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Hooker, J. The defendant has appealed from a verdict and judgment for $320 in an action for slander and malicious prosecution. The three counts for slander are substantially alike, and the following-quotation from the first will serve to make plain the rulings and points raised thereon: “ * * * say of and concerning this plaintiff, in the presence and hearing of this plaintiff, Charles S. Fuller, and other divers good and worthy citizens of the State of Michigan, did speak, publish, and declare of and concerning said plaintiff the following false, malicious, and defamatory words, to wit: ‘McLeod stole it;’ meaning and referring fo this plaintiff, and meaning and intending to charge this plaintiff with having stolen certain property belonging to George Collin Company, a corporation organized under the laws of this State, of which the said James S. Crosby was president, and meaning and intending to charge, and give the persons who heard him to understand, that the said plaintiff had been guilty of the crime of larceny, and was a thief; that, at the time the said defendant uttered the aforesaid false, slanderous, malicious, and defamatory words, he had been claiming and stating that the said George Collin Company had lost and been deprived of certain personal property, and at the close of his said statement he said of and concerning the said plaintiff, in the presence of the said Charles S. Fuller and the other persons aforesaid, the said false, slanderous, malicious, and defamatory words, ‘McLeod stole it.”’ The count for malicious prosecution related to a prosecution of plaintiff on a charge of larceny, upon which the plaintiff was acquitted in the circuit court, where the judge directed a verdict of not guilty. The charge seems to have related to some logs belonging to the George Collin Company, of which company the defendant was president, which logs it was claimed had been sold, and the proceeds appropriated by the plaintiff. Defendant accompanied his plea with a notice that, if he uttered the words “McLeod stole it,” they were uttered concerning certain property belonging to said company, and that plaintiff had previous to February 10, 1898, and during 1895 and 1896, been in charge of a large amount of personal property of said company, consisting of teams, tools, implements, and machinery for cutting, skidding, hauling, banking, floating, and manufacturing timber into logs, lumber, lath, and shingles, and that plaintiff, well knowing said property to belong to said company, fraudulently, and without the knowledge of said company or its president (the defendant), sold and converted a large portion of said property to his own. use, and caused or permitted other portions of said property to be taken away from the premises of said company and used and appropriated by others, and particularly by the relatives and friends of the plaintiff, “without leave or license so to do, and, without any right whatever to dispose of, use, and appropriate, sold and conveyed and appropriated the funds and proceeds thereof to his own use. And in this sense the defendant will prove the statement that ‘ McLeod stole it, ’ referring to the property of the said George Collin Company, to be true.” Also that, in relation to the malicious prosecution count, defendant would prove that he fully and fairly stated the facts to the prosecuting attorney, and was advised by him that plaintiff was guilty of larceny; and that he was not guilty of any malice, and that he did not cause such arrest without reasonable and probable cause. Also that he would prove in his defense that in October, 3897, plaintiff sold 50,000 feet of the shingle logs of the company, then stored in lakes adjacent to its mills, without authority or right, and appropriated the proceeds to his own use, and thereby became guilty of the crime of larceny or embezzlement, and was chargeable with both offenses, and that the defendant left the cause of action to the prosecuting officer, without malice. The first point discussed relates to the counts for slander. Counsel for the defendant raised the point that they did not state a cause of action, inasmuch as they failed to state what property was referred to by defendant in his statement, “ McLeod stole it. ” The question is not raised by demurrer, and it is therefore improper to apply the test of technical pleading. The declaration shows that the remark applied to personal property of the George Collin Company. It does not specifically describe the articles taken, or mention shingle timber, but it was sufficiently specific to show that the plaintiff was charged-with stealing, as much as though the statement had been, “McLeod is a thief,” “McLeod steals,!’ or “McLeod has'committed larceny.” See Fowler v. Gilbert, 38 Mich. 292. If there is any force in the claim that the words “McLeod stole it ” do not charge a crime, for the reason that the use of the pronoun “it” made the charge indefinite and uncertain, because it may have referred to something not the subject of larceny, its force is lost when taken in connection with .a statement showing that it referred to personal property belonging to the George Collin Company, even if the use of the verb “stole” does not itself imply a larcenous taking of property which is the subject of larceny. The sufficiency of the declaration does not depend upon the statement of plaintiff’s counsel, made on the trial, that he claimed that reference was made to shingle timber merely. One Smith, a lawyer, was called, and produced certain papers, purporting to be the files in a larceny case which had heen pending in the circuit court of .Mecosta county. He stated that they came from the office of the clerk of that county, as the criminal files in that case, and were obtained by the witness from said clerk as such. They were duly indorsed as filed, over a signature purporting to be that of said clerk. He also testified that they were the same papers which were used on the trial of the case. Upon such papers being offered in evidence, defendant’s counsel objected upon the ground that they were incompetent, for the reason that it is improper to prove public papers and records by a borrower of them, and that it did not appear that they were the original files. In the same connection, objection was made to the introduction of a certified copy of some of the orders made in said criminal case, for the reasons — First, there was no verdict of the jury or judgment shown; and, second, that the certificate was defective because it did not show that it was a copy of all of the journal entries. This testimony related to the count for malicious prosecution, and the testimony of Smith was competent to prove the identity of the original files. The certificate to the records was in proper form, and showed the copy to be a copy of the whole of the entries that it purported to certify. There was no attempt to certify all of the orders, nor was it necessary. The entries offered included the record of the rendition of a verdict of not guilty by direction of the court, and there was no occasion to strike out this proof because the excerpt did not include formal judgment of not guilty and discharge of the prisoner. The defendant called the prosecuting attorney who prosecuted said criminal case, and sought to show by him that such prosecution was commenced by his advice and direction. It appeared that he went to the locality of the alleged crime with the defendant to investigate the matter, and talked with Mr. and Mrs. McQueen and others about it. He was asked by defendant: “Q. Did he tell you anything about what the plaintiff in this case had said to him about these logs ? ' “Mr. V. H. Smith: I object to that as immaterial, irrelevant, and incompetent. “ The Court: The objection is sustained. “ Mr. Griswold: I take an exception, if you please. • “A. I did have something to do with the taking out of the warrant for the arrest of' McLeod on the charge of stealing the shingle logs. I directed the issuing of that warrant. I did not order the issuing of the warrant, the filing of the complaint, and the issuing of that warrant' upon the statements made to me by Crosby alone. “ Q. Upon whose statements, and upon what investigation, did you make that order ? “Mr. Smith: I object to that as immaterial. There is nothing material in this case but the question as. to Whether the advice is a shield and a protection. “The Court: It is not a question, at all, of the good faith and diligence of the prosecuting attorney. '“Mr. Griswold: No; surely not. “The Court: The answer as given was proper, as the court understands it, whether or not it was done entirely on information furnished by Mr. Crosby, or from additional investigation made by himself. But I do not know that it is competent or material in this case to have the witness go on and state just what investigation he made. Is tha.t your offer ? “Mr. Griswold: I offered to ask him the question on that very line. I thought it was material, and think so still, to show what information he had about it, and from what source, he obtained it. “ The Court: I think witness may state in a general way what effort he made himself, independently of Mr. Crosby, in investigating it.” The importance of this testimony .related to the information upon which the prosecuting attorney acted. We suppose the position taken to have been that, even if Crosby did not fully state the facts to him, it was immaterial, provided he ascertained them from other sources, and acted upon them in advising defendant to make the complaint. ' The court, on reflection, allowed an investigation of that subject. In his charge, as upon the trial, the court limited counsel for the plaintiff to the claim that the words referred to logs. He instructed the jury that the notice in the plea was not sufficient to warrant proof that the statement was true. Counsel complain of this, and say, “The only reason conceived why the notice under the plea was not sufficient to warrant a finding that the words were true must be found in the fact that the plea does not mention the logs.” It seems obvious that the court was of the opinion that the notice was, at most, a qualified allegation of the truth of the charge, and did not offer a justification as broad as the charge. The charge was a simple charge of larceny. The first notice was that the defendant would prove that the plaintiff was guilty of larceny in a sense therein stated. If it be conceded, as claimed, that it was enough to prove the plaintiff to have embezzled the logs, still the learned circuit judge was correct in saying that this first notice was insufficient. It did not charge broadly that defendant would prove the plaintiff guilty of larceny; nor did it state that he would prove facts which, if proved, would have constituted embezzlement, for there is no allegation that it would be shown that he was an officer, clerk, agent, or servant of the Collin Company; nor did it state broadly that it would be shown that he embezzled the property of the Collin Company. The third notice, however, which we presume the learned circuit judge treated as applicable only to the count for malicious prosecution, was equally defective in an attempt to state facts constituting embezzlement, but it contained a further allegation that, by selling and appropriating the proceeds of the property, he became guilty of the crime of larceny or embezzlement. This notice was broad enough to apply to all of the counts. Embezzlement is made larceny by statute (3 Comp. Laws, § 11565), and it is not unreasonable to say that an embezzler is a thief, or that embezzling is stealing, because larceny is stealing, and embezzling is larceny. Not all larceny is embezzling, but all embezzling is larceny. It may reasonably be claimed, therefore, that, when one says of another, “He stole from A. B.,” he may justify by showing an embezzlement from A. B. Under most, if not all, authorities, the notice must be as broad as the charge, in its offer to prove truth. See 18 Am. & Eng. Enc. Law (2d Ed.), p. 1070. It may be doubtful if a general notice that one will prove another a thief, or that he stole or embezzled, will be a sufficient answer to a general charge that “ he is a thief.” It would certainly afford an opportunity for a wide range in the proof, and would not give much information to the plaintiff of the proof that he should be expected to meet. See Torrey v. Field, 10 Vt. 353. But the charge in this case was not general, but specific, referring to property of the Collin Company. The notice was of necessity limited to it by the declaration itself. Furthermore, it purports to limit the proof to such property, and it states facts conveying information regarding the nature of the alleged theft. Again, the first notice contains the further information that the plaintiff was in charge of the property, which was implied by the statement in the third notice, by the allegation that he embezzled the property. Michigan has not adhered to the rule followed in some States; i. e., that a notice must be as certain and definite as a plea, and that “the true way to test the sufficiency of a notice is to inquire whether the matters contained in it, if pleaded specially, would be good on general demurrer.” See Shepard v. Merrill, 13 Johns. 475. While, in common with other States, its courts have held that the justification must be as broad as the charge (see 18 Am. & Eng. Enc. Law [2d Ed.], p. 1070, note), it has been said many times that a notice which fairly apprises the other party of the nature of the proposed defense is sufficient; and liberality of construction has been indulged where greater particularity in the notice might have been obtained by a motion to make it more specific, or demand for a bill of particulars in a proper case. We are of the opinion that the notice was a sufficient notice that defendant relied upon proving an embezzle ment of the property, and that such proof would establish the truth of the charge; and it only remains to inquire whether proof of embezzlement of property can constitute a justification of a charge that the plaintiff stole it. We have not been cited to any case throwing light upon this question by the defendant’s counsel, but we see no reason for holding that a man may not justify the calling a man a thief by showing that he has done a thing which the statute explicitly says shall constitute larceny. The fact that an indictment for larceny, in the ordinary form, will not cover the case (Bishop, Stat. Crimes, § 418) should make no difference, for it does not make the culprit any the less a thief. While we have not found an authoritative decision upon the point, the question is not altogether new. The charge of the learned circuit judge in the case of Youngs v. Adams, 113 Mich. 200 (71 N. W. 585), gave the defendant the benefit of such a rule; and we were careful to avoid a dictum upon the point in reviewing the case, which could bo affirmed without passing upon it. The case of Shepard v. Merrill, supra, cited by plaintiff’s counsel upon another point, seems to us to have also saved this or a similar question. The notice in the present case alleges the embezzlement of the property. The language is general, but embezzlement includes the elements of a statutory larceny, and, in conjunction with the other things mentioned, was a sufficient statement of a defense which we have already indicated to be, in our opinion, a proper one. This conclusion requires a reversal of the judgment and the direction of a new trial, which is hereby ordered. The other Justices concurred.	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Hooker, J. The Bice Manufacturing Company is an existing corporation, which formerly carried on a manufacturing business at Marquette. Its plant has been shut down for some years. Among other structures, it owned a small pump-house, located upon ground owned by a railroad company, under an arrangement between them. In the house was a small overshot water-wheel. The plaintiff, a girl between 12 and 13 years of age, was in the habit of passing this pump-house on the way to school, with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident through which plaintiff received her injury, a hole ekisted in the stone wall of the house inclosing the wheel, through which children went to play on the wheel. What evidence there is on the subject justifies the inference that it was made by children, and from time to time enlarged, by tearing out the stone of which the wall was built, for the purpose of entry to the wheel. On the day in question, the brothers of plaintiff, on their way from school, crawled through this hole, and, mounting the wheel, were able by their weight to turn the wheel part way round and back. A younger sister, aged 8 years, got caught between the wheel and the wheel-pit. The plaintiff heard her screams, and went through the hole to her succor, and aided in rescuing her, and was herself injured. Suit was brought against the corporation and two of its directors, and the negligence alleged was in permitting the wheel to remain there, accessible to children. The court directed a verdict in favor of the directors, and allowed the jury to determine the liability of the corporation, against which they rendered a verdict for $5,000. From a judgment in favor of the directors, the plaintiff has appealed. The only error assigned is the direction to return a verdict in favor of the -directors. The testimony shows that the buildings of the Bice Manufacturing Company were upon land owned by the railroad company, and that such land, together with the railroad, consisting of several tracks, was fenced. The plaintiff was not shown to have been invited upon the premises, but there is testimony from which the jury might reasonably conclude that children were in the habit of crossing the land of the defendant company and the" railroad, and that neither company took steps to prevent it, further than to keep up the fences. It is contended that this amounted to an invitation or license, but we think not. Mere toleration of a trespass does not alone constitute a license even, certainly not an invitation. 