSC’s orders adopting and approving rules providing for automatic penalties are unlawful and unreasonable because the PSC lacks the statutory authority to impose automatic penalties for a utility’s failure to meet performance standards. MCL 460.10p(5) requires the PSC to adopt performance standards, and MCL 460.10p(8) authorizes the PSC to levy penalties on a utility that fails to meet those standards, but neither statute contains language authorizing the PSC to impose automatic penalties for violations of those standards. Appellants contend that MCL 460.10p(8) must be read in conjunction with MCL 460.10c(1), which applies to all sections of the CCERA and provides: Except for a violation under section 10a(3) and as otherwise provided under this section, upon a complaint or on the commission’s own motion, if the commission finds, after notice and hearing, that an electric utility or an alternative electric supplier has not complied with a provision or order issued under sections 10 through lObb, the commission shall order such remedies and penalties as necessary to make whole a customer or other person who has suffered damages as a result of the violation, including, but not limited to, 1 or more of the following: (a) Order the electric utility or alternative electric supplier to pay a fine for the first offense of not less than $1,000.00 or more than $20,000.00. For a second offense, the commission shall order the person to pay a fine of not less than $2,000.00 or more than $40,000.00. For a third and any subsequent offense, the commission shall order the person to pay a fine of not less than $5,000.00 or more than $50,000.00. (b) Order a refund to the customer of any excess charges. (c) Order any other remedies that would make whole a person harmed, including, but not limited to, payment of reasonable attorney fees. (d) Revoke the license of the alternative electric supplier if the commission finds a pattern of violations. (e) Issue cease and desist orders. Appellants maintain that the adoption of rules providing for the imposition of automatic penalties contradicts the legislative intent reflected in MCL 460.10c(1) that any penalty may be imposed only to make whole a customer who has suffered specific damages and only after notice to the utility and a hearing. We disagree. MCL 460.10p(5) requires the PSC to adopt performance standards applicable to all electric utilities. Appellants’ assertions that MCL 460.10p(8) does not authorize the PSC to impose automatic penalties for a utility’s failure to meet those standards, and that all penalties may be imposed only through the procedure set out in MCL 460.10c(1) are not supported by the plain language of MCL 460.10p(8). MCL 460.10p(8) explicitly authorizes the PSC to levy financial penalties on a utility that fails to meet performance standards. We cannot ignore the plain language of MCL 460.10p(8) authorizing penalties; to do so would render that portion the statute surplusage or nugatory. Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999). It is reasonable to conclude that by authorizing the imposition of penalties for a utility’s failure to comply with performance standards, without specifying that the penalties were intended to make whole those customers harmed by the failure, the Legislature did not intend to require that any specific harm be demonstrated before the imposition of the penalties. However, the language of MCL 460.10c(1) indicates that the imposition of penalties and remedies authorized by that subsection is to be done to make whole a customer damaged by a utility’s violation of any provision of the CCERA. That damage must be established in a hearing, and the penalties and remedies authorized, such as refunds of excess charges and payment of attorney fees, are determined by the nature of the damage established. MCL 460.10c(1) and 460.10p(8) relate to the same subject, i.e., the consequences of a utility’s failure to comply with a provision of the CCERA, but have different purposes. However, the statutes may be construed in a manner that avoids conflict, House Speaker, supra, and that gives effect to each without overreaching, absurdity, or unreasonableness. Livonia Hotel, LLC v Livonia, 259 Mich App 116, 131; 673 NW2d 763 (2003). The CCERA is relatively new legislation; nevertheless, the PSC’s conclusion that MCL 460.10p(8) authorizes the imposition of automatic penalties for a utility’s violation of performance standards notwithstanding the lack of specific harm to any particular customer, is plausible, and is entitled to some deference. Champion’s Auto Ferry, supra. Appellants have not demonstrated that the PSC exceeded its statutory authority by adopting rules that provide for the imposition of automatic penalties, and have not shown by clear and satisfactory evidence that the orders are unlawful or unreasonable. MCL 462.26(8). B. ARBITRARY AND CAPRICIOUS NATURE OF AUTOMATIC PENALTIES In determining the validity of an administrative rule, a court must consider: (1) whether the rule is within the subject matter of the enabling statute; (2) whether it complies with the legislative intent underlying the enabling statute; and (3) whether it is arbitrary or capricious. Dykstra v Dep’t of Natural Resources, 198 Mich App 482, 484; 499 NW2d 367 (1993). “A rule is arbitrary if it was ‘fixed or arrived at through an exercise of will or by caprice, or without consideration or adjustment with reference to principles, circumstances, or significance.’ ” Id. at 491, quoting Binsfield v Dep’t of Natural Resources, 173 Mich App 779, 786; 434 NW2d 245 (1988). A rule is capricious if it is apt to change suddenly, or is freakish or whimsical. If a rule is rationally related to the statute’s purpose, it is not arbitrary or capricious. Id. at 786, 787. Any doubt must be resolved in favor of the validity of a rule. Dykstra, supra at 491. Appellants argue that the PSC’s orders adopting rules providing for automatic penalties are unlawful because the automatic penalties are arbitrary and capricious. Appellants emphasize that when electric service is unavailable because of an outage, a customer effectively receives an automatic billing adjustment because the customer’s meter does not run until power is restored. Therefore, an additional credit is duplicative and unnecessary. Furthermore, penalties may be imposed even though the performance standards are met. The penalties, which are imposed as service credits granted to customers, have no relationship to the value of the electric service lost by the customer during an outage. MCL 460.10p(8) authorizes the PSC to levy financial penalties on a utility that does not meet the performance standards. The rules providing for automatic penalties for a utility’s failure to meet the performance standards are within the subject matter of and comply with the legislative intent underlying the enabling statute. Service credits required as penalties are not related to the actual value of the electric power lost by a customer during an outage, but this fact does not make the imposition of such penalties arbitrary and capricious. The intent of the legislation authorizing the imposition of financial penalties is to encourage a utility to take all reasonable measures to comply with the performance standards, and not to make customers whole. Furthermore, appellants correctly note that under certain circumstances financial penalties could be incurred by a utility that meets a particular performance standard; however, that utility is free to seek a waiver in the event those circumstances materialize. R 460.751. Appellants have not demonstrated that the rules providing for automatic penalties are arbitrary or capricious. Dykstra, supra. Appellants have not shown that the PSC’s orders adopting the rules are unlawful or unreasonable. MCL 462.26(8). C. SUFFICIENCY OF EVIDENCE FOR INCLUSION OF AUTOMATIC PENALTIES Appellants argue that the PSC’s orders adopting rules providing for automatic penalties are unlawful because the PSC did not consider “safety, costs, local geography and weather, applicable codes, national electric industry practices, sound engineering judgment, and experience” when formulating the performance standards, as required by MCL 460.10p(5). The PSC’s orders contain no findings on these factors. Furthermore, the PSC’s RIS, prepared as required by MCL 24.239, erroneously stated that customers were dissatisfied with the quality of service being provided by appellants. The PSC had the discretion to adopt performance standards that did not include automatic penalties, and its decision not to adopt standards without automatic penalties was not supported by the requisite evidence. MCL 460.10p(5) does not require that the PSC make specific findings with regard to the various factors listed when formulating performance standards. Furthermore, appellants’ assertion that the PSC did not undertake consideration of the relevant factors listed in MCL 460.10p(5) is unsubstantiated. Appellants presented evidence to counter the PSC’s assertion that customers were dissatisfied with the quality of service they received, but the PSC approved rules imposing automatic penalties as an incentive to utilities to comply with the performance standards, and not as punishment for any perceived customer dissatisfaction. Appellants have not demonstrated that the PSC’s orders approving the rules are unlawful or unreasonable. MCL 462.26(8). D. DUE PROCESS No person may be deprived of property without due process of law. US Const, Am V; Const 1963, art 1, § 17. Before a person is deprived of property by administrative rule, that person must be afforded notice, an opportunity to be heard, and a written statement of findings. Bundo v Walled Lake, 395 Mich 679, 696-697; 238 NW2d 154 (1976). The Legislature cannot delegate its power to make a law; however, it can enact a law that delegates a power to determine a fact or status upon which the law makes, or intends to make, its own action depend. Such a statute must be sufficiently broad to permit efficient administration designed to carry out legislative policy, but not so broad as to leave an administrative body with uncontrolled and arbitrary power. The guiding principles in determining whether a statute provides sufficient standards for the exercise of administrative discretion are: (1) the provision in question should be read with reference to the act as a whole; (2) the standard should be as reasonably precise as the subject matter requires or permits; and (3) if possible, the statute must be construed in such a way as to render it valid rather than invalid, i.e., as conferring administrative, not legislative power, and as vesting discretionary, not arbitrary, authority. Dep’t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976). Appellants argue that the rules providing for automatic penalties are unconstitutional because they function to deprive a utility alleged to have violated the rules of property, i.e., funds in the form of credits granted to customers, without due process. MCL 460.10p(8) does not authorize the PSC to ignore the due process protections of notice and a hearing provided for in MCL 460.10c(1). Appellants assert that the PSC’s interpretation of MCL 460.10p(8) effectively allows it to assume legislative power to adopt new penalty provisions. A utility may seek a waiver of the automatic penalty provisions before the imposition of a penalty. The PSC hears a petition for a waiver as a contested case. R 460.752(1). A contested case affords a petitioner the right to an evidentiary hearing. MCL 24.203(3). In a contested case, the rules of evidence are followed to the extent practicable. MCL 24.275. A final decision in a contested case must be in writing or stated in the record and must contain findings of fact and conclusions of law. MCL 24.285. The rules that afford a utility the opportunity to seek a waiver of penalty provisions do not deprive the utility of due process. Bundo, supra. A central purpose of the CCERA is to ensure that customers are provided safe and reliable electric power. MCL 460.10(2)(d). The PSC’s adoption of performance standards, as authorized by MCL 460.10p(5), furthers that purpose, as does its adoption of rules providing for automatic penalties in the event a utility fails to meet those standards. The rules establishing the performance standards require that a utility maintain detailed records, and a utility’s failure to comply with the performance standards can be determined by examining those records. The imposition of automatic penalties is not left to the unfettered discretion of the PSC. The PSC’s enactment of rules providing for penalties is not an unconstitutional assumption of legislative power. Seaman, supra. The PSC’s interpretation and application of MCL 460.10p(8) is reasonable, and thus is entitled to deference. Champion’s Auto Ferry, supra. IV CONCLUSION The PSC orders adopting and approving rules providing for the imposition of automatic penalties for a utility’s failure to comply with performance standards are lawful and reasonable, comply with the legislative intent of the enabling statutes, and are supported by the requisite evidence. Affirmed. MECA represents the following customer-owned rural electric cooperatives in this action: Alger Delta Cooperative Electric Association, Cherryland Electric Cooperative, Cloverland Electric Cooperative, Great Lakes Energy Cooperative, HomeWorks Tri-County Electric Cooperative, Midwest Energy Cooperative, Ontonagon County Rural Electrification Association, Presque Isle Electric & Gas Cooperative, and Thumb Electric Cooperative. MEGA represents the following investor-owned electric utilities: American Electric Power Company, Alpena Power Company, Edison Sault Electric Company, Upper Peninsula Power Company, We Energies, Wisconsin Public Service Corporation, and Xcel Energy. “Service Quality and Reliability Standards for Electric Distribution Systems,” 1999 AC, R 460.701-460.752. The rules, commonly referred to as “performance standards,” are composed of five parts: (1) general provisions, (2) unacceptable levels of performance, (3) records and reports, (4) financial incentives and penalties, and (5) waivers and exceptions. Appellants’ challenge is limited to the automatic penalty provisions. 4 R 460.702(f) defined “catastrophic conditions” as severe weather conditions resulting in interruption of service to ten percent or more of a utility’s customers, or a state of emergency declared by local, state, or federal government officials. 5 R 460.702(r) defined “normal conditions” as “conditions other than catastrophic conditions.” 6 R 460.702(s) defined “same-circuit repetitive interruption” as “a grouping of more than 10 customers on a circuit who experience multiple interruptions under all conditions.” R 460.702(1) defined “interruption” as “the full or partial loss of service to 1 or more customers for longer than 5 minutes.” The duration of the interruption was to be measured from the time the utility was notified or otherwise became aware of the loss of service. The Legislative Services Bureau and the ORR approved the rules on December 18, 2003, and January 6, 2004, respectively. The Joint Com mittee on Administrative Rules had twenty-one days to object to the rules, MCL 24.245a(1), but filed no objections. As an example, appellants note that R 460.722(c) requires a utility to restore service within eight hours to not less than 90 percent of customers who have experienced an outage under normal conditions. However, under R 760.745, unless the utility seeks a waiver, it would be required to grant service credits equal to the greater of $25 or the customer’s monthly customer charge to any of the remaining customers who were without power for longer than 16 hours. A standard that does not satisfy the requirements of due process cannot be considered as reasonably precise as the subject matter requires or permits. See State Hwy Comm v Vanderkloot, 392 Mich 159, 169-178; 220 NW2d 416 (1974) (opinion by Williams, J.) R 460.731 through 460.734.

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Per Curiam. Defendants were charged in a two-count information with felony-murder during the commission of a rape, MCL 750.316; MSA 28.548, and premeditated murder, MCL 750.316; MSA 28.548. A jury returned a guilty verdict on June 13, 1977, but whether the verdict covered both counts or only felony-murder is one of several issues in this appeal. Both defendants received two life sentences and now appeal of right. Donna DeFoe was killed by a bullet shot from close range through the back of her head on the night of October 28, 1975, or the early morning October 29, 1975. Defendants were arrested on an unrelated charge on November 23, 1975. A .38 Colt Cobra was seized from the car in which defendants were riding at the time of their arrest. In March, 1976, Sterling Brown, the prosecution’s principal witness, informed police that the defendants had previously told him about killing a woman. The gun seized when defendants were arrested in November, 1975, was test fired and found to be the weapon that killed DeFoe. For several reasons, including defendants’ trial on another criminal charge, their trial in the instant case did not begin until May 31, 1977. Neither defendant testified at trial. Defendant Faulkner presented an extensive alibi defense in which testimony indicated he was playing cards with friends at the time the killing occurred. The defense presented by both defendants tended to show that Sterling Brown actually committed the murder. A few days before the trial commenced defendant Ramsey requested to be appointed as his own co-counsel. Ramsey told the court he was very pleased that he had his particular counsel, but wanted to be co-counsel in order to talk to witnesses and perhaps make opening and closing statements. The court denied Ramsey’s request. The Supreme Court has recognized that at times a "standby counsel” may be appropriate to assist a defendant who represents himself. Faretta v California, 422 US 806, 834-835, fn 46; 95 S Ct 2525; 45 L Ed 2d 562 (1975). Cf. Chief Justice Burger’s concurrence in Mayberry v Pennsylvania, 400 US 455, 467-468; 91 S Ct 499; 27 L Ed 2d 532 (1971). However, these cases do not stand for the proposition that a defendant has a right to share trial defense responsibilities with an attorney. In gen eral, a defendant must choose between his right to court-appointed counsel and his right to conduct his own defense. People v Joines, 46 Mich App 427, 430; 208 NW2d 193 (1973), rev’d on other ground on remand 55 Mich App 334; 222 NW2d 230 (1974). There was no error in the court’s denial of defendant Ramsey’s request. As mentioned, defendants were charged with two counts of premeditated murder and felony-murder. The court instructed the jury on both counts. Defendants contend that they were twice placed in jeopardy by the submission to the jury of two separate counts of murder based on one killing. There was no error in sending both counts to the jury. The prosecutor did not have to select which count was to go to the jury, People v Crown, 75 Mich App 206, 211-212; 254 NW2d 843 (1977), and double jeopardy was not violated since defendants could ultimately be convicted only on one count. People v Fullwood, 51 Mich App 476, 481; 215 NW2d 594 (1974). Relying on People v Crown, 75 Mich App 206, 214-215; 254 NW2d 843 (1977), defendants argue that a verdict of guilty on the felony-murder count but not guilty on the premeditated murder count is reversibly inconsistent. Using the analysis in People v Crown, supra, defendants reason that since second-degree murder is a lesser included offense of both felony-murder and premeditated murder, an acquittal on a premeditated count and a conviction on a felony-murder count also means an acquittal on an underlying second-degree count as well as a conviction on an underlying second-degree count. Hence, defendants conclude the verdict is internally inconsistent. In this case we do not reach defendants’ conclusion because we differ with defendants’ initial premise, i.e., that the jury reached an acquittal on one count and a conviction on the other. When the jury returned its verdict there was some confusion in the proceedings. The foreman variously announced the guilty verdict as follows: "Murder in the first degree, felony, murder, rape.” and "Murder in the first degree, criminal felony, rape.” The court then asked the jurors if they found defendants "guilty of murder in the first degree, guilty of murder in the first degree and guilty of murder in the course of a felony murder”. After the jurors indicated they did, the jury was polled. There was some confusion as to how the clerk should phrase the question to the jurors in polling them. The court explained that first-degree felony-murder was just one of the two counts before the jury. The clerk eventually phrased the question in terms of whether the defendants were found "guilty of first degree murder and murder felony rape”. There was never any objection to the questioning and the verdict was accepted. We disagree with defendants’ interpretation of the record on appeal. At all times during the trial it was clear there were two counts before the jury. The jury was instructed on both counts. It is reasonable to find that the jurors returned a guilty verdict on both counts, although through a poor choice of words. The questions by the court and the clerk focused on two counts, rather than being a redundantly worded question just on the felony-murder count. The clerk’s use of "first degree murder” referred to the premeditated count. If defendants’ position were correct it would have resulted in a verdict on just one count when all parties involved knew two counts were involved, with nobody, including the court, inquiring as to the decision on the second count. It would be highly irregular for the court not to make such an inquiry. We are further convinced that the jury’s decision was guilty on both counts because defendants were sentenced, without objection, on both counts. This indicates that the court, counsel and defendants believed the jury had returned a guilty verdict on both counts. Defendants also suggest that there was insufficient evidence to support the felony-rape count, and since one of the two theories that went to the jury in this allegedly general verdict case was unsound, the decision must be set aside. Defendants cite Stromberg v California, 283 US 359; 51 S Ct 532; 75 L Ed 1117 (1931). In the instant case, however, we have found that the jury returned a verdict on each count rather than a general verdict. We also find there was ample evidence on which to find a rape. People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974). The victim was found lying in an alley with her coat on. Her skirt was pulled up around her waist and her top was open. Her underwear had been pulled off of one leg and was half off of the other. And there was evidence of sexual intercourse. This was sufficient evidence from which the jury could find a rape. In sum, we find that the jury found defendants guilty on both counts and the court sentenced each defendant on both counts. Two convictions for the single killing violated double jeopardy, therefore, we reverse and vacate the sentence and conviction of each defendant on the felony-murder count. People v Hall, 83 Mich App 632, 637; 269 NW2d 476 (1978), People v Crown, 75 Mich App 206, 215-216; 254 NW2d 843 (1977). Defendants next point to certain gaps in the chain of custody of the gun and argue that it should not have been admitted. Part of the foundation for admitting the gun was the testimony of the officer who originally seized the gun, that the gun being admitted had the same serial number as the gun he seized as well as having his own initials scratched on it. This was sufficient for the court to be satisfied in reasonable probability that the weapon was the same. People v Beamon, 50 Mich App 395, 398-399; 213 NW2d 314 (1973). Any breaks in the custodial chain would go to the weight of the evidence rather than to its admissibility. People v Full wood, 51 Mich App 476, 482; 215 NW2d 594 (1974). Defendants contend it was error for the court to prohibit certain cross-examination into the credibility of the prosecution’s chief witness, Sterling Brown. There is no question that the veracity of the various witnesses was crucial in this case. The cross-examination of Sterling Brown was extensive. He was shown to have an extensive criminal record including a conviction for "impersonating” a lawyer and managing to get himself admitted to the bar of the Sixth Circuit Court of Appeals. Eventually the prosecutor objected to continued questioning on, inter alia, instances of Brown’s lying to an attorney, and the objection was sustained. It was in the court’s discretion to put a halt to questioning on the collateral issue. Lehr v Rogers, 16 Mich App 585; 168 NW2d 636 (1969). MRE 608(b). Defense counsel was permitted, and did, elicit the fact that Brown perjured himself to obtain admission to the sixth circuit bar. There was no error here. Defendants cite three instances during the course of the trial which they construe to be attempts by the prosecutor to impermissibly impeach defendants with prior convictions or other criminal activity. Such impeachment by the prosecutor might well create error, though not automatically so. People v Andrews #1, 52 Mich App 719, 721; 218 NW2d 379 (1974). However, there was no error here since none of the incidents brought out past convictions or other criminal conduct. Defense objections were sustained in each instance before the information was revealed. Furthermore, in the first instance the court (which found the question to require speculation by the witness) instructed the jury to disregard the question; in the second instance defense counsel refused a cautionary instruction and, in the third instance, a cautionary instruction was given. Finally, defendants argue that it was error to refuse their request for a continuance (and money) to enable them to obtain the presence of an out-of-state witness, defendant Ramsey’s uncle, who allegedly would testify that the murder weapon was in the control of Sterling Brown at the time of the murder. The granting of such a continuance is addressed to the discretion of the trial court. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), People v Joines, 46 Mich App 427; 208 NW2d 193 (1973), GCR 1963, 503.2. There was no abuse of discretion here. Defendants knew that possession of the weapon was an important factor from the time they were arrested in April, 1976. The trial was not held until June, 1977, and even then, the issue was not raised until the middle of the eighth day of trial. In addition, there was other defense testimony indicating the gun was in Brown’s possession at the time of the murder, which would largely make the additional testimony cumulative. The defendants’ convictions and sentences for felony-murder are reversed and vacated. The convictions and sentences for premeditated murder are affirmed. Although such a situation might be appropriate in some cases, the administrative difficulties inherent in such a scheme are apparent. In its brief the prosecution agreed with the defense that the jury returned a verdict of guilty of felony-murder only, but then disagreed with the rest of defendants’ analysis. At oral argument, however, the prosecution argued alternatively that the jury returned a guilty verdict on both counts. Our conclusion does not require us to reach the analysis of People v Crown, supra. We do note that significant concerns arise under the case. It is well established that a case can go to the jury on both felony-murder and premeditated murder counts. It is just as well established that double jeopardy bars more than one conviction. The question arises as to just what the jury’s verdict should be. It seems somewhat anomalous not to permit the jury to return a not guilty verdict on one count and a guilty verdict on another when that is precisely the factual decision before it. There was also considerable evidence on which to find premedi tated murder. The deceased was shot with a pistol at close range in the back of the head, probably while she was kneeling. She was a known prostitute, but at the time of the discovery of the body there was no identification or money on it. As a comment on the preceding issue in the body of the opinion, this case seems very appropriate for a jury decision on whether the murder was premeditated or in the course of a rape.

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Sawyer, J. Famela Bolen and William Lobaina were divorced in 1991. Lobaina, who thereafter remarried, died on April 6, 2003. At the time of his death, the youngest child of the marriage, Amanda, was still a minor. Bolen filed a claim against Lobaina’s estate for $40,000, representing the amount of the proceeds of a life insurance policy provided by Lobaina’s employer. The life insurance policy named Lobaina’s second wife, defendant Karin Lobaina, as the beneficiary. Plaintiff maintains that, pursuant to the judgment of divorce, the minor daughter should have been named as the beneficiary. Plaintiff appeals the trial court’s order of summary disposition, and we reverse and remand. Plaintiff argues that her daughter was entitled to the proceeds of the life insurance policy under the terms of the judgment of divorce. We agree. Under a paragraph entitled “SUPPORT OF MINOR CHILDREN — LIFE INSURANCE,” the divorce judgment provided as follows: IT IS FURTHER ORDERED AND ADJUDGED that both Plaintiff and Defendant shall forthwith irrevocably designate the minor children as beneficiaries of any life insurance policies they may have by virtue of their employment and they shall continue said minor children as beneficiaries until such time as their obligation to support said minor children as hereinbefore provided shall have been terminated or until the further Order of the Court. The judgment of divorce also provided that Lobaina, who was the plaintiff in the divorce action, was to pay child support until Amanda reached eighteen years of age or graduated from high school, but in no event past the age of nineteen and one-half. Amanda was sixteen-years old when her father died. Accordingly, the support obligation was still in place at the time of his death. Plaintiff argues that, under the express terms of the judgment, Lobaina was obligated to name Amanda as the beneficiary of his employer-provided life insurance benefit. We agree. Because the judgment of divorce was entered upon the settlement of the parties, it represents a contract, which, if unambiguous, is to be interpreted as a question of law. In Gramer v Gramer, the Court stated: Judgments entered pursuant to the agreement of parties are of the nature of a contract. Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; [520] NW2d [708] (1994). Furthermore, a settlement agreement, which is what this property settlement agreement is, is a contract and is to be construed and applied as such. Id.; supra; Eaton Co Bd of Road Comm’rs v Schultz, 205 Mich App 371,379; [521] NW2d [847] (1994). Absent a showing of factors such as fraud or duress, courts act properly when they enforce such agreements. Balabush v Balabush, 199 Mich App 661, 662; 502 NW2d 381 (1993). Interpretation of unambiguous and unequivocal contracts is a question of law. In re Loose, 201 Mich App 361, 366; 505 NW2d 922 (1993). The life insurance provision in the judgment of divorce in this case is clear and unambiguous. Both parties to the divorce were to “irrevocably designate the minor children as beneficiaries of any life insurance policies they may have by virtue of their employment,” and that obligation was to continue until their obligation to support the minor children was terminated. It is undisputed that Lobaina had a $40,000 life insurance policy provided through his employment and that there was still an obligation to support Amanda. Therefore, by the clear and unambiguous terms of the divorce judgment, Lobaina was obligated to name Amanda as the beneficiary of that policy. Accordingly, the trial court erred in ruling in defendant’s favor. Defendant relies on In re Monreal Estate, for the proposition that provisions within divorce judgments requiring minor children to be named as beneficiaries of life insurance policies serve the purpose of securing the child support obligation and the child’s entitlement to the proceeds of the policy when the parent fails to name the child as a beneficiary is limited to the extent of the remaining unpaid support obligation. Monreal certainly does support defendant’s position. The language in the divorce judgment in that case is similar to that employed in the case at bar. But Monreal was decided before November 1, 1990, and therefore we are not obligated to follow it. And we choose not to follow it. First, there are other opinions that, on similar facts, reach the opposite conclusion. Second, contrary to defendant’s assertion, Monreal does not stand for the general proposition that the life insurance provision in a divorce judgment serves only to secure the unpaid child support. The Monreal Court recognized a number of different possible outcomes, concluding that treating the life insurance in that case as securing the payment of child support was the interpretation “more appropriate to the facts of this case.” Third, while the facts in Monreal are similar to those in the case at bar, we believe Monreal was incorrectly decided. As stated above, the clear and unambiguous language of the judgment, both in Monreal and in the case at bar, provides that the minor children shall be beneficiaries of the parents’ life insurance policies. Although the continuing existence of the support obligation establishes the time frame for the continuing existence of the insurance beneficiary obligation, the explicit language of the judgment does not provide that the purpose of that obligation is merely to secure the payment of the child support obligation after death. In Self, there was a similar provision in the divorce settlement. Specifically, it required that the minor children be maintained as beneficiaries of the father’s employer-provided life insurance as long as the father’s “ ‘duty to support them shall continue.’ ” The Self Court noted that Monreal had concluded that the life insurance policy in that case was intended to secure the payment of support, but stated that the language in the settlement in Self made it “clear” that the children would remain beneficiaries until the support obligation ended. The Court also made the observation that the life insurance was intended to be part of the support obligation itself, rather than just a means to secure the support obligation. The Monreal Court looked to Gray v Independent Liberty Life Ins Co, for the proposition that the designation of the minor children as the beneficiaries of life insurance policies serves to secure the support obligation. But Monreal appears to have overlooked an important distinction in Gray, namely that the Gray case concerned itself with the ability of the trial court to compel the parent to name the minor children as beneficiaries. Ultimately, the Gray Court concluded that the trial court lacked that authority except to the extent that it is used to secure the payment of the child support obligation. But neither Monreal nor the case at bar involves the authority of the court to impose such a condition following a trial, involving instead the parties agreeing to the designation of the children as beneficiaries. The parties to a divorce are free to reach an agreement that the trial court lacks the authority to compel. In Krueger v Krueger, the Court upheld just such an agreement where the parties agreed in their divorce settlement to have their son named the beneficiary of the father’s life insurance policy until the son reached the age of twenty-one years or graduated from college. We disagree with defendant’s suggestion in her brief that the only purpose of a life insurance provision in a divorce judgment is to secure the future payment of child support. That is a possible purpose for the clause, but it certainly is not the only purpose. The parties may simply wish to provide additional security for their minor children in the event that a parent dies while one or more of the children are still minors. Ultimately, it does not matter why the parties agreed to require that any minor child be a beneficiary of the life insurance policy. The fact remains that the explicit language of the divorce judgment so provides. Conversely, had the parties wished to only secure the payment of any remaining child support, the language of the judgment could have been drafted accordingly — we are not concluding that there is an inherent obligation to make the minor children beneficiaries of the whole amount of the par- exits’ life insurance. For example, the judgment could have required that Lobaina maintain life insurance in an amount sufficient to secure the support obligation with the minor children named as beneficiaries until they were no longer entitled to child support. But the judgment did not so provide. Indeed, the life insurance provision is not at all related to the support obligation beyond the fact that the obligation to name the children , as beneficiaries ended at the same time that the support obligation ended. But there was no obligation to maintain insurance in an amount necessary to secure the support obligation. That is, Lobaina was obligated to name the minor children as beneficiaries of the employer-provided life insurance regardless of the amount of that insurance. The insurance might have been more than enough to secure the unpaid support obligation, or it may have been woefully inadequate — and there was no requirement for Lobaina to obtain other life insurance to secure the support obligation. If the parties’ only intent was to ensure the security of future child support payments, the provision would have required that Lobaina maintain sufficient life insurance, regardless of source, to achieve that goal. But Lobaina was under no obligation to maintain any life insurance beyond that provided by his employer. For that matter, both parents were required under the judgment to name their children as beneficiaries of their employer-provided life insurance, yet only the father was obligated to pay child support. This fact further supports the view that the life insurance clause was not merely intended to secure the payment of future child support. While not essential to reach this conclusion, this mutual obligation clause makes the conclusion that the insurance clause was not intended to secure child support payments very compelling. In sum, we hold that a provision in a divorce settlement that requires either or both parties to name the minor children as beneficiaries of their life insurance policies is not inherently limited to securing the payment of future child support. Such a provision may, depending on the nature of the agreement, provide for either the payment of the entire proceeds of the policy to the minor children, or only the amount of the remaining support obligation. Where, as here, the divorce judgment broadly imposes the obligation to name the children as beneficiaries without any indication that the purpose of the provision is merely to secure the payment of the future child support obligation, the children are entitled to the entire life insurance proceeds without respect to the remaining balance of child support owed. Given the lack of an express statement in the judgment that the purpose of the life insurance clause was to secure child support payments or other clear indication of such a purpose, such as linking the amount of insurance that must be maintained to the amount of future support owed, there is no basis for finding such a purpose. On the other hand, the fact that the decedent was not obligated to obtain insurance if no employer-provided insurance was available, the fact that there was no obligation to ensure that there was enough insurance to secure the remaining support obligation, and the fact that both parents had an obligation to name the minor children as beneficiaries despite the fact that only one had a support obligation all indicate that no such limited purpose was intended. Next, defendant argues that she should receive credit for the amount that the minor child will receive from social security for survivor benefits because of decedent’s death, citing Frens v Frens. We disagree. Frens dealt with the issue of a credit against child support for amounts received by the child as social security disability benefits following the parent’s disability. It is by no means clear that Frens would apply in the context of whether there should be a credit for survivor benefits against the remaining support obligation of a deceased parent. In any event, as discussed above, the life insurance proceeds do not represent the payment of decedent’s weekly child support obligation. Accordingly, there is no credit against the life insurance proceeds arising from any survivor benefits that the child receives. Finally, plaintiff argues that the trial court erred in denying her an award of attorney fees. We agree. The judgment of divorce provided as follows: If either party hereto fails to comply with any of the terms and conditions of the Judgment of Divorce, the prevailing party shall be entitled to their actual attorney fees, in addition to all other statutory attorney fees and costs from the losing party. Decedent failed to comply with the terms of the judgment regarding the naming of his minor child as the beneficiary of his employer-provided life insurance. Plaintiff prevailed in the action to enforce the judgment. Accordingly, she is entitled to an award of her actual attorney fees. On remand, the trial court shall determine the appropriate amount of that award. Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994). Id. 126 Mich App 60; 337 NW2d 312 (1983), aff'd 422 Mich 704 (1985). Id. at 64. MCR 7.215(J)(1). We do not believe the Supreme Court’s opinion in Monreal is relevant to this case because the Supreme Court’s focus was on a question not present here, namely whether the decedent’s adult children should share in the life insurance proceeds. See, e.g., Metropolitan Life Ins Co v Self, 129 Mich App 242; 341 NW2d 488 (1983). Monreal, supra at 64. Self, supra at 244. Id. at 245 n 1. Id. at 245. 57 Mich App 590; 226 NW2d 574 (1975). Monreal, supra at 64. Gray, supra at 594. Krueger v Krueger, 88 Mich App 722, 725; 278 NW2d 514 (1979), citing Newton v Security Nat’l Bank of Battle Creek, 324 Mich 344; 37 NW2d 130 (1949). Krueger, supra at 724-725; see also Kasper v Metro Life Ins Co, 412 Mich 232; 313 NW2d 904 (1981). 191 Mich App 654; 478 NW2d 750 (1991).

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Per Curiam. Defendant appeals by delayed leave granted, with the issue “limited to the question whether the parole board’s ‘life means life’ policy violates the Ex Post Facto Clause, U.S. Const, art I, § 10, cl 1.” After review de novo of this question of law, we conclude that there is no such violation. See People v Westman, 262 Mich App 184, 187; 685 NW2d 423 (2004). Defendant was convicted of armed robbery in 1976. It appears that the sentencing judge gave defendant a choice of sentences, either a term of forty to sixty years’ imprisonment or a parolable life term. Apparently, defendant’s counsel advised defendant that he would be eligible for release sooner with a. life sentence than with the sentence of an indeterminate term of years, and defendant chose the life sentence. That advice was allegedly supported by information from the Michigan Department of Corrections indicating that for most similarly situated offenders, those with a parolable life sentence could be released after serving twelve to fifteen years, while those with a forty- to sixty-year sentence would not be eligible for parole until after serving sixteen years. However, in the years since defendant’s sentencing, particularly in 1992, the parole statutes were revised and the parole board was reorganized. Defendant claims that with the reorganization of the parole board in 1992 came a change in philosophy and decision-making policy with regard to the parole consideration given to parolable lifers, including the implementation of a “life means life” policy. On appeal, defendant argues that the application of this “life means life” policy to his sentence violates the federal Ex Post Facto Clause because his punishment has been increased. Defendant claims that this policy change, in practice, effectively rewrites his sentence and essentially eliminates parole for parolable lifers because “the parole board is no longer exercising its discretion in parolable lifer cases. Instead it has adopted a blanket policy, applied retroactively, of almost never releasing parolable lifers, no matter how strong their institutional records or how long their terms of incarceration.” We disagree. The first “lifer law” came into effect in 1941, granting parole eligibility to prisoners sentenced to life in prison for crimes other than first-degree murder after serving ten calendar years. Before its enactment, those life sentences would have to have been served in their entirety unless commuted by the Governor or a pardon was granted. The lifer law has been revised through the years, but at the time of defendant’s sentencing, MCL 791.234 provided that he would be subject to the jurisdiction and authority of the parole board after serving ten calendar years. It also appears that at the time of defendant’s sentencing, a perception commonly held by legal practitioners, as well as some judges, was that a “parolable life” sentence did not mean life; rather, it meant between twelve and twenty years in prison. See, e.g., People v Lino (After Remand), 213 Mich App 89, 95-98; 539 NW2d 545 (1995), overruled by People v Carson, 220 Mich App 662, 673-674 (1996); see, also, Prisons and Corrections Section of the State Bar of Michigan, What should “parolable life” mean? Judges respond to the controversy (March 2002), available at <http://www.capps-mi.org/pdfdocs/JudicialSurvey.pdf> (accessed June 24, 2005). In fact, defendant’s sentencing judge also believed that a parolable life sentence was less harsh than a long indeterminate term sentence because of the earlier opportunity for parole. This belief seems to have been somewhat supported by parole data; for example, from 1941 through 1974, 416 parole-eligible lifers were paroled, averaging twelve a year. However, it appears that there was a change in parole practice, because from 1975 through 1992 only sixty-five parole-eligible lifers were paroled, for an average of less than four a year. In 1992, the parole board was restructured, both in number and composition, and it continued the practice of the prior seventeen years in granting fewer paroles. “The primary goal of the reorganization was to increase public safety by minimizing the number of dangerous and assaultive prisoners being placed on parole.” Michigan Parole Board website, Introduction <http://www.michigan.gov/corrections/0,1607,7-119-1378-22894-,00.html> (accessed June 24, 2005). In a 1997 status report, then Michigan Department of Corrections Director Kenneth L. McGinnis, stated: To reinforce public confidence in Michigan’s penal system, Gov. John Engler in 1992 ordered an overhaul of the Parole Board and the way in which paroles were granted. The intent of the overhaul was to make Michigan’s communities safer by making more criminals serve more time and keeping many more locked up for as long as possible. *** Among the most important differences since the overhaul is a Parole Board that is much less willing to release criminals who complete their minimum sentences — and much less willing to release criminals at all, forcing many to serve their maximum sentences. [Michigan Department of Corrections, Five years after: An analysis of the Michigan parole board since 1992 (September 1997).] On September 28, 1999, the chairperson of the parole board, Stephen Marschke, testified before the Legislature in support of proposed legislation to amend the life law to eliminate the mandatory interview requirement. His written testimony stated: It has been a long standing philosophy of the Michigan Parole Board that a life sentence means just that — life in prison. Of course, there are exceptions and parole may be appropriate under certain circumstances. The process to handle parole for a prisoner serving a life sentence is when a majority of the parole board votes to send that case to a public hearing. It is the parole hoard’s belief that something exceptional must occur which would cause the parole board to request the sentencing judge or Governor to set aside a life sentence. Good behavior is expected and is not in and of itself grounds for parole. And, in 2001, in prepared materials distributed at a judicial conference, representatives of the parole board stated: “There are some who believe a life sentence equates to a number of years of confinement; i.e. a life sentence equals 10, 20, 30 years, etc. The parole board believes a life sentence means life in prison. There is nothing which exists in statute that allows the parole board to think, or do, otherwise.” [Material prepared by Martin, Steinman & Marschke, Michigan Department of Corrections, Field Operations Administration, Office of the Parole Board, for the Michigan Judges Association Annual Judicial Conference, Traverse City, Michigan, October 1-3, 2001, quoted in a report by Citizens Alliance on Prisons & Public Spending, No way out: Michigan’s parole board redefines the meaning of “life” (September 2004), p 15, available at <http://www.capps-mi.org/pdfdocs/fullliferreport.pdf> (accessed June 24, 2005).] Defendant argues that these various statements, along with the parole board’s actual practices, demonstrate a “life means life” policy that was newly instituted after he was sentenced to life in prison and has the effect of increasing his punishment in violation of the federal Ex Post Facto Clause. The Ex Post Facto Clause of the United States Constitution prohibits the enactment of a law that, when applied, increases the punishment for a crime committed before its effective date. See US Const, art I, § 10; Riley v Parole Bd, 216 Mich App 242, 244; 548 NW2d 686 (1996). It was “intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedure that do not affect matters of substance.” People v Russo, 439 Mich 584, 592; 487 NW2d 698 (1992). Accordingly, before we address defendant’s ex post facto challenge, it must be determined whether this “life means life” policy exists, and whether it was enacted after defendant was sentenced. Even if we assume arguendo that this “life means life” policy exists, we must conclude that defendant has failed to establish that it was not in effect when defendant was sentenced to parolable life imprisonment. As noted above, from 1941 through 1974, only about twelve parole-eligible lifers were paroled a year. From 1975 through 1992, even before this alleged “life means life” policy was instituted according to defendant, fewer than four parolable lifers were paroled a year. However, there is a discrepancy in the statistical data. In Lino (After Remand), supra at 97-98, the Court indicated that from 1986 through 1990, only seven parolable lifers were paroled, including two in 1990, and one was paroled in 1991 and another in 1992. However, even after this so-called “life means life” policy was allegedly adopted in 1992, fourteen parolable lifers were paroled in 1994 and twelve were paroled from 1995 through 1998. See report by Citizens Alliance on Prisons & Public Spending, No way out: Michigan’s parole board redefines the meaning of “life” (September 2004), p 10, available at <http://www.cappsmi.org/pdfdocs/fullliferreport.pdf> (accessed June 24, 2005). Further, it appears to have been well-known that most lifers were never granted parole. See People v Bates, 439 Mich 960, 961 (1992) (statement of Cavanagh, C.J., dissenting from denial of leave to appeal). From the data provided by defendant, as well as our own research, it is unclear why in 1976 legal practitioners and sentencing judges would have believed that a sentence of parolable life meant that a prisoner would be released shortly after they became eligible for parole. On the record before us, defendant has failed to establish that there was a discernable change in practice with respect to parole decisions after the alleged adoption of a “life means life” policy. It appears that enforcing a valid life sentence has almost invariably been the policy and practice of the parole board. Accordingly, there was no government action instituted after defendant’s sentencing that produced a significant risk of increasing his punishment. See California Dep’t of Corrections v Morales, 514 US 499, 509; 115 S Ct 1597; 131 L Ed 2d 588 (1995). There was always a “significant risk” that defendant would be made to serve his life sentence. As has been stated on numerous occasions, parole eligibility does not mean that a defendant has a right to parole. See Morales v Parole Bd, 260 Mich App 29, 39; 676 NW2d 221 (2003). It seems that defendant’s argument is primarily that the parole board has been granted almost unfettered discretion with regard to its parole decisions. Defendant cites the alleged lack of meaningful consideration granted to parolable lifers since the parole board is not required to prepare parole guidelines until confronting a release decision, Jackson v Dep’t of Corrections, 247 Mich App 380, 383-384; 636 NW2d 305 (2001), and the fact that, for the most part, its decisions of “no interest in taking action” toward release are relatively unsupported and unappealable, In re Parole of Johnson, 235 Mich App 21, 25-26; 596 NW2d 202 (1999). However, those are issues for the Legislature to consider and remedy if necessary. In sum, the Department of Corrections and the parole board’s articulation of an alleged “life means life” policy merely states the policy and practice that has been in effect since before defendant was sentenced to a parolable life term. Accordingly, there is no ex post facto violation. Affirmed. See HB 4624 of 1999, subsequently enacted as 1999 PA 191, amending MCL 791.234 and 791.244.

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T. M. Burns, J. These consolidated cases were based on a single incident and raise the same issue of law on appeal. The issue relates to the payment of prejudgment interest under MCL 600.6013; MSA 27A.6013, where the parties agree on an offer of judgment under GCR 1963, 519.1. The problem arises on the following facts. On June 19, 1975, Robert and Paul McGrath were injured when the motorcycle they were riding was struck from the rear by a pickup truck driven by defendant Dennis Clark. Individual suits were started in the name of each plaintiff on November 3, 1975. Two weeks before the trial date, defendant made an offer of judgment in the amount of $10,000 to Robert McGrath and $20,000 to Paul McGrath. The offers were silent on the question of interest and represented the limits of liability on defendant’s insurance policy. The offers were accepted and the appropriate documents were filed with the court. Although rule 519 envisions that once the offer is accepted and filed, the clerk will perform the ministerial act of entering the judgment, in this case a dispute arose over the payment of costs and interest on the judgment. The dispute on costs was resolved and is not questioned on appeal. The circuit court resolved the interest question in favor of defendant and this appeal followed. Rule 519.1, while resolving the question of costs, does not mention interest. The offer in this case did not contain an interest term. The trial court held that no interest attached to the judgment, apparently because it believed that no interest attached to offers of judgment or that interest was implicitly included in the amount offered. We disagree and reverse. RJA § 6013 provides that "[ijnterest shall be allowed on any money judgment recovered in a civil action * * Under normal rules of statutory construction, the word "shall” is mandatory and not a grant of discretion to the trial court. See King v Director of Midland County Department of Social Services, 73 Mich App 253, 259; 251 NW2d 270 (1977). By the same rules, the word "any” is to be considered all-inclusive. We, therefore, conclude that where the parties have made no provision for interest in the offer or acceptance of a judgment under rule 519.1, interest is to be allowed the same as on any other judgment. This is not inconsistent with either the purposes of GCR 519 or prior cases. We agree with defendant that one of the purposes of rule 519 is to promote settlements and avoid costly litigation. It does not necessarily follow, however, that prejudgment interest merges into the offer by implication. This would occur if the court rule expressly provided for the offer to include interest, but the present rule does not. Compare, Proposed MCR 2.405. Cf. WCCR 21.13 (meditation). Under the present rule, where the offer is silent on the question of interest the statute applies. This leaves the parties free to negotiate on the subject but does not deprive one party of a statutory right by mere silence. As Honigman and Hawkins have noted, the effect of rule 519 in conjunction with RJA § 6013 is to possibly stop interest from running on the date of the offer. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 250 (1978 supp). It is two completely different things to say that the rule will terminate the accumulation of interest and to say that the rule will eliminate interest altogether. The statute and rule provide for the termination of the accumulation of interest, not its elimination. Neither Bertilacci v Avery, 42 Mich App 483; 202 NW2d 331 (1972), lv den 388 Mich 801 (1972), nor Beltz v Kimberley, 63 Mich App 700; 235 NW2d 25 (1975), dealt with the question presented by this case. Both involved a situation where the offer was rejected and a trial held. There is no indication in either case that interest was not included in the rejected offer and in Beltz it is clear that interest was included in the rejected offer, not to be added to it. Those cases do not control here. In conclusion, we hold that where the parties agree on the entry of judgment under GCR 519.1, but make no provision for prejudgment interest, the party in whose favor the judgment is entered is entitled to interest under RJA § 6013. We, therefore, remand these cases to allow the judgment in each to be modified to provide for prejudgment interest as provided in the statute. Remanded. Costs to appellants. The entire rule provides: "1. Offer of Judgment. A party defending against a claim may serve upon the adverse party an offer, in writing, to allow judgment to be taken against him for all or a part of the claim for relief in accordance with the term of the offer together with costs then accrued. If the adverse party serves written notice that the offer is accepted, within 10 days after the service of the offer and before the evidence is closed, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer which is received 10 days before the evidence is closed and is not accepted within 10 days after being received shall be considered rejected. An offer received less than 10 days before the evidence is closed may be accepted or expressly rejected before the evidence is closed but if it is not thus expressly accepted or rejected the offer shall not be considered as rejected and shall have no effect on costs. Evidence of an offer is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the rejected offer, the offeree must pay the taxable costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.” In the original volume, Honigman & Hawkins made it clear that rule 519 had no effect on the question of interest. See, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 647. The statute provides: "Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is subsequently rendered and the offer of settlement is substantially identical or substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date the written offer of settlement is made.” MCL 600.6013; MSA 27A.6013. The last sentence of the statute is . not applicable because the offer was accepted. But, it may be relevant to show that the legislative intent was not to eliminate interest altogether, but only to terminate the accumulation of interest at the time of the offer. Proposed MCR 2.405(a)(2) defines an offer as "a written notification to an adverse party of the offeror’s willingness to stipulate to the entry of a judgment in a sum certain, including all costs and interest then accrued”. On the question of whether the insurance carrier can be held responsible for prejudgment interest which would bring the total amount paid by the company above the stated policy limits, see Denham v Bedford, 82 Mich App 107; 266 NW2d 682 (1978).