1 Thomp. Neg. (2d Ed.) § 1050, and note. The pedestrians who insist upon risking their lives by making a footpath of a railroad track, and others who habitually shorten distances by making footpaths across the corners of village lots, are none the less trespassers because the owners do not choose to resent such intrusion, and be to the expense and trouble of taking effective measures to prevent it. /There is no more lawless class than children, and none more annoyingly resent an attempt to prevent their trespasses. The average citizen has learned that the surest way to be overrun by children is to give them to understand that their presence is distasteful. The consequence is that they roam at will over private premises, and,, as a rule, this is tolerated so long as no damage is done. The remedy which the law affords for the trifling trespasses of children is inadequate. No one ever thinks of suing them, and to attempt to remove a crowd of boys from private premises by gently laying on of hands, and using no more force than necessary to put them off, would be a roaring farce, with all honors to the juveniles. For a corporation with an empty treasury, and overwhelmed with debt,, to be required to be to the expense of preventing children from- going across its lots to school, lest it be said that it invited and licensed them to do so, is to our minds an unreasonable proposition. . As to this question of license or invitation, there is no difference between children and adults. In the case of Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914), Mr. Justice Campbell said: “It is impracticable to keep off trespassers from an open track, and all who go upon it do so on their own risk of such dangers as are incident directly to such use.” See, also, O’Neil v. Railway Co., 101 Mich. 437 (59 N. W. 836). In Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442), it was contended that a common practice of crossing a railway, of 20 years’ duration, established an easement or a license or invitation, which made it incumbent upon the company to keep the premises free from obstructions, such as a semaphore wire along and a few inches above the surface of the ground. It was held that it proved neither, and that those who crossed were technical trespassers. Numerous authorities were cited, and the question cannot be considered an open one in this State. It is a general and nearly uniform rule that there¡ is no duty imposed upon the owner of premises to keep them in a suitable condition for those who come there for their own convenience merely, without the invitation of the owner. The origin of the alleged modern doctrine may be said to practically rest upon what are called the “ Turntable Cases,” the first of which was the case of Railroad Co. v. Stout, 17 Wall. 657. The opinion was written by Mr. Justice Hunt in the year 1873. A child of 6 years of age was hurt while playing with others upon a turntable, by getting its foot caught between the ends of the rails. The turntable was in a remote place, not far from a public highway, on ground belonging to the company. The trial court charged the jury— “ That, to maintain the action, it must appear * * * that it was a dangerous machine, — one which, if unguarded or unlocked, would be likely to cause injury to children; * * * that the jury were to consider whether, ■situated as it was, as the defendant’s property, in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.” The only question in the case was whether the child was a trespasser, and for that reason could not recover. This case practically laid down the rule “ that a railroad ■company might be liable to trespassers for injuries resulting from its failure to construct, locate, manage, and maintain its turntable with that care and attention to prevent accidents which prudent and careful men ordinarily bestow;” and it held that while “the evidence was not strong, and the negligence was slight,” the court was “not able to say that there was not evidence sufficient to justify the verdict,” and that the charge was sound. Four cases are cited as precedents for the proposition that a trespasser is entitled to demand from a landowner ordinary care in the use, condition, and maintenance of structures upon his premises. The first was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. In that case it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured, could maintain an action against the owner. The case seems to have-gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but-later English cases are in conflict with that case, if it necessarily involved it. In Mangan v. Atterton, L. R. 1 Exch. 239, the defendant exposed for sale a machine in a public place, which might be set in motion by a passerby. A boy 4 years old, by direction of his brother, 7 years old, placed his fingers in the machine while another boy was turning the handle which moved it, and his fingers were crushed. Bramwell, J., said the action could not be maintained, and added: ‘ ‘ Suppose the machine was. of delicate construction, and was injured by the boy; would' he not be a trespasser ? If so, it is impossible to hold the-defendant.” In Hughes v. Macfie, 2 Hurl. & C. 744, a cellar grating was left standing against a wall in a street. A child playing with it was injured by its falling upon him. The court said that he could not recover, “because he was voluntarily meddling, for no lawful purpose, with that which, if left alone, would not have hurt him. His being of tender years makes no difference.” It is noticeable that even the Lynch Case did not involve a trespass upon defendant’s close, though it did perhaps involve a trespass to personal property. The next case cited as authority in Railroad Co. v. Stout is Birge v. Gardiner, 19 Conn. 507 (50 Am. Dec. 261). There a child was injured by the fall of a gate on the land of the defendant on or near the'line of a private alley leading 'from a public highway back to several ■dwellings, in one of which the plaintiff lived, and in which alley it had a right to be. The court refused to •consider the question, and intimated that it made no difference because the plaintiff was not faultless; citing Lynch v. Nurdin. In Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), a heavy train of cars coming around a ■curve killed a child less than 3 years old, playing on the track. The court followed the case of Birge v. Car diner. The last case cited was Bird v. Holbrook, 4 Bing. 628. This was an action brought by a trespasser who was shot by a spring gun set for the purpose, and is clearly not in point. There was a wanton, intentional act, intended to punish trespassing with death, meriting punishment as an .attempt at homicide. It is chiefly valuable in this connection as showing the difficulty found in the attempt to •support Railroad Co. v. Stout by precedents. The enunciation by the highest tribunal in the country •of the rule that a landowner owes a duty of care towards .a trespasser was sure to be followed by other courts. Among the earliest of these is Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393). This was a turntable case, ■and the trespassing child 7 years of age. The court there discovers a distinction between a voluntary trespass and one by a person without judgment, who is allured upon premises by his natural inclination, and meddles with things whose uses and dangers he is unable to comprehend. It says, “What an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years.” Therefore this was an invitation, and the child licensed. Having by this reasoning found the child lawfully on the premises, it proceeds to treat the turntable as a trap, and compares it with a case when one sets traps baited with tainted meat, to allure his neighbors’ dogs, which he intends to catch, or sets a spring .gun, with the formed design of taking a trespasser’s life. This case was followed by another case in the same court. O'Malley v. Railway Co., 43 Minn. 289 (45 N. W. 440). This was also a turntable case, and the child 6 years of age. In 1881 the supreme court of Nebraska approved the case of Railroad Co. v. Stout, although it reversed the-case before it, and, as was done in the Stout Case, recognized the fact that the cases were not harmonious. Atchison, etc., R. Co. v. Bailey, 11 Neb. 332 (9 N. W. 50). In Kansas the doctrine was applied in a case of a turntable located in the midst of an open prairie, and a boy 12 years of age. In discussing the tendencies of boys* the court said: “Everybody knows that, by nature and by instinct,, boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of staircases, pull sleds up hill in order to ride down, etc. * * * Now, everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery, calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger■; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. * * * It is true that the boys-in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, as numerous-cases which we might cite would show. But see, particularly-, the cases of Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393).” Kansas Central R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. Rep. 203). Here we have the doctrine of the Turntable Cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a lawnmower, or a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the ground or leaning against a fence; a bed of mortar prepared, for use in his new house; a wagon in his barn-yard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with calf, — does so at the risk of having the question of his negligence left to a sympathetic jury. How. far does the rule go ? Must his barn door, and the usual apertures through which the accumulations of the stable are thrown, be kept locked and fastened, lest 12-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams ? May a man keep a ladder, or a grindstone, or a scythe, or a plow, or a reaper, without danger of being called upon to reward trespassing children, whose parents owe and- may be presumed to perform the duty of restraint ? Does the new rule go still further, and make it necessary for a man to fence his gravel-pit or quarry ? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish-pond ? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than 30 years after the decision of Railroad Co. v. Stout, when, with due deference, we think some of the courts left the solid ground of the rule that trespassers cannot recover for injuries received, and due merely to negligence of the persons trespassed upon. Well might the court of appeals of New York say in McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555): “We are not now called upon to express an opinion as to the soundness of these decisions in such a case, and, while we are not prepared to uphold them, it is enough to say that the facts are by no means analogous.” In addition to the cases discussed, the following recognize the rule laid down in Railroad Co. v. Stout, attempting to justify their adherence to it in the particular cases by one or another reason, which we think it unnecessary to further allude to: Nagel v. Railway Co., (1882) 75 Mo. 653 (42 Am. Rep. 418); Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. 666, 25 Am. St. Rep. 186) [this case cites Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), as supporting its doctrine; but in that case the child was not a trespasser on the land, whatever may be said of his meddling with the explosives; of this we will have more to say]; Harriman v. Railway Co., 45 Ohio St. 11 (12 N. E. 451, 4 Am. St. Rep. 507); Westerfield v. Levis, 43 La. Ann. 63 (9 South. 52); Fort Worth, etc., R. Co. v. Robertson, (Tex. Sup.) 16 S. W. 1093, 14 L. R. A. 781; Ilwaco R. Co. v. Hedrick, 1 Wash. 446 (25 Pac. 335, 22 Am. St. Rep. 169). It is a significant fact that these are all, -with possibly one or two exceptions, railway cases; and it has been suggested by a text writer (2 Wood, Ry. Law, p. 1292), as a reason why railway companies should be held liable in these cases, that they do not hold their property by precisely the same tenure as an individual does, that they are quasi public corporations, and that such trespasses are common and frequent upon railroads. But this is a suggestion rather than an authority, and does not purport to be more. Certainly the cases of Railroad Co. v. Stout and Birge v. Gardiner, which are the leading cases, do not rest upon or recognize any such distinction Or reason. These two cases, to which can be traced the origin of this doctrine, have not gone unchallenged. In Kansas it was held that the attempt to give a trespasser such a right upon the land of another which could affect the lattei in the management of his property would be unconstitutional, as tending to disturb vested rights. Caulkins v. Mathews, 5 Kan. 191. In Deane v. Clayton, 7 Taunt. 529, Gibbs, C. J., said: “ I know it is a rule of law that I must occupy my own so as to do no harm to others; but it is their legal rights only that I am bound not to disturb. Subject to this qualification, I may occupy or use my own as I please. It is the rights of others, and not their security against the consequences of [their] wrongs, that I am bound to regard.” A fine discussion of this subject will be found in the opinion of Hall, J., in the case of Keffe v. Railway Co., 2 Cent. Law J. 172, where numerous authorities are cited. The doctrine of the cases under discussion was denied in a terse opinion in the case of Lake Shore, etc., R. Co. v. Clark, 41 Ill. App. 343. It was said: “The youth of the deceased might be a matter for consideration upon the question of whether he was negligent, but it adds nothing to the duty of the appellant. It is not under greater obligation to anticipate the presence of children upon its tracks than of adults;” citing Chicago, etc., R. Co. v. Roath, 35 Ill. App. 349. The case of Frost v. Eastern Railroad, 64 N. H. 220 (9 Atl. 790, 10 Am. St. Rep. 396), lays down the general rule thus: (37 Am. Rep. 99); Wood v. School District, 44 Iowa, 27; Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. Rep. 684); Cauley v. Railway Co., 95 Pa. St. 398 (40 Am. Rep. 664); Gillespie v. McGowan, 100 Pa. St. 144 (45 Am. Rep. 365); Mangan v. Atterton, L. R. 1 Exch. 239. The maxim that a man must use his property so as not to incommode his neighbor only applies to neighbors who do not interfere with it or enter upon it. Knight v. Abert, 6 Pa. St. 472 (47 Am. Dec. 478). To hold the owner liable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of his enjoyment of it.” “At the time of his injury, the plaintiff was using the defendant’s premises as a play-ground, without right. The turntable was required in operating the defendant’s railroad. ' It was located on its own land, so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich v. Wright, 53 N. H. 404 (16 Am. Rep. 339). Under these circumstances, the defendant owed no duty to the plaintiff, and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfill. A landowner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises, and, to recover for an injury happening to him, he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark v. City of Manchester, 62 N. H. 577; State v. Railroad, 52 N. H. 528; Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Morgan v. City of Hallowell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 127 (21 Am. Rep. 120); McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555); St. Louis, etc., R. Co. v. Bell, 81 Ill. 76 (25 Am. Rep. 269); Gavin v. City of Chicago, 97 Ill. 66 The following is the criticism indulged in of the case of Railroad Co. v. Stout: “We are not prepared to adopt the doctrine of Railroad Co. v. Stout, 17 Wall. 657, and cases following it, —that the owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises. The owner is not an insurer of the safety of infant trespassers. One having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling; nor is the owner of a fruit tree bound to cut it down or inclose it, or to exercise care in securing the staple and lock with which his ladder is fastened, for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner or occupant of premises upon which there is a natural or artificial pond, or a blueberry pasture, legally required to exercise care in securing his gates and bars to guard against accidents to straying and trespassing children. The owner is under no duty to a mere trespasser to keep his premises 'safe; and the fact that the trespasser is an infant cannot have the effect to raise a duty where none otherwise exists. ‘The supposed duty has regard to the public at large, and cannot well exist as to one portion of the public, and not to another, under the same circumstances. In this respect children, women, and men are upon the same footing. •In cases where certain duties exist, infants may require greater care than adults, or a different kind of care; but precautionary measures having for their object the protection of the public must, as a rule, have reference to all classes alike.’ Nolan v. Railroad Co., 53 Conn. 461 (4 Atl. 106).” The Massachusetts court has been no less emphatic in its condemnation of the case of Railroad Co. v. Stout. In Daniels v. Railroad Co., 154 Mass. 349 (28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253), a turntable accident was involved; also a child of 10 years. The roadbed was a common thoroughfare. The court discusses all the early cases favorable to plaintiff’s contention, and says that, with the one exception of Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), “all come within other rules, or within well-defined exceptions to the general rule that a landowner owes no duty to a trespasser, except that he must not toantonly or intentionally injure him or expose him to injury.” It cites with approval McAlpin v. Powell, supra, and the New Hampshire case of Frost v. Eastern Railroad and to the general proposition which it asserts, viz., that, subject to some exceptions, an owner of land may use it as he sees fit, and, if a trespasser or mere licensee is injured, he cannot complain that, if the owner had used it in a more careful manner, no injury,would have resulted, it calls attention to the following cases: Hounsell v. Smyth, 7 C. B. (N. S.) 731, and cases cited; Clark v. City of Manchester, 62 N. H. 577; Klix v. Nieman, 68 Wis. 271 (32 N. W. 223, 60 Am. Rep. 854); Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. Rep. 684); Cauley v. Railway Co., 95 Pa. St. 398 (40 Am. Rep. 664); Gillespie v. McGowan, 100 Pa. St. 144 (45 Am. Rep. 365); Hargreaves v. Deacon, 25 Mich. 1. Also Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Metcalfe v. Steamship Co., 147 Mass. 66 (16 N. E. 701), and cases cited; Barstow v. Railroad Co., 143 Mass. 535 (10 N. E. 255); Johnson v. Railroad, 125 Mass. 75; Wright v. Railroad, 129 Mass. 440; Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Wright v. Railroad Co., 142 Mass. 296 (7 N. E. 866); McEachern v. Railroad Co., 150 Mass. 515 (23 N. E. 231); McCarty v. Railroad Co., 154 Mass. 17 (27 N. E. 773). Most of the cases last cited involved injuries to young children. The case of Walsh v. Railroad Co., 145 N. Y. 301 (39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615), in an opinion by Peckham, J., unqualifiedly condemns the rule of Railroad Co. v. Stout. This also was a turntable case, and the child was 5 years old. It not only shows the inaccuracy of the rule there asserted, but'questions some of the reasons set up by the various courts for following Railroad Co. v. Stout, and shows the misapplication of authorities relied upon to support the doctrine that landowners must guard trespassers with reasonable care and diligence. It is unnecessary to quote from it, for it can as well be read. See, also, Charlebois v. Railroad Co., 91 Mich. 59 (51 N. W. 812); Hargreaves v. Deacon, 25 Mich. 1; Moran v. Car Co., 134 Mo. 641 (36 S. W. 659, 33 L. R. A. 755); s. c. 56 Am. St. Rep. 543, and note; Dobbins v. Railway Co., 91 Tex. 60 (41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856). In addition, there are many cases that disregard the rule. Thus it has been held that cars are not dangerous machines, attractive to children, within the rule of the Turntable Cases, and that a railroad company owes no duty to a child trespassing in its yard, to see that he does not jump on its cars, or to fence its yard (Barney v. Railroad Co., 126 Mo. 372 [28 S. W. 1069, 26 L. R. A. 847]; Rushenberg v. Railway Co., 109 Mo. 112 [19 S. W. 216]; Catlett v. Railway Co., 57 Ark. 461 [21 S. W. 1062, 38 Am. St. Rep. 254]; Louisville, etc., R. Co. v. Hurt, [Ky.] 13 S. W. 275; Chicago, etc., R. Co. v. Stumps, 69 Ill. 409); nor to keep its cars in good repair, or the doors shut (McEachern v. Railroad Co., 150 Mass. 515 [23 N. E. 231]; Curley v. Railway Co., 98 Mo. 13 [10 S. W. 593]); nor to guard them so that such a child cannot be injured by loosening the brakes (Central Branch, etc., R. Co. v. Henigh, 23 Kan. 347 [33 Am. Rep. 167]; Haesley v. Railroad Co., 46 Minn. 233 [48 N. W. 1023, 24 Am. St. Rep. 220]; Gay v. Railway Co., 159 Mass. 238 [34 N. E. 186, 21 L. R. A. 448, 38 Am. St. Rep. 415]; Jakoboski v. Railroad Co., 106 Mich. 440 [64 N. W. 461]; O'Connor v. Railroad Co., 44 La. Ann. 339 [10 South. 