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Per Curiam. By leave granted, plaintiff appeals from a circuit court order affirming a prior district court finding that plaintiff had no cause of action against defendant. Plaintiff is the insurance carrier for Double A Products of Manchester, Michigan. Double A Products and defendant Duckham had entered into an agreement pursuant to which defendant agreed to haul trash from the Double A plant for a price fixed in the agreement. The course of dealing established the method by which the contract was to be carried out, namely, Duckham left a trash compacting truck at the Double A plant and, when it was full, either he himself or an employee of his would drive the truck to the dump, empty it, and return the truck to the Double A plant. On April 14, 1966, one John Johnson, a part-time employee of the defendant employed on an "as needed” basis, who was a full-time employee of the Dempsey Company in Garden City, Michigan, was unable to report to his regular employment with the Dempsey Company because his automobile broke down. Johnson succeeded in driving his automobile, however, from his home in Jackson to Manchester. He first stopped at a bar and imbibed some alcoholic beverages. Johnson then proceeded to the Double A plant. A Double A employee was loading defendant’s trash compactor, and Johnson rendered assistance. The truck mechanism was jammed and, in an attempt to free the device, Johnson caught his hand in the machinery and severed three fingers of one hand. The severed fingers were discovered in Johnson’s glove and surgically restored to his hand at the hospital. Johnson instituted a petition for worker’s disability compensation benefits against defendant Duckham, who, in, violation of statute, carried no workman’s compensation insurance, as well as against Double A and its insurance carrier, Aetna Casualty & Surety Company. Subsequently, a redemption hearing was held at which all parties were represented. Duckham’s attorney stated that Duckham denied liability under the act in that he denied there was an employment relationship at the time of Johnson’s injury. The attorney then stated that having denied liability on behalf of his client, he would not participate in the redemption hearing. Johnson and Double A then voluntarily entered into a redemption settlement. This was done despite the fact that Duck-ham’s attorney had specifically stated on the record of the redemption hearing that Duckham would deny any liability for reimbursement to Double A or its insurance carrier. Johnson’s petition for compensation against Duckham was not further pursued. Plaintiff thereafter commenced this suit seeking indemnification pursuant to MCL 418.171(2); MSA 17.237(171)(2). The district court found, and the circuit court affirmed, that on the day in question Johnson was not an employee of defendant and was not injured in the course of his employment. In reaching this conclusion, the court found to be significant the facts that on the date in question Johnson was not requested to come in for work, did not report at defendant’s office nor punch in, was out drinking and decided to voluntarily visit the men at the Double A plant. Once it was determined that the employment relationship was not established, plaintiff’s claim for indemnification necessarily fell. Four issues are raised in this appeal. Only one is of sufficient significance to merit discussion. Simply stated, we must determine whether the lower court’s decision that Johnson’s injury was not related to his employment with defendant was in error. In Whetro v Awkerman, 383 Mich 235, 242-243; 174 NW2d 783 (1970), the Supreme Court concluded that in Michigan, if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid. Thus, in Whetro, the Court held that injuries caused by the devastating Palm Sunday, 1965, tornados were compensable under the worker’s compensation act. In Nemeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973), the Court held that where an employee was injured while working after hours with his employer’s equipment on a project with a fellow employee, his injury arose out of the employment relationship. The Court set out a "sufficient nexus” test. If it is possible to say that "but for the employment relationship” the injury would not have occurred, then the injured employee is entitled to compensation. In a later case, Hicks v General Motors Corp, 66 Mich App 38, 44; 238 NW2d 194 (1975), lv den 396 Mich 838 (1976), this Court held that a plaintiff’s volunteering to do something outside of his working hours which was not a part of his assigned duties did not automatically remove him from the course of his employment. Most recently, the Supreme Court allowed recovery by an employee who was struck by a car, off-premises, while walking across a street to a restaurant during his lunch break. McClure v General Motors Corp, 402 Mich 392; 262 NW2d 829 (1978). The Court stated, at 395: "Here, too, 'it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured’. It was as an incident of the employment relationship that McClure found himself in the traffic lane on the Fleetwood Inn side of Fort Street approximately 50 to 75 yards from the factory during his lunch break on April 14, 1973.” In the instant case the injured employee’s status as a part-time employee of defendant both before and after his injury is undisputed. His action in helping plaintiff’s insured’s employees load defendant’s garbage truck arose out of his employment relationship with defendant. It is probable that "but for the employment relationship”, the injured employee would not have offered to help plaintiff’s insured’s employees load the garbage truck. It was his familiarity with defendant’s equipment, gained from his employment with defendant, that led the injured employee to offer assistnace on the date of his injury. We hold under these circumstances, therefore, that the injury arose out of an employment relationship with defendant. By statute, MCL 418.171; MSA 17.237(171), plaintiff has the right to seek indemnification from defendant for the amount paid to the injured employee as a result of the redemption settlement. The district court’s finding of no cause of action was clearly erroneous and is. reversed. Appellant may tax costs.

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V. J. Brennan, J. Defendant, Doil Taylor, was convicted, on his guilty plea in 71-A District Court for the County of Lapeer, of attempted possession of gambling policy slips. MCL 750.306; MSA 28.538; MCL 750.92; MSA 28.287. Defendant was sentenced to 180 days in the county jail (to be served on weekends) and was ordered to pay $500 in fines and costs. Defendant then appealed to the circuit court claiming first that the subject statute was vague and overbroad and thus unconstitutional and second that reversible error occurred when the district judge accepted defendant’s guilty plea without explaining the various rights waived thereby. The circuit court ruled in favor of the constitutionality of the statute but set aside the defendant’s conviction due to the district court’s failure to explain the rights waived by the plea. The circuit court then remanded the cause on the original charge (and not the lesser charge to which the defendant pled) holding that People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), did not apply "as the prosecuting attorney was not asked whether he would comment upon the plea taking procedure”. Defendant brings this appeal by leave granted arguing both the unconstitutionality of the statute and the applicability of McMiller. Initially we point out that the circuit court properly vacated the plea due to the district court’s failure to substantially comply with DCR 1963, 785.4(d)(1) which states that before the plea is accepted the court shall advise the defendant that "he will not have a trial of any kind, so he gives up the rights he would have at a trial”. Upon review of the plea transcript nowhere do we find that the defendant was advised of the rights waived incident to the plea. The resultant plea was thus "constitutionally defective”. Guilty Plea Cases, 395 Mich 96, 121; 235 NW2d 132 (1975). We now address defendant’s contention that the statute in question is unconstitutional for vagueness and overbreadth. MCL 750.306 provides: "All policy or pool tickets, slips or checks, memoranda of any combination or other bet, manifold or other policy or pool books or sheets, are hereby declared a common nuisance and the possession thereof a misdemeanor, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than 500 dollars. "The possession of any such articles, or of any other implements, apparatus or materials of any other form of gaming, shall be prima facie evidence of their use, by the person having them in possession, in the form of gaming in which like articles are commonly used. And such article found upon the person of one lawfully arrested for violation of any law relative to lotteries, policy lotteries or policy, the buying or selling of pools or registering of bets or other form of gaming shall be competent evidence upon the trial of an indictment to which it may be relevant.” The thrust of defendant’s vagueness argument centers on the use of the terms "policy”, "pool” and "manifold”. Defendant asserts that people of common intelligence are not given fair notice of the conduct proscribed or that judges and jurors are free to decide what is or is not prohibited in each particular case contrary to Giaccio v Pennsyl vania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1966). A statute will not be struck down for vagueness where the language, although not mathematically precise, does delineate with reasonable certainty the proscribed conduct. Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972), People v Chapman, 80 Mich App 583, 586; 264 NW2d 69 (1978). Further, the requisite certainty may be supplied by materials outside the statutory definition of the offense or by a reading of the entire text of the statute. Kalita v Detroit, 57 Mich App 696, 701; 226 NW2d 699 (1975). A reading of the entire statute, MCL 750.301, et seq.; MSA 28.533, et seq., reasonably indicates that its primary aim is to prohibit various forms of gambling and the possession of "articles, materials, devices, et cetera, which have integral connections with a gambling game or which are actually used in gambling operations”. People v Locricchio, 373 Mich 490, 495; 129 NW2d 856 (1964). When MCL 750.306 is read in this light a reasonable interpretation concludes that possession of various written memoranda used in gambling operations is prohibited. Accordingly, the statute is not impermissibly vague. Defendant next argues the statute’s overbreadth in that participation in the legal state lottery is also prohibited. We point out that one to whom a statute may properly be applied may not challenge that statute on grounds of overbreadth unless First Amendment rights and a chilling effect thereon are involved. Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973), People v Chapman, supra. The defendant has nowhere asserted that the gambling slips in his possession were legal lottery tickets, nor has the defendant demonstrated any First Amendment rights affected by the statute. Therefore, defendant lacks standing to raise the overbreadth issue. Defendant next argues that the circuit court erred in ruling People v McMiller, supra, inapplicable due to the fact that the prosecutor was not asked to comment on the plea procedure. We agree. The proper McMiller exception most certainly relied upon by the circuit court is found in Guilty Plea Cases, supra, 136-137, as follows: "If the prosecutor calls the court’s attention to plea-taking error before the plea is accepted, McMiller will not apply in the event the trial court vacates the plea on defendant’s motion or with defendant’s consent or the trial court is reversed on appeal on the basis of the same error.” The record in the present case indicates that the prosecutor, although not asked to comment on the plea, had every opportunity to point out errors in the proceeding. Since this was not done, the above-mentioned exception to McMiller is rendered inapplicable. We affirm the circuit court in vacating defendant’s plea, however, on remand, in accordance with People v McMiller, supra, the defendant may not be charged with an offense higher than that to which he pled. Affirmed as modified. Pursuant to the enactment of MCL 432.1, et seq.; MSA 18.969(1), et seq., participation in the state lottery and in licensed bingo or millionaire parties is permitted. We invite the Legislature to revisit MCL 750.301, et seq.; MSA 28.533, et seq., in order to update and redefine its prohibitions in accordance with the state’s and citizenry’s progressive attitude. This omission on the part of the district judge cannot be held error since under DCR 1963, 785.4(d) there is no requirement that the prosecutor be asked to comment on the plea procedure.

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V. J. Brennan, P.J. Plaintiff appeals as of right from a portion of a February 17, 1978, judgment of Genesee County Circuit Judge Robert M. Ransom. Plaintiff was injured in an automobile accident on February 19, 1975. His wife was killed. Surviving was their two-year-old daughter, Tanya. Defendant is plaintiff’s "no-fault” insurer. Plaintiff filed a complaint in district court in Flint on October 3, 1975. The amount of damages sought exceeded district court jurisdictional limits and on August 2, 1976, the case was removed to circuit court. An amended complaint was filed in circuit court on October 27, 1976, alleging that defendant had failed to pay benefits for reasonably incurred expenses for the care of plaintiff’s daughter necessitated by plaintiff’s wife’s death and for services performed for plaintiff that he would have performed for himself had he not been injured. Plaintiff also sought recovery for various medical expenses and contested the validity of an excess-deductible provision in his policy with defendant. Plaintiff testified that he suffered hip, back and internal injuries. His back was broken. He had to wear a corset until June 7, 1975. He was unable to bend over or to move around without crutches. He and his daughter, Tanya, stayed with plaintiffs mother and his mother-in-law who cared for them. Plaintiff returned to work on October 1, 1975. From October . 1975 until January of 1976 plaintiffs mother-in-law cared for Tanya. On January 6, 1976, plaintiff remarried. Plaintiff stated that he had an agreement with his new wife to pay her $20 per day to care for Tanya. The amount was based on the benefit provided in the no-fault statute. There was no definite term to the agreement between the parties. The trial court concluded that plaintiff "reasonably incurred” expenses with his mother and mother-in-law for his own "ordinary and necessary” care at the rate of $20 per day. In fact, the court thought that the reasonable value of the services rendered to plaintiff was more than the $20 allowed under the no-fault statute. The court also concluded that plaintiffs remarriage reestablished the family unit and ended the need for plaintiff to incur expense for ordinary and necessary services for Tanya in lieu of those provided by her dead mother. The court found insufficient evidence of a contract between plaintiff and his new wife for the care of Tanya. The court denied plaintiff benefits for replacement services for Tanya from the date of his remarriage, although it awarded benefits for the time between plaintiffs return to work and his remarriage, when Tanya was cared for by her grandmother. The court found that the excess-deductible provision in plaintiffs policy was a part of the policy at the time of the accident. Plaintiff was awarded his claimed unreimbursed medical expenses. Plaintiffs appeal contests only the denial of benefits for replacement services for Tanya after plaintiffs remarriage. The plaintiff argues that his remarriage did not end the dependency of the child on the deceased mother. MCL 500.3110(1)(c); MSA 24.13110(1)(c). He argues that the trial court’s conclusion that plaintiffs remarriage reestablished a family unit and ended the provision of replacement services for Tanya is without legal basis and that nowhere in the no-fault statute is there language that disqualifies relatives from performing services. He further argues that in the Worker’s Disability Compensation Act, another no-fault statute, the Supreme Court has held that a disabled employee may recover benefits for services rendered him by his wife, Kushay v Sexton Dairy Co, 394 Mich 69; 228 NW2d 205 (1975), and that the insurer should not reap a windfall because ordinary and necessary services rendered to replace those which would have been performed are performed by a wife instead of a housekeeper or a nursemaid. We agree. Defendant argues that there was no contract between plaintiff and his new wife to care for Tanya and that the language of the statute requiring expenses to be reasonably incurred can hardly be construed to provide for payment to a new wife for the care of her husband’s daughter. Defendant further argues Kushay v Sexton Dairy Co, supra, is distinguishable since it arose under a section of the Worker’s Disability Compensation Act which requires employers to furnish services to the injured employee. It is defendant’s position that § 3108 of the no-fault act does not require payment for child care under all circumstances, but only where the expenses are reason ably incurred and that the trial court properly found that expenses claimed here were not reasonably incurred. This is a case of first impression under the no-fault act. MCL 500.3101 et seq.; MSA 24.13101 et seq. No cases have construed § 3108 of the act, the contested provision in this case. It reads as follows: "Personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivor’s loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.” MCL 500.3108; MSA 24.13108. Plaintiff argues that his agreement with his new wife to pay her $20 per day for the care of his daughter entitled him to benefits under the section. Defendant argues that a remarriage in which the new wife provides ordinary and necessary services to the daughter ends the insurer’s obligation under this section where there are no other expenditures to care for the daughter. The trial court agreed with defendant. The Supreme Court has decided that the provi sion of services by a spouse or relative, where reasonable, is compensable under a provision of the Worker’s Disability Compensation Act. MCL 418.315; MSA 17.237(315). Although the provision does not exactly parallel § 3108 of the no-fault act, both statutes create an entitlement for benefits reasonably provided. Kushay v Sexton Dairy Co, supra. Both statutes are concerned with the provision of services and not with the status of the person providing those services. Thus, the Court in Kushay held that a spouse could recover for services rendered to a husband, even though, in all probability, she would have performed them absent the possibility of recovery from the employer. Kushay v Sexton Dairy Co, supra, pp 74-75. Plaintiffs new wife does not legally replace his daughter’s dead mother. A stepmother is not liable for all the duties or entitled to all the rights of a parent. See MCL 710.60; MSA 27.3178(555.60). Nor does a stepmother enjoy any favorable presumption for purposes of child custody under the Child Custody Act. See MCL 722.25; MSA 25.312(5). Plaintiffs remarriage, while re-estalbishing the family unit, in no way affected Tanya’s need for ordinary and necessary services that her dead mother once provided. The trial court improperly concluded that plaintiffs remarriage terminated his daughter’s eligibility to receive survivor’s loss benefits under § 3108 of the no-fault insurance act. Reversed and remanded for entry of judgment accordingly. Defendant to pay costs and reasonable attorney fees.

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Per Curiam. Plaintiff filed an action in the Wayne Circuit Court for reimbursement of Social Security benefits deducted by defendant in paying survivor’s loss benefits under MCL 500.3109(1); MSA 24.13109(1) of the "no fault” insurance act. The defendant appeals from an order of the trial court granting summary judgment to the plaintiff. This issue has been litigated several times before the Court of Appeals. Most of the decisions have adopted the rationale or result obtained in the majority opinion in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976). However, the Supreme Court, in a very recent opinion, has reversed this Court’s holding in O’Donnell, 404 Mich 524; 273 NW2d 829 (1979). In view of the pronouncement of the Supreme Court, we accordingly reverse the decision of the trial court granting summary judgment and remand for entry of an order consistent with the opinion of the Supreme Court. Reversed.

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N. J. Kaufman, P.J. On July 26, 1977, defendants Michael McKaig and William Loewe were found guilty in a bench trial of unarmed robbery, MCL 750.530; MSA 28.798. They were sentenced on August 9, 1977, and appeal as of right. Michigan law requires that in order for a defendant to effectively waive his right to a jury trial, he must make a written waiver in open court. MCL 763.3; MSA 28.856: "In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in such cause and made a part of the record thereof. It shall be entitled in the court and cause and in substance as follows: T,_, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’ Signature of defendant. "Such waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel.” The file shows defendants signed the "Waiver of Jury Trial Circuit Court” form on July 26, 1977. The waiver was acknowledged by Judge Spivak’s court clerk the same date. Defendant McKaig alleges correctly that the transcript of the hearing does not reveal that he orally acknowledged the waiver of jury trial. Defendant Loewe does not allege this to be a ground for reversal. However, in the interest of justice we will consider the legal question as to both appellants. In People v Rimmer, 59 Mich App 645, 647; 230 NW2d 170 (1975), a panel of this Court reversed the defendant’s conviction and stated: "While the record does contain a written waiver executed by defendant on November 9, 1973, nowhere in the record does any transcript of an oral waiver before or at trial appear.” I agree with the Rimmer result because footnote 2 reveals that the written waiver was executed more than three months prior to defendant’s trial and there is no indication that the waiver was made in open court. In our case, however, the waiver was stamped filed on the same date as the commencement of trial and defendant McKaig makes no claim that the waiver was not made in open court. In People v Word, 67 Mich App 663, 665-666; 242 NW2d 471 (1976), a panel of this Court, in which I was one of the panelists, stated: "* * * Thus strict compliance with the statute is necessary and requires both a written waiver and an acknowledgment in open court of the waiver of a jury. There being no open court acknowledgment of the waiver of jury trial, this Court’s prior ruling in Rimmer, supra, requires a retrial.” Since concurring in the Word opinion, supra, I have come to the conclusion that there cannot be a hard and fast rule for every case. A valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. In cases such as the present, where the waiver is signed and filed the same day as the commencement of trial, the defendant is represented by an attorney, and the defendant does not claim that he did not sign the waiver in open court after having the opportunity to consult with his attorney, the statute is strictly complied with. See People v Woody, 25 Mich App 627, 629; 181 NW2d 621 (1970), lv den 384 Mich 822 (1971). We encourage trial judges to supplement the written waiver with an oral acknowledgment by the defendant. This practice eliminates any doubt as to whether or not the waiver was made in open court. However, the statute does not require an oral waiver and we decline to impose that requirement on trial judges. We have carefully reviewed the records and briefs and find the remaining allegations of error to be without merit. Affirmed. Bashara, J., concurred. "2 This waiver was executed more than three months prior to defendant’s trial.”

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Per Curiam. The plaintiff brought this action against individual police officers, seeking damages on various theories arising out of their forced entry into her home in search of a suspect. Some claims were dismissed, and the jury found for the defendants on others. However, it found in plaintiffs favor on her claim that the actions of one officer violated her and her daughter’s rights under the Michigan Constitution. The Court of Appeals reversed, with the majority basing its decision on the conclusion that the plaintiff had not established that the defendant officer’s actions were undertaken pursuant to a custom, policy, or practice of the Detroit Police Department. We agree with the result reached by the Court of Appeals, though not with the rationale. Rather, we conclude that there is no judicially inferred cause of action under circumstances like those presented in this case. Therefore, we affirm the judgment of the Court of Appeals. i The facts underlying this action were summarized by the Court of Appeals as follows: On October 29, 1991, several Detroit police officers were pursuing an individual suspected of assault and operating a stolen vehicle. The officers believed that the suspect ran into a nearby house owned by [plaintiff] Ruth Jones .... Plaintiff was home with her minor daughter . . . when she heard a man’s voice yell, “He’s in 17331,” followed by the sounds of a crash and a window breaking. Plaintiff and her daughter ran to a back bedroom for several minutes. Plaintiff heard loud voices saying, “B—, open up the mother f—ing door, we know he’s in there.” Pláintiff returned to the living room, where she saw that the front storm door and inner door had been forcefully opened. However, a security gate remained locked. Plaintiff told the officers that no one was in the house but plaintiff and her baby. Pursuant to the officers’ demands, plaintiff retrieved her keys and opened the security gate. Plaintiff testified that the officers entered the house and that two of the officers, defendants Powell and Kenneth Winslow, pointed their guns at her. Plaintiff was allowed to go next door to her sister’s house, while the officers, with the aid of a police dog, searched plaintiff’s home. However, no one was found inside. Plaintiff testified that she did not give the officers consent to enter or search the house. [227 Mich App 662, 665-666; 577 NW2d 130 (1998).] Plaintiff Jones, individually, and on behalf of her daughter, brought this action in Wayne Circuit Court, against the city of Detroit, Powell, Winslow, and several other Detroit police officers. She advanced various theories, alleging false imprisonment.and arrest, assault and battery, and intentional infliction of emotional distress. She also claimed that the defendants, acting under color of state law and pursuant to Detroit Police Department policy, deprived plaintiff and her daughter of their federal civil rights. Finally, plaintiff alleged that the defendants violated their rights under the Michigan Constitution. The defendants initially removed the action to the United States District Court for the Eastern District of Michigan, but the District Court remanded plaintiffs state claims to the circuit court. The circuit court granted summary judgment for the city of Detroit on all plaintiff’s claims, and the case proceeded to trial against the individual officers. Shortly after the trial began, plaintiff agreed to dismiss all her claims against the individual defendants except Powell and Winslow. After the close of plaintiff’s proofs, the defendants moved for a directed verdict on plaintiff’s constitutional claims, arguing that Michigan did not recognize a cause of action against individual officers under the Michigan Constitution. The circuit court initially took the matter under advisement, but denied the motion at the close of the defense case. The jury returned a verdict of no cause of action with respect to defendant Winslow, and found in favor of defendant Powell on all theories except the constitutional claims. On those claims, the jury awarded $75,000 to plaintiff Jones, and $126,000 to her daughter. After the trial court denied defendant Powell’s motions for judgment notwithstanding the verdict or a new trial, he appealed. n The Court of Appeals reversed. Much of the analysis focused on our decision in Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff’d sub nom Will v Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). All three judges of the Court of Appeals believed that a damages action should not be available against an individual defendant for violation of state constitutional rights. Because of the availability of alternative remedies against such defendants, the majority would have limited Smith to actions against the state, explaining: [W]e read Smith as recognizing a narrow remedy against the state where none otherwise would have existed. Conversely, we believe that none of the concerns identified in Smith that support a damage remedy for violations of the state constitution are applicable when the party that is alleged to have violated a plaintiffs state or federal constitutional rights is a municipality or an individual municipal employee rather than the state. In cases involving entities other than the state as a party defendant, the plaintiffs have available a number of alternative remedies. This is because municipalities, unlike states and state officials sued in an official capacity, are not protected by the Eleventh Amendment, which, of course, safe guards the state’s sovereignty in our federal system of government. Lake Country Estates, Inc v Tahoe Regional Planning Agency, 440 US 391; 99 S Ct 1171; 59 L Ed 2d 401 (1979); Fitzpatrick v Bitzer, 427 US 445, 456; 96 S Ct 2666; 49 L Ed 2d 614 (1976). Accordingly, local government units may be sued in federal or state court under § 1983. Monell [v New York City Dep’t of Social Services, 436 US 658, 690, n 54; 98 S Ct 2018; 56 L Ed 2d 611 (1978)]; Moore v Detroit, 128 Mich App 491, 499; 340 NW2d 640 (1983). Relatedly, it is clear that individual government employees cannot seek immunity for their intentional torts. Blackman v Cooper, 89 Mich App 639, 643; 280 NW2d 620 (1979). Here, plaintiffs were free to, and did, assert claims for false arrest and imprisonment, assault and battery, intentional infliction of emotional distress, and deprivation of civil rights in violation of § 1983. Accordingly, there simply was no justification under Smith for plaintiffs here to assert state constitutional violation claims, even claims alleging an offensive custom or policy, against these municipal and individual defendants. [227 Mich App 671-672.] Despite this view, under MCR 7.215(H), the majority felt constrained by an earlier decision in Johnson v Wayne Co, 213 Mich App 143; 540 NW2d 66 (1995), to recognize a damages cause of action against individual defendants for violation of a plaintiffs constitutional rights. Johnson and Marlin v Detroit (After Remand), 205 Mich App 335; 517 NW2d 305 (1994), however, also held that in an action against an entity or person other than the state, the plaintiff is required to prove that the alleged constitutional violations occurred by virtue of a custom or policy of the governmental agency involved. The majority concluded that defendant was entitled to judgment because there was no evidence that his actions were pursuant to such a custom or policy. The Court of Appeals remanded the case for entry of a judgment of no cause of action. The plaintiff has filed an application for leave to appeal from that decision. m We agree with the Court of Appeals majority that our decision in Smith provides no support for inferring a damage remedy for a violation of the Michigan Constitution in an action against a municipality or an individual government employee. In Smith, our consideration of the issue focused on whether such a remedy should be inferred against the state, which is not subject to liability under 42 USC 1983. The holding in Smith was set forth in a memorandum opinion summarizing the Court’s conclusions. It included the following: 5) Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action. 6) A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases. [428 Mich 544 (emphasis added).] Of the several separate opinions, the one that extensively considered the question was that of Justice Boyle. She noted the United States Supreme Court’s recognition of a damage remedy in Bivens v Six Unknown Named Federal Narcotics Bureau Agents, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971), and explained: We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are circumstances in which a damage remedy would not be appropriate. The absence of any other remedy would, as in Bivens, heighten the urgency of the question. Justice Harlan, concurring in Bivens, states that “[t]he question then, is, as I see it, whether compensatory relief is ‘necessary’ or ‘appropriate’ to the vindication of the interest asserted.” 403 US 407. In answering this question in the positive, Justice Harlan commented, “[f]or people in Bivens’ shoes, it is damages or nothing.” Id., p 410. Where a statute provides a remedy, the stark picture of a constitu tional provision violated without remedy is not presented. While a Bivens-type action may still be inferred, see Carlson v Green [446 US 14; 100 S Ct 1468; 64 L Ed 2d 15 (1980)] (federal tort claims remedy no bar to Bivens action), the existence of a legislative scheme may constitute “special factors counselling hesitation,” Bivens, supra, p 396, which militate against a judicially inferred damage remedy. [428 Mich 647.] Smith only recognized a narrow remedy against the state on the basis of the unavailability of any other remedy. Those concerns are inapplicable in actions against a municipality or an individual defendant. Unlike states and state officials sued in an official capacity, municipalities are not protected by the Eleventh Amendment. Lake Country Estates, supra at 400-401. A plaintiff may sue a municipality in federal or state court under 42 USC 1983 to redress a violation of a federal constitutional right. Monell, supra at 690, n 54 and accompanying text. Further, a plaintiff may bring an action against an individual defendant under § 1983 and common-law tort theories. Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we affirm the judgment of the Court of Appeals. Weaver, C.J., and Taylor, Corrigan, and Markman, JJ., concurred. I.e., assault, false arrest, false imprisonment, and intentional infliction of emotional distress. The majority also disagreed with this part of the Johnson decision, explaining: Again, while we are constrained to follow Johnson, we believe that the Johnson Court not only erred in allowing a Smií/i-based constitutional tort claim to be brought against individual governmental employees, but confused matters even further by applying the custom or policy standard from Smith in determining liability. The custom or policy standard first arose as a means of holding a local government liable under § 1983 for the acts of its agents. See MoneU, supra at 690-691. Justice Boyle’s opinion in Smith, in turn, merely suggested that the same standard should apply to hold the state liable for damages where a state custom, policy, or practice mandated the state official or employee’s actions. See Smith, supra at 642-643. Contrary to the decision in Johnson, because constitutional tort claims brought solely against individual municipal employees have nothing to do with whether the municipality itself can be held liable, the custom or policy analysis derived from § 1983 cases simply ought not to apply. [227 Mich App 676, n 4.] Judge Mdrphy concurred in the result, but disagreed with some of the majority’s reasoning. He did not believe that Johnson decided that it was appropriate to infer the existence of a constitutional tort. Rather, Johnson presumed that such an inference was appropriate and then disposed of the case on the ground that the plaintiff failed to present the proof necessary to prevail in such a suit. Judge Mdrphy argued that a judicially inferred cause of action under the Michigan Constitution is unwarranted in this case, principally because of the availability of damages under 42 USC 1983, for violations of the analogous provisions of the federal constitution.

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Per Curiam. Plaintiff filed suit charging the defendants with legal malpractice and seeking damages therefor. Defendants filed a motion for accelerated judgment. The basis for this motion was a mutual general release signed by the plaintiff and defendant, Paul L. Nine, following institution of this suit. The release referred specifically to the instant litigation. At the hearing on the motion the defendants argued that the release was an absolute bar to the action. Plaintiff countered that defendant had violated the Code of Professional Responsibility by contacting plaintiff directly and inducing him to sign the release and that this conduct constituted fraud and duress. Plaintiff also argued that the defendant made certain false representations to the plaintiff which induced him to sign the release, including that the defendant would be financially ruined by the litigation, that he had never been sued for malpractice at any prior time, and that such litigation would adversely affect the plaintiff’s business relationship with a business partner of the defendants. Plaintiff argued, therefore, that the release was obtained by fraud and duress. It was lastly urged by plaintiff that the release must fail for want of adequate consideration. The trial court, after considering the foregoing arguments, granted accelerated judgment for defendants. Plaintiff now appeals by right. We have reviewed the record and briefs and have given, as we must, considerable weight to the trial court’s findings. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969). We concur in its determination that the release was "fairly and knowingly” made. See Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), and Farwell v Neal, 40 Mich App 351, 355; 198 NW2d 801 (1972). Lastly, plaintiff’s suggestion that the release was unenforceable for lack of consideration is without merit. The settlement of the parties’ respective disputed claims furnishes good consideration. 6 Michigan Law & Practice, Contracts, § 58, p 319. See also MCL 566.1; MSA 26.978(1). Affirmed. Costs to appellees.

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J. H. Gillis, J. Defendant was convicted by a jury of delivery and conspiracy to deliver a controlled substance, heroin. MCL 335.341; MSA 18.1070(41) and MCL 750.157a; MSA 28.354(1). He was sentenced to serve 8 to 20 years in prison and appeals as of right. The charges against defendant were based upon certain events which took place on March 23, 1976. Thomas Cadieux, a police informant, contacted Edward Emmons, seeking to purchase some heroin. Emmons called defendant’s house and spoke with Paul Sobeck to arrange a sale. Cadieux then picked up Emmons and the two drove to defendant’s house where they were admitted by a woman and sent to the basement. Emmons went upstairs and returned with Paul Sobeck. Cadieux then arranged for the purchase of a gram of heroin. Sobeck went back upstairs and subsequently returned with defendant. Defendant was carrying a tinfoil packet in his hand. He handed this to Sobeck who in turn gave it to Cadieux. Cadieux handed defendant $80 to pay for the substance which was later analyzed as heroin. Initially defendant, Sobeck, Emmons, and Guadalupe Flores, defendant’s wife, were all charged in this matter. Following the preliminary examination Sobeck, Emmons and defendant were bound over on conspiracy and delivery charges. Mrs. Flores was bound over on conspiracy and possession with intent to deliver charges. The first issue raised by defendant concerns the admissibility of certain evidence. There was testimony that witness Cadieux and undercover Officer DeFeyter had gone to defendant’s house on a number of times prior to March 23, 1976, and been denied admittance. There was also testimony that Officer DeFeyter had made heroin purchases at the house from persons other than defendant. We agree the evidence that entrance to the house was denied was not probative of any matter in issue. In addition, it is questionable whether there was sufficient circumstantial evidence to link defendant with the sales by other persons. See People v Samuel Smith, 85 Mich App 404; 271 NW2d 252 (1978). However, we find any error in the admission of this evidence to be harmless. There is no indication that the prosecutor deliberately tried to inject prejudice into the trial, People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), and no basis for finding an error so offensive to the maintenance of a sound judicial system as to require reversal. In addition, the evidence of guilt was overwhelming and it was not reasonably possible that, absent the claimed error, even one juror might have voted to acquit. Hence, the error was harmless. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). Defendant also claims it was error to admit evidence of prior transactions wherein defendant sold heroin to one of the alleged co-conspirators, Emmons. These transactions took place in defendant’s basement over a four-month period prior to the date of the incident in question. In order to prove conspiracy, it was necessary for the prosecutor to establish specific intent. In People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974), the Court explained this element as follows: " 'A conspiracy is a partnership in criminal purposes’, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910). A twofold specific intent is required: a combination with others to do what is unlawful. Conspiracy, 28 La L Rev 534, 535 (1968); see also 1 Wharton, Criminal Law & Procedure, 183-184. "Intent to conspire, " '[w]hile it is not identical with mere knowledge that another purposes unlawful action * * * is not unrelated to such knowledge. Without the knowledge, the intent cannot exist. United States v Falcone [311 US 205; 61 S Ct 204; 85 L Ed 128 (1940)] [footnote omitted]. Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. Ibid. This, because charges of conspiracy are not to be made out by piling inference upon inference * * Direct Sales Co v United States, 319 US 703, 711; 63 S Ct 1265; 87 L Ed 1674 (1943). "Therefore, defendant’s intent to sell marijuana must be established in the present case, and to establish that intent, there must be evidence of knowledge of the unlawful purpose of sale. To prove the crime of conspiracy, however, it must further be proven that that intent, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more persons.” Where intent is material, other acts of the defendant which may tend to show his intent in doing the act in question may be proved notwithstanding that such proof may tend to show the commission of another crime by the defendant. MCL 768.27; MSA 28.1050. In the instant case it was necessary to show that defendant had intent to deliver and was aware of the unlawful purpose of this delivery. Evidence that he had engaged in prior heroin transactions was admissible to show that defendant was not an innocent conduit for the delivery of heroin on March 23, 1976. While this evidence may have been prejudicial to defendant, it was highly probative on the issue of intent. In addition, both the prosecutor and the trial judge properly informed the jury of the limited use to which this evidence could be put. We find no reversible error in its admission. Defendant also argues that under the facts of this case convictions of both conspiracy to deliver heroin and delivery of heroin violated the double jeopardy clause. We reject this argument on the authority of People v Gonzales, 86 Mich App 166; 272 NW2d 227 (1978). Defendant next contends that he was illegally sentenced according to a county program of mandatory prison sentences for heroin dealers. The record indicates the trial court took a number of factors into consideration in imposing sentence, including the potential for rehabilitation, the recommendations given by members of the community, defendant’s background, and the interests of the community. The fact that the court felt the interests of the community outweighed the other factors does not render the sentence improper. People v Gonzales, supra, People v Van Epps, 59 Mich App 277; 229 NW2d 414 (1975). The sentence was within the statutory limits and not based upon any impermissible considerations. Defendant also argues that in imposing sentence the trial court impermissibly discriminated against him on the basis of his sex. Defendant received an 8 to 20 year term. His wife, who was convicted of conspiracy to deliver heroin and possession of heroin with intent to deliver, received probation. Defendant contends this disparity in sentencing was the result of discrimination on the basis of sex. It is true that different treatment in sentencing can not be based upon some arbitrary classification such as race or religion. People v Dupuie, 52 Mich App 510; 217 NW2d 902 (1974). Disparity based upon sex has also been found constitutionally deficient. United States v Maples, 501 F2d 985 (CA 4, 1974). An examination of the transcripts indicates that the sentences were not the result of any impermissible discrimination based upon sex. Defendant was sentenced on May 31, 1977. At that time his wife had not been convicted of any offense. As noted above, the trial court felt that the interests of society outweighed factors operating in defendant’s favor and sentenced him to 8 to 20 years in prison. Mrs. Flores was convicted on January 6, 1978, and sentenced on January 23 of that year. The trial court noted that she was not convicted of delivery of heroin as was her husband. It also felt that her involvement in drugs was somewhat peripheral to that of her husband and that with his influence removed she would not engage in future illegal activities or present a threat to the community. Finally, the judge stated that because one parent was already in jail and there were five minor children depending upon Mrs. Flores, he would put her on probation for five years. It is evident that the trial court’s decisions regarding sentencing were based upon the circumstances of each person at the time of sentencing and not due to sex. Hence, defendant’s claim is without factual support. Defendant’s other contentions of error merit no discussion. Affirmed.

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Corrigan, J. We granted leave in this felony murder case to determine whether the prosecution presented sufficient evidence of common-law arson, the felony underlying the convictions, MCL 750.316; MSA 28.548. A jury convicted defendant of two counts of felony murder, MCL 750.316; MSA 28.548, and one count of arson of a dwelling house, MCL 750.72; MSA 28.267. Defendant was thereafter sentenced to concurrent terms of life imprisonment on the felony murder counts, while the arson conviction was vacated. The Court of Appeals, in a split opinion, reversed on the ground of insufficient evidence and remanded with instructions to enter a conviction of involuntary man slaughter. We hold that the evidence of arson was legally sufficient and reinstate defendant’s convictions of felony murder. This case also affords us the opportunity to clarify the state of mind required to prove common-law arson. The Court of Appeals erred in assuming that common-law arson is a specific intent crime. Common-law arson is a general intent crime that merely requires the prosecutor to prove malice. It occurs in circumstances where a defendant intentionally or wantonly bums property without justification or excuse. I. UNDERLYING FACTS On January 15, 1995, the ten-unit Lansing apartment building where defendant lived exploded and burned. The force of the explosion fragmented the building. The three center units were completely leveled and the roof was blown off. A sixty-seven-year-old woman and a ten-year-old boy who lived in the center section in apartments adjoining defendant’s were killed. Ironically, although defendant was present in his apartment where the explosion originated, he sustained only bums and minor injuries. He walked away from the explosion and spoke coherently with investigators shortly thereafter. The prosecution theorized that defendant attempted suicide by releasing gas into his apartment, resulting in the explosion and fire. Defendant essentially contended that the explosion and fire were accidental. The defense suggested various possible accidental sources of the gas, including the furnace and water heater. Further, the defense argued that if defendant deliberately released the gas, he may have been trying to asphyxiate himself or to gain attention rather than cause an explosion. By their verdicts, the jury accepted the prosecution’s theory. The evidence showed that defendant had attempted suicide three times in 1992. On January 8, just one week before the fire, defendant told his minister and later told a police officer that he wanted to “end it all” by putting a “bullet in his head.” The officer took defendant to a psychiatric hospital where he remained until the day before the explosion. Defendant obtained a temporary pass to leave the psychiatric hospital on January 14. He asked his former girlfriend, Kathryne Russell, to transport him home from the hospital, but she wanted defendant to stay in the hospital. During their conversation, defendant threatened suicide and said that nobody would catch him this time. Despite defendant’s suicidal threat, Russell did not comply with defendant’s wishes. Defendant returned to his apartment by cab. On the day of the crime, someone released gas into defendant’s apartment by deliberately tampering with the gas pipe at its union with the water heater and loosening the pipes. Gas built up in defendant’s apartment; it thereafter ignited, causing the explosion and fire. None of the other apartments experienced any gas buildup. The experts opined that the cause of the explosion was the combustion of an almost perfect mix of methane gas and air that “literally made a bomb of apartment number 5 The prosecution’s experts systematically excluded accidental sources of the blast. They found no electrical malfunction because the building’s gas regulator was in good condition and the gas lines had not rup tured. Given the exclusion of various accidental sources of gas and the evidence that the pipes had been loosened, the experts concluded that some human agency untied the gas train to allow an uninterrupted flow of gas into defendant’s apartment. The experts could not, however, explain how the gas had been ignited. They discounted possible sources of ignition, such as the presence of static electricity or the arc generated by a light switch, as unlikely in a residential setting. The prosecution’s experts also opined that the pattern of blast debris and the fact that the explosion flowed in an omnidirectional movement from the center established that the explosion originated in defendant’s apartment. Further, defendant’s lack of blast-related injuries strongly suggested that he was present at the epicenter of the explosion. Prosecution experts testified that following an explosion, a propagation wave becomes stronger as it leaves the point of ignition. Thus, a person located at the source of ignition has a greater chance of survival than someone who is located further away. Other evidence revealed that defendant left a note on the apartment door warning Ms. Russell not to turn on any type of switch. Defendant also admitted to the police that he knew about gas appliances because he had worked in an appliance store. Finally, defendant falsely told police that he had unplugged appliances and tightened the gas union in the water heater/fumace area and shut down the gas line when he smelled gas, contrary to the physical evidence that the gas pipes had been loosened. The prosecution relied on this evidence to establish that defendant was the individual who tampered with the gas pipes. II. COURT OF APPEALS ANALYSIS In reversing, the Court of Appeals majority found “[w]hat is missing is sufficient evidence to establish that the ignition of the gas was the result of an intentional act on defendant’s part.” Unpublished opinion per curiam, issued October 9, 1998 (Docket No. 196655), slip op, p 5. The majority noted that the prosecution experts could not determine the exact source of ignition. The majority assumed that defendant had deliberately filled his apartment with gas, but held that the evidence did not establish that defendant specifically intended to ignite the gas. An equally possible explanation was that defendant merely intended to asphyxiate himself. Accordingly, the panel majority found the proof insufficient. In dissent, Judge Griffin accused the majority of usurping the jury’s role as trier of fact. He noted that the prosecution’s experts characterized defendant’s theories of accident as improbable. Judge Griffin observed that the prosecutor was not required to negate every reasonable theory consistent with innocence. In his view, a reasonable juror could conclude that one who purposefully fills his apartment with natural gas intends an explosion to occur. He adopted the trial court’s reasoning: one who loosens gas pipes and releases a quantity of gas intends the natural results thereof, i.e., an explosion or fire. Although static electricity possibly could have been the source of the ignition, the evidence supported the reasonable inference that defendant had purposefully created conditions from which an explosion and fire was a natural and probable consequence. Thus, the jury’s verdicts were not irrational. Judge Griffin cited the following evidence: (1) [Defendant deliberately filled his apartment with natural gas by loosening the gas pipe at its union, (2) the fire and explosion were caused by the ignition of the gas buildup, (3) defendant, as a former employee of an appliance store, was knowledgeable of the functioning of gas appliances, (4) defendant had a history of suicide attempts and expressed his intent to kill himself less than a week before the explosion, vowing that “nobody would catch him this time,” (5) defendant’s lack of “blast-related injuries” indicated that defendant was located at or near the origin of the ignition, (6) accidental ignition from static electricity (in a nonindustrial setting) or from an arc caused by a light switch or an appliance was very unlikely, and (7) defendant’s note on his front door warning his girlfriend revealed defendant’s knowledge of the danger and potential for the explosion that ultimately occurred (negating defendant’s claim of accident or mistake). [Slip op, p 3.] We granted the prosecution’s application for leave to appeal. 459 Mich 1002 (1999). III. STANDARD OF REVIEW The test for determining the sufficiency of evidence in a criminal case is whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979); Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979). People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), articulated the governing standard for reviewing sufficiency claims: [Wjhen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or circumstantial. “ ‘Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). We once again caution reviewing courts that the prosecutor need not negate every reasonable theory consistent with innocence. People v Konrad, 449 Mich 263, 273, n 6; 536 NW2d 517 (1995). Instead, the prosecution is bound to prove the elements of the crime beyond a reasonable doubt. It is not obligated to disprove every reasonable theory consistent with innocence to discharge its responsibility; it need only convince the jury “in the face of whatever contradictory evidence the defendant may provide.” Id. IV. SUFFICIENCY ANALYSIS Because this offense occurred in January 1995, before the April 1, 1996, effective date of the amendments in 1996 PA 20, § 1, now codified as MCL 750.316(2)(a); MSA 28.548(2)(a), we must analyze the sufficiency of proof of common-law arson underlying the felony murder charge, rather than statutory arson. In People v Reeves, 448 Mich 1, 3-4; 528 NW2d 160 (1995), we held that “the word ‘arson’ in the felony murder statute refers to the common-law crime of arson, that is, the malicious and voluntary or wilful burning of a dwelling house of another.” This Court reviewed the history of the felony murder statute and concluded that the Legislature intended to retain the common-law definition of arson in the felony murder statute. In apparent response to Reeves, the Legislature amended the felony murder statute to provide that statutory, not common-law, arson is the relevant offense in felony murder cases. See 1996 PA 20, now codified as MCL 750.316(2)(a); MSA 28.548(2)(a). People v Carines, supra, pp 758-759, recited the elements of felony murder: “The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute, including (arson)].” [Citation and internal quotations omitted.] “The facts and circumstances of the killing may give rise to an inference of malice. A jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm.” Id., p 759 (citations omitted). The prosecution presented sufficient evidence of the elements of felony murder. Uncontested evidence established that two human beings died in the explosion, thereby satisfying the first element. Regarding the second element, the jury could infer that defendant acted with malice when he intentionally set in motion a force likely to cause death or great bodily harm. As discussed below, the circumstantial evidence and reasonable inferences therefrom indicated that defendant intentionally released and ignited gas in his apartment building. Defendant thereby created a very high risk of death or great bodily harm, and the jury could infer from defendant’s actions that he knew that death or such harm was the likely result. The third element of felony murder is satisfied because defendant committed the crime of arson. People v Reeves, supra, pp 3-4, defined common-law arson as “the malicious and voluntary or wilful burning of a dwelling house of another.” We note preliminarily that the trial court, without objection, instructed the jury in accord with CJI2d 31.2(4), which states that the defendant must have “intended to set a fire, knowing that this would cause injury or damage to another person or to property.” We hold that the evidence was sufficient to establish the elevated level of intent required by the standard instruction. In arson cases, the trier of fact usually draws inferences from circumstantial evidence: [TJhere is rarely direct evidence of the actual lighting of a fire by an arsonist; rather, the evidence of arson is usually circumstantial. Such evidence is often of a negative character; that is, the criminal agency is shown by the absence of circumstances, conditions, and surroundings indicating that the fire resulted from an accidental cause. [Fox v State, 179 Ind App 267, 277; 384 NE2d 1159 (1979). It is beyond dispute that the “dwelling house of another” was burned. Thus, the only remaining question is whether defendant maliciously and voluntarily or wilfully caused the burning. The evidence supported a reasonable inference that defendant intentionally caused the explosion and resulting fire. Defendant had threatened to kill himself the previous day and the previous week. A rational jury could infer that defendant deliberately released gas into his apartment by loosening the union of the gas pipe. Further, defendant was present at the point of ignition because he suffered no blast-related injuries. The circumstantial evidence that defendant was located at the source of the ignition is particularly persuasive. The expert testimony concerning the properties of propagation waves supported a rational jury determination that defendant ignited the gas. The Court of Appeals majority completely overlooked this evidence. The evidence also supports the reasonable inference that defendant ignited the gas in an effort to kill himself quickly. When threatening to kill himself, defendant told Russell that no one would catch him this time. A rational juror could infer that defendant intended to take his life quickly to avoid being stopped. Igniting the gas obviously provided a quicker method of demise than asphyxiation. As a former appliance store employee, defendant certainly knew the dangers of a gas explosion. Indeed, defendant specifically cautioned Russell not to turn on any switches. A reviewing court must consider the evidentiary facts not in isolation, but in conjunction with one another, in a light most favorable to the prosecution. Taken together in this light, the evidence supports a reasonable inference that defendant intentionally released the gas in his apartment and ignited it. V. INTENT REQUIREMENT FOR COMMON-LAW ARSON We now turn to the mental state required for common-law arson. Under the common law, the act of purposefully creating conditions that cause a dwelling to bum satisfies the elements of arson. The Court of Appeals majority posited that common-law arson requires proof of an intentional act of ignition on the implicit assumption that common-law arson is a specific intent crime. The Court of Appeals may have relied for that mistaken view on CJI2d 31.2(4). That instruction states that arson requires proof that the defendant “intended to set a fire, knowing that this would cause injury or damage to another person or to property.” A footnote to the instruction also refers to arson as a specific intent crime, without distinguishing various statutory offenses with specific intent components from common-law arson. CJI2d 31.2 does not accurately reflect Michigan law regarding common-law arson. No Michigan case has ever held that common-law arson is a specific intent crime. Accordingly, the cases cited in the commentary to CJI2d 31.2 in support of the specific intent instruction are inapposite for purposes of analyzing common-law arson. For example, in People v McCarty, 303 Mich 629; 6 NW2d 919 (1942), the defendant was convicted of the statutory offense of wilfully burning insured personal property with the intent to injure and defraud the insurer, 1931 PA 328, § 75, now codified at MCL 750.75; MSA 28.270. Obviously, the statutory language at issue in McCarty included a specific intent requirement. But McCarty never held that common-law arson is a specific intent crime. “[T]he distinction between specific intent and general intent crimes is that the former involve a particular criminal intent beyond the act done, while the latter involve merely the intent to do the physical act.” People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983). Because virtually every reported Michigan case involves a statutory arson offense, see Reeves, supra, our cases do not discuss common-law arson. Const 1963, art 3, § 7 states: “The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” Thus, to the exdent that it is consistent with our state and federal constitutions and statutes, the common law has been adopted into our jurisprudence. In re Lamphere, 61 Mich 105, 108; 27 NW 882 (1886); Lorman v Benson, 8 Mich 18 (1860); Stout v Keyes, 2 Doug 184 (Mich, 1845). Common-law arson is a general intent crime. “[T]he enduring common law definition of the mental element of” arson is that the burning be done “maliciously and voluntarily.” Poulos, The metamorphosis of the law of arson, 51 Mo L R 295, 319 (1986). A malicious burning occurs when the defendant “either intentionally or wantonly bums property without justification or excuse.” Id., p 403. Wanton arson “required an intentional act which created a very high risk of burning a dwelling house, which risk was known by the actor and disregarded when the actor performed the risk taking act.” Id., p 408. “[T]he word ‘willfully’ adds nothing to the common law concept of malice . . . .” Id., p 404. The common law defines arson as the performance of any act resulting in the burning of a dwelling house that was done with malice. Perkins, Criminal Law (2d ed), ch 3, § 2, pp 216-219. Common-law malice requires either: 1) an actual intent to commit the actus reus, or 2) an intent to act with a heedless disregard that the prohibited harm is a plain and strong likelihood. Id., ch 7, § 4, pp 766-768, and n 25. Arson, in the common-law sense, usually results from a deliberate intent to bum the dwelling of another and without doubt this intent was at one time assumed to be an ingredient of the crime, which explains the use of the word “voluntary” or “wilful,” as mentioned above, in many of the definitions. Either word, however, lost all meaning in this definition when it became established that by fiction an intent to bum might be recognized in law when it did not exist in fact. Thus Lord Coke, writing in the early 1600’s said that the “law doth sometime imply, that the house was burnt maliciously and voluntarily,” giving as an illustration the instance of a fire spreading and causing damage beyond that actually intended. It is not common-law arson for a dweller to bum his own dwelling, and this has given rise to the outstanding example of unintentional arson; for if such a fire obviously creates an unreasonable fire hazard for other nearby dwellings, and any of these is actually burned, common-law arson has been committed even if the wrongdoer did not actually intend the consequence and may have hoped it would not happen. An intentional act creating an obvious fire hazard to the dwelling of another, done without justification, excuse or mitigation, might well be characterized as “wilful” (a word of many meanings), and would certainly be malicious, but as the law has developed it is a mistake to assume that the phrase “wilful and malicious,” when found in the definition of common-law arson, adds some distinct requirement not included in the word “malicious” alone. [Id., ch 3, § 2, pp 217-218.] 4 Blackstone, Commentaries on the Laws of England 222 (1769), states that common-law arson requires a malicious burning. Blackstone stated: As to what shall be said a burning, so as to amount to arson: a bare intent, or attempt to do it, by actually setting fire to a house, unless it absolutely bums, does not fall within the description of incendit et combuffit; which were words necessary, in the days of law-latin, to all indictments of this sort. But the burning and consuming of any part is sufficient; though the fire be afterwards extinguished. Also it must be a malicious burning; otherwise it is only a trespass: and therefore no negligence or mischance amounts to it. [Id.] See also United States v Acevedo-Velez, 17 MJ 1, 2-3 (1983). We have previously discussed the definition of malice in the context of murder. The “malice” required to prove murder requires either: 1) an intent to kill, 2) an intent to cause great bodily harm, or 3) wanton and wilful disregard that the natural tendency of the defendant’s behavior is to cause death or great bodily harm. People v Aaron, 409 Mich 672, 714; 299 NW2d 304 (1980). The same level of criminal culpability exists regardless whether a defendant wantonly and wilfully disregards the consequences of his actions or intends to cause the prohibited harm. Like murder, common-law arson is a crime against the person and manifests a contempt for human life. 3 Torcia, Wharton’s Criminal Law (15th ed), § 334, pp 325-326, and n 5, citing State v McGowan, 20 Conn 245 (1850). We thus treat arson no differently than murder for purposes of defining malice. Accordingly, the required mental state for arson is either: 1) an intent to bum the dwelling house of another, or 2) doing an act in circumstances where a plain and strong likelihood of such a burning exists. Perkins, supra, ch 3, § 2, pp 219-220. Proof of common-law arson does not require a specific intent to cause injury to a particular person or damage to particular property. To establish that a defendant acted wilfully or maliciously and voluntarily, the prosecution must prove one of the following: 1) that the defendant intended to do the physical act constituting the actus reus of arson, i.e., starting a fire or doing an act that results in the starting of a fire (intentional arson); or 2) that the defendant intentionally committed an act that created a very high risk of burning a dwelling-house, and that, while committing the act, the defendant knew of the risk and disregarded it (wanton arson). The first type of malice should not be confused with a specific intent requirement. The discussion in People v Langworthy, 416 Mich 630; 331 NW2d 171 (1982), of malice in the murder context provides a useful analogy. While the intent to kill and the intent to cause great bodily harm “sound suspiciously akin to the traditional language of specific intent,” Lang- worthy, p 651, neither intent is a necessary element of second-degree murder. “[A] wanton and willful disregard of the likelihood that the natural tendency of a person’s behavior is to cause death or great bodily harm may also satisfy thé malice requirement.” Id., pp 650-651. Similarly, while an “intent to start a fire” may sound like the language of specific intent, this intent is simply one possible means of proving malice in an arson case. Such an intent is not a necessary element of arson. The wilful and wanton commission of an act that creates a very high risk of burning a dwelling house is an alternative method of proving malice. VI. CONCLUSION The prosecution presented sufficient evidence of common-law arson underlying the murders in this case. This evidence established the elevated level of intent required by CJI2d 31.2(4). Nonetheless, common-law arson is a general intent crime. Accordingly, we vacate the judgment of the Court of Appeals and reinstate defendant’s convictions of felony murder. Weaver, C.J., and Taylor, Young, and Markman, JJ., concurred with Corrigan, J. We do not suggest that the trial court’s instructions are dispositive when reviewing sufficiency of the evidence claims. Normally, an appellate court identifies the elements of the crime and assesses whether the evidence presented at trial, taken in the light most favorable to the prosecutor, satisfied those elements. In this case, however, the prosecution satisfied the heightened intent requirement of CJI2d 31.2(4). As discussed below, the jury instruction wrongly created an elevated intent requirement to prove common-law arson that is not found in the common law. We take the opportunity in the next section of this opinion to clarify the mental state needed to prove common-law arson. 2 See also People v Horowitz, 37 Mich App 151, 154; 194 NW2d 375 (1971), in which our Court of Appeals stated: It is the nature of the offense of arson that it is usually committed surreptitiously. Rare is the occasion when eyewitnesses will be available. By necessity, proofs will normally be circumstantial. In Horowitz, the Court of Appeals rejected the defendant’s claim that the jury had piled inference upon inference: “The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. If enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking.” [Id., p 155, quoting Birring v United States, 328 F2d 512, 515 (CA 1, 1964).] We acknowledge that this question is not squarely before us, given our conclusion that the evidence was sufficient under the heightened intent requirement of CJI2d 31.2(4). We nonetheless address the intent requirement of common-law arson because we have no other method of suggesting corrections to misstatements in the standard instruction. Many courts and commentators have criticized the general intent/specific intent distinction as confusing and unworkable. See People v Langworthy, 416 Mich 630, 639-640, 653; 331 NW2d 171 (1982), and authorities cited therein. Nonetheless, this Court in Langworthy declined to abolish or modify the longstanding dichotomy. Id., pp 641, 653. We likewise refuse to abandon a concept that is so deeply rooted in our state’s criminal jurisprudence. Foreign authorities also persuade us that common-law arson is a general intent crime that requires proof of either an intentional or a wanton act. See, e.g., State v Scott, 118 Ariz 383, 385; 576 P2d 1383 (Ariz App, 1978); United States v Acevedo-Velez, supra; DeBettencourt v State, 48 Md App 522, 525; 428 A2d 479 (1981); Linehan v State, 442 So 2d 244 (Fla App, 1983); State v Nelson, 17 Wash App 66, 69; 561 P2d 1093 (1977) (“At common law, specific intent to bum a particular thing or to injure a particular person was unnecessary, it being sufficient to show that there was a general malice or intent to bum some structure”); Mai v People, 224 Ill 414; 79 NE 633 (1906); State v Doyon, 416 A2d 130, 135 (RI, 1980) (“We adhere, therefore, to the common-law mandate that the mental state for the crime of arson requires only that the defendant intended to do the proscribed act, that it was done unlawfully, and that it was not done inadvertently”); People v Tanner, 95 Cal App 3d 948; 157 Cal Rptr 465 (1979).