678]); nor in leaving a hand car near the track (Robinson v. Railway Co., 7 Utah, 493 [27 Pac. 689, 13 L. R. A. 765]); nor to keep a lookout for trespassing children (Morrissey v. Railroad Co., 126 Mass. 377 [30 Am. Rep. 686]; Wright v. Railroad Co., 142 Mass. 296 [7 N. E. 866]; Cleveland, etc., R. Co. v. Adair, 12 Ind. App. 569 [39 N. E. 672, 40 N. E. 822]; Woodruff v. Railroad Co., 47 Fed. 689; Chrystal v. Railroad Co., 105 N. Y. 164 [11 N. E. 380]; Masser v. Railway Co., 68 Iowa, 602 [27 N. W. 776]; Central R. Co. y. Rylee, 87 Ga. 491 [13 S. E. 584, 13 L. R. A. 634]; Mitchell v. Railroad Co., 132 Pa. St. 226 [19 Atl. 28]; McMullen v. Railroad Co., 132 Pa. St. 107 [19 Atl. 27, 19 Am. St. Rep. 591]; McDermott v. Railroad Co., 93 Ky. 408 [20 S. W. 380]; Louisville, etc., R. Co. v. Williams, 69 Miss. 631 [12 South. 957]; Williams v. Railroad Co., 96 Mo. 275 [9 S. W. 573]). It remains to discuss our own cases cited in support of plaintiff’s contention. The case of Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), was a case where a young person exploded a dynamite cap which he found on defendant’s premises, under a shed. In discussing the case the court alluded to Hargreaves v. Deacon, 25 Mich. 1, where it was unqualifiedly held that “owners of private property are not responsible for injuries caused by leaving a dangerous place thereon, but not immediately adjoining the highway, unguarded, where the person injured was not on the premises by permission, or on business dr other lawful occasion, and had no right to be there,” and said: “The children, it is said, were tres- passers ; and, even if it can be said that they were licensed to go where they did, the result must be the same,” etc. “This is the point on which the case must turn.” The court then proceeded to show that the children were rightfully there by invitation, and that some caution was required in such a case. Clearly, this does not adopt the rule of Railroad Co. v. Stout. In the case of Baker v. Railroad Co., 68 Mich. 90 (35 N. W. 836), the boy was hurt on a public highway crossing by a train. There was no claim that he was a trespasser, or that he was not rightfully there. McCahill v. Railway Co., 96 Mich. 156 (55 N. W. 668), was a street7car case, where a trespassing boy was driven from a car in motion, and it was clearly a wanton act. That a landowner is under no obligation to use care to protect a trespasser is a broad, and, until recently, undisputed, rule, without exception; liability for injuries sustained by such being limited to cases of intentional or wanton injuries. The rule, with this limitation, is sustained today by the great weight of authority. It is'contended by some law writers, and has been held in some cases, that an exception exists in favor of children of tender years. The varying reasons given should lead us do doubt the solidity of the foundations upon which these cases rest, especially when none of the reasons are of recognized authority. The law has never before denied the liability of children for trespass because of tender years. On the contrary, it was intimated in Mangan v. Atterton, L. R. 1 Exch. 239, that a 4-year-old boy was a trespasser, under the circumstances of that case; and there are numerous cases cited in this opinion where liability is denied upon that, and no other, ground. The assertion that the weight of authority supports the plaintiff’s contention in this case seems to us incorrect. It may be true that, in cases involving turntables, a majority of 'the cases, which are necessarily few, have followed the case of Railroad Co. v. Stout, supraj but there should be a legal principle underlying the rule laid down in that case, and that principle has been - assiduously sought for by some of the courts, without success, as we have seen. Others have asserted different reasons for following it. One gives us to understand that a child is licensed to go wherever he can find that which attracts him; a Texas court has held that children of tender years cannot be trespassers; while other authorities are content to rest their approbation of and adherence to the alleged rule upon the inhumanity of the doctrine that a landowner must not be held responsible for injuries suffered by trespassing children, when by ordinary thoughtfulness and care he could have anticipated and prevented it, and the generic term “attractive nuisances ” is applied to the great variety of things which may naturally be expected to allure young children upon private premises. The term “attractive nuisance,” as applied, is a new one in the books, and the plausible application of the well-known principle that one must so occupy his own as not to do harm to the rights of others should not be construed to so restrict the use of private lands as to make it necessary to guard and protect trespassers. A man’s home has always been considered his 'castle, — a domain where, secure from intrusion, he might lawfully do as he would, so long as he did not interfere with the legal rights of others. It has been his duty to guard those licensed to enter, but beyond that he has not been required to go. In our anxiety to prevent personal injuries, we should not go so far as to overturn private rights. Admittedly, the duty of incessant watchfulness and care of one’s own premises is limited to young children. It dc/es not extend to an adult. Why should it extend to children, upon whose parents both nature and ti^e law impose the duty of care and watchfulness ? When, by reason of aj. parental neglect of duty, a trespassing child is injured, it might be treated as a casualty, or the neglectful guardjarl might be liable; but there is much reason, if not wisdom, in the common-law rule that the person trespassed upon should not be liable to respond in damages, instead o:¡:, as in other cases, having a right of action against the tr espasser. But, however Draconic the common-law rule maybe considered, it is the province of the courts to enforce it until changed by the legislature. No one questions the power or the propriety of the regulation of the u,‘se of railway turntables and other appliances of a dang erous nature. The legislature can do this, and leave un touched the common rights of the ordinary landed proprietor. The courts cannot. The rule laid down in Railroad Co. v. Stout must be a general one, applicable to every one; and, aside from the impropriety of judicial legislation, a wise public policy should forbid such a sweeping innovation by judicial main strength. In innumerable cases the courts have applied and continue to apply the general rule that a landowner need not protect a trespasser, every case being an assertion of the principle which is disregarded in the cases relied upon by ■the plaintiff. We have cited a few of them, — enough, we think, to show that the great weight of authority does not sustain the principle of the Turntable Cases. While some of the courts have followed the rule of Railroad Co. v. Stout, both the courts and profession have evinced a tendency to allow this innovation to go no further, and refuse to consider it applicable to other cases every way analogous. They speak of the cases generically, as the “ Turntable Cases” and treat such cases as exceptional. We are of the opinion that they are exceptional, and that they are not based upon principle, but contravene one of the old and well-established rules of the law; and we-therefore decline to recognize them as authority, preferring to adhere to the better doctrine of the other teases cited. The defendant owed no duty to these children, who were trespassers. Counsel invoke a further rule, or alleged rule, viz., that the plaintiff went into a place of danger lawfully to rescue her sister, and therefore was rightfully there and entitled to protection. The defendant had a right to rely upon his right to privacy, and to believe that his premises would only be invaded by those whom he should choose to invite and warn against the dangers of the place. Was he, then, bound to suppose that somebody might trespass, and to have some one on hand to wai’n and protect somj.e possible rescuer of an imaginary trespasser? not. We think The question discussed disposes of the case, and other points need not be alluded to. The judgment is affirmed. Long and Grant, JJ., concurred with Hooker, J.	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Long, J. The complainant company was organized under the union-depot act of 1881 (2 Comp. Laws, § 6356 et seq.). Its station grounds bordered on the Detroit river, and extended from Twelfth street westerly nearly to Eighteenth street, and were bounded on the northerly side by River street (sometimes called Woodbridge street). October 20, 1881, complainant made a lease to the Wabash, St. Louis & Pacific Railway Company of a portion of its station grounds lying next to the river, describing the portion leased by metós and bounds, and reserving to itself out of the description within said metes and bounds grounds for the erection of an elevator, and for a wharf on the river, and for tracks leading to the elevator and to the wharf, which tracks were to be used in common by said lessee and other railroad companies. It also leased to said railway company the right to use in common with other railroad companies the right of way from Eighteenth street to Delray. The lease provided for the construction by complainant of a passenger depot at Twelfth street, with tracks leading thereto, to be used in common by said lessee with other railroad companies. A small passenger depot was built, as provided in the lease, at Twelfth street, and from 1881 to 1889 no other railroad company leased or used the complainant’s grounds. In 1887, and prior thereto, the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & Northern Railroad Company, by arrangement with the Michigan Central Railroad Company, made use of the depot facilities of the latter company at its Third-street depot, both for freight and passenger service. At that time also the Mint & Pere Marquette Railroad Company was seeking to secure an independent terminal in Detroit. In this state of affairs, the complainant, through James F. Joy, who was its president, sought to induce the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & •Northern Railroad Company to lease from complainant the portion of its depot premises that had not been leased to the Wabash, St. Louis & Pacific Railway Company, together with the right to use in common with other companies the tracks leading to the elevator and to the wharf, and the unleased portion of the right of way running to Delray. Considerable correspondence was had between Mr. Joy, for and on behalf of complainant, and Mr. Mulliken, who was the general manager of the Detroit, Lansing & Northern Railroad Company, and Mr. Crapo, president of the Flint & Pere Marquette Railroad Company, in relation to the matter, and also concerning the construction of a union depot to be built at the corner of Third and Fort streets. This correspondence finally culminated in a contract drawn by Mr. Joy, and executed by the complainant and the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & Northern Railroad Company January 3, 1889. An arrangement was also made for the incorporation of what is called the “Fort Street Union Depot Company,” and for the erection of a depot. This bill is filed to obtain a construction of the third clause of this agreement of January 3, 1889. This clause reads as follows: “ It is understood and agreed by the parties hereto that this lease, as to the property described in the last preceding clause, is and shall be subject to a right of way across and over the same for a railroad, to be constructed in the most convenient form for a double track, and to be built so as to enable all parties lessees of said station grounds to reach any passenger station which may be built for use of said lessees; such right of way to commence at the westerly end of said grounds, and to curve northerly and easterly as soon as may be after the tracks enter the said grounds from the west, and running thence to Twelfth street, which said track shall be upon a line which may be designated by the engineers of the Flint & Pere Marquette Railroad Company and of the successors of the Wabash, St. Louis & Pacific Railway Company, consulting with and acting with the engineers of the Detroit, Lansing & Northern Railroad Company: Provided, that said double-track railroad, so far as it is constructed with embankment, shall be of the requisite width for a double-track road, and shall have perpendicular banks supported by walls; and, so far as the same is constructed as an elevated railroad, the ground under the same may be used by said parties of the second part and third part hereto for such use as may not interfere with the use of said track and right of way by all the parties interested therein.” The complainant’s contention is that by this clause of the lease there was reserved to the complainant from the premises leased the right of way described therein, and that the complainant has a right to compensation for the use made of such right of way by defendants. The contention of defendants is that no right of way was reserved to complainant at all by said clause, but that said clause is a covenant between the lessor and the lessees to subject the premises leased to the use by railroad companies who should be lessees of the premises owned by complainant of a right of way by which such companies might reach the passenger depot contemplated to be built at Third street; and that complainant has no other right or interest under said clause than to enforce the observance of such covenant by the lessees and those claiming under such lessees. The Fort Street Union Depot Company was organized on August 24th following the execution of the above contract. It filed its articles of incorporation, and during the years 1890, 1891, and 1892 acquired title to its station grounds, built a passenger station, and put down a double-track railway on the grounds so acquired by it. It also acquired a right of way to connect with the station grounds of the complainant. In addition to this, it ex tended said double-track railway over the station grounds of complainant on the right of way described in the clause above set forth of the contract of January 3, 1889; and on December 10, 1889, entered into a contract of leasing with the four railroad companies, to wit, the Wabash, Detroit, Lansing & Northern (called in the bill the Detroit, Grand Rapids & Western), Canadian Pacific, and the Flint & Pere Marquette, for the period of 990 years, granting to said four companies the right to use the said station and grounds and right of way to connect with complainant’s grounds mentioned in the contract of January 3, 1889. The fifth clause of the agreement between the Fort Street Union Depot Company and the four railroads provides: “If application be made by other railroads for accommodations in said station, the lessor will promptly notify each of the lessees thereof, and enable them to be heard on such application, and it will not make any arrangements for such accommodations with other railroads without the assent of all the lessees, as at present it seems that the lessees herein named will occupy said station to its full limit.” At the time of the execution of this contract, Mr. Joy was the treasurer of the Fort Street Union Depot Company. The whole scheme for the organization of the company originated with him, and was carried forward by him. He arranged all details, made all the plans, and drafted all contracts in relation to the matter. At the same time he was president of the complainant company, and the largest stockholder therein, owning $500,000 of its capital stock. The correspondence above referred to . commenced in 1887, and finally culminated in the two contracts above mentioned. There is not a suggestion in this entire correspondence, down to the execution of the lease of January 3, 1889, indicating any purpose of reserving to the complainant any right of way or control over any right of way. It is evident that the lease of January 3d would not have been made without acquiring the passenger station, nor the passenger station have been arranged for without the making of the lease. The passenger station was to be erected for the use of the four railroads, the title thereto to be placed in a corporation to be formed by the parties to the preliminary agreement, consisting of the four railroad companies and Mr. Joy and his friends; the four companies representing four-fifths of the interest, and Mr. 4 Joy and his associates representing the other fifth. The companies were to pay for the use on the basis of their respective wheelage. It was finally arranged that the two companies, the Flint & Pere Marquette and the Detroit, Lansing & Northern, should pay for such rental as their proportion the sum of $30,000 per annum. In order to raise the money necessary to construct the depot building, a mortgage was given by the Fort Street Union Depot Company on its property. After describing the property by lots and blocks, the mortgage recites: “Also all its yards, tracks, structures, passenger and freight stations, railroads, and especially its railroad leaving station grounds at Sixth street, and thence southwesterly to River street, near Eighth, and thence along said River street to near Twelfth street, and thence southwesterly, across the lands of the Detroit Union Railroad Depot & Station Company, to the connection with the railroad owned by said Depot & Station Company, extending through,the suburbs of Detroit to and across railroads extending from Detroit to Toledo,” etc. This is a distinct statement in the mortgage that the Fort Street Union Depot Company owned the railroad on that date, January 1, 1891, including the right of way in question. Mr. Crapo was called as a witness, and testified that the third clause of the lease was not a matter of discussion between himself and Mr. Joy; that, when they got to the matter of fixing the lease, “Mr. Joy suggested that the Flint & Pere Marquette and Detroit, Lansing & Northern roads, unless there was some clause, might interfere with the getting of the Wabash up to Third street.” We think the whole correspondence, supported by the evidence in the case, shows clearly that the provision in the lease for right of way was intended to provide means by which the defendant railroad companies should have access to the Fort Street Union Depot passenger station without other charge than the consideration stated in the lease, and that the Fort Street Union Depot Company was created to enable the railroad companies to have the depot facilities which they would acquire and enjoy by means of this right of way. We think counsel for "defendants are justified in claiming that it was intended that the lessees should have the right to provide and construct a railroad over such right of way, and that they could permit any other railroad companies, and the Fort Street Union Depot Company, to use such right of way, so long as the parties described in the lease as lessees of the complainant’s station grounds were undisturbed in their use of it. It is evident that the terms used in this clause do not import a right of way to the complainant to be used by it, or controlled by it, or to be in any way enjoyed by it by use by itself, or by charging for its use by others. The terms do import that the bomplainant has such an interest in the use of it by its own tenants that it may compel the execution of the agreement which subjects the right of way to their use. Provisions of like character, relating to the use which shall be made of premises conveyed by deed or lease, are common, and are usually made by a condition or covenant inserted in the deed or lease. The provision of the lease in question is not a reservation, but