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Marston, C. J. The declaration in tbis case in tbe first count sets forth that the plaintiff was, at a time and place named, a poor married woman, and being confined in child-bed and a stranger, employed in a professional capacity defendant De May who was a physician; that defendant visited the plaintiff as such, and against her desire and intending to deceive her wrongfully, etc., introduced and . caused to be present at the house and lying-in room of the plaintiff anfl. while she .was in the pains of parturition the defendant Scattergood, who intruded upon the privacy of the plaintiff, indecently, wrongfully and unlawfully laid hands upon and assaulted her, the said Scattergood, which was well known to defendant De May, being a young unmarried man, a stranger to the plaintiff and utterly ignorant of the practice of medicine, while the plaintiff believed that he was an assistant physician, a competent and proper person to be present and to aid her in her extremity. The second and third counts while differing in form set forth a similar cause of action. The evidence on the part of the plaintiff tended to prove the allegations of the declaration. On the part of the defendants evidence was given tending to prove that Scattergood very reluctantly accompanied Dr. De May at the urgent request of the latter; that the night was a dark and stormy one, the roads over which they had to travel in getting to the house of the plaintiff were so bad that a horse could not be ridden or driven over them; that the doctor was sick and very much fatigued from overwork, and therefore asked the defendant Scattergood to accompany and assist him in carrying a lantern, umbrella and certain articles deemed . necessary upon such occasions; that upon arriving at the house of the plaintiff the doctor knocked, and when the door was opened by the husband of the plaintiff, De May said to him, “that I had fetched a friend along to help carry my things ; ” he, plaintiff’s husband, said “ all right,” and seemed to be perfectly satisfied. They were bidden to enter, treated kindly and no objection whatever made to the presence of defendant Scattergood. That while there Scattergood, at Dr. De May’s request, took hold of plaintiff’s hand and held her during a paroxysm of pain, and that both of the defendants in all respects throughout acted in a proper and becoming manner actuated by a sense of duty and kindness. Some preliminary questions were raised during the progress of the trial which may first be considered. The plaintiff when examined as a witness was asked, what idea she entertained in' reference to Scattergood’s character and right to be in the house during the time he was there, and answered that she thought he was a student or a physician. To tliis there could be no good legal objection. It was not only important to know the character in which Scattergood went there, but to learn what knowledge the plaintiff had upon that subject. It was not claimed that the plaintiff or her husband, who were strangers in that vicinity, had ever met Scattergood before this time or had any knowledge or information concerning him beyond what they obtained on that evening, and it was claimed by the defendant that both the plaintiff and her husband must have known, from certain ambiguous expressions used, that he was not a physician. “VVe are of opinion that the plaintiff and her husband had a right to presume that a practicing physician would not, upon an occasion of that character, take with him and introduce into the house, a young man in no way, either by education or otherwise, connected with the medical profession; and that something moré clear and certain as to his non-professional character would be required to put the plaintiff and her husband upon their guard, or remove such presumption, than the remark made by De May that he had brought a friend along to help carry his things. The plaintiff was not bound however to rest her case upon this presumption, how- ■ ever strong it might be considered, but had a right to prove what she supposed was the fact, and this she could do by showing anything said at the time having such a tendency, or in the absence thereof what she actually believed to be the fact. The question asked the plaintiff’s husband as to what he had stated under oath in an affidavit was properly overruled. This court has repeatedly pointed out the proper practice in such cases. Hamilton v. The People 29 Mich. 198, and cases cited. The question asked the witness Dr. Monfort as to the custom among physicians in such cases as to calling assistance was not objectionable; besides, the answer given could in no • way have injured the defendants. In either event therefore they cannot complain. It yet remains to consider the principal questions raised in the case. They relate to the sufficiency of the declaration, to which the general issue was pleaded, and farther that admitting the facts to be trae as claimed by the plaintiff she was not entitled to recover. We need not consider the question as to what the effect would be had the jury found that the plaintiff knew the non-professional character of the defendant Scattergood and made no objection or consented to his remaining in the house or rendering such assistance as was. demanded. Upon this branch of the case the court charged the defendants would be justified in doing what they did, if the plaintiff or her husband consented to Scatter-good being there, with a full understanding of, or with good reason to believe or know of the character in which he was there. This certainly was placing the matter in a sufficiently favorable position for the defendants. A few facts which were undisputed may assist in more clearly presenting the remaining question. Upon the morning of January 3d Dr. De May was called to visit the plaintiff professionally which he did at her house. This house was fourteen by sixteen feet. A partition ran partly across one end thus forming a place for a bed or bedroom, but there was no door to this bedroom. Next to this so-called bedroom, and between the partition and side of the house, there was what is known and designated as a bed sink; here there was a bed with a curtain in front of it, and it was in this bed the doctor found Mrs. Eoberts when he made his first visit. On their way to the house that night De May told Scattergood, who knew that the plaintiff was about to be confined, “ how the house was; that she was in the bed sink back, and there was a curtain in front of her, and told him he need not see her at all.” When the defendants got to the house they found Mrs. Eoberts “had moved from the bed sink and was lying on the lounge near the stove.” I now quote farther from the testimony of Dr. De May as to what took place : “ I made an examination of Mrs. Eoberts ■ and found no symptoms of labor at all, any more than there was the previous morning. I told them that I had been up several nights and was tired and would like to lie down awhile; previous to this, however, some one spoke about supper, and supper was got and Scattergood and myself eat supper, and then -went to bed. I took off my pants and had them hung up by the stove to dry; Scatter-good also laid down with his clothes on. "We lay there an hour or more, and Scattergood shook me and informed me that they had called and wanted me. Scattergood got my pants and then went and sat down by the stove and placed his feet on a pile of wood that lay beside the stove, with his face towards the wall of the house and his back partially toward the couch on which Mrs. Roberts was lying; I made an examination and found that the lady was having-labor pains. ■ Her husband stood at her head to assist her; Mrs. Parks upon one side, and I went to the foot of the ■couch. During her pains Mrs.” Roberts had kicked Mrs. Parks in the pit of the stomach, and Mrs. Parks got up and went out doors, and while away and about the time she was coming in, Mrs. Roberts was subjected to another labor pain and commenced rocking herself and throwing her arms, and I said “ catch her,” to Scattergood, and he jumped right up and ■came over to her and caught her by the hand and staid there a short time, and then Mrs. Parks came up and took her place again, and Scattergood got up and went and took his place again, back by the stove. In a short time the child was born. Scattergood took no notice of her while sitting by the stove. The child was properly cared for; Mrs. Roberts was properly cared for, dressed and carried and placed in bed. I left some medicine to be given her in case she should suffer from pains.” Dr. De May therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house <5f the plaintiff, when it was apparent that he could hear at least, if not see all that was said and done, and as the jury must have found, under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of such third party. It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had a right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case.' The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this -right by requiring others to observe it, and to abstain from its violation. The fact that at the time, she consented to the presence of Seattergood supjiosing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his ■ true, character. In obtaining admission at such a time and under such circumstances without fully disclosing his 'true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterwards sustained, from shame and mortification upon discovering the true character of the defendants. Where a wrong has been done another, the law gives a remedy, and although the full extent and character of the injury done may not be ascertained or known until long after, yet in an action brought damages therefor may be fully awarded. This is true both in cases of tort and crime as well as in actions for breach of contract. The charge of the court upon the duty and liability of the defendants and the rights of the plaintiff was full and clear, and meets with our full approval. It follows therefore that the judgment must be affirmed with costs. . The other Justices concurred. The testimony of Dr. Monfort was as follows: Question. “You say you have been in practice about eight years; what is the custom among physicians called upon to do the necessary duties attending cases of midwifery in reference to calling in assistance? Answer. I suppose that would depend somewhat upon the circumstances under which the case existed; usually it is not the custom to have assistance, unless the case demands it; after it is ascertained that assistance is required, it is customary and proper to call medical assistance; in an urgent case, perhaps most any kind of assistance; but medical if it could be obtained.”

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Graves, J. Plaintiff’s intestate brought assumpsit against the defendants as copartners before a justice of the peace to recover for certain brick furnished them. A recovery was allowed in that court and defendants appealed, but prior to the trial in the circuit court Mr. Stecker died and the plaintiff was duly authorized to assume the prosecution of the action. On the hearing of the case the circuit judge directed a verdict for the defendants. The plaintiff claimed that the defendants were partners in putting up two certain buildings, and that the bricks were procured by the firm for those buildings and actually used as materials therein. A witness 'for the’ plaintiff testified that one of the defendants contracted individually for the brick, and another witness on the same side testified that one of the defendants admitted that brick were received, but that they were on Ms own account and not for the partnersMp. The plaintiff then offered to show that the defendants were in partnership in putting up the buildings for which the brick were obtained and in which they were used, but the court on objection excluded the evidence. This was error. The statement made by the witness that the brick were purchased by one of the defendants on his individual account, was not necessarily conclusive. In the first place it was more matter of opinion than of fact, as represented by the record. But in any court the plaintiff was entitled to lay all the facts before the jury and have their judgment on the question whether the purchase was not a partnership transaction, or at least one wMch entitled the plamtiff to charge the defendants as partners. If in point of fact they were erecting the buildings as partners, and one of them procured the brick for the purpose of the buildings without any express arrangement with plaintiff’s intestate that the purchase was an individual purchase, and the brick were used in the buildings, the firm was hable. The judgment is reversed with costs and a new trial granted. The other Justices concurred.

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Marston, C. J. Tbe facts upon which this case arises are set forth in Dutton v. Merritt 41 Mich. 537. The plaintiff in this case seeks, as assignee of Merritt’s interest in the lease referred to, the rental value of the premises not already credited upon the mortgage foreclosure decree. The fact that defendants have occupied the premises, and that they must pay a fair rental therefor, is not questioned, but they claim the right to apply the rent upon the amount still due them upon the decree. The fact that these defendants foreclosed the mortgage given them would not deprive them of the right to resort to any other security they held in order to obtain full satisfaction of the debt; and the mortgagor could not deprive them of this right by assigning the' due and unpaid rent to a third person. The latter could acquire no better right than that of his assignor, who could not have sued for and recovered the rent in this case. "While the defendants remain in possession the fair rental value of the premises must be applied in reduction of the decree until the extinguishment thereof, and until the happening of that event, an action will not lie to recover rent which may be due and uncredited. It follows that the judgment must be affirmed with costs. The other Justices concurred.

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Graves, J. Nash, having recovered before a justice of the peace, sued the judgment over before another justice who-gave judgment in his favor, and Whelpley took the cause by cerbiora/ri to the circuit court, where the determination made by the justice was affirmed. Whelpley brought error. Complaint is made that the declaration was too general. We are inclined to think it was sufficient, but, admitting that, it lacked legal certainty, the objection is unwarranted. The defendant was present and pleaded to the merits without suggesting any dissatisfaction with the declaration, and, as. we are satisfied it is good in substance, there is no ground of complaint that has not been waived. In recording an adjournment the justice neglected to state-to what place it was made. This irregularity in the entry worked no prejudice to defendant. He was not misinformed or misled. He appeared in person and answered. The-defect was a clerical mistake which harmed no one. The-statute forbids reversals for such causes. Comp. L. § 5477. The original judgment which was sued over was given for $79.80 damages and $24.56 costs. The allowance for costs was excessive and illegal, and Nash desired to remit them, and his object in suing the judgment over was to effectuate this purpose and eliminate the unauthorized allowance. This was made a matter of proof before the justice. The judgment in respect to damages was perfectly correct. The fault was confined to the award of costs and Whelpley made no attempt to have the error corrected. The-case was allowed to stand without appeal or eerbiora/ri. It is first objected that the judgment for damages and the-award of costs were an entirety and that the excessiveness of' the costs caused the whole recovery to be illegal. No doubt, ilie costs when made up are an incident of the judgment. (Saunders v. Tioga Manuf’g Co. 27 Mich. 520), but they are not inseparably blended with the damages, and in case they exceed legal limits they do not necessarily infect with illegality that part of the recovery applicable to damages. The statute which says the judgment shall not be reversed “on account of any fees having been improperly allowed” by the justice, sufficiently implies that an award of costs- beyond what the law authorizes will not necessarily invalidate the entire recovery. Comp. L. § 5479. When the damages have been legally adjudged they may be distinguished and counted on, notwithstanding that the costs set down with them are illegal and must be rejected. It is next contended that if the original judgment was a good one for the damages, there was no occasion to sue it over and cause further costs, since an execution might have been issued without including costs. The point is without merit. On rendering the second judgment the justice excluded the entire costs of the first. He included the damages only of the first judgment and then added the bare costs of the suit before himself. By such means Nash was enabled to remit the whole costs of the first cause, and reduce his recovery to proper form, and this was correct. He was not bound to let the judgment stand uncorrected and submit to whatever difficulties and embarrassments might arise from the error in regard to costs. He was entitled to have it brought into such shape as to afford the regular remedies for collection either through execution from the justice or a certified transcript entered up in the circuit court. Whether collection might not have been practicable without suing the judgment over is not material. There was “good cause" and that is sufficient. Comp. L. § 5376. It is made a point that in affirming the judgment, the circuit court allowed interest on the costs before the justice. The statute gives interest on all judgments at law for the recovery of money (Comp. L. § 1635), and the practice has been constant under it to reckon interest on the costs in case of affirmance on certiorcwi. The legal costs before the justice have been treated invariably as a branch of the judgment for the purpose of interest, and there is no propriety in going behind this practical construction. Had the Legislature deemed it an improper one they would have interposed and corrected it long ago. There is nothing else worthy of notice. The judgment is affirmed with costs. The other Justices concurred

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Marston, C. J. While we are of opinion that costs should have been awarded tbe plaintiff in error in this case, and can conceive of no reason for tbe same not having been given, let alone giving of costs against him as was done, yet within tbe rule in Hewitt v. Ingham Circuit Judge 44 Mich. 153, we cannot review tbe discretion of tbe circuit judge even although we may think no discretion was exercised. Tbe judgment will be affirmed with costs. Tbe other Justices concurred.

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Cooley, J. The facts in this case are somewhat complicated, and as the questions involved are questions of fact, we shall content ourselves with stating conclusions. On the second day of September, 1859, the copartnership of McBride Bros, of the city of New York had a judgment against Lewis M. Clark and Bichard G. Hillyer for the sum of $670.10, and the copartnership of Archibald Young & Hoaglan had a like judgment for the sum of $1176.93. To secure the payment of these debts the creditors held separate mortgages on lands in Gratiot county. On the day above named the debtors executed to William L. Webber as trustee for the two copartnerships a third mortgage. The nominal consideration for this was $800, but it was conditioned for the payment of the two judgments. The complainants in this suit are the members or representatives of t]ie two copartnerships named. The Webber mortgage covered blocks seven, eight and seventeen of the village of Pine Biver, which were embraced in neither of the other mortgages. In January, 1866, the judgments remained unpaid, and Henry L. Holcomb, who had acquired an interest in the lands covered by the Webber mortgage, and also in certain parcels covered by tbe others, went to New York to negotiate for a release. He there saw the members of the two copartnerships, and agreed with them for a release of certain described lands, included in blocks seven, eight and seventeen above mentioned, for the sum of $700 which he paid. Whether in the negotiations the Webber mortgage was mentioned is in dispute; but the release which was drawn, executed and delivered purported to discharge the lands from the other two mortgages only, and Holcomb testifies that he received it in that form on being assured that it was sufficient to release the lands from the Webber mortgage also. On the part of complainants the giving of any such assurance is denied; but we think the probabilities are that all parties at the time understood that the security the creditors had on blocks seven, eight and seventeen for the payment of their judgments was to be and was released. Hnless it released from the Webber'mortgage, the instrument executed was of course, so far as these blocks were concerned, wholly ineffectual. In equity the release by the eestuis que trustent was a good release. The Webber mortgage appears to have been mislaid soon after it was given, and nothing was done by any one in respect to it until 1878, when some person interested in a parcel of the land called upon Mr. Webber for a release of record. As the condition of the claim 'at that time was unknown to him, he addressed the complainants, and they, claiming it to be still undischarged, called for and obtained an assignment to themselves and instituted this suit. Our conclusion is, for the reason above stated, that the suit cannot be maintained. In equity the mortgage is discharged, and there is no necessity for a cross-bill to enable the defence to be made. The case of Berry v. Whitney 40 Mich. 65, is in point here and analogous in principle. The circuit court having dismissed the bill, the decree will be affirmed with costs. The other Justices concurred.

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Graves, J. There was no error in refusing to exclude Hughes’ deposition. It was taken on stipulation which provided that the person to act in taking it should be a notary public and not of counsel nor in any manner interested for either party, and that this should be certified by the notary in his return. The only grounds of objection not distinctly waived by the stipulation were competency and relevancy. On the reception of the deposition by the clerk due notice-was given according to the terms of rule fifty-one, but no-objection was intimated until its offer at the trial. The defendant’s counsel then contested its admission on the ground that the notary’s certificate was not full enough. It stated that he did not act as counsel for either party, but went no further. There is no claim that as matter of fact he was interested, or that he acted dishonestly or partially, or that he lacked any qualification contemplated by the stipulation. Nor is-there any claim that a literal adherence would have been of any practical value. The objection rests entirely on the-fact that the certificate did not go to the exact extent specified. Assn mi rig, for the present purpose, that the defect was a, sufficient departure from the stipulation to justify complaint by the defendant, yet we are quite satisfied that fair practice required that he should either make known his objection in the mode described in the rule referred to, or at least by reasonable notice of motion to strike the deposition from the files or suppress it. Having ample notice that the deposition had been returned in attempted compliance with the-stipulation, he owed it to the plaintiffs, who were resting upon his apparent acquiescence, to use such diligence in evincing; his objection as would enable them to malee reasonable efforts-to avert serious consequences. Kimball v. Davis 19 Wend 437; Zellweger v. Caffe 5 Duer 87; Sheldon v. Wood 2 Bosw. 267; Rust v. Eckler 41 N. Y. 488; Sturm v. Atlantic Mutual. Ins. Co. 63 N. Y. 77; Doane v. Glenn 21 Wall. 33. Several parts of the deposition were particularly objected to, but the rulings of the judge seem to have been regular. Complaint is made that the cross-examination of the witness Siller was unduly restricted. No doubt the questions excluded might have been allowed; but no harm was done. A full investigation was obtained before the witness was dismissed. Some exceptions appear where the decisions were manifestly within the judge’s discretion. But the record contains one ruling which cannot be defended. The plaintiff in error having been examined and cross-examined, the defendants in error were permitted to put in evidence, in order to contradict him and impair his credit with the jury, the stenographer’s notes of his testimony on a former trial of the cause. No evidence was given to verify these notes or to invest them with the ehar'aeter of sworn minutes; nor was there any admission of their accuracy. Their exclusive title to competency and credence consisted in their presence in the files as minutes made by the stenographer in the former trial when the jury disagreed. They were not depositions nor established media of general evidence in the cause. Neither party, except by consent or under circumstances not existing here, could use them before the jury as a method of proving the facts. To hold otherwise would imply that a party would have the right to defy objection, and rely exclusively on the minutes of a former-trial, and avoid calling witnesses altogether. The Legislature iu providing for the assistance of shorthand writers did not intend that their notes should have more force than judge’s minutes, and no one has ever supposed the latter to possess the inherent character of written evidence. They are allowed to be made use of in various ways and under various circumstances, but not as depositions or evidence of record. Wharton’s Ev. §§ 180 and notes, 825 and notes. The special provision for employing stenographer’s notes to settle bills of exceptions in certain cases, affords no countenance to the practice pursued below. It gives a remedy for the particular case and goes no further. In order to preserve the right to a bill of exceptions where a vacancy occurs in the office of the trial judge, the minutes of the stenographer are allowed to be resorted to; and for the specific purpose of settling the bill In such case they are declared to be primafacie evidence of the testimony given. Act No. 8, Pub. Acts 1879, p. 5. This declaration would have been needless, however, if these minutes were already constituted evidence by the prior law. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

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Marston, C. J. This case has been before in this court, and is found reported in 41 Mich. 453, to which reference is made for a statement of the facts and a diagram, showing the location of the bridge, swing, property of the plaintiff, etc. Two questions of primary importance have, with others, been argued and submitted in tbe present case, and these were not passed upon on the former hearing; First, Did the evidence introduced tend to prove an estoppel as against the plaintiff' or his grantor Hart, so that damages could not now be recovered against the company % and, Seoondk/, Did the action of the supervisors in 1874, in fixing rates of toll for the bridge company to charge and collect, and of the Legislature in 1875 legalizing the rates so fixed, legalize the bridge, and make it a lawful‘structure not only from the date when such act took effect, but from the time the bridge was established by the board of supervisors in May, 1864, as claimed by counsel for the bridge company ? • The testimony of Mr. Glasby, who built the bridge, was •one of the principal stockholders, and who testifies fully as to what Mr. Hart the plaintiff’s grantor said and did in reference to the location and construction of the bridge and swing is given in a note herewith, and there is no other testimony in. tbe case tending, more strongly tban tbis, to sbow acts or conduct of Hart, or reliance tbereon by tbe company, tbat would estop tbe plaintiff in tbis case. In speaking of an estoppel, wben tbis case was before considered it was said tbe doctrine of estoppel rests upon a party having directly or indirectly made assertions, promises or assurances upon wbicb another has acted, under such circumstances tbat be woirld- be seriously prejudiced if tbe assertions were suffered to be disproved or tbe promises or assurances to be withdrawn; and as tbe doctrine wben applied operates to take away legal rights it is no more tban common justice to require tbat tbe facts wbicb are supposed to call for its application shall be unquestionable, and tbe wrong which is to be prevented be undoubted. Tbe correctness and indeed tbe justice of tbe rule as thus laid down will be unquestioned, sustained as it is by an almost unbroken line of authorities. "What is there in tbe evidence to bring tbis case within tbe rule thus laid down ? Tbe testimony of Mr. G-lasby, wben taken together, and tbis is tbe only way to test it, shows conclusively, tbat in no way was bis conduct — and be tben and for tbis purpose was tbe company — influenced or affected by tbe acts, conduct or language of Mr. Hart, different from wliat it would bave been bad Mr. Hart not been an actor or interested in tbe question at all, Mr. Grlasby says clearly and distinctly that it was to tbe board of supervisors be looked and depended for bis authority in tbe premises, in all that be did; tbat if bis actions and doings pleased Hart, be' (G-lasby) was glad, but beyond tbis Hart’s acts and conduct bad no influence with bim. It is’ clear beyond dispute from tbe evidence, that aside from Hart’s signature to tlie petition presented the board of supervisors asking that the bridge be located at the foot of Third street, he neither did any act nor said anything, which changed or influenced the conduct of the company, or upon which action was taken by it different from what it otherwise would have been, so that we are unable to see how it can now be said that the company relying upon what he said or did, expended any money or did anything, which justice and equity requires them to be protected in the full enjoyment of, as against Hart or his grantees. The essential elements required by the doctrine of estoppel in-order to apply it are wholly wanting in tlie present ease* Were this simply a question as to the weight of the testimony, within the rule laid down in Conely v. McDonald 40 Mich. 150, and since adhered to, we should not interfere, hut in our opinion the evidence failed in essential particulars to establish an estoppel, or facts which would warrant a jury in so finding. Upon the second question we are of opinion that the acts-of the supervisors and of the Legislature in fixing and legal izing the rates of toll upon this bridge were sucb that the public could not thereafter question the legality of the structure or the right of the company to maintain it under its charter. "We are also however of opinion that such action would not cure or cut off any claim which np to that time the plaintiff may have had, because of its illegal character and the injury he may have sustained in consequence thereof. The Legislature did not attempt to legalize the action of the board of supervisors in granting authority to construct the bridge in 1864, even if such an act iu 1875 would cut off tlie right of the plaintiff to recover damages which he had sustained between those dates. The act of the supervisors in 1871 in fixing tolls thereafter to be collected and the Legislature in making legal such proceedings of the board, was but a recognition of the legality of the company and its rights after that date. Statutes are not to be given a retrospective construction unless the language thereof shows clearly such to have been the intention of the Legislature, and in this case it clearly appears that no such intention existed, but that other and far different reasons existed for tbe action of tbe Legislature. We need not therefore discuss at length in this case, what the effect of an act legalizing the structure from 186é would have been or how the plaintiff might have been affected thereby. This case calls for no such investigation. But conceding that the effect of the legislation of 1875 in legalizing the previous action of the board of supervisors was to make the bridge and pier a lawful structure, it does not follow that the plaintiff may not maintain an action for the consequential injury to his dock. Neither the super visors nor the State can directly or indirectly appropriate the plaintiffs use of the shore to public uses without compensation ; and if even a lawful bridge and pier is constructed so near it as to preclude its profitable use he is entitled to compensation. If the bridge and pier is far enough from the dock so that it may be used but only with inconvenience, the same principle applies, and the .question is merely of the extent of the injury. On the part of the plaintiff testimony had been introduced tending to show that certain vessels had not stopped at his dock because of this bridge, which otherwise would have, and the business lost in consequence thereof. The plaintiff was,, as a witness, then asked: “What in your judgment has been the diminution in your business in amount by this prevention or interference with the boats coming there?” Answer. “About a thousand dollars a year during the years 1813-45-6.” The court in charging the jury upon this subject said that such general ■ statement or estimate of damages was not enough for the jury to consider; that it devolved upon the plaintiff, especially if defendants acted in good faith, to show in some satisfactory way a safe basis from which they could determine the amount of his loss or injury. This evidence, following what had then been introduced, was admissible, and the particulars upon whieh such estimate was formed could be called out by the other side. The estimate for the purpose for which it was introduced was competent, and the weight thereof was for the jury. If the court desired the jury to understand that while they could consider such estimate of damages, yet that it was not conclusive, but that the facts and circumstances previously testified to should be considered'in connection therewith, by them, in estimating the damages, then the charge would have been correct to that, extent. It was competent testimony to be considered by them, but under the issue and claim of the plaintiff, the good or bad faith of the defendant had nothing to do with the question. Only actual damages were claimed, and the good or bad faith could have no bearing upon that question. The fact that the plaintiff offered to lease some of the prop erty to the defendant had no proper bearing in the case, and should not have been considered. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred. William V. Glasby, sworn for tlie defendant, testified as follows: I reside in East Saginaw; have lived there since 1850. I am a contractor .and builder. I built the bridge for the Bay City Bridge Company. I built the most of it in 1861. I owned about or very nearly one-half of the stock. I knew when the company was organized and the preliminary arrangements for locating and building the bridge. I knew Julius B. Hart; he had a store just north of the street where we were building the bridge at that time. I think it was the second store — a warehouse and store together. His was the second block; Park & McDowell had a liquor establishment in the first block. I believe I was acquainted with Mr. Hart before the bridge company was organized. When we were ready to locate the bridge I talked it over with all those interested in the neighborhood of the bridge, and Mr. Hart was among the rest, and I had a number of talks with Mm as to where he would like to have it located to suit him, with others.. He seemed to want the location of the bridge there on Third street, where it was finally located. He was more .active than other parties living right around there. He had nothing against it, but requested if there was any such thing he wanted it located there. He would be satisfied to have the bridge there, and wanted it there; that was Ms point for it. [Witness was shown a paper, being the petition of Hart and others herein set forth.] I recollect of there being a petition got up by the parties there which was requested by us bridge men to put before the board of supervisors and have their sanction in the thing as much as possible. I would not say how many times Mr. Hart and 1 talked over the matter, but did so every little while. There was some of them around every day talking it over. I could not tell you whether it was talked over five times or twenty times. We talked it over a number of different times. During the time I was building the bridge I had a little office over Mr. Hart’s store part of the time, and part over in the next block below on this side of the street. Captain Averill I think his name was. I saw Hart around frequently while we were building the bridge every day or every day or so, and 1 could not say how often. Question. After the resolution had passed locating the bridge or giving the consent to the building of it, state what you did and who assisted you m making the actual locations and hutments of the piers and swing? Answer. The way I would explain that would he this: I wanted to-locate the bridge so it would be satisfactory to the people here as much as possihlé, and I didn’t care myself where it would he particularly, only to suit everybody. All I can say in regard to Mr. Hart, his desire was-to have the bridge located on Third street and no other place. I recollect something about the morning we went to drive the first spile. I drove in the bridge proper through the channel of the river. I drove the spile in the center of the swing as near as I could get at it, and it was talked over that I was going to locate the swing, and there was different parties there to look on to see how it would look, how far out, and so on. I told them how far out I wanted it, and they didn’t seem to know until they could see a spile drove. There was all the neighbors, Mr. Hart and all of them there looking on, and they made up their minds that it would be about right. Mr. Hart was with the rest, and there was no objections, and said it would be about right. As near as I can recollect there was no objections at all from anybody. I would say in regard to the location, I believe it as I supposed to be just about right for the use of the bridge, and the working of vessels and so on through the bridge to be handy, the location of the dock at the time of it, we had to build a bridge about that shape to be so that it would not be knocked down right off. The swing of the bridge has to be about so far from the dock to be handy, and if it is too close it is in danger. I measured the depth of the water across the river, and then I talked it over with different parties here that knew all about the vessel business and the current up and-down the river here, and where there’ was a bar up above by Mr. Lord’s mill as it used to be then. There was a bar out around there, and I wanted to get the channel as near as I could so as to have the long pier in the middle of the river with the channel of the river. I talked it over with different parties and put it to the best of my judgment of what I could make it by measuring the water above and below; in doing that I located it where it is. That was the best place I thought, or I should not have put it there. I am positive Mr. Hart was present when we drove the first spile, because all those were there that were interested. I drove the first as near as I could get at it, measuring from the shore to the center of the swing, as near the bridge line as 1 could. I drove the spile as near the center as I could, and from that spile I got my exact center; from that spile I struck out my stakes. I could not tell anything about how often Mr. Hart was around consulting with me while I was constructing the swing pier: it was frequently talked over with every one that came along. I could not say how many times I talked with Mr. Hart, nor anything about it. I did a number of times. We did all our shipping there, and I saw him very often; was in the store, and did a great deal of business with him. He had a shipping warehouse for steamboats, and all our iron we had came up and landed at his dock, and was unloaded there. We paid him, and he collected the bills that we paid him. I would say as to the influence of the thing in locating the swing pier, swing and abutments of the bridge where they are, I don’t know as Hart had any great influ- • ence no more than general good will. I wanted every one to be satisfied, and he was perfectly satisfied with it, and had no objections to make, and seemed to be pleased when he talked it over. He, nor no other man that I know of, never expressed a word of objections or dissent to it. I don’t know as his power, actions, requests and acts had any bad influence on us in relation to constructing the bridge and the expenditure of our money and nothing against it at all. I don’t know as there was any great influence, no more than I was pleased to have him satisfied with it. It seemed to be his wish. Question. Will you please state whether Mr. Hart was in a position where he saw the bridge during its construction? Objected to by Mr. Hanchett. Objection overruled, and plaintiff excepted. Answer. Yes, sir; he was where he could see it every day, and his store was right in plain view. I presume he was attending to his own. business at the store. He was there, and I saw him around. I could not tell how often I did see him during the progress of the work; I might have seen him once a day, and I might have seen him 20 times a day, and might not see him once in a week. I didn’t notice whether he was there every day or not. His position was where he could see me a dozen times a day, just as well as not, if he was at home. I cannot say whether he was there every day or not. He might have been out of town a day or so, and I not know it. He was there generally just as much as any other man doing business in his own store. I would see him very often. There was never a word of complaint in the world in no way, shape, or manner from him. He didn’t disapprove of it in any way, shape, or manner; that is all he could do about it. I didn’t ask him to help me, or any such thing. I could not tell the date of the application to the board of supervisors, yet I remember the whole transaction. I had a little sketch of the plan of the bridge, something of what I was going to build. I had a plan something like the manner of the construction of the bridge. I have got the most of that plan. I have got the plan just as we built it, with the exception of from the swing this way. I cut off that part of it, and used it in another draft and I have not got that 50 feet of the light trestle-work that was on this side; I used it up. [Witness produces the plan.] This was the plan that I presented to the board of supervisors. It shows a part of the swing that we built there, but it don’t show so that you can tell from the shore, on account of the first 50 feet being cut off. There was 50 feet of trestle-work, running from the end of the swing to the dock, that I cut off and used in another place. This place represents the end of the swing. There was a 50-foot span just exactly like this other 50-foot span run to the dock. He saw that, and we showed it to every one. Mr. Hart saw it a number of times. The bridge was built after this plan — exactly like it. It was either that or tracing of it that was before the board of supervisors when the petition was presented; if it was not that identical paper, it was a tracing of it. I mean we traced it off on tracing cloth, a copy of it. There was no other draft of it ever got up, and that is exactly the way we built the bridge. This plan indicates what parts are wood and what parts are iron. The draft offered and received in evidence, and marked exhibit “0.” Question, [Showing witness paper, being the notice attached to the petition.] Will you look at that notice? Ansioer. I have seen that notice lots of times. I think I posted that notice. I done it myself, individually, because I wanted it done to suit me, and I done it the whole length of the Saginaw river, from Salina to the lake. I cannot tell the exact stump or house where I posted them. I knew what the law required in regard to the number of towns that notices must be posted in, and I knew the towns then and looked them all over, and went and did it myself to have it correct. I could not tell the exact house or stump where I posted them. I can explain what knowledge I had of what I had to do, and what means I took of ascertaining what had to be done on posting the notices in this way. I helped to get up the charter of the East Town bridge; two charters up to East Town, and I knew what I would have to do, because when I got up those others I looked it all over, and I knew; and I came down here knowing-just what I had to do a year before. [Witness was shown statute to refresh his memory.] The law required so many days, and I testified that I posted them in the required time. I was very particular about that. It wanted three weeks, and I say I did it four or five weeks before. I won’t say it was three days over, but I was particular having it right. I don’t recollect the particular places in each town. They were posted up in just as public places as I could find. But I could tell the greater part of them where I put them up. It was over three weeks. I will testify to that sure, because I am positive about it. It is a pretty hard thing* to tell the exact place I posted them at, around town here. I know I had one stuck up near the Barclay house here — I forgot whether it was on the house or exactly the spot; and I stuck up one on the old Stephens store up there; and up at East Town I stuck up some there, in the town, in the most public places I could think of — anywhere it came handy. I remember of going to Salina, and putting them up there, and over to-Saginaw City. I could not tell all where I put them, only I know I kept up the required amount, and I done it in time. I would swear to that anywheres. At that time I knew exactly the different townships, but I could not tell now. I posted notices in each of the townships on the Saginaw river — I was particular about that. It was more than three weeks prior to the meeting. I don’t know whether Mr. I-Iart was present or not at the meeting of the board of supervisors at the time this question came up. I posted three notices in- each town, and I think I posted in some places a number more than that, l'-got a lot struck off, and 1 stuck them up where it came handy. I would not say positively that at the-time of the meeting of the board of supervisors, or the presentation of the petition, I furnished proof to the board of such posting, but I think I did. I have no doubt about it at all, and if it was asked or any question about I done it. 1 don’t recollect that particularly. The bridge first, cost us very nearly $28,000. I’ve built it partly since. I built the iron contract here, and had something to do with the rest. We calculated to-get it as near the same line of the old one as we could. We put it on the-same line as near as we could mark it. I think it is on the same line* It was the same width in the roadway — exact. • CROSS-EXAMINATION BT MR. HANCHETT. I cannot exactly tell now the date when the Bay City Bridge Company was organized. I was not one of the original corporators. My connection with it was from the beginning. I virtually owned the stock from the commencement. That was the agreement. I was to own the bridge, and yet, in a business way, there would have to be a good deal of security in all of such works to get the thing along, and I proposed to run the thing myself. I did not want to get outsiders interested. I had those three men take the stock. I came up as a contractor and took the bridge. In fact I had an old man that worked for me by the name of Brown that took the contract, so I went security for the whole of them all round. Then I owned the stock virtually myself. William S. Gilbert and myself owned the stock, and I was a stockholder. The stock had been transferred to me after the organization of the bridge company, so that from the beginning I was the managing man. I was the one that first came down here to look it over and talk about the bridge, and get the rest to take hold with me. I did, by the" way of William S. Gilbert, institute the proceedings to get the authority from the board. I was the one that instigated this job down here. The company was formed for the purpose •of building this bridge and no other. I had already been connected with the foundation of two other bridge companies. I had built one bridge across the river at East Town the year before, so that I knew that the authority to build a bridge across the river must come from the hoard of supervisors. I did not write the petition that was presented to the board of supervisors for authority, but 1 knew what was done, and how it was being done. I think Mr. Gilbert presented the petition. I did not present the plan of the bridge to the board myself. I think Mr. Gilbert did it. I was not before the board to say anything orto do anything. I was down here backwards and forwards. I was here once or twice while they were in session, but I think I was not here the day they acted on the application. I was hero when they were talking over once about the t.olls; I think that’s all. When I say that plan was presented to the board, I am speaking of what I understood from Mr. Gilbert, and those down ■at this end of the river. I went along the river myself to select a place to locate it. I think Mr. Gilbert was not with me; I think I had a man with me that I brought down here that surveyed the river and staked it. His name was Bush. I employed him, and I think we went about up to Mr. Lord’s mill, and I think I was out on the ice and cut holes in it, and measured across the river every 50 feet, so that I acquainted myself with the whole space as far as I wanted to go. I did not calculate to build the bridge any further up or down than that. I talked with different parties light around Third street, and consulted with the citizens here in the city in. regard to the location of the bridge. That is in the winter of ’63, about 16 years ago. I heard Mr. Hart is dead now. When I speak of Mr. Hart and his conduct particularly, I haven’t a bit more recollection of what he said and did than what other people said and did on the subject. He had a good deal to say about it because he was anxious, and so were others. He was in the neighborhood, and I could see him every day, or very frequently, and just so with all the rest that lived there. In regard to Mr. I-Iart’s conduct, it is no different with him than a Mr. Barclay on the other side of the street. I was desirous and satisfied to have other people satisfied. In my location of the bridge I looked to the board of supervisors, and depended upon them for my authority. I did not look to the people for that, of course. When I constructed the bridge I looked to the board for my authority, and acted in obedience to that authority as I understood it. That’s what I supposed I was doing and intended to do. In regard to Mr. Hart’s conduct, I can simply say I was glad he was pleased at what we were doing. After we had got it all round in shape, and the supervisors satisfied, then I showed him what I was going to do, and they were all satisfied. When I drove that spile at the center of the swing, I can’t exactly tell whether Mr. Hart was there before or after it was driven, but they all had a good deal to say about my business that morning, and they were all there looking on out of curiosity, and every one had his opinion as to whether it was too far out or in. I drove it just where I had a mind to, and they were all satisfied with it. When I started the pier I acted exactly as I was a mind to, and nobody dissented. They thought it was all right; I thought it was all right, and, says I, how is that? and they says that is exactly the spot. In putting it there I acted on my own judgment, and under the authority I got from the board. I was satisfied first, and if they were satisfied afterwards, I was glad of it, and I went on building the bridge clear through in the same way. They thought if I had a mind to come down here and fool away my money, they were pleased over it. I thought it would come out all right; I acted upon my own judgment, and in putting the bridge there and locating it there, and constructing it as I did, I did it under the authority of the board, and I looked to the board only, of course, for my authority. I could not get any sanction from the citizens here to build the bridge, no more than their will for it. I was glad if they woreWted. I could not say any particular thing that Mr. Hart said on a particular day, only I know he never growled about it more than the rest. As I did my work along step by step, when I saw Mr. Hart with others I have spoken of, I called their attention to it, and as questions came up, and I asked whether they were pleased and they said they were. They found no fault only to hurry up with it. RE-DIRECT EXAMINATION BY MR. HOLMES. There was no general controversy between the citizens in regard to the location of the bridge, as I know of. There was some different parties that said they wished it could be put up at the foot of Center street. In regard to the necessity of the pier being built the length it was, I would say when I built the bridge it was before the days of tugs; vessels most all sailed up here, and I wanted to get the pier down below the bridge, so that if a vessel came up it would strike that pier before it would strike the bridge. I built it down a considerable ways on that account, and sharpened it off, and built it down farther than it might be now probably when they tug vessels through and scows and everything as handled by the tugs. Then there was scarcely a tug on the river, and vessels would come flying up through here, and'l had to have a protection above and below, in order to protect it. Without this they would come up part way, and throw their anchor out, and swing right in the bridge, and I had to have a protection there. I think I put that 25 or 50 feet below the end of the swing, when the swing is open. It commenced right where the swing comes around below; I commenced and sharpened it off so as to give it a sharp point. The length is just exact as I thought about right at that time. If I was going to biiild one now, I would build it exactly like it, if I could. RE-CROSS-EXAMINATION BY MR. MAXWELL. There has been tugs on the river a good while, but there was not so many then; vessels sailed up then. I wanted to go down as far as could without any complaint, and there would no one have complained if I had gone down 10 rods further. I did not drive that group of spiles at the end of the pier. I planked up all I drove. It has been 12 or 14 years since they commenced tugging, and don’t sail up so much. They don’t sail up very much now, but they used to. I don’t know as any of them sail at all in the neighborhood of the bridge. And said witness being further examined by defendant’s counsel testified: We did not complete the bridge entirely until along in the spring of 1865, — that is, to get the sidewalks and everything all done. Boats were running when I got the sidewalk completed. I commenced the work in June, 1864, and I think I had it done along some time in April, I860. We had a freshet that bothered us, and I worked right along; and there was some little work about it that I done along in the spring, but we had the bridge already to cross when the ice started out. It was substantially by the fall so that we could travel. The ice was good until I had the bridge ready to travel.