a covenant. The language of the lease is: ‘ ‘ It is understood and agreed by the parties hereto that this lease, as to the property described in the last preceding clause, is and shall be subject to a right of way across and over the same for a railroad, to be constructed in the most convenient form for a double track, and to be built' so as to enable all parties lessees of said station grounds to reach any passenger station which may be built for use of said lessees.” The contention of counsel for complainant is that the provision is a reservation, and that a reservation cannot be made in favor of third parties. The proposition that a reservation cannot be made in favor of a third party may be true, but we need not enter upon a discussion of that •question here, as we are satisfied that the clause in controversy is not a reservation, but must be treated as a covenant. By covenant the same provision may be made for the use of property as may be provided for by a condition subsequent; but, if the provision is by covenant, the remedy of the grantor or lessor for breach of covenant is by an action at law for damages, or by suit in equity to compel the observance of the covenant. It is well stated by counsel that in each case it is for the court to determine from the terms of the instrument, and from the circumstances under which the instrument was made, and by the acts and conduct of the parties, what was the intent of the provision, what it was designed to provide for, and whether the provision is a condition subsequent or a covenant. The courts will favor the construction of the provision as a covenant, rather than as a condition, in order that the consequences of a forfeiture of the estate granted may be avoided. It is said in 6 Am. & Eng. Enc. Law (2d Ed.), pp. 500-503: “As comprehended by this treatise, a condition is a qualification or restriction annexed to a deed or devise, by virtue of which an estate is made to vest, to be enlarged or defeated upon the happening or not happening of a particular event, or the performance or nonperformance of a particular act. * * * Words declaratory of the consideration for and the purpose of the conveyance, and the limitation of the use of the property, or which direct or prohibit the performance of a particular act, do not, of themselves, render an estate conditional. * * * In the construction of a particular provision, the intention of the grantor or devisor governs. * * * The same words may be employed to create a covenant as to create a condition, and, if there is any doubt regarding .the intention of the grantor or devisor, courts will incline towards the former construction, for conditions which tend to destroy estates are not favored, and are strictly construed. ‡ * Moreover, a condition is always the creation of a grantor or devisor; a covenant may be made by either a grantor or a grantee.” In Smith v. Barrie, 56 Mich. 314 (22 N. W. 816, 56 Am. Rep. 391), it appears that a deed was made of lands' subject to a condition that, if the parties of the second part, their heirs or assigns, sold or kept for sale intoxicating liquors upon the premises, the estate granted should cease. It was said by this court: “ It is perfectly lawful for parties to contract to abstain from the performance of acts proper and legal in themselves, when others with whom they contract may have an interest in their doing so, and in proper cases the contract may be made to assume the form of a condition. * * * Many cases of similar conditions are found in the books, and in none of them has enforcement, either by forfeiture of the estate or by injunction, been refused. The enforcement is subject to the rule that the law favors covenants, rather than conditions; and it inclines to construe the undertakings of parties strictly as against forfeiture.” In Oampau v. Chene, 1 Mich. 400, a deed was made by John Baptiste Campau of land in which a provision was made to pay a debt, and to board, lodge, and clothe the grantor during his lifetime. Also in the deed the grantee promised and obligated himself to keep, board, and clothe decently, until she had reached the age of 18 years, Archange Campau. The suit was in equity, based upon these provisions. It was said by the court: “The views we have expressed in regard to the covenants in the deed are illustrated and fully supported by the case of Pownal v. Taylor (decided in the Virginia court of appeals), 10 Leigh, 179 (34 Am. Dec. 725). The owner of a tract of land conveyed it to his nephew in fee, subject to the maintenance and support of the grantor and his sister. The deed contained a covenant by the grantee for such maintenance and support, and declared that the land was to be held therefor, into whose hands soever it might come. But the deed did not state that it was upon condition that such maintenance and sup port should be furnished, nor was there any clause providing for a re-entry by the grantor. Held, the provision for maintenance and support constituted merely a charge upon the estate, which might be enforced in equity; not a-condition, for breach of which the grantor could re-enter as of his former legal estate. In that as well as in this case there was a provision for a third person, and it was held that the third person (the sister) instantly acquired a beneficial interest, which she might have enforced by bill in equity. But, if the provision was a condition, then for ’ the breach the grantor might re-enter, defeat the estate, reinvest himself with his original title, and annihilate the vested interest which he had by his own solemn act conferred upon his sister. This cannot be, unless the grantor had expressly reserved the right to re-enter upon failure of the grantee to fulfill the purposes of the grant. These last remarks apply with full force to the provision for Archange in this deed.” See, also, Martin v. Cook, 102 Mich. 267 (60 N. W. 679); Avery v. Railroad Co., 106 N. Y. 142 (12 N. E. 619)) Trustees of Columbia College v. Lynch, 70 N. Y. 440 (26 Am. Rep. 615); Parker v. Nightingale, 6 Allen, 341 (83 Am. Dec. 632); Schwoerer v. Market Ass’n, 99 Mass. 285. We think the court below very properly dismissed complainant’s bill. That decree will be affirmed, with costs. Montgomery, C. J., Moore and Grant, J'J., concurred. Hooker, J., did not sit.	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Montgomery, C. J. Assumpsit for balance due on an account for repairs done upon an engine in August, 1889, and some smaller items for work done at an earlier date. The sole defense was that the debt was outlawed. Defendant testified that he always denied liability upon the account, claiming that it was for one Glover to pay. Plaintiff’s witness who had charge of the account does not dispute this, but corroborates defendant. In October, 1895, plaintiff gave the defendant credit for $15 upon the account in question, for the use, in October, 1894, of two engines, one of which belonged to defendant and one to his son. Defendant testified that this transaction was between his son and the plaintiff, and that defendant was not notified that the credit was given to him until a few days before the bringing of the present action. Plaintiff’s witness testified that the transaction was with the defendant, and that it was understood that he was to have the pay for the work, and that statements were sent to him with the credit indorsed. The court charged the jury as follows: “Now, if you find there was no understanding or agreement between them in regard to the credit of the $15, then it does not avail as a payment to take this claim out of the statute of limitations, or to prevent its being barred, because the parties must agree upon the payment. The plaintiff cannot, by giving credit upon an account, — upon an outlawed bill, or a bill that may be outlawed, — for the purpose of preventing the running of the statute, make a credit, at his own volition, on that account, and save the running of the statute. He cannot do it unless it is agreed between the parties that there is to be an application upon the account; and that is a question for you to determine, whether or not it was understood between the parties that such a credit was to be made to Mr. Emery, and that it was to be credited upon that account, and properly applied upon it. If it was so understood between them, then it would be a proper application, and the plaintiff might maintain this action; otherwise it cannot, — and that is the question for you to determine.” This instruction was sufficiently favorable, and covered all the material questions in the case. While it may be sufficient, to constitute a mutual account, that credit is furnished by one party to the other, in reliance that upon settlement the accounts shall be allowed the one to offset the other, as was said in Re Hiscock's Estate, 79 Mich. 536 (44 N. W. 947), it cannot be held that there are mutual accounts when one party denies liability upon the claim of the other, and credit is given to such party with full knowledge of the fact that it is clearly against his intention that the account shall be so applied. See Kimball v. Kimball, 16 Mich. 217; Lester v. Thompson, 91 Mich. 250 (51 N. W. 893). The plaintiff also complains of a charge that, unless a payment had been made on the account within six years before suit, the debt was outlawed, upon the theory that the jury might have understood it to mean a payment of money. We think that, on the whole charge, it would have been impossible for the jury to draw this inference. Another assignment of error is based upon allusions in the charge to the fact that defendant claimed to have always denied the account, and to the grounds upon which he based such denial. Plaintiff’s counsel state in their brief that the question of whether these items were properly chargeable to the defendant or to some third person was submitted to the jury. We think, however, that this is not the case, and, further, that a reference to these alleged facts was necessary in order to place fairly before the jury the question of whether the account was denied by the defendant at the date of the credit. The court might properly have said to the jury that, under the undisputed testimony, the defendant did deny liability and refuse payment upon plaintiff’s account. No error was committed to the prejudice of plaintiff, and the judgment will be affirmed. Hooker, Moore, and Long, JJ., concurred. Grant, > J., did not sit.	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Hooker, J. The city of Detroit took bids upon a projected repavement of a street, and the award was made to-one of the bidders. Another bidder, who was also a taxpayer, filed a bill in chancery, alleging that the award should have been made to him as the lowest bidder whose-bid was alleged to have conformed to the specifications as- published, while that of the successful bidder did not. The bill prayed that it be so decreed, and for other relief. A preliminary injunction was granted, and,, on the filing of an answer denying the merits of the bill, a motion to dissolve the injunction was made, and, upon its denial, the city filed the application in this proceeding for a mandamus to compel such dissolution. It seems to be conceded that the validity of the tax in this case is not questioned. The bill did not state a case requiring relief against a threatened sale of land for an invalid tax. The relator’s counsel assert that the amount of tax involved is 40 cents, and it is not claimed that it exceeds $100,— the amount necessary to confer jurisdiction in chancery cases. We need not consider the question of the right of a taxpayer to file such a bill in other cases. In George v. Electric-Light Co., 105 Mich. 1 (62 N. W. 985), there were 21 complainants; in Black v. Common Council of Detroit, 119 Mich. 571 (78 N. W. 660), there were 14; while in Robinson v. City of Detroit, 107 Mich. 168 (65 N. W. 10), and in Holmes v. Common Council of Detroit, 120 Mich. 226 (79 N. W. 200, 45 L. R. A. 121, 77 Am. St. Rep. 587), there were several, the number not being stated. From this fact, and the fact that the jurisdiction was not discussed, we may infer that complainants’ interests aggregated more than $100, or that they had property liable to be subjected to a lien worth more than that sum. As a biddex1, the complainant has no standing. See Talbot Pav. Co. v. City of Detroit, 109 Mich. 657 (67 N. W. 979, 63 Am. St. Rep. 604); Anderson v. Board of Public Schools, 26 L. R. A. 707, 711, note l (s. c. 122 Mo. 61, 27 S. W. 610); Colorado Pav. Co. v. Murphy, 49 U. S. App. 17 (23 C. C. A. 631, 78 Fed. 28, 37 L. R. A. 630).’ We do not discover in the brief of respondent any claim that he has, as a bidder, a right to relief. The writ will issue, as prayed. The other Justices concurred.	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Per Curiam. Five.separate suits were brought against John Scott and others, based upon negligence in constructing a certain building in Detroit, which collapsed. S. E. Engle was attorney for the plaintiffs in the five suits. The defendants interposed demurrers in each case. One case was heard in the court below, and the demurrer sustained. That decision was reversed in this court, and the case remanded. McBride v. Scott, 125 Mich. 517 (84 N. W. 1079). Pending the decision of that case in this court, the other cases remained in statu quo. After the decision was rendered in this court, and a motion for rehearing denied, the relator here and plaintiff in one of the other suits made a motion for judgment upon demurrer. Meanwhile, and before that motion and similar motions in the other cases were heard, the defendants interposed pleas in bar. ' The attorney for relator insists that he is entitled to. judgment overrifling the demurrers in the other cases, and to costs incident thereto. By interposing the pleas, the defendants waived the demurrers. Cicotte v. County of Wayne, 44 Mich. 173 (6 N. W. 336); 6 Enc. Pl. & Prac. 380, and authorities there cited. While the defendants could not withdraw their demurrer and plead over without leave of the court, the refusal of the court to hear the demurrer upon the ground that a plea had been filed and the demurrer thereby withdrawn was tantamount to the granting of such leave nunc pro tunc; and as it appears that no costs were awarded, and the respondent has returned that in his discretion no costs should be allowed, and would not have been allowed had they been asked, we think the mandamus should be denied, without costs.	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Hooker, J. The defendant appeals from a conviction upon a charge of-keeping his saloon open on a Sunday. Many of the questions raised are to remarks of the court in the course of the trial. As the case can be disposed of upon another point, it is unnecessary to discuss them. Ford Barnett was a witness called upon behalf of the people. The prosecutor sought to refresh his recollection by reading to him his testimony taken upon the preliminary examination. He was then asked: “Q. Now, is that affidavit the truth? “A. My signature is to it. “Q. I ask you if it is true, — the whole of it. “A. I swore to it.” The testimony was then offered in evidence and admitted. He afterwards testified that he could not swear that the occurrence was upon Sunday, or that he swore that it was upon Sunday, and that any testimony that he gave on the last trial was from the knowledge obtained from reading the depositiqn. After being out for a time, the jury returned, and the following occurred: “ The Court: Gentlemen, is there some question that bothers you, — a question of fact or a question of law, was it? “ A Juror: The main question was whether that affidavit that was read here, whether that stood all right the way it was sworn to, — if that was satisfactory testimony. “ The Court: Whether it was evidence or not? “The Juror: Yes, sir. “The Court: Yes, sir; I so instructed you. “ The Juror: That is what I thought. “ The Court: Was that all, gentlemen ? “ The Juror: That is all.” Counsel for the prosecution relies upon the cases of People v. Butler, 55 Mich. 409 (21 N. W. 385); Lightfoot v. People, 16 Mich. 507; People v. Kennedy, 105 Mich. 436 (63 N. W. 405). In each of these cases the deposition of the witness was admitted by way of contradiction. The witness was contradicted by his own statements, which were not received as proof of or against the substance of the charge, but merely as evidence bearing upon the credibility of the witness, just as any contrary statement out of court may be used by way of impeachment. In the case before us the jury were given to understand that this deposition was competent evidence of the charge, and that they might find the accusation established by it. This was in contravention of the rule enunciated in Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Robinson v. Mulder, 81 Mich. 75 (45 N. W. 505). We are constrained to reverse the judgment and direct a new trial. The other Justices concurred.	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Christiancy, J. Plaintiff in error brought his action against the insurance company in the circuit court for the county of St. Joseph upon a policy of insurance issued to him January 3d, 1870, insuring him against loss by fire to the amount of four thousand dollars upon his wooden hotel building, known as “The Western Hotel,” in the village of Mendon, in said county, and to the amount of one thousand dollars on the furniture therein. ■The company was a mutual insurance company, authorized to insure property only of its members, and this only when-situate in the county of St. Joseph. The facts admitted in the case on the trial are these: The building and furniture were lost by fire, and proof of loss made in due form. The one thousand dollars insurance on the furniture was paid under a stipulation that it should in no way affect this suit, as to insurance on the building, and it is the latter only which is in controversy. The policy was issued upon a written application, signed by plaintiff, containing the charter and by-laws of the company, which were also contained in the policy. The policy commences: “Be it hereby known that George W. Van Burén, resident of the village of Mendon, St. Joseph county, state of Michigan, has, this 3d day of January, A. D. 1870, become a member of the St. Joseph County Village Fire Insurance Company, according to the provisions of its charter and by-laws, and insured in said company against loss by fire on the following described village property, situate” (describing its locality): “On wood hotel building known as Western Hotel..$4,000 On furniture therein.............................1,000 “Four thousand dollars of the above insurance is for the benefit of A. Wakeman, as security for payment of a certain mortgage held by him on said building for said amount.” Then, after describing situation of the building with reference to others, it proceeds: “And the said company hereby agrees that it shall be held responsible to make good to the insured, his heirs, etc., all such loss or damage by fire, from the date hereof, as specified in the charter and by-laws herein given; provided that the said party herein insured shall pay his or her proportion of all assessments to which this company are liable.” Then, after a clause against liability for loss by riot, insurrection, or war, the policy is signed by the president and secretary, with a memorandum at the foot referring to the application on file. The charter and by-laws, so far as material to be noticed here, are as follows: Charter: By section S the officers are required to be a president, secretary, treasurer, and six directors, who should be resident citizens of the county. Section 4 prescribes certain duties of the officers, among which, it is provided: “The secretary shall keep all the books and accounts of said company, and issue all policies of insurance, and act as general agent during his term of office. He may appoint sub-agents, being himself responsible for their fidelity.” Section 5 gives the directors full power to make bylaws, to make all assessments in case of fire or other indebtedness, etc., and the president, secretary, and treasurer, to be ex officio members of the board. Section IS: “All members shall enter into a written agreement, as prescribed by law, and subscribe their names to a copy of this charter, and comply with and observe the by-laws, rules, and regulations. Any member may withdraw at any time by giving the secretary notice in writing of his or her intention, and paying him fifty cents; also paying him his or her proportion of all assessments to which this company shall be liable at the time of his or her withdrawal. No policy shall be written on property outside of the county of St. Joseph.” Section 17 provides that the company will pay three- fourths of the value of the property insured at the time of the burning, if insured to that amount, but not more than such three-fourths of the value,- though insured for more; the value to be determined by the board of directors. Section 27: “The insurance of any member shall cease upon the sale of his or her property insured; but they 6hall be holden for all assessments, until his or her policy shall have been withdrawn.” Section 29: “This charter may be amended or altered at any meeting of the members by a two-thirds vote of all members present, filing such amendment or alteration in the office of the secretary of state, and obtaining the approval of the attorney general.” By-laws : — No. 12: “ The application for insurance shall be signed by the applicant, which shall make a part of the contract of insurance, and is a warranty of the truth of all facts stated therein, and shall be filed in the office of the secretary.” Wo. IS relates to making statement and proof of loss. Wo. 16: “Property mortgaged to an amount equal to, or exceeding one-half its cash value, will not be insured; and any policy issued or existing on property thus mortgaged shall be null and void; and property mortgaged at all, will not be insured to an amount so that the amount of the insurance and the amount of the mortgage together shall exceed three-fourths of its cash value.” The application in this case is declared upon its face to be made “according to the terms of the charter and bylaws of said company;” and these being contained in the application, it is admitted the signature to the application was a subscription to the charter and to the agreement required by the 12th section of the charter. This application, after describing the property to be insured, consists of answers to printed questions, and so far as it relates to the question of incumbrances, is as follows: “First. Are you the owner of the buildings tq be insured, and of the land upon which they are situated? Answer: Yes, §4,000 to be held by A. Wakeman as collateral security for payment of a certain mortgage. “Second. Do you own the personal property to be insured ? Answer: Yes. “Third. What incumbrance is there on the property to be insured? Answer: Four thousand dollars.” The application closes with the following declaration: “I hereby declare that the above questions are correctly answered, and that I have not withheld any circumstance, or information or rumor in any manner concerning the above enumerated property affecting the risk on the same.” In fact, the real estate, including the building, was at the time incumbered by two mortgages executed by the plaintiff and his wife to said Wakeman in the aggregate sum of six thousand fifty-three dollars and ninety-seven cents, with interest, and at the time of the loss amounted to six thousand eight hundred and sixty-two dollars. The value of the real estate mortgaged, it is admitted, did not, at the time of the insurance, exceed nine thousand four hundred dollars. The property was therefore mortgaged in excess of half its value by one thousand three hundred and fifty-three dollars and ninety-seven cents; and as the sum insured, four thousand dollars, together with .the mortgages, which were six thousand fifty-three dollars and ninety-seven cents, amounted together to more than the whole value of the property, when by the by-law it could not exceed three-fourths the value, the company insist that there was a clear violation by the plaintiff of both branches of the by-law, and that the insurance was utterly void. It is admitted that none of the directors had any actual knowledge of the amount of the incumbrances except what appears upon the application; but the plaintiff had paid two assessments for losses, and he claims that Reed, who is admitted to have been “ an agent of the secretary of said company,” and who made out and forwarded the applica tion to the secretary, and is claimed to have been an agent of the company, had notice of the amount of the incumbrances. The evidence upon this point, which was the only matter of fact not agreed upon, will be noticed in its proper place. But in answer to the objection that the insurance is void by reason of its violating the by-law, the plaintiff’s counsel insisted in the court below (as he insists here), and ashed the court to charge, that as the insurance was for the benefit of Wakeman, the mortgagee, and so mentioned in the application and policy, by-law number 16 had no application to it, and the suit being brought for the benefit of Wakeman, there was no violation of this by-law, and that the plaintiff is entitled to recover. This request was refused, the court holding the policy void. Now, if this policy constituted a contract between the mortgagee and the insurance company, and the insurance was of his interest as mortgagee, and not that of the plaintiff as owner, there might be good ground for holding that it did not come within the mischief intended to be guarded against by the by-law in question. At least there might be good ground for contending in such a case that no benefit could legally have accrued to the plaintiff from any payment to be made for any loss which might accrue, unless there was some agreement between the plaintiff and his mortgagee that such payment should operate in reduction of his mortgage. — See Ellis on Ins., 162, and cases cited; White v. Brown, 2 Cush., 412; King v. State Mutual Ins. Co., 7 Cush., 1. But this policy creates no contract relation between the insurance company and the mortgagee. It is a contract only between the company and the plaintiff himself. It is the plaintiff’s interest, and not that of the mortgagee, which is insured. It was his loss or damage, and not that of the mortgagee, which the company agreed to pay. And though the insurance is declared to be for the benefit of the mortgagee “as security for his mortgages,” the mortgages were executed by the plaintiff, and he owed the mortgage debt the insurance was to secure. The payment, therefore, for any loss, when made, though paid to the mortgagee, would inure directly to the benefit of the plaintiff, and in legal effect would just as clearly constitute a payment to the plaintiff, as if made directly to himself; the mortgagee was but the appointee to receive the payment for him; and though it should be applied in reduction of the mortgages it would still have been as the plaintiff’s money and applied to his use. This provision of the policy amounts only to a request or assent to the company to pay it for him and to his use, to the mortgagee. The right of action is vested in him, and he brings it, and whatever will defeat his right of recovery must of necessity defeat any right of the mortgagee, which, in this case can only be derived through him. — Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391 ; Bidwell v. N. W. Ins. Co., 19 N. Y., 179; Macomber v. Cambridge Mutual Fire Ins. Co., 8 Cush., 133; Carpenter v. Providence Washington Ins. Co., 16 Pet., 495; Foster v. Equitable Fire Ins. Co., 2 Gray, 216; Bowditch Mutual Fire Ins. Co. v. Winslow, 3 Gray, 415; Hale v. Mechanics’ Mutual Fire Ins. Co., 6 Gray, 169. The plaintiff therefore had not only the same legal, but the same real and beneficial interest in the insurance, and the amount to be recovered for a loss, as if the mortgagee had not been named in the policy. And if, as urged by the plaintiff’s counsel, and as we think correctly, the main, if not the only object of the by-law, was to avoid the temptation to the insured to burn the building which might be furnished by allowing a party to insure property thus mortgaged, when the loss is payable directly to himself, we are unable to see why the same reason does not apply with equal force, and equally affect the risk, in a case like this, where it is to be paid to another for his benefit. Upon every view we have been able to take of this question we think the court was right in refusing the charge requested, and that the property being mortgaged to more- than balf its value, etc., the insurance comes directly within the very reason and purpose of the prohibition of the bylaw, and directly violates its letter and spirit; and unless the by-law can be held to have been waived, or defendant is estopped from setting it up, on the ground claimed by the plaintiff, the insurance must be held void. Do the facts of the case constitute such a waiver or estoppel, or rather was the' evidence such, including the admitted facts, that the jury under proper instructions, would have been authorized thus to find? The only evidence not consisting of fucts admitted and above stated, is the testimony of George B. Beed, who says, “I took the application for Mr. Van Burén, the plaintiff. He came to my office and said he wanted to make application for insurance in the village company. He said he wanted five thousand dollars, or more if he could get it. I told him five thousand dollars was all he could get in the company. He said he wanted four thousand dollars to be held as collateral security for Mr. Wakeman. I don’t know whether he said ‘for,’ or ‘by,’ Mr. Wakeman; but he wanted to secure Mr. Wakeman four thousand dollars, for a mortgage he held against the property. I don’t remember whether he told me the amount of the mortgage or not, Mr. Wakeman held against him, but I think he told me it was more than the amount of four thousand dollars. I took the application for the company and took my fees, and sent the application to the office at Centreville, and they issued the policies. I did not issue the policies. I was told to do this kind of business by Mr. Mason, who was then the secretary of the company.” Being asked what knowledge he had at the date of the application, of the amount of the mortgage upon the property, he answers: “I don’t know that I had any knowledge of the amount; but I have stated that Mr. Van Burén told me the amount was more than four thousand dollars.” If there was any conversation about the insurable condition of the properly, he does not recollect it. On cross-examination, being asked if he put to Yan Bnren this question contained in the application, “What incumbrance is there on the property to be insured?” he answers, “I don’t remember, but presume I did.” Question. — “Did you write the answer to it as he stated it?” Ans. — “I presume I did; I usually asked that question of applicants, and wrote down the answer as they gave it. I don’t remember in this case, but presume I wrote Mr. Yan Buren’s answer as he stated it.” Question. — “What was said between you and Mr. Yan Burén as to what you were to do with the application ?” Ans. — “I don’t remember what was said about it, but I took the application to be forwarded for a policy. He said he wanted to be insured one thousand dollars on the furniture and four thousand dollars on the building.” Question. — “Did he state any definite amount that the premises were mortgaged for above the four thousand dollars?” Ans. — “I don’t think he did.” Now, so far as Deed’s knowledge or notice of the amount of the incumbrances was material, if at all, it rested upon the plaintiff affirmatively to prove it; and whatever else may be said of this testimony, we think it stops short of any fair tendency to show that Deed at the time had knowledge or notice of the actual amount of the mortgages. But we shall not discuss this particular question, as we do not think it material. Nor do we deem it necessary to decide in the present case, whether Deed was properly an agent of the company, or only an agent of the secretary. There are many cases in which insurance companies are very properly held bound by the knowledge, acts, assurances and representations of their agents, beyond and even contrary to some of the particular provisions of their policies; and this court has .upon several occasions so held. The extent to which, and the instances in which, they should be so held may depend somewhat upon the character of the company itself, whether a stock company insuring parties who are not members, or a mutual company insuring members only, and much upon the nature of the charter and by-laws, and how far the latter are made parts of the contract of insurance, as well as -upon the general plan or principles upon which the business is conducted, the nature of the applications made for insurance, and how far these are made a part of the policy, or agreed to be treated as warranties, or only as representations; and perhaps still more upon the nature of the subject matter or particular features of the contract to which the question relates. And in what pertains to the matter of routine, the mode of filling up papers, the meaning the company attaches to certain special questions, or special and peculiar provisions, or the proper form of answers to the questions in an application, and other matters not obvious to the generality of men, and only supposed to be fully or fairly understood by insurers, or their agents, or those familiar with that kind of business, in short, by experts, it is right, and has been found necessary, in order to prevent fraud and imposition, to hold the insurers to a pretty strict liability for the acts, knowledge and representations of their agents. But on the other hand, insurance, being indispensable to the business interests of the country, and beneficial to all classes, is to be properly protected; and this can only be done by applying principles which shall be just and safe for the insurers as well as the insured. And for this purpose the person applying for insurance, and entering into a contract with that view, must be presumed to know something, to be competent to contract, and therefore to understand the general nature and fundamental principles of the contract into which he enters, especially when these are expressed in unambiguous terms, and unless some imposition or deception has been practiced to prevent it; and if it is not shown that he is incapable of reading, he must be presumed to to have read the paper he has signed. We do not propose to discuss these matters in detail or in their application to any other case than that before us. This case stands upon its own peculiar grounds, and does not, as we conceive, present the question in any of its forms, of the liability of the company for the acts, representations or assurances of its agent. Admitting Eeed to have been an agent of the company, instead of the agent merely of the secretary, we do not think his actual knowledge ^of tbe exact amount of the incumbrances would have operated in this case as a waiver by the company of the by-law, or in any manner have ' affected them; nor would they be affected by the fact that plaintiff had, before his loss occurred, paid assessments to the company on account of other losses. There is certainly no evidence in the case tending to • .show that either Eeed or the company," or any officer of the company, ever, prior to this loss, had any knowledge ■or notice of the value of the property, or of the fact that-the mortgages upon it exceeded half its value, or that the ■amount of the mortgages, when added to the sum insured, ■exceeded three-fourths of its value. There is no evidence that Eeed had seen or knew the property, or that a word was said about its value. The application, which consists mainly of printed questions and written answers, neither asks nor answers any question upon the point. And under the charter and by-laws of this company, of which the plaintiff, with all others insuring in it, became a member, and to which he and they assented as the law of their association and a fundamental principle of the contract of insurance, it was unnecessary for the company to enter upon this inquiry. Every one applying for and receiving insur•ance was himself, by this fundamental article of his own agreement, bound to know whether the property he was getting insured was mortgaged to more than half its value, etc., and that if so mortgaged he had no right to have it insured in the company, and solemnly pledged himself that it should not be, and that the insurance would be void, and could not be held valid, without allowing him, in violation of his agreement with them, to commit a legal fraud upon his associates, by compelling them to assume a risk in-his behalf which he, as a condition of membership, and. by the act of becoming a member, had agreed they should not assume. He was bound to know that the obligation of ascertaining whether the property was thus mortgaged did not rest upon the company, but that he must decide it for himself at his own peril' (at least unless he informed them of the exact amount of the incumbrances, and of his own estimate of the value, and asked them to determine it's value, and they should do so for themselves.) ’ The mere fact of his signing the application under this by-law gave the company the right to assume that the property was worth twice the amount of all mortgages upon it. But there is still a further, but analogous ground upon which the plaintiff must fail. The presentation of the application, and the acceptance of the insurance by him, in view of the charter and by-laws, amounted at least to a warranty that it was not mortgaged to half its value, etc. And further still, in agreeing to the charter and this bylaw, he had also agreed that this fact was material to the risk. By by-law No. 12, in connection with the policy, the" application became a part of the contract of insurance, and a warranty of the truth of the facts stated in it; and in his application he declares that he has withheld no circumstance affecting the risk on the property, while it is not pretended that by that application or otherwise he had informed the company, or even its agent, of the value of the property, or its comparative value in reference to the mortgages upon it, or that he was applying for insurance in direct violation of the by-law. The charge of the court, holding the insurance void, was correct, and the judgment must be affirmed, with costs. The other Justices concurred.	