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Cooley, J. This appears to be a case made for review in this court after judgment for defendant .in the Kent circuit. The action was trespass qua/re cltmsvm, and the plea was the general issue, with notice that the locus was a private way, properly established as such by the public authorities. The case sets out the pleadings and proceeds to say that— ¶ “ The facts as proved by the evidence are as follows: “ 1. On and previously to October 28,1878, the plaintiff had been the owner of, and been in possession of the premises mentioned in the declaration. “ 2. On the 4th day of September, 1878, the defendant and his wife made application to the proper authorities, in a lawful manner, to have a private way, two rods wide, laid across said premises. “ 3. Thereupon notice, pursuant to law, was given plaintiff of such application, and also of a meeting to be held at defendant’s house on the 21st day of October, 1878, at 10 o’clock a. m., by the commissioner, for the purpose of striking a jury to determine as to the necessity and propriety of such road. “ 4. On the day and at the hour mentioned, the highway commissioner, town clerk and defendant and his wife, met at the defendant’s house in pursuance of the notice, and the meeting was regularly adjourned until the 28th day of October, 1878, at 8 o’clock a. m., at the same place. “ 5. On the 28th day of October, 1878, at the time appointed, the same parties, and the plaintiff with his attorney, met at the defendant’s house, and proceedings were commenced to obtained a jury. Henry W. Booth, a' constable, was duly sworn to write down the names of eighteen disinterested freeholders from which to select a jury. After such names had been written down, the plaintiff and the defendant each struck off three of the names; whereupon the commissioner issued a proper citation to the remaining twelve persons, whose names had not been stricken off, to act as a jury. "6. The citation, having been delivered to the officer for service, was returned duly served upon nine of the persons therein named, three of said persons not being found. Thereupon the plaintiff and the defendant agreed that George Winslow, Arthur W. West and William Andrews might be summoned in the place of the three persons not found. It appearing farther that said George Winslow could not be found, and that one of said original nine who ■were summoned was incompetent to act, the plaintiff and the defendant agreed that Isaac Brannon and George Broad-bent should be summoned to act in their stead. “ 7. Thereupon the constable having summoned the said jury, returned said citation duly served upon the following named persons: TIenry Gould, Calvin Hull, John Yeiter, Isaac Yan Oty, Charles Powley, James Brannon, Luther McConnell, Thomas Lowden, Arthur H. West, William Andrews, Isaac Brannon and George Broadbent, who were duly sworn well and truly to examine in regard to the necessity and propriety of said private road, and, in such case they should decide it a necessity, to justly and impartially appraise the damages, etc. . “ 8. The petition and the law having been properly read to the jury, said jury repaired to, and examined the premises, returned to Parrott’s house, and after due deliberation (separate and apart) returned and decided, that after their said examination they found the road necessary and propel-, and appraised Chattel-ton’s damage at one hundred dollars. “ 9. Then the defendant paid the jurymen their lawful fees, and they were discharged. Defendant then also placed in commissioner’s hands, to be paid to plaintiff, one hundred dollars, being the damage appraised. All this took place on the 28th day of October, 1878, and on the 29th day of October, 1878, the commissioner of highways made a proper order that the private road be laid out as applied for. The proceedings to open and lay out the road as above set out, appear from the lawful record thereof, which was put in evidence, and the record closed with the receipt of John Chatterton for the hundred dollars damages, which was appraised by the jury, and which was paid to him by the commissioner. “ 10. It also appeared from the evidence, that the defendant paid all the costs and charges incident to the opening of the road. It also appeared that during all the proceedings the plaintiff was present with his attorney, whom the plaintiff had taken there expressly on that matter, and participated therein, and made no objections to any of the jurymen, but left it to the men selected to assess the damages. The defendant, under the commissioner’s orders, afterwards went upon the premises and opened the road, and used it thence and until the present time. He removed some fences and apple trees, offering the plaintiff to set the trees where plaintiff might direct; but the plaintiff replied, that they would be of no use to him, and ne, plaintiff, did not want them. And it appears from the evidence that the defendant removed only such obstacles as was necessary to remove and open the road, and did no unnecessary' damage. “ 11. About eight or nine months afterwards, the plaintiff claimed that there was no road laid out across his premises, and he thereupon tendered to the defendant the $100 that had been paid him as the damage awarded, and forbid the defendant coming on the land any more. He did not tender back any of the other expenses or interest. The defendant refused to accept the one hundred dollars, but continued to go on the plaintiff’s land and use the said road, and has continued so to do hitherto. The reason assigned by the plaintiff that the road was illegal, was that he had ascertained that two of the jurymen, who acted on the jury while layingout said road and assessing the plaintiff’s damages, to-wit, Hull and Gould, were not freeholders at the time said road was laid out, that fact was proved on said trial that Calvin Hull and Henry Gould were not freeholders at the time that they acted on said jury, and that the said plaintiff did not know that fact; that the highway commissioner did know that Gould was not a freeholder, for Gould told him so, and tho commissioner told Gould that it would make no difference, but the commissioner did not communicate the fact to any of the parties. It was also established that they were living in the neighborhood of the plaintiff, and he knew them, and it did not appear that the plaintiff or his attorney made any inquiries or efforts to ascertain whether or not said two jurymen were freeholders. It further appeared that said plaintiff had not kept the tender of one hundred dollars good at all times, and did not have that amount of money present in court. Afterwards, to wit, in the October term of said court, 1880, the said court rendered judgment in the said cause in favor of the defendant for cost. “ To which judgment the plaintiff did except.” This is the whole case. This Court does not review law cases on the facts, and has no power under the law to do so. Its jurisdiction is limited to a review of such rulings of the circuit court upon questions of law as were distinctly presented and passed upon. What rulings upon questions of law are to be found here ? It is recited that the plaintiff excepted to the judgment; but why ? So far as appears it was in due form of law, and it was the duty of the court to render it if the judge was of opinion that the plaintiff had made out no case. Perhaps the plaintiff supposed he would be at liberty to go back of the judgment and raise any question of law that might have been raised in the court below ; but that is a mistake: we might if that were admissible be passing upon questions that were never called to the attention of the trial judge, and perhaps be reversing his judgment on points on which he would agree with us. A general exception to a judgment cannot be given any such sweeping effect. In this case we do not know whether the circuit judge held the defendant entitled to a judgment because he considered the proceedings in laying out the private way valid,, or because he held the plaintiff estopped by accepting the compensation awarded, or because having accepted it he had not kept good his tender of repayment, or because he had not effectually revoked his license, or for some other reason which seemed to him sufficient. No finding upon points of law was requested, and none was made. The judge merely tried the cause and rendered judgment, and the judgment is excepted to and nothing else. But this is futile: a mere exception to a judgment which is good in form can never be available. Had there been findings, an exception that they did not support the judgment might have been considered ; but this case is nothing but a presentation of all the facts for our judgment upon them. We have no authority to express such a judgment. .This disposes of the case. Nevertheless as further litigation may arise, we have looked into the plaintiff’s brief upon the merits, and find that he relies for the invalidity of the proceedings in laying out the way, upon the incompetency of two of the jurors. But after accepting the compensation awarded he was not in position to take such an objection. Baker v. Braman 6 Hill 41; Embury v. Conner 3 N. Y. 511; Detmold v. Drake 46 N. Y. 318; Mobile etc. R. R. Co. v. State 29 Ala. 586. It is of no importance that he failed to ascertain the incompetency in due season; his duty was to inquire into the facts while the proceedings were pending. The judgment must be affirmed with costs. The other Justices concurred.

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Campbell, J. Russell filed this bill to obtain specific performance of a contract whereby Nester agreed to sell him certain pine lands, amounting to about five hundred. acres, which had been previously lumbered upon. The contract was made in December, 1874, and was for the sum of $3000, of which $100 was paid down, a lot of logs to be delivered which amounted to between $1100 and $1200, and the balance to be paid in 1876, 1877 and 1878, with interest at ten per cent. The logs were delivered, and taxes mostly paid, but no further payment was made. Nester in February, 1878, notified Bussell that he must pay at once or the contract would be forfeited. Bussell not paying within the five days which Nester assumed to fix, Nester sold the property to the defendants Bliss, for the remainder due and to become clue from Bussell, and they took, knowing all the facts. At this time Bussell made some efforts to get means but failed, and thereafter he made no personal efforts, and had no arrangements or negotiations with the purchasers. He had, soon after the contract was made, sold out a half interest to Orville O. Morris, who declined to invest further. In the fall of 1878 the purchasers, who had not been notified to the contrary, went upon the land an'd during the winter got out lumber, which at the value as cut would about cover the sum which remained unpaid. Thereupon Wellington B. Burt, to whom Bussell had made a sale, filed a bill to enforce specific performance, and tendered the balance unpaid, according to the terms of the contract. This suit went down for an error in the papers, and then Bussell, who had taken a re-assignment, filed this bill, which is really in Burt’s interest. The court below dismissed the bill. It is not claimed that Nester’s notice was of itself a complete forfeiture, but that it was a distinct warning to Bussell that he must act promptly and delay no longer. The question presented is whether the delay without any further effort to pay, is such that the court should regard the purchasers as entitled to hold their bargain. It cannot be held an absolute matter of right to have a contract enforced after there has been gross default. The vendor, if he cannot justly appropriate the moneys paid, and still hold the land for less than its value, should always be allowed to make himself good without being subjected to unreasonable delay, and if a forfeiture of the contract is not inequitable, the court will not feel bound to disregard it. In the present case, if Nester had offered the property for sale on a mortgage, having the same amount due, we are satisfied the land would not have sold for any more than he obtained for it. He made nothing out of the sale, and. the purchasers paid all it then appears to have been worth. If he had sold to a bona fide purchaser, he could not have been fairly chargeable with any more. This being so, the delay to set up any claim to the purchasers, and the omission to warn them against incurring expense and trouble in lumbering, renders it very inequitar ble to allow the defaulting party to step in and get the profit which their diligence may have earned them. They did not act in bad faith, and we think they should be protected. And we think Russell has no greater equities than he would have had against Nester if the latter had sold to a purchaser who knew nothing of the contract. In that case the accountability of Nester, after such a long default, could not fairly have gone beyond the value of the land as then existing. And, as already stated, we do not think the market value would have exceeded what the Blisses paid for it. The decree must be affirmed with costs. The other Justices concurred.

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Cooley, J. The misapprehension in respect to the proper practice in this case has been such as to necessitate a reversal of the order which is appealed from. In August, 1879, Ransom took decree against Sutherland and others in a foreclosure case. ’ The decree adjudged Sutherland to be personally liable upon the mortgage debt. A sale under the decree of all the land described therein was made October 8, 1879, and the commissioner reported a deficiency, after applying the purchase money on the decree and costs, of $583.61. December 30, 1880, complainant’s solicitors served on the solicitor who had ' appeared for Sutherland in the foreclosure case a notice that on the third day of January, 1881, they would move the circuit court for an execution against Sutherland for “ such deficiency as may remain unsatisfied on the decree rendered in this cause.” The notice stated that the motion would be based “ on the files, decree, report of sale and subsequent proceedings had in said cause.” At the time specified said solicitor for defendant appeared and objected that no notice of the motion had been personally served on the defendant. This objection was overruled, and time was allowed to answer the motion. January 19,1881, the solicitors being in court, defendant’s solicitor moved to dismiss the application for the want of any proper showing that complainant was entitled to execution. This was denied. ITe then assumed to file an unsworn answer for the defendant, denying any indebtedness, but the terms of the denial were obviously such as to dispute the justice or validity of the decree, and of course presented no issue which was then material. The. complainant produced the decree and the report of sale and deficiency as evidence of his right to an execution, and the court ordered that an execution issue. Sutherland appealed. The whole proceeding was informal; and while it might have been sustained had no objection been made at the time, the irregularities are such as the defendant had a right to take advantage of. The application should have been made on sworn petition, reciting briefly the facts giving the right to an execution, and praying the court to direct its issue. It is not absolutely essential that the application take the form of a petition; but it should be in writing and under oath, and it should be served on the party against whom execution is sought, with notice of the time when it will be presented. The service should be on the defendant in per son, wherever that is practicable; for presumptively the retainer of a solicitor in a cause does not extend to proceedings taken subsequent to the decree for its enforcement. If personal service on the defendant is impracticable, the court, on a showing of the facts, may direct a substituted service. "When the defendant is brought in on petition and notice, if he contests the right to an execution, he should file his answer setting out the grounds of his objection. It is hardly necessary to say that these must be grounds not inconsistent with the decree and usually such as operate in its discharge: the validity or justice of the decree cannot be inquired into on such an application. The answer, like the application, should be on oath, and if it present matter of discharge, the complainant may take issue upon it, and the court in proper ■cases may order a reference to take proofs. But in such a case the burden of proof to show discharge must be on the defendant, for the decree adjudging the defendant personally liable, and the report of the deficiency, make out a prima, facie case against him. The order appealed from must be reversed. As the costs •are in our discretion, and nothing in the record indicates that defendant is relying upon any matter of discharge, we are not inclined to award full costs. Both parties seem to have mistaken the practice, and there are no equities apparent which entitle the defendant to special consideration. The order will therefore be reversed, and the defendant may recover the costs of printing the record and brief in this court, but in other respects each party will be left to pay his own costs. The other Justices concurred.

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Campbell, J. Complainant filed her bill against defendant as owner and actual possessor of lands in Nankin,Wayne county, charging defendant with giving out and pretending some opposing claim which she could not ascertain, but which she believed to be under some pretence of levy. The bill prayed for a decree quieting the title. Defendant filed an answer making no admissions of complainant’s rights, and denying that he had given out that he had any interest, but not disclaiming any interest in fact. It appeared on the proofs that he had undertaken to sell the land under a levy against complainant’s husband, which was not made under a valid writ, and that the certificate of sale had been filed with the register of deeds. It also appeared that he had refused to release the claim. The court below decreed for the complainant. Ve can see no reason for disturbing the decree. Defendant has not shown that it was filed without reason, and is not in a position to complain of the suit, because his own course made it proper. The suggestion that creditors of the husband might attack the wife’s title is of no force, because no such issue is raised by the answer, and defendant has not put himself in any position to raise such a question. The testimony is not taken so as to try any such question, and it would be not only acting on a foreign controversy, but acting without any sufficient light to consider i or discuss the possibilities of such a state of things. The decree must be affirmed with costs. The other Justices concurred.

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Graves, J. The material facts stated in the bill are in substance as follows: Margaret Hack being the wife of Jacob Hack obtained a decree of divorce from him in the circuit court for the county of Wayne about the year 1859, and thereafter intermarried with Leopold E. Taufkirch, and lived with him as his wife until her death. That said marriage was however void by reason of a prior and subsisting marriage of said Taufkirch. That said Jacob Hack and Margaret Hack are both dead, the latter having died on the 26th of March, 1870, and that complainants are their sole issue and the only surviving heirs at law as weE of the one as of the other. That on or prior to November 17,1868, the said Margaret was the absolute owner in her own right ■of lots nine and ten in block four of the western addition to the city of Detroit of part of the Cass farm, and that said lots were worth about $10,000. That during the time she lived with Taufkirch he treated her with great brutality and held her under his absolute control. That his cruelty broke her down in body and mind and so completely that in July, 1868, she was attacked with softening of the brain and paralysis, and became wholly insane and incompetent to transact business. That on said 17th of November, 1868, said Margaret was living on the premises with said Taufkirch, and that he then took advantage of her helplessness and incompetency and coerced her to join him in executing a warranty deed thereof to the defendant Norris upon a consideration as expressed of $6500. That no part of said consideration was either paid to or received by her and that the deed was not her act, and that the defendant Norris was-acquainted with all the facts. That possession was taken soon after by him and has since been retained by him and the defendant Waterman. That the latter on the 15th of June 1875, had full knowledge of the facts before mentioned affecting the validity of the transfer from said Margaret, but nevertheless took a deed of the property from said Norris on that day. That complainants are informed that said Waterman paid nothing for said conveyance and received it merely for the purpose of facilitating a disposition by said Waterman (who is a real estate broker) for the benefit of Norris. That defendants have had the use and occupation since November 17, 1868, and have collected and received the rents amounting to a large sum and have not accounted therefor. That on the death of their mother, the said Margaret, the property descended to the complainants. The statements to excuse delay and the claims made for relief need not be noticed. Such is the case made by the bill. The only matters in the answer which are now material are the denial of incompetency of complainants’ mother, the allegation that the deed to Norris was in pursuance of an arrangement between her and Taufkirch to provide her with a separate living, the averment that whatever equity the complainants may have had originally had been lost by their laches, and that even if they should be held entitled to an accounting it ought not to be carried further back than six years next preceding the filing of the bill and in equity and justice should be confined to the six years next preceding the reference. The parties went into evidence at great length and on the 19th of November, 1880, the cause was heard on the merits. The court, by a decree of that date, declared that the deed ■of November 17, 1868, to Norris, and tbe deed of June 15, 1875, from Norris to Waterman were void, and ordered an •accounting by the defendants of tbe rents, profits and income collected and received by tbe defendants since tbe 17th of November, 1868, and of tbe amount to which complainants were entitled for tlie use and occupation of tbe premises ■subsequent to tbe same date. The decree further required 'that tbe commissioner should ascertain tbe amount laid out by the defendants for taxes, insurance, improvements and necessary repairs and other disbursements if any during said •time, and also that he should compute tbe interest upon tbe balance due at tbe end of each year in favor of complain.■ants and tbe rents, profits and income over and above tbe amounts in such year expended for taxes, insurance and necessary repairs and improvements and other disbursements if any, at tbe rate of seven per centum per annum •compounded with annual rests to tbe date, of tbe decree. All further directions were reserved. This decree was not appealed from or otherwise disturbed. Tbe parties acquiesced. It determined all matters except tbe equity reserved and such determination has come to be tbe law of tbe case. December 8, 1880, tbe commis-sioner filed bis report. Tbe parties waived tbe computation •of interest directed by tbe decree and it was not made. Tbe defendants filed nine exceptions, and on tbe 4-th of •January, 1881, a bearing was bad on the report and exceptions, and tbe court overruled the exceptions and confirmed tbe report except as found inconsistent with tbe final order then made. And tbe case is now before this court by •appeal on the part of tbe defendants from this last order, a •copy of which appears below. The first decree negatived the defence and by necessary consequence determined that complainants had not been guilty of any unconscionable laches or delay; and it decided further that the case made by the bill was established and that they were entitled to have the deeds set aside, to be put in possession and have an accounting. These matters are no longer open. They are beyond the power of this court. In view of the effect of that decree and of the state of the commissioner’s report and the character and scope of the exceptions thereto and considering the shape and operation of the decretal order appealed from, there appear to remain only two subjects of inquiry: first, as to the right to carry the accounting back to November 17, 1868, the date of the conveyance by complainants’ mother to defendant Norris; and second, as to the right to allow interest. Neither party has contended for beginning the accounting from March 26, 1870, the time when complainants’ mother died, and hence tbe time when their title accrued. Both sides have obviously declined to adopt that view. The position taken and adhered to by complainants, and which the court in making the decretal order accepted, is, that the accounting should commence at the date of the conveyance to Norris, a time some sixteen months prior to the acquirement of title by complainants. On the other hand the defendants claimed and still insist that it should begin not further back than six years preceding the reference or at the most six years preceding the filing of the bill. The parties are hence at variance as to which of these periods is the proper one; it being assumed obviously that one of them is so and that the date of Mrs. Hack’s death ought to be excluded. And under these circumstances the court would naturally pause in any event before it would fix on this last-mentioned date as the proper limit. But whatever embarrassment on this score might have arisen, we think tbat tbe equities which spring from the circumstances are such as operate to refer the accounting to one of the periods contended for in argument and to show that the assumption that Mrs. Hack’s death is not the proper time to reckon from is a correct assumption. The principle on which complainants rely has been long settled. It was fully explained and variously applied long since. Duke of Bolton v. Deane Prec. in Chy. 516 ; Bennet v. Whitehead 2 P. Wins. 644; Dormer v. Fortescue 3 Atk. 124; Norton v. Frecker 1 Atk. 524; Curtis v. Curtis 2 Brown’s Ch. R. 620. Añd in view of the determination made upon the facts, of which we have decisive proof in the first decree, it is entirety clear that complainants are by these authorities not only entitled to an accounting, but to one going back as far at least as their mother’s death, and accordingly beyond the period contended for by defendants. The necessary meaning of that decree is that Norris got the estate from her by unconscionable means; that Waterman obtained it from him under circumstances exposing the title to the same objections to which it was liable in the hands of Norris; that the defendants knowing 'they had no right to the property yet withheld it under a claim of title they knew to be inequitable, and deprived Mrs. Hack of the use of it until her death, and thereafter deprived complainants of it. No milder meaning can be ascribed to that decree, and proceeding as we are bound to proceed on the basis of it, the extension of the accounting to Mrs. Hack’s death at which time the complainants’ title accrued is undoubtedly correct. The authorities are very positive. In addition to the ancient cases referred to, see Hicks v. Sallitt 27 E. L. & E. 212, 230, 236; Russell v. Southard 12 How. 139; New Orleans v. Gaines 15 Wall. 624, 634. But as we have seen, the accounting was not limited to the beginning of their title. On the contrary it was carried back to the commencement of defendants’ title, being some sixteen months prior to any title in complainants, and this would be .incompetent unless under very unusual circumstances. But we have such circumstances and they apply not only to this consideration but to the argument that the time ought to be arbitrarily confined to six years by analogy to the rule at law. in cases for mesne profits. The complainants come to be relieved against the two deeds and to obtain the just emoluments of the estate, and they are bound to do equity as a condition of relief, and under this principle, as the court finds, the accounting ought to be extended beyond six years and to the date of defendants’ title. The defendants are entitled to allowances for improvements and expenditures, and these are found to have been so distributed over the different periods that no just and equitable settlement is .practicable without including the whole interval subsequent to Mrs. Hack’s death. Moreover the matters in regard to allowances to one party and another are so related and so intermingled in point of justice that an accounting on both sides is impracticable on any terms of equity without passing the limit of six years and going-back to the beginning of Norris’ title. And certainly no accounting could be allowed on one side merely for the whole or any particular portion of the time. This branch of the ease stands on special and peculiar grounds. Neesom v. Clarkson 4 Hare 97, presented a state of things somewhat similar and the right to prolong the .accounting was sustained. "Whether, in case the circumstances were not repugnant, the rule of limitation in respect ho mesne profits in suits at common law would not apply by analogy, we do not inquire. On this part of the case we see mo reason for disturbing the order appealed from. The second point demands no special comment. We do mot know what objections were made below or what are relied on here against the allowance of interest. The parties saw fit to take the subject away from the commissioner and hence nothing concerning it appears on which to found an •exception, and of course no exception was tendered, and the .sole suggestion made in this court is, that interest should not be allowed. We are not favored with any reason and are mot able to conjecture any. The effect of the first decree was to establish a ground warranting the allowance of inter■est. The rents collected and the value of the arm nal use during such time as the property was not rented, together with interest, seem proper items in fixing the sums chargeable against defendants, considering the nature of their adjudged liability. Vandevoort v. Gould 36 N. Y. 639; New Orleans v. Gaines supra. The result is that no cause is shown for disturbing the •order and it must be affirmed with costs. The other Justices concurred. Superior, Court or Detroit — In Qlianm'y. At a session, of the Superior Court of Detroit, held at the Superior ‘Court room in the city of Detroit, on the fourth day of January, A. D. one thousand eight hundred and eighty-one. Present, the Hon. J. Logan Chipman, Judge of the Superior Court of Detroit. Peter Hack, George Hack and Mary Tihbits, complainants, v. Philetus W. Norris and William J. Waterman, defendants. This cause coming on to he heard at the last September term of said •court, upon pleadings and proofs, and the court upon due consideration thereof, having, at the November term of said court ordered, adjudged and decreed that the deed of conveyance purporting to have been executed by Leopold E. Taufkirch and Margaret, his wife, to the defendant, Philetus W. Norris, bearing date November 17th, 1868, purporting to convey the premises described in the bill of complaint, viz.: Lots number nine and ten, in block number four, of the western addition to the city of Detroit, of part of the Cass farm, according to the recorded plat thereof, said premises being situate on the south side of Larned street in the city of Detroit, county of Wayne, and State of Michigan; and also a conveyance of the same premises executed by Philetus W. Norris and Jane K. Norris, his wife, to the said William J. Waterman, bearing date June 15, 1875, were utterly void and of no effect; and having further ordered that the bill of complaint in this cause be referred to Harry E. Chipman, ■one of the circuit court commissioners in and for the county of Wayne, to take an account of the amounts of rents, profits, and income of every name and nature collected and received by said defendants, upon said premises, since the 17th day of November, A. D. 1868; also of the amounts to which the complainants are entitled for use and occupation of said premises since the 17th day of November, A. D. 1868: also of the amounts laid out by said defendants for taxes, insurance, and necessary repairs and improvements upon said premises, and other disbursements, if any, during said time; and further, to make certain computations of interest therein specified, further directions being reserved until the coining in of said report. Upon reading the report of said commissioner heretofore filed in this cause, together with the several stipulations thereto attached, and defendants’ exceptions thereto filed in this court, and after listening to the arguments of Charles M. Swift, solicitor for complainants, and John Ward, Esq., solicitor for defendants, it is ordered that the exceptions to the said report be overruled, and that said report be, and the same is, hereby in all things confirmed, except so far as the same may be inconsistent with this decree. And. upon consideration of the matters therein reported to this court, and upon further consideration of the pleadings and proofs, and after hearing further argument thereon by the said Charles M. Swift, Esq., solicitor for complainants, and John Ward, Esq., solicitor for the defendants, it is, by the court, now here ordered, adjudged, and decreed, and this court, by virtue of the power and authority therein vested, doth order, adjudge, and decree that complainants are entitled to recover of said defendant Norris, the full sum found by said report to have been received by said Norris for rents, and due for use and occupation of the said premises during his occupancy thereof, less the several sums found by said report to have been expended by him for taxes, insurance, necessary repairs, and improvements, and interest paid upon the mortgage executed by Margaret Taufkirch and Leopold, her husband, to Ira Davenport, dated April 4, 1863, together with interest on the several yearly balances in favor of complainants of the amount so received over and above the amounts so expended, at the rate of seven per centum per annum to the date of this decree; and that the complainants are entitled to recover of said defendant Waterman the full sum received by him for rents during the time said premises were occupied by him in the years 1875 and 1876, and from and after the first day of January, A. D. 1877, for use and occupation at the rate of forty dollars per month, to the date of this decree, less the several sums by him expended for taxes, insurance, necessary repairs, improvements, and interest upon said mortgage, together with interest on the several yearly .balances in favor of the complainants of the amounts so received for rents, or to which the complainants are entitled for use and occupation over and above the sums so expended, at the rate of seven per centum per annum to the date of this decree. And reference to a circuit court commissioner to compute the several sums herein specified being waived by all parties in open court by their respective counsel, the court has thereupon computed the same upon the findings contained in the report of said Commissioner Chipman, and upon the basis of computation here declared, and said computations are contained in Schedule A, attached to this decree, and made a part thereof. And thereupon it is ordered, adjudged and decreed that said complainants do recover of said defendant, Philetus W. Norris, the several sum and sums which as aforesaid they are entitled to recover, to-wit, the sum of $3040.73; and that said complainant do recover of said William J. Waterman the said several sum and sums which as aforesaid they are entitled to recover, to-wit, the sum of $2012.08; and that said complainants do have execution for all of said sums. And it is further ordered, adjudged and decreed that said defendants, and all person or persons claiming by, through, or under them or either of them, do yield and deliver up to the said complainants, their several heirs, executors, administrators, representatives and assigns, possession of the premises herein described; and that defendants severally execute-to said complainants, their heirs, executors, administrators, representatives or assigns, deeds of conveyance of the premises above described, releasing ana forever quitclaiming unto said complainants, their heirs, executors, administrators, or assigns, all right, title, interest, claim or demand of said defendants in and to said premises; and it is further ordered, adjudged, and decreed that complainants do recover of said defendants their proper costs of suit to he taxed and to have execution therefor. J. LOGAN CHIPMAN, Judge of the Superior Court of Detroit.