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Cooley, J. The most important questions in this case relate to the title to the lands on section one, in township fourteen north, of range three east, and on section seventeen, in township fourteen north, of range four- east. Should our conclusions be with the plaintiff on this branch of the case, the further questions may become unimportant, but if we disagree with his views regarding the title, it may become necessary, at least so far as the logs cut on section seventeen are concerned, to consider the further grounds on which he bases his claim. It is conceded that the title to the lands was in the United States in 1856. On the third day of June of that year an act of congress was passed which provided that “there be and hereby is granted to the state of Michigan, to aid in the construction of railroads” from and to certain points therein specified, and among others from Amboy by Hillsdale and Lansing to some point on or near Traverse Bay, “every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads,” with the exception of lands previously sold or pre-empted, in place of which others might be selected and located to make up the proper quantity: “Provided, That the lands to be so located shall in no case be further than fifteen miles from the lines of said roads, and s'elected for and on account of each of said roads.” The third section declared: “that the said lands hereby granted to the said state shall be subject to the disposal of the legislature thereof for the purposes aforesaid, and no other.” And the fourth: “that the lands hereby granted to said state shall be disposed of by said state only in manner following, that is to say: that a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not exceeding one hundred and twenty sections of each of said roads having twenty continuous miles completed as aforesaid, and included within-a continuous length of twenty miles of each of such roads may be sold; and so from time to time, until said roads are completed; and if any of said roads is not completed within ten years, no further sales shall be made; and the lands unsold shall revert to the United States.” — 11 U. S. Stat. at large, Little and Brown’s ed., 21. It becomes of importance to tbe parties to determine whether this act of congress constituted a present grant of the lands included within its terms, to take effect on their selection when earned, or whether on the other hand it conferred upon the state of Michigan merely a power, which, when it came to be exercised in behalf of the intended beneficiaries, would require further action, either by way of the issue of a patent or of some equivalent act, to perfect in the beneficiary a title to the land earned. The plaintiff insists that the title passed to the state, while the defendant disputes this, and claims that the title never passed from the United States, until the lands earned were patented to the Jackson, Lansing & Saginaw Railroad company, as hereinafter stated. It will be observed that the phraseology of the act of 1856 imports a conveyance to the state, and not the creation of a power merely. The words are “that there be and is hereby granted,” etc. And further on the lands granted are repeatedly spoken of, and it is provided when and on what contingency they shall revert to the United States. While this phraseology would not be conclusive if from other portions of the act it plainly appeared that the purpose was only to confer a power; yet it must be confessed that one who insists that an act of the government which employs the operative words of present conveyance, with provision of forfeiture on breach of condition, was intended to confer an authority only, is called upon to point out where and in what words the intent he insists upon is found expressed. The defendant relies upon the manifest purpose of the act to give to the state a power in trust only; a purpose which he thinks is apparent in all its provisions, and which was found in a similar act by the federal supreme court in Rice v. Railroad Co., 1 Black, 377. The case in Black differs from the one before the court, in the important particular that the act there under discussion expressly provided that no title should vest in the ter .ritory of Minnesota, the grantee therein named, until the condition of the act had been complied with. That explicit declaration would seem to remove from the case all ambiguity and all question; and though it is true the learned judge who delivered the opinion in that ease employs in some parts of it language sufficiently general, if considered by itself and without the context, to support the views of the defense, yet we cannot discover that the negative declaration we have referred to was at any time absent from his mind as a controlling feature of the case, nor can we satisfy ourselves that the conclusion would have been the same if that declaration had been wanting. On the other hand, the opinion in the office of the attorney general has been uniform that an act of the nature of the one under consideration is a grant in presentí. This was the advice of attorney general Cushing to the secretary of the interior under an act almost precisely identical with this (8 Op. of Att'y Gen’l, 244), and this advice was afterward reiterated by his successor, Judge Black (11 Ibid, 49). — See also 8 Op. of Att’y Gen'l, 247, 255 ; 9 Ibid, 41. Also Kissell v. St. Louis Public Schools, 18 How., 19; Railroad Co. v. Fremont Co., 9 Wad, 94. These opinions of very eminent lawyers are worthy of high consideration, especially as when giving them they were the official advisers of the government, and their advice was accepted and acted upon by the department of the interior. The government has thus given a practical construction to its own grants, which the state authorities should accept and follow, unless it is found that the proper judicial authority of the federal government has reviewed and found it erroneous; which it is not pretended is the case, unless by the decision in 1 Blade above referred to. And we have already said we find that case to furnish no distinct support to defendant’s position. No court is at liberty to subject these sovereign legislative grants, which more partake of the nature of treaty cessions by the Union to one of its members than of individual bargaining, to the definitions and refinements which the rules of municipal law apply to the grants and conveyances from man to man. When the government conveys by act of congress, that which constitutes its deed at the same time constitutes the law which defines the right or estate, and stamps it with whatever character it possesses. And so long as the government is only dealing with its own, the right or estate granted, whether anomalous or unprecedented, or otherwise, will be entitled to recognition and effect for just what it appears and was intended to be.— Ballou v. O’Brien, 20 Mich., 304. It is unnecessary .that the grant should be capable of being brought within any of the definitions given to estates by the common law. The one here examined seems to have been intended as a present conditional bounty to the state to encourage the building of railroads, and to become absolute and to attach to specific lands when the terms of the donation should be complied with. To devote the lands to this specific purpose, and work a transfer of the title, no further conveyance by the federal government was contemplated; it is assumed that a transfer of title was absolutely involved in the act itself and what should be done under it, and moreover that precautionary provisions were needed to meet the contingency of non-performance of the condition, and bring back the title to the federal government. • The state, then, had the title, though of course it was a floating title, not attaching to any particular parcels until the proper action should be had under the congressional grant to entitle some intended beneficiary to select and convey them. — Rutherford v. Greene’s heirs, 2 Wheaton, 196. On the 14th day of February, 1857, the legislature passed an act which, referring to the grant by congress, declared that so much of the lands, franchises, rights, powers and privileges as were or may be granted and conferred in pursuance thereof to aid in the construction of a railroad from Amboy, by way of Lansing, to some point on or near Traverse Bay, “are hereby disposed of, granted to, con ferred upon and vested in the Amboy, Lansing & Traverse Bay Railroad Company.” The act went on to provide for a formal acceptance of the grant by the company, and that it should be the duty of the company on or before the first day of December then next to locate the line of its railroad and to make complete maps of the line and file copies in the offices of the governor and secretary of state,- and the governor was required to transmit a duplicate to the land office at Washington. The seventh section of the act provided that the company, after the completion of twenty continuous miles of its road, and after the governor should have certified to the secretary of the interior that such twenty continuous miles of its road were completed, then, and not before, might sell sixty sections of land included within any continuous twenty miles of its line of road, and in like manner upon the completion of each other twenty continuous miles it might sell other sixty sections, and so on from time to time until the whole of its road was completed. The company was required to complete the road between Hillsdale and the point of intersection with the Detroit & Milwaukee Railroad on or before the first day of November, 1859, and at least twenty continuous miles of the road every year thereafter until the entire road was completed, the whole to be finished by the first day of November, 1865. — Sess. L. 1857, p. 346. It is presumed that the company filed a formal acceptance of this grant, as there are several acts of the legislature recognizing its rights under it, of which such as are material will be alluded to further on. The company filed the map of location of its line in the office of the secretary of state in August, 1858, and though this was not in time, the laches was waived by subsequent legislation. By act of February 14th, 1859 (Sess. L. 1859, p. 442), the quantity of land that might be sold on the completion of twenty continuous miles of road was increased to one hundred' and twenty sections. An act of February 12, 1861, required twenty continuous miles of road to be completed and in good running order by the first day of January then next (Sess. L. 1861, p. 82); and a later act of the same session provided that the company should not be entitled to the second one hundred and twenty sections until it should have constructed the road and opened it for use from Owosso to Michigan avenue in Lansing. — Sess. L. 1861, p. 150. Previous to the legislation of 1861 the company are shown to have completed twenty continuous miles of its road from the intersection with the Detroit and Milwaukee railroad in the city of Owosso in the direction of Lansing, and had obtained the governor’s certificate to the secretary of the interior to that effect. This would entitle the company under the acts of 1861 to make sale of one hundred and twenty sections of land on any continuous twenty miles of its road. On the 19th day of March, 1863, another act of the legislature was passed which waived all forfeitures, but required the company within six months from the passage thereof to finish and open their road for use to Michigan avenue, in the city of Lansing, and also by the first day of June then next to commence work in good faith on the road from Owosso to Saginaw City, and by the first day of January, I860, to complete that portion thereof. And the act contained a proviso that the company should not “be entitled to that portion of the second one hundred and twenty sections of said land not already conveyed by them” until the road should be completed and opened for use to Michigan avenue, in the city of Lansing. — Sess. L. 1863, p. 284. We are -.not advised except by the inference from this act that the company had previously assumed to make sales from the second one hundred and twenty sections, nor do we perceive that it becomes material. On the 17th day of September, 1863, the governor cértified to the secretary of the interior that the road was constructed and opened for use to , Michigan avenue, in the city of Lansing, stating therein that he did so “in order that it may appear that the said railway company now has title to the second one hundred- and twenty sections of land so granted by said :act of congress, and referred to in said act of the legislature of the state of Michigan, approved March 19, 1863.” This certificate would seem to entitle the company to make sale of the second one hundred and twenty sections of land, unless some action was required of the public authorities in order to determine what lands should be sold, or of the company in selecting them. The defendant insists that there must have been a designation by or under the authority of the state before the floating right could attach to specific descriptions'. That might be true if the right of selection was in the state; but such does not seem to be the case. The company having become entitled to two hundred and forty sections of land, might take one hundred and twenty sections thereof within any continuous length of twenty miles of their road, and the other one hundred and twenty sections within any other continuous length of twenty miles thereof, and the state could not force selections upon it. And as no legislation required any particular form- or method of selection, when the proper quantity of public land was found within the requisite distance of the road, we are unable to perceive why a sale by the company of specific parcels of land, not exceeding the quantity earned, and lying within the limits specified in the grant, would not to that extent have been an effectual selection. We come now to the legislation of 1865: on the 18th day of March of that year an act of legislature was passed which provided that it should be lawful for: the Jackson, Lansing & Saginaw Railroad Company, or any other railroad company, to enter into an arrangement with the Amboy,' Lansing & Traverse Bay Railroad Company, for the location of its line of railroad from Lansing by way of Owosso to Saginaw, upon the line of said Amboy, Lansing & Traverse Bay Railroad, and for the construction of the same on such line, and in case of such arrangement and location, then, upon filing in the office of the secretary of state a copy of the agreement between the companies duly certified as in the act provided, said Jackson, Lansing & Saginaw Railroad company, or other railroad company, shall become entitled, in accordance with said arrangement, to receive, take, hold, sell and dispose of the lands granted by congress to aid in. the construction of said line of road, as the said Amboy, Lansing & Traverse Bay Railroad company might have done under existing laws if such road from Owosso to Saginaw had been constructed by it, and the right of said Amboy, Lansing & Traverse Bay Railroad company to such lands, so far as the portion of its road from Owosso to Saginaw is concerned, shall cease upon the filing of said copy of agreement in the office of the secretary of state. And under the second section full authority was conferred upon the Jackson, Lansing & Saginaw company to purchase at private, public or judicial sale, the railroad and property of the Amboy, Lansing & Traverse Bay company. It is reasonable to infer that this legislation was adopted at the instance of the two companies mentioned therein by name, and in contemplation of an arrangement between them. Such an arrangement however does not seem to have been formally entered into between the parties until the 26th day of October, 1866, when a contract was executed as hereinafter stated. Meantime, on the 28th day of November, 1865, the Amboy, Lansing, & Traverse Bay Railroad company executed a deed purporting to convey to Andrew C. Maxwell and others a considerable quantity of lands, embracing the lot on section seventeen now in controversy. This deed recited the legislation already referred to including that of 1863, the construction of the road from Owosso to Lansing, and the giving of the two certificates by the governor, and it then contains a further recital that “ Whereas the board of control of railroads of the state of Michigan, at a meeting held on or about the third and fourth days of September, 1861, did select one hundred and twenty sections of land which said Amboy, Lansing & Traverse Bay Railroad company were then entitled to sell, being all the lands granted by the United States as aforesaid, lying on both sides of the line of said road extending from the south line of township six north, to the north line of township eighteen north, including all the railroad lands granted by the United States aforesaid in ‘the odd sections’ within the limits on each side of the route of said road, excepting such portions of said sections as have been previously sold by the United States, and excepting also such parts thereof as have been previously secured to actual settlers and occupants, under the provisions of the laws of the United States in regard to the pre-emption of the public lands; and whereas the said board of control at the meeting aforesaid did further resolve that the said Amboy, Lansing & Traverse Bay Railroad company should be entitled to sell a second one hundred and twenty sections of said lands, whenever the governor of said state should certify that the said road was completed from Owosso aforesaid to Michigan avenue in the city of Lansing aforesaid; and whereas the said road has long since been completed from Owosso to Michigan avenue aforesaid, and the lands hereafter described are a portion of those included in the grant aforesaid, and selected between said township six north and said township eighteen north; and whereas the said board of control of railroads did further resolve that said lands should first be taken from the south towards the north, taking all of said lands in that manner, as they might happen to be situated, on the route of said road, and the lands heretofore mentioned are included in said resolution;” therefore the deed proceeded to convey to the grantees named a number of parcels of }and situated in four adjoining townships, and none of which, if the townships were of the usual size, could have been situated a distance of more than twenty miles from any other. The quantity covered by this conveyance was about seven thousand acres, equivalent to about eleven sections, and there was no evidence in the case that further conveyances had been made by the company. Unless, therefore, there was necessity for the action of the board of control which is recited in this deed, so that it became important that plaintiff should prove such action to have been taken, it would seem that the action of the Amboy, Lansing & Traverse Bay Railroad company in making this conveyance was strictly within the limits of its legal right, and that it transferred the title to the grantees named. No provision of law has been pointed out to us on the argument which would qualify this right, or subject it to any conditions not performed or waived. The act of 1857 before referred to, which created the board of control, does not appear to have vested them with any power over the lands conveyed by the grant except in two contingencies.: First. Where the conditions of the grant were not complied with by any company, they might declare a forfeiture and select a new beneficiary; and second, when rights conflicted by reason of railroad lines crossing or approaching each other, they were to adjust any controversy. — Sections 11 and 15. And in this view of the case it would seem unnecessary to consider the subsequent arrangement between the Amboy, Lansing & Traverse Bay company and the Jackson, Lansing & Saginaw company, and the legislation following -the same, by which it is agreed on both sides that the beneficial interest in the land grant was transferred to the last named company. This transfer could not affect rights previously acquired by third parties, and we have consequently no occasion to examine the contract .between the two companies to- determine whether or not there was a reservation by it of the lands already-earned, or on the other hand, a restriction of the agreement to such as might be earned by the construction of the road north of Owosso, and whether in either case the act of the legislature of February 7, 1867, could operate by way of a. declaration of forfeiture to vest in the Jackson, Lansing, & Saginaw company greater rights than were intended to be given it by the contract between tbe two companies. And it may be remarked of this branch of the case, that' the position of the defendant rests not on equities, but on technicalities, and all reasonable inferences of construction should be against it. Beyond dispute the Amboy, Lansing & Traverse Bay Railroad company became entitled to two hundred and forty sections of land, and it wronged nobody by taking the lands here in question as part of them, but on the contrary, that company had an unquestionable legal right to take them, unless the legislation under which they were acting required some formality to be observed by the state authorities in’ advance. Any such formality in the case could have been of no service to any other party; the authorities could not rightfully have withheld it, and it could have had no beneficial object in view. We ought not, therefore, to conclude it to be necessary, unless we find it plainly required, especially in behalf of a party which claims the land b’y virtue of what it insists is a technical forfeiture under the act of February 7, 1867. — Sess. L., p. 11. We have not, for reasons before given, examined that act in this opinion to determine whether it can be treated as a forfeiture, but we are clear there was no right to forfeit what was already earned, and that the conveyance made to Maxwell and others was not open to objection either by the state or by the general government. As the plaintiff claims under the deed to Maxwell and his associates, we think he has established his right to the logs cut on section seventeen. The government afterwards patented this land to the Jackson, Lansing & Saginaw Railroad company, but that patent was unimportant, as the government at the time had no title.. The other branch of the case relates to the logs cut on section one, township fourteen north, of range three east. The plaintiff claims the logs under Daniel Burns, who cut them in the winter of 1868-9, having first applied at the land office for the purchase of the land in the usual way, but never having actually made the purchase. The logs, when cut, were seized by the federal officers, but released by the receiver of the land office in consideration of a small payment, and a bill of sale was given by him as United States timber agent therefor. On the other hand, the-defendant shows that this land was within the congressional land grant before mentioned; and that it was patented to the Jackson, Lansing & Saginaw Railroad company in March, 1871, having been actually earned previous to the time when Burns applied to purchase it, by the construction of their line of road from Owosso to Wenona. We think the plaintiff had no title whatever to these logs. The effect of the land grant to the state, and the subsequent location of the line of the road, was to place the sections which were covered by the floating grant out of the body of lands subject to sale by the federal government. Burns, consequently, could acquire no right to cut timber on the land, or even to go upon the land, by virtue of any application to purchase, if such right could be acquired by an applicant under any circumstances. And we are of opinion that no right was acquired by the compromise with the receiver, for reasons which we shall proceed to give. There is no claim, as we understand it, that there had' been any forfeiture of the land grant, or any portion thereof, after the Jackson, Lansing & Saginaw company had become the beneficiary. The grant originally was to be forfeited,' and the land to revert, unless the road was constructed within ten years from its passage. Extensions were made by act of July 3, 1866 (Laws 1865-6, Little and Brown’s ed., p. 78), and again by act of March 2, 1867 (Laws 1866-7, Little and Brown’s ed., p. Ifi5), and these, with the patent which was given, would waive any forfeiture that might affect this land if any such had occurred. And it must be taken as an unquestionable fact that the Jackson, Lansing & Saginaw company became entitled to the land on this section one, by reason of its original appropriation to the purposes of the construction of their road, and of their having complied with such conditions as entitled them to.a patent. And that company might have made sale of the lands without waiting the issue of any patent, but for the provisions of the act of July 3, 1866, one of which contemplates that titles shall pass by patent only. It is unnecessary for the purposes of this case to consider whether the patent was or was not in fact made necessary by this act. It is clear that after the patent issued the Jackson, Lansing & Saginaw company had undoubted title to this land. The question that concerns these parties is as to the title, the right of control, and the duty to protect the lands, previous to the perfecting of the title in the Jackson, Lansing & Saginaw company. And this must depend either upon the construction of the original grant, or upon the force of the patent. The grant was made to the state in presentí, but in the nature of a float, of the sections designated by odd numbers for six sections in width on each side of the road when located, and in a certain contingency, of others to be selected. It could not pass particular sections immediately, because the location of the road was essential to determine what sections would be brought within the limits of the grant; and even when the line was located, it would be highly probable that those limits would either embrace more land falling within the terms of the grant than could be conveyed in pursuance thereof, or that it would fall short of that precise quantity. It might under such circumstances be a question of considerable interest and importance whether the duty of protecting the land grant against trespassers was devolved upon the state by the grant, when the grant itself as yet attached to no definite •parcels of land, and while it waá uncertain whether all the odd-numbered sections along any particular portion of the line of the road might or might not be eventually taken by the railroad company, or whether some portion of the grant might not be located elsewhere in consequence of the.. previous sales and pre-emption selections within the limits, of six sections in width on each side of the road, leaving less than the requisite quantity to fulfill the terms of the grant. But this question we shall not discuss, because it-seems to us that the subsequent action renders it immaterial to the question at issue between these parties. Assuming that the land officers of the United States were still charged with the duty of protecting these lands, against trespassers, and that they might and should take all proper legal proceedings to punish them, it is certain that they had no authority by virtue of their office, or under any regulation or practice of the land office to which we have been referred, to sell off the timber from these lands-to any person whomsoever, and thereby deprive the railroad company of a portion at least of the benefit intended by the grant. The grant was of the lands in their existing condition; the government reserving to itself no right to sell timber or to derive any benefit therefrom; and any sale of timber, to the extent of its value, or to the extent . that it depreciated the value of the land, would defeat the purpose had in view by the government in making the-grant. If it be said, however, that in case of the cutting of timber by trespassers before the grant has attached to particular parcels, there must be authority somewhere to seize the timber and make sale of it, holding the proceeds in trust for the benefit of tbe person eventually entitled,, or otherwise the timber cut must be left to the disposition of the trespasser, himself or suffered to go to decay, — we may concede this without a modification of any thing we have already stated. The right to do what may be necessary to protect the land against trespassers is one thing;, the right to sell off the timber as against the party entitled to the benefit of the grant is quite another and a different thing. It has already been seen that the lands on section one, among others, were earned by the Jackson, Lansing & Saginaw Railroad company, according to the terms of the grant, and- the recitals in the patent, which are good evidence on this point, show this to have been as early, at least, as January 7, 1868. The logs in question were cut by Burns in the following winter, and they have been taken under the authority of the Jackson, Lansing & Saginaw Railroad company as having become their property. The patent was issued to that company in March, 1871. And the question on this branch of the case would seem to be this: At what time is the title of the railroad company to be deemed in law to have accrued? There are three periods, any one of which, according to different views, might be taken as that from which the title of the railroad company was to date; that is to say, the time of the original grant to the state, the time the lands were earned and the governor’s certificate of that fact-filed, and the time of the issue of the patent. And- the last must undoubtedly be the time, unless, under a well known and very beneficial fiction of law, the patent when given was to relate back to one or the other of the two periods first mentioned. And if it relates back to either of these, as both were before the logs were cut, them in law the land would be deemed the land of the company at the time the logs were cut, and they had a right to follow and seize the logs as their property. In Viner’s Abridgement, Tit., Relation, E, it is stated that “where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other acts shall have relation.” In Cruise the doctrine is stated in words somewhat different. “All the several parts and ceremonies,” that author says, “necessary to complete a conveyance shall be taken together as one act, and operate from the substantial part by relation.” — Cruise Dig., Vol. 5, 510-11. — See also 4 Kent, 337, 451; Wash Real Prop., Book 4, ch. 4, § 2; Jackson v. Ramsay, 3 Cow., 75; Clark v. Hall, 19 Mich., 354; Ciarle v. West, 23 Mich., 242. This doctrine has been so often applied by the federal courts to grants or donations by (die general government that it seems unnecessary here to do more than to refer to a few of the cases. Those of Ashton v. Hammond, 3 McLean, 107; Ross v. Barland, 1 Pet., 655; U. S. v. Fitzgerald, 15 Pet., 407 ; Landes v. Brant, 10 How., 348; Lessieur v. Price, 12 How., 76; French’s Lessee v. Spencer, 21 How., 239; Witherspoon v. Duncan, 4 Wall., 210; Stark v. Starrs, 6 Wall., 4022, are directly in point. The following cases in the state courts are like them in principle: Johnson v. Stagg, 2 Johns., 520; Jackson v. Dickenson, 15 Johns., 309; Fuller v. Van Geesen, 4 Hill, 171; McLaren v. Insurance Co., 5 N. Y., 151; Richardson v. Cleaveland, 5 Port., 251; Jones v. Inge., Ibid., 327; Smith v. Allen, 1 Blackf., 22; Heywood v. Hildreth, 9 Mass., 393; Taylor v. Robinson, 2 Allen, 564; Stout v. Keyes, 2 Doug., Mich., 184; Crowley v. Wallace, 12 Me., 143; Papin v. Massey, 27 Mo., 445; Magwire v. Tyler, 40 Mo., 406; Hayward v. Ormsbee, 11 Wis., 3; Cavender v. Smith, 3 Greene, Iowa, 349, S. C., 5 Iowa, 157; Rogers v. Brent, 5 Gilm., 573; Dequindre v. Williams, 81 Ind., 444. These cases apply the doctrine under a great variety of circumstances, and they show, what is expressly declared in some of them, that while it is never to be applied to the injury of innocent parties, it is exceedingly effectual to the attainment of justice as against trespassers. And Burns in this case can only stand in that light. . . . As already said, whether the relation of the patent is to be to the original grant, or to the time when the land was earned, — that is to say, whether the one or the other is to be deemed, in the words of Mr. Cruise, “the substantial part” of the necessary steps in perfecting title, is in this case immaterial. To one or the other the patent clearly relates. We may say of the case, in words slightly changed from those employed by the federal supreme court in Lessieur v. Price, 12 How., 76, that the land was granted by the act of 1856; it was a present grant, wanting identity to make it perfect; and the railroad company was vested with full power to select and locate the lands; and the selection. when made pursuant to the act of congress gave precision, to' the title, and attached it to the land selected. And from the time, at least, when there was a right to select and locate that which was afterwards selected and patented, the railroad company must be deemed owner of the land. Upon this branch of the case, therefore, we find no error in this record. For the error on the other branch the judgment must bo reversed. We cannot, as the plaintiff insists, enter a final judgment on his behalf in this court. True, the jury found specially the value of the logs on section seventeen, but we have no means of knowing how the jury made up the amount of the verdict returned by them, — what they included or what they rejected. It will he necessary, therefore, to order a new trial. Graves, Ch. J., and Christiancy, J., concurred. Campbell, J., did not sit in this case.	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Campbell, J. The bill in this case is for a specific performance of a parol contract claimed to have been made good by possession and payment in full. A decree was taken for com- • plainant by default at the hearing in April, 1870. This decree was afterwards opened and new testimony taken, and the bill was finally dismissed. The complainant claims that the decree was unlawfully opened, and could not be disturbed, and also that the last ■ decree is not in accordance with the merits. If we could look into the merits, we should take time for a full and careful examination of the facts, which are voluminous and conflicting. But we do not perceive that this is possible upon the record. Assuming that the complainant was in a position to consider himself aggrieved by having the first decree disturbed (which we do not think it necessary to discuss at' length),. he cannot complain here of that action if it was not against his rights. Whether it would be a void and incompetent proceeding to open a decree and grant a rehearing, in the proper sense of the term, at the time when this decree was opened, so as to make it the duty of an appellate court to restore the first decree, we need not now consider. The application which the court below granted was not made on any such ground. It was nothing more than opening a’ decree by default, — which may always be done within a reasonable time on showing 'an adequate excuse; and this must generally be within the sound discretion of the court. The facts showed beyond question that the decree had been in fact waived, and opened by agreement, within a few days after its date, and that arrangements had been made for a further hearing. If there had not been misconduct on the part of complainant’s solicitor, the decree would have been vacated by matters appearing on the record. It was a fraud to set it up as an existing decree, and the court could not have allowed it to stand without violating every principle of justice. It appears from complainant’s own showing that in June, 1870, he conveyed the premises in dispute to one Charles E. Ritson. Ritson never made himself a party to the suit. By that conveyance complainant ceased to have any further interest in the controversy; • If any one was injuriously affected by any subsequent proceedings, it was Ritson, and not complainant. It was ño concern of his after he had sold out all his interest. A court of equity must have the real parties before it, and will not permit a pai’ty who ha's voluntarily divested himself of any claim on his own behalf, to continue litigating. As soon as a complainant assigns liis rights, the suit, as to him, ceases, and becomes as defective for want of a complainant as if it had abated by his death. It, can only be restored to activity by bringing the rights of the assignee before the court.— Webster v. Hitchcock, 11 Mich. R., 56 ; Perkins v. Perkins, 16 Mich., 162. The complainant, therefore, was a mere interloper, after the date of his deed, and has no right to complain that his bill was dismissed. He had put himself out of court so far as any rights were concerned. The controversy was no longer his controversy, and the right to pursue it had been terminated as to him, by his own act. He could not proceed alone except for his sole grievances. Whether the decree would have been right or wrong if he had retained his interest, it was unquestionably right to dismiss the bill when the complainant had no interest. He was in the same position then as if his bill had shown on its face that the interest had been parted with before the commencement of suit. This state of things renders it necessary for us to affirm the decree, without inquiring further into the facts. No state of facts could warrant any decree in favor of a complainant having no right to relief. As he did not see fit to withdraw, he subjected himself to the consequences of prosecuting a claim that did not belong to him. The decree must be affirmed, with costs. The other Justices concurred.	