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Graves, J. The parties are mill-owners on tbe Flinfe river, Jobnston being a short distance lower down than plaintiffs in error. It appears that tbe stream in tbe vicinity of tbe mills is not uniformly capable of floating logs when in its natural state during tbe summer months. In June, 18J9, Jobnston bad a large quantity of mill logs in tbe river above Richards’ mill which be needed to get down in season to supply tbe operations of bis mill, and be attempted to take them down in tbe forepart of that month, but failed. He complains in this action that be was prevented by means-of Richards’ dam and canal and personal interference, and that be was thereby damaged and chiefly by bis mill being forced to remain idle for tbe want of logs. He obtained a. verdict for damages and Richards brought error. Several objections appear in tbe record in regard to evidence. They required that tbe grounds relied on should be explained; but this was omitted and we cannot say they afford any basis for charging error. On tbe argument it was conceded that Jobnston was entitled to recover on account of tbe hindrance suffered in getting down logs in June ; but it was claimed that tbe substantial objection to tbe verdict was that tbe circuit judge allowed recovery for hindrance during July and August,, whereas during that period tbe use of tbe stream for running logs was excluded by want of water and hence that the-condition of tbe river at that time did not permit a right of' floatage nor give rise to any right in Jobnston to complain of obstructions thereto on tbe part of Richards. This position appears to be a misapprehension of the-proceedings. There was evidence tending to show that Jobnston would have run down all tbe logs in June had it; not been for tbe interference of Richards, and tbe claim made was that tbe injury consisted, not in any interference, with tbe use of tbe stream in July and August, but in the; enforced idleness of the mill in these months by reason of the detention of the logs by what occurred in June. No requests in regard to damages were made; neither was the charge on that subject excepted to and we discover no ground on which a charge of error in relation thereto-could be based. The jury were fairly instructed and there-is nothing to authorize any disturbance of the result. The judgment is affirmed with costs. The other Justices concurred.

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Campbell, J. Hart was sued before' a justice of the peace of St. Clair county for the amount of a small judgment collected by his deputy (he being sheriff) and not paid over. Having moved to quash for want of jurisdiction of the justice to entertain a suit by a municipal corporation, the motion was denied. He then pleaded, but subsequently got leave to withdraw his plea, and the case was tried, and ¡judgment rendered for tbe township. Hart made no objection to testimony and allowed tbe case to go to judgment, and tben sued out a certiorari to tbe circuit court, where tbe judgment was affirmed. He now brings error. Tbe objection to jurisdiction is not urged, and is not maintainable. Upon all tbe points in issue there appears to have been evidence, and tbe objection that it was not tbe best evidence can hardly be raised now, when tbe defendant deliberately abstained from objecting. Some technical-points which do not relate to tbe merits we need not notice, as on such writs the statute requires all objections not going to tbe merits to be disregarded. The principal one of these seems, to have been that tbe defendant was not sued by bis name of office. But bis liability being shown this was not a substantial objection. Tbe judgment must be affirmed with costs. The other Justices concurred.

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Cooley, J. This is a foreclosure suit. The mortgage is not disputed, nor tbe amount due upon tbe debt, and tbe controversy is narrowed to a question whether complainant is entitled to recover certain sums as payments upon taxes. Tbe mortgage was given by defendant Seth Willey: it bears date February 14, 1872, and was conditioned among other things for tbe payment by tbe mortgagor of all taxes and assessments that might bave been or might be levied or assessed upon tbe mortgaged land. It was also provided therein that in case of non-payment of tbe debt and inter est, or of the taxes assessed or levied on the land “ as soon as the same have become due and payable,” the mortgagee might foreclose and sell. The bill avers that the mortgagor did not pay the taxes for the years 1872 to 1878, both inclusive, and that complainant paid the same, and then proceeds as follows: “Your orator further shows that he paid said taxes through his agent, Jerome K. Stevens, of Saginaw City, Mich.: that said Jerome K. Stevens was his agent for looking after and attending to the payment of taxes upon said premises, and taking care of your orator’s interest in said premises under his said mortgage; that said Stevens for and in behalf of your orator, paid said taxes by bidding off said lands at the annual tax sales in October, 1875, for the taxes for the year 1872 for city taxes, and for the years 1872, 1873 and 1874 for State and county taxes, and by bidding ■off the lands at the annual tax sales in October, 1875, October, 1876, and October, 1877, October, 1878, for the State and county taxes for the years 1874, 1875, 1876 and 1877 respectively, and that he paid the city taxes upon said lands for 1873 and 1874, by purchasing leases of said lands from the city of East Saginaw upon the date aforesaid, which leases were made by said city of said lands, as delinquent for the city taxes levied thereon, in pursuance of its charter. “Your orator further shows that his said agent made said bids and took said purchases in his own name, but for the use and benefit of your orator and for convenience merely, as your orator charges, and said Stevens so informed said defendant Willey ataoout the time of taking said bids and afterwards, and has always held the same subject to the orders of your orator, and for his protection, and your orator has been at all times willing to release and assign said certificates to said Willey, upon repayment to him of the amount paid by your oi’ator therefor and interest, and hereby offers so to do. “Your orator further shows that all of said payments, bids and purchases were made with your orator’s money and for the protection of your orator’s said mortgage interest, ■and for no other purpose, and not to obtain an independent title or to in any way, injure or oppress said defendant Willey. That the certificates of sale upon said bids, and the leases of said city are the receipts referred to by your orator in his allegation of the payment of said taxes, and the same now produced, proved and filed in this cause are referred to for greater certainty.” It is proved in the case tbat Stevens made tbe purchases as alleged ; tbat he was at tbe time agent for complainant and made use of complainant’s money for tbe purpose with bis assent, and tbat before purchasing be called upon defendant Willey and requested him to pay tbe taxes, which tbe latter refused to do, claiming tbat they were illegal and that he intended to contest them. It was also proved that Stevens was willing to surrender his certificates of purchase to Willey at any time. Tbe circuit court was of opinion tbat tbe purchases by Stevens were not in contemplation of law payments of tbe taxes by complainant, and refused to include tbe sums paid, in-the decree for foreclosure. In this opinion we agree. When tbe mortgagee, instead of making payment of tbe taxes, makes a purchase of tbe land at tax sale, either in his own name or in tbe name of any other person who has his money for tbe purpose, we have no doubt of tbe right of tbe mortgagor to have tbe purchase treated as a payment, and to compel tbe cancelment\of tbe certificate or deed on refunding the amount paid with interest. On this subject we need not repeat what was said in Connecticut Mutual Life Ins. Co. v. Bulte 15 Mich. 113. But the right to treat the purchase as a payment is tbe right of the mortgagor only, and rests upon a principle of equity tbat is necessary for bis protection. Neither party to a mortgage can be suffered, against tbe will of tbe other, to buy at a tax sale and thereby cut off tbe other’s interest. But either may bid, as a stranger to tbe title may, if tbe other makes no objection. But in this case tbe mortgagor does not claim tbe purchase to be a payment, but repudiates it and asks no protection against it. Tbe question now is whether it shall be held against bis will to be a payment in bis interest. Tbe question, moreover, is complicated by tbe fact tbat tbe purchase was made not by complainant, but by another, and under circumstances which would have entitled tbe purchaser to retain tbe title as against complainant. Under our statute — Comp. L. § 1120 — there is no resulting trust in such a case, and Stevens at bis option would have deeded as complainant directed, or would have refused to do so. It is plain, then, that when first made the purchase constituted no payment, and if it can be deemed one at all, it must be because of the subsequent willingness to convey. This willingness might depend upon whether on investigation the tax title promised to be sustainable ; but if it existed from the first it would be unavailable to complainant, for-the party whose will was in question would in respect to the particular transaction be wholly beyond his control. The case of Jones v. Wells 31 Mich. 170, is in point here, and is conclusive. When the mortgagee under such circumstances permits a third person to become purchaser at the tax sales he takes all risks — First, of the purchaser recognizing a resulting trust and conveying accordingly; and second, of the mortgagor being disposed to accept as a payment in his interest that which has assumed the form of a hostile purchase. The purchase cannot be forced upon the mortgagor if he chooses to leave it in the hands of the purchaser. The decree must be affirmed with costs. The other Justices concurred.

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Cooley, J. The relator was prosecuting attorney for the county of Barry, for the years 1879 and 1880, having been elected at the general election of 1878. At the October session of the board of supervisors for the year 1878 the salary of this office was fixed at seven hundred dollars. This was done under section 535 of the Compiled Laws, which provided that “ the prosecuting attorneys shall severally receive such compensation for their services as the board of supervisors of the proper county shall, by an annual salary or otherwise, from time to time, order and direct.” In their action the board did not. declare the length of time the salary should stand thus fixed, but it had been customary to fix it annually. In 1879 the Legislature enacted “ That the annual salaries of all salaried county officers, which are now or may be hereafter by law fixed by the board of supervisors, shall be fixed by said board on or before the 31st day of October prior to the commencement of the term of such officers, and the same shall not be increased or diminished during the term for which such officers shall have been elected or appointed.” Pub. Acts, 1879, p. 148. If this act was applicable to the cases of those then in office, it would not have been competent for the board again to fix the salary for the office in question previous to their October session, 1880.. The board nevertheless, in October, 1879, assumed to act upon the subject and to increase the salary by $100, but at an adjourned meeting in January this action was rescinded. The questions arising on this application are: First, whether the board had any power to act upon the subject in 1879, and if so, then second, whether the action taken in that year was not conclusive. It is insisted on behalf of the relator that the act of 1879 was not intended to apply to the cases of incumbents, but was plainly meant for the cases of subsequent appointments and elections, and that its operation is retrospective if applied otherwise. Reliance is then placed upon the general principle that statutes shall not be given a retrospective -operation unless their terms plainly require it: Harrison v. Metz 17 Mich. 377; Clark v. Hall 19 Mich. 356. But we do not think the act of 1879, if applied to the case, is in any sense retrospective. The salary was then fixed only for the time being, and the board at discretion might change it; and the only effect of the statute would be to take away the power to fix “ from time to time ” and require it to be done once for all, for the whole term. There is no doubt whatever ■of the power of the Legislature to do this. The fixing of a salary does not constitute a contract between the county and its officer; and the legislative authority is ample so far as .salary is not already earned by the performance of services, except when otherwise provided by the Constitution: Butler v. Pennsylvania 10 How. 402, 416; Conner v. New York 2 Sandf. 355, 369; s. c. 5 N. Y. 285. Nor does it make any difference that a part of the duties of the office .are duties to the State rather than to'the county; the county authority having been given full power in respect to compensation. We are of opinion that the Legislature intended the act to apply at once, as soon as it should become a law. No doubt it is open to a different construction, but this seems to us the one that is most natural, and there is no impolicy and no injustice in the act thus applied that should make us hesitate in accepting it. The conclusion is that the writ prayed for must be denied. The other Justices concurred.

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Cooley, J. The suit in tbe court below was by Whitney and Wheat against Prosser and the other plaintiffs in error to recover upon a bond given on taking an appeal in chancery. In the chancery cause Whitney and Wheat were complainants and Prosser was one of several defendants. The decree denied to the complainants the relief they prayed, but it also denied costs of his defence to Prosser. Complainants appealed and so did Prosser; and under the statute the parties appealing were required to give bond to abide tbe order of tbe appellate court. Prosser’s bond was in the penal sum of one hundred and fifty dollars, and the condition was as follows: “The condition of the above' obligation is such, that whereas, on or about the 19th day of February, A. D. 1879, a decree was entered in the circuit court for the county of Kalamazoo, in chancery, in a certain cause therein pending, wherein the said Clark J. Whitney and Isaac C. Y. Wheat are complainants, and the said Isaac P. Prosser, among others, are defendants; and whereas, the said complainants have appealed from said decree to the Supreme Court of the State of Michigan; and inasmuch as in and by said decree the said Isaac P. Prosser is denied costs of suit in the circuit court, and he having appealed from that portion pf said decree denying him costs. Now, therefore, if the said Isaac P. Prosser shall pay, satisfy and perform the decree or final order of said Supreme Court, and shall pay all costs in case the decree of the said circuit court, in chancery, shall be affirmed in parts appealed from by said Isaac P. Prosser, then this obligation to be void, otherwise to remain in full force and effect.” The appellate court by its decree awarded to the complainant the relief prayed for, with costs of both courts as against Prosser. The costs were taxed at upwards of three hundred dollars. An execution issued upon the decree having been returned molla bona, this suit was then instituted upon Prosser’s appeal bond. The circuit court gave judgment in favor of the plaintiffs below for the amount of the penalty. The decree of the Supreme Court took no notice of the separate appeals, but awarded costs to complainants in precisely the same form that it would have done had complainants alone appealed. It is therefore insisted on behalf of plaintiffs in error that there has been no decree whatever upon what they designate the cross-appeal; no special adjudication and no award of costs in respect to it. The decree is single and is made upon the merits which are brought up for consideration by the appeal of complainants; and the award of costs is made in disposing of the merits, and without regard to the appeal taken by Prosser. From these facts it is insisted that there has been no breach of the bond now in suit; the trne intent and meaning of its condition being to secure, payment, satisfaction and performance of the decree or final order that should be made on or in respect to the appeal which Prosser had claimed. If appeal bonds were intended to secure the payment of such costs only as should be made in consequence of the appeal, the argument made for the plaintiffs in error would be very plausible and perhaps conclusive. It might be necessary in that case, before there could be a recovery on any bond where two or more appeals were taken, that the costs should be apportioned by an adjudication of the court, and the proper amount assigned to each appeal. But the appeal bonds are not thus restricted in their scope: the costs made in the case previous to decree in the court, of chancery are equally within their condition, and these of course are not referable to the appeal, and cannot be apportioned as between appellants except upon reasons appealing to the discretion and which should have influenced the chancery court. Nor is there any other reason which is obvious to our minds why the liability of one appellant upon an appeal bond should necessarily be affected by the fact that another party has taken an appeal also. If the case were such that both parties failed in separate appeals, the court would probably apportion the costs between them; but this would be done in its discretion, and on a consideration of equities. But when one appellant succeeds on his appeal, and recovers costs as against the other, there is no reason why the appeal bond of the latter should not secure this recovery. In the case at bar the complainants appealed. Prosser, had he seen fit, might have left the case to go to a hearing in the Supreme Court on their appeal, but in that case he would have been precluded from making objections to that part of the decree appealed from which denied him costs. Proctor v. Robinson 35 Mich. 284. He preferred to appeal from that part; and the statutory condition was that he should give such a bond as he gave. In giving that bond Le and his sureties undertook to “ pay, satisfy and perform the decree or final order ” of the Supreme Court, and to “ pay all costs in case the decree of said circuit court in chancery shall be affirmed in parts appealed from” by him. The appellate court not only sustained and in legal effect affirmed the decree in that part which denied him costs, but it also awarded costs of both courts against him. Plainly, as we think, the case is within the condition of the bond, and the court was right in ordering judgment for the plaintiffs. The judgment must be affirmed with costs. The other Justices concurred.

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Graves, J. In 1874 one Burgess held a note for $500 signed by defendant Isaac Hounson and decedent Karr, and Hounson agreed with Karr to assume the payment of it. Hounson paid the interest for some three years, but did not pay the principal. Karr died and the demand was allowed against his estate. In 1877 said defendant Isaac Hounson received conveyance of a farm of about one hundred and twenty-two acres in the township of Hudson in Lenawee county, and proceeded to occupy it as his homestead and carry it on, and some time thereafter and about the 20th of December of the same year he gave a deed of it, in which his wife joined, to their son, the defendant Alonzo Hounson. In March, 1878, the complainant commenced a suit by attachment against the defendant Isaac on his undertaking of 1874 to pay the Burgess note, and the writ was levied on said farm, which was still occupied by said Isaac in the same manner as before his deed to his son. At the November term of the court for 1878 the administrator obtained judgment for damages, $580.47, besides costs, and in the succeeding February execution was taken out and levied on the farm. This bill was filed not long after in aid of the execution. The farm as held by the judgment debtor was subject to a mortgage of $2000 and the defendant Alonzo after receiving the deed from him paid and discharged it. After hearing the case on pleadings and proofs the circuit judge declared the premises liable to the execution after exempting the homestead. But the decree provided that the defendant Alonzo having discharged the mortgage of $2000, which stood on the whole premises and was a prior lien to the levy, he ought in equity in case of a sale of the-premises or any part under the execution, to receive from the purchase price the same proportion of the $2000 which the purchase price of the part so sold would bear to the value of the portion set off as homestead. Both parties-appealed. The bill must be construed in reference to its nature. It-is not filed to reach property incapable of seizure on execution, and therefore based on the theory that the legal remedy has been exhausted. Yery far from it. The principle-on which it proceeds is that a legal remedy is in fact progressing, and which being fraudulently obstructed, the aid of the Court is needed to remove that obstruction. The-claim made is that the deed from the judgment debtor to-his son is fraudulent as against the creditor,,and that the farm is therefore subject to levy and the deed exposed to be-removed out of the way of it by the assistant jurisdiction of equity. Instead of setting forth the proper facts to induce the-inference that the deed was fraudulent as against the complainant, the bill in general terms merely alleged the fraud itself. Hence it did not appear on the face of the bill in what way the deed was fraudulent as against complainant. But the defendants made no objection to this general mode-of pleading and the defect is not open to exception on this appeal. It is objected that defendant’s insolvency is not alleged and not proved. The nature of the bill is not such as to-make an allegation of that kind indispensable. As previously observed the office of the suit is to remove the debtor’s deed out of the way of the execution and on the-ground of its being fraudulent as against the creditor, and the equity for such interference may exist although the debtor is not insolvent. The circumstance of his being solvent or insolvent is important only as it bears upon the question whether in fact the deed is or is not fraudulent as against the creditor who has levied. Upon the matter of fact there is no doubt. The evidence is full to show that Isaac Hounson retained nothing liable to execution. It is also objected that no allegation is made that the defendant had not sufficient personal property liable to execution in Lenawee county to pay the judgment; and no allegation that the officer made any effort to find it. Neither allegation was a necessary ingredient of the bill. If the officer neglected to make due search for goods and chattels on which to levy before levying on the land the question is not an open one here. The fault if any would have to be corrected in the court where the writ issued. The court of chancery is not the place. The presumption is that the sheriff obeyed the writ; and as stated previously, according to the evidence there was no personal property of the debtor exposed to levy. The intent with which the deed was given is hardly open to controversy. The evidence of various kinds that the purpose was to screen the property from the demand of complainant and that both defendants participated in the design is too strong to be resisted. It appears conclusively from the bill and evidence that when the execution debtor gave the deed in question he held and occupied a homestead on the premises. That part of the farm was therefore exempt. The holder was as free to dispose of it without interference as though he had been not indebted at all. It passed by the deed to his son Alonzo and it is impossible for complainant to avoid the conveyance as in fraud of his rights. Smith v. Rumsey 33 Mich. 183. As against that parcel he had none. Therefore the equity of the bill fails in respect to that portion. It is admitted that young Hounson paid the mortgage of §2000, and that this mortgage was a valid lien on the whole farm at the time his father gave him the deed, and of course anterior to the levy. The expenditure by young Hounson in making this payment relieved the property from the burden and practically increased the interest in the farm to an amount equal to the expenditure, and it seems right to regard this as raising an equity in his favor. The same doctrine which, requires-him to do equity entitles him to receive it.It is therefore just to provide as far as may be for protecting him against a forfeiture of the redemption money which it is admitted he paid. But he goes further and contends that in addition to the $2000, the principal of the mortgage, there should be included the sum of $380 on account of interest paid. The evidence on this topic is not satisfactory. The only proof consists of his oral statements, and the explanation is neither full nor certain. The fact must have been capable of clear and ample illustration, and the case called for it. But there seems to be a want of equity in this claim! He strenuously insists that he has had the use of the entire premises during the whole period since the deed was given, and if truthful in this and the fact is as represented, it would seem that for the interest which grew on the principal of only $2000 he must have obtained an ample equivalent in this enjoyment of the property, and on the other hand it would be unreasonable to give him the benefit of an equity founded on the supposition of his having deliberately misrepresented in explaining his case to the court. As the mortgage covered the exempt homestead as well as the residue it was entirely fair to require it to bear its due proportion of it. The benefit arising from the payment of the mortgage according to the proportion was equal between the homestead and the rest of the farm, and the principle that equality, is equity applies. It would not Jbe just to throw the whole burden on the part liable to execution and being that portion to which complainant is confined. It is objected by defendants that the decree instead of making thq price obtained by the sale on execution of the premises which may be sold, the criterion by which to' get at the proportion to be allowed to the defendant Alonzo on account of the mortgage, it ought to make the real vahoe of the part so sold, such criterion, and the reason given is that the pi'ice obtained on the sale under the execution may be far below the true value, and hence that the homestead may be compelled to bear an undue proportion. On considering this objection my brethren have concluded that the relief should be changed as here indicated. That the commissioners first set apart a parcel of the value of $1500 which shall include the dwelling and accompanying outbuildings. That they appraise the whole premises including the homestead and chai’ge upon the homestead so much of the mortgage as is the proportion which $1500 bears to the value of the entire property. That they then set off a parcel of land of the value of so much of the mortgage money as is not charged on the homestead. The remaining lands are to be subject to sale on the execution free from all encumbrance. The decree will be so far modified as to conform to this view and in other respects be affirmed. Neither party will recover costs of this court as against the other. The other Justices concurred.

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