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Cavanagh, J. In this case, we are called on to decide whether a defendant against whom a land contract forfeiture judgment has been obtained must pay an amount, representing the monthly payments under the contract, in excess of the judgment to preclude entry of a writ of restitution. For the reasons detailed below, we reverse the decision of the Court of Appeals and conclude that the writ of restitution in this case was issued improperly. i Defendants in this case are husband and wife. They entered into a land contract for a two-unit residential property with Lynette Marie Luft in August 1989. In January 1992, Luft assigned her interest in that contract to the plaintiffs, two attorneys. In April 1992, plaintiffs commenced a forfeiture action in the 12th District Court. Plaintiffs voluntarily dismissed that action, and then filed a second forfeiture notice in August 1992. It is this action from which the present appeal arises. On October 27, 1992, the defendants, who were not represented by counsel, consented to entry of judgment in favor of the plaintiffs for $2,000. In a brief hearing, both defendants acknowledged that $2,000 was “due and owing.” Ms. Taylor also replied affirmatively when the court inquired if she was familiar with the terms outlined in the judgment. The defendants agreed with the court that, because less than half the total contract had been paid, the redemption period would be ninety days. Finally, plaintiff Rappleye also agreed with the court that $2,000 was the redemption amount. The plaintiffs drafted the judgment on a standard State Court Administrative Office approved form. Included in this judgment, in paragraph 6, “Further Orders,” was a provision that “all monies paid during redemption period shall first be applied to keep payments current and then to the outstanding judgment amount.” This provision was not specifically mentioned on the record by the parties or the court, nor did the parties sign this judgment in the space provided for approval of content and form. Between October 27, 1992, and the end of January 1993, the defendants paid the plaintiffs a total of $1,800. On February 5, 1993, after the redemption period had expired, but before any further action in this matter, the defendants paid an additional $350 to the plaintiffs, bringing the total amount paid to $2,150. Nonetheless, the plaintiffs moved for issuance of a writ on the ground that, following the “further orders” language, and applying the bulk of the monies paid to the $1,600 that had become due under the contract, the defendants remained significantly in arrears. The district court held a hearing on the motion on February 9, 1993. At that hearing, the plaintiffs presented a stipulation, signed by the defendants, that the “outstanding balance which was due and owing has not been paid in full,” and agreeing that the defendants would have until February 18, 1993, to pay the $1,450 still owing, or a writ of restitution would be entered at any time thereafter. The stipulation was presented to the court at the hearing on the motion, and the court entered an order in accordance with it. The defendants again were unrepresented by counsel. The transcript of this hearing reveals that the court was aware of the “further orders” language, but at no time does it appear that the court was made aware of the fact that, at the time of the hearing, $2,150 had been paid to the plaintiffs. The defendants did not make any further payments before February 18, 1993, and, on that day, the plaintiffs applied for and received a writ of restitution ex parte. The application for the writ indicated the “No payment has been made on the judgment and/or no rent has been received since the date of judgment, except the sum of $1,400.00 received under the following conditions: per the judgment.” While plaintiffs undertook actions to evict the defendants, while simultaneously offering them the option of renting the premises, the defendants, for the first time, obtained counsel to represent them in this matter. Counsel immediately moved for a stay of and relief from the judgment. Following a hearing, the district court denied the motion. Defendants appealed in the Jackson Circuit Court, which affirmed. In the course of this appeal, an appeal bond and escrow order was entered, requiring the defendants to continue their $400 land contract payments each month. The circuit court continued the appeal bond and escrow order to allow the defendants to proceed in the Court of Appeals. The defendants claim in this Court that they have continued to make every monthly payment since the entry of the escrow order, and the plaintiffs do not dispute that. The Court of Appeals, in an unpublished per curiam opinion, affirmed in part and reversed in part. Finding the district court to have erred in the application of the “further orders” language, the Court of Appeals held that such language was an “improper ‘clog’ on defendants’ right of redemption.” The Court then affirmed the result, however, on the ground that the failure to make the monthly payments constituted a separate material breach and a proper ground for the issuance of the writ of restitution. We granted leave to appeal to address this issue, which may affect a substantial number of land contract vendors and vendees, and invited the Michigan State Bar Real Property Law Section to file a brief amicus curiae. We now affirm in part, and reverse in part. n The question before us concerns the appropriateness of the Court of Appeals sanctioning the use of summary forfeiture proceedings to enforce the payments due on the underlying land contract that accrue after a judgment has been entered, but prior to the issuance of a writ of restitution. The Court of Appeals held that the failure to make such payments constituted a material breach under the contract sufficient to support the issuance of a writ of restitution. We review this question of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75; 467 NW2d 21 (1991). A The concept of forfeiture in the land contract setting has undergone a substantial evolution under Michigan law. Originally, a common-law forfeiture ended the land contract. The seller was discharged from his duty to convey, and the purchaser was discharged from his duty to pay. See Stevens v Most, 251 Mich 23; 231 NW 47 (1930). In Stevens, this Court examined a situation similar to the instant case. The defendant in Stevens argued that the notice of forfeiture operated to terminate his duty to pay, and hence he should be able to redeem the contract by paying the amount stated in the notice of forfeiture. This Court rejected that argument, reasoning: This method would cause a multiplicity of suits and serve no useful end. We believe that the practice heretofore generally followed of including all amounts due up to the date of the judgment is correct, and carries out the intent and purpose of the present statute. [Id. at 27.] This same concern resonated in the views of the circuit court below. While the argument was abandoned here, the plaintiffs did advocate such a concern below. While we agree that such a concern can, in some circumstances, be very legitimate, we do not find it so here. In Gruskin v Fisher, 405 Mich 51; 273 NW2d 893 (1979), we addressed the area of land contract forfeitures as concerning the issue of election of remedies. We noted that, historically, the effect of the service of a notice of forfeiture was to end the contract, and, thus, was an election of remedies. Under modem summary proceeding practice, however, we found that a notice of forfeiture actually acted more as a condition precedent to the commencement of summary proceedings. In modem practice, including summary proceedings under the Revised Judicature Act, MCL 600.5701 et seq.; MSA 27A.5701 et seq., a seller may pursue alternative remedies until a writ of restitution has been entered, even after a judgment of possession has been entered. Id. at 66-67. We have recently restated the belief that the Revised Judicature Act is a codification of the common-law rule of election of remedies, with some arguable modifications. Michigan Nat’l Bank, Trustee v Cote, 451 Mich 180; 546 NW2d 247 (1996). While we do not return to the issues underlying Gruskin or Cote today, we are confident that the option of instituting a foreclosure action, as opposed to a forfeiture action, existed for the plaintiffs when they filed their initial claim. Indeed, we note that the plaintiffs earlier had filed and then dismissed a forfeiture action, for reasons that are not clear from the record. Whatever their reasons, the possibility of the need to file repeated forfeiture actions appears to have been more than an abstract concept to the plaintiffs. Nonetheless, they chose to forgo the acceleration advantages of a foreclosure action in favor of the ease of a summary forfeiture proceeding. This leads us to dispose of the problem that so troubled the circuit court and was a basis of arguments for the plaintiff below. A land contract vendor in the plaintiffs’ position need never face the diffi culty of being required to institute a multiplicity of suits. Such a vendor has another option: he may commence a foreclosure action. The Court hardly needs to concern itself with protecting the vendor from postjudgment defaults. The vendor has the option of protecting himself by instituting a foreclosure action. B We note that while the defendants and amici curiae urge us to address the question of a clogging of the equity of redemption, we are in fact not properly presented with that issue. The Court of Appeals ruled in favor of the defendants on this issue, and the plaintiffs filed no appeal or cross-appeal on this issue. Before this Court, the plaintiffs present a one-sentence argument with no citation to authority. On its face it is unclear what issue, if any, that sentence attempts to raise. More importantly, a mere statement without authority is insufficient to bring an issue before this Court. It is not sufficient for a party “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.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Accordingly, we need not address this issue, and therefore, decline to do so. To be thorough, however, and also to provide guidance to the bench and bar, as requested by the amici curiae, we note that to the extent that plaintiffs raise any question at all regarding the “further orders” language being viable, such language must fail as being contrary to the statute. MCL 600.5741; MSA 27A.5741 states: If the jury or the judge finds that the plaintiff is entitled to possession of the premises, or any part thereof, judgment may be entered in accordance with the finding and may be enforced by a writ of restitution as provided in this chapter. If it is found that the plaintiff is entitled to possession of the premises, in consequence of the nonpayment of any money due under a tenancy, or the nonpayment of moneys required to be paid under an executory contract for purchase of the premises, the jury or judge making the finding shall determine the amount due or in arrears at the time of trial which amount shall be stated in the judgment for possession. In determining the amount due under a tenancy the jury or judge shall deduct any portion of the rent which the jury or judge finds to be excused by the plaintiff’s breach of the lease or by his breach of 1 or more statutory covenants imposed by section 39 of chapter 66 of the Revised Statutes of 1846, as added, being section 554.139 of the Compiled Laws of 1948. The statement in the judgment for possession shall be only for the purpose of prescribing the amount which, together with taxed costs, shall be paid to preclude issuance of the writ of restitution. The judgment may include an award of costs, enforceable in the same manner as other civil judgments for money in the same court. [Emphasis added.] The statute clearly requires that the amount stated shall prescribe the amount to be paid to preclude issuance of the writ. Here the amount stated in the judgment was $2,000. The “further orders” language operated to circumvent this amount and purported to require that an amount in excess of the $2,000 stated actually would be required to prevent issuance of the writ. We find this language operated contrary to the statute, and, thus, was erroneously entered. c We now address the holding of the Court of Appeals that the failure to make monthly payments during the redemption period was a material breach sufficient to justify issuance of the writ of restitution. In so finding, the Court of Appeals relied on MCL 600.5744(6); MSA 27A.5744(6), which states: When the judgment for possession is for nonpayment of money due under a tenancy or for nonpayment of moneys required to be paid under or any other material breach of an executory contract for purchase of the premises, the writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff and other material breaches of an executory contract for purchase of the premises are cured. While we agree that this subsection applies to this question, we find that the Court of Appeals erred in interpreting it. The statute quoted prevents the issuance of a writ of restitution if payment is made in an amount provided in the judgment and other material breaches are cured. The statute separates “nonpayment of moneys required to be paid,” from “any other material breach.” It clearly divides monetary and non-monetary breaches. It seems clear that whatever the other material breaches may be, they do not include the failure to make monetary payments. To hold otherwise would nm contrary to the specific language of the statute and logic. A writ of restitution is issued only upon a failure to pay the amount specified in the judgment. To permit its issuance upon a failure to pay some other amount, under the context of a “material breach,” would be to allow the writ to be issued on the basis of a failure to pay an amount that has never been subject to proof before the court. As we have already noted, MCL 600.5741; MSA 27A.5741 requires only that the amount of the judgment need be paid to preclude the issuance of the writ of restitution. While some other nonmonetary material breach, which was specified in the judgment for possession, might need to be cured to preclude the issuance of a writ of restitution, we hold that the amount specified in the judgment is the only monetary payment that needs to be made to preclude the issuance of a writ of restitution in a land contract forfeiture proceeding under the Revised Judicature Act. The Court of Appeals erred in holding otherwise. m As we have noted, the Court of Appeals found that the reason relied on by the trial court for the issuance of the writ, the failure of the defendants to comply with the “further orders” language, was erroneous. We are not called on to review that decision. The sole remaining basis supporting the writ’s issuance, the holding of the Court of Appeals that the writ was properly issued on the basis of a material breach was error and is reversed. The writ of restitution is, therefore, quashed. Mallett, C.J., and Brickley and Kelly, JJ., concurred with Cavanagh, J. The land contract summary forfeiture proceedings in question are governed by the Revised Judicature Act, MCL 600.5701 et seq.; MSA 27A.5701 et seq. Plaintiffs also commenced a third action in July 1993, after the circuit court ruled in plaintiffs’ favor following defendants’ appeal from district court in the present case. That case was dismissed for a lack of progress in April 1994, and is not involved in this appeal. The record indicates that the entire hearing took two minutes to complete. The $1,600 figure represented four months of land contract payments of $400 a month. The math applied by the plaintiffs merits further discussion. The plaintiffs’ motion for issuance of the writ of restitution, in paragraph 3, claimed the defendants had paid a total of $1,400, in amounts of $600 on October 27, 1992, $400 on December 15, 1992, and $400 on January 8, 1993. In paragraph 4, the motion claimed that $1,600 had become due under the contract since entry of the judgment. Plaintiffs’ brief on appeal to this Court includes an attachment consisting of canceled checks and money orders received from the defendants. While the three amounts above appear on instruments with dates close to those above, an additional $400 check dated November 5, 1992 is included, along with a $350 check dated February 5, 1993. While it is apparent that the $350 check was issued after the date the plaintiffs’ motion was signed, the absence of any mention of the November 5, 1992, check is troubling. The motion claims that defendants have “failed to pay the monies which were due on the payments which accrued during the redemption period and have paid nothing toward the outstand ing balance on the Judgment of Land Contract Forfeiture.” Discarding the $350 check as not yet having arrived, the plaintiffs were admittedly in receipt of $1,800 at the time this motion was drafted. The plaintiffs claim $1,600 was due under the “further orders” language. Even if we were to adopt the plaintiffs’ reasoning and math, the defendants would have paid the entire amount that had become due as monthly payments, plus $200 toward the judgment amount (and all this before the last $350 payment). The plaintiffs’ statements in the motion appear to be irreconcilable with the checks that plaintiffs have presented to this Court and admit they received. The transcript reveals this hearing took three minutes to complete. Again, the plaintiffs’ math invites inquiry. This application was signed on February 18, 1993, by which time the plaintiffs were in receipt of $2,150. While plaintiffs attempt to argue that some of these payments were to be applied to monthly payments, and others to the judgment amount, this position is in conflict with their claim that the “further orders” language is controlling and that all payments first must be applied to the monthly amounts accruing. Moreover, even following plaintiffs’ arguments as they are included in their brief on appeal does not lead to any situation where the amount received “under the judgment,” even if we somehow discount amounts applied to ongoing monthly payments, equals $1,400. In short, it appears that both the motion and the application for the writ of restitution significantly understate the payments actually received, and the plaintiffs’ various competing rationales all fail to support the claims made in the application for the writ. Issued January 5, 1996 (Docket No. 164978). This portion of the decision of the Court of Appeals was not appealed by the plaintiffs, and, hence, is not before this Court. 454 Mich 921 (1997). The Court has benefited from the amici curiae briefs filed in this matter. Plaintiffs’ “brief’ is indeed just that, it contains one page of counter statement of facts and one sentence of argument with no citation of authority. Likewise, under Gruskin, it seems that the plaintiffs could have elected to seek foreclosure rather than seek a writ of restitution. What the plaintiffs tried to do is what Gruskin spoke of at some length, take advantage of a less sophisticated party. Id. at 69, n 13. The plaintiffs sought the speed of forfeiture, but tried to also collect as much of the payments as would become due under the contract in the interim of the redemption period. Nothing in Gruskin strikes us as holding permissible the actions taken in this case. It is the next section of our analysis, however, that is dispositive. The dissent fears that vendors will find themselves on a “litigation treadmill” (post at 255), apparently because foreclosure proceedings are inherently more complex than summary procedure forfeiture remedies, and hence not a realistic alternative. We disagree. The Legislature has granted vendors two alternative remedies, one that is very rapid, but does not allow for a recovery of all payments due under the contract, and one that is more complex, but does allow a full recovery. We simply decline to judicially legislate some provisions from the latter into the former. Despite having previously filed a case against defendants, then dismissing it, plaintiffs still elected a summary forfeiture proceeding. Even so, as we noted in Gruskin, supra at 66-67, the option of pursuing a foreclosure remedy remained open to the plaintiffs, even after the entry of a judgment of possession. If, before the entry of the writ, plaintiffs had decided that the four months’ worth of payments were more important to them than immediate possession of the property they had the option to commence a foreclosure proceeding. Rather, they chose to seek a writ of restitution, and, hence, forgo any amount greater than the specifically stated judgment amount. The dissent’s citation of Gruskin for the proposition that forfeiture proceedings should not be encouraged arrives without the necessary context. As we noted immediately before that statement, “[land contract] sellers do not seek a return of property, but payment.” Gruskin at 63. We noted the availability of summary forfeiture proceedings, which “move expeditiously and generally accomplish their purpose of persuading the purchaser to cure the delinquency.” Id. at 64. “If it appears that the purchaser does not desire or intend to perform and is willing to surrender his equity, then the seller must make a decision and, under the statute, is put to an election of remedies. He may accept possession or, if he wishes to obtain a deficiency judgment, abandon the summary proceedings in favor of foreclosure action.” Id. Contrary to the dissent’s implication, our decision in Gruskin hardly amounts to a wholesale disfavoring of foreclosure actions. While Justice Voelker’s statement expresses the point in a most eloquent fashion, this has been the rule in Michigan long before his statement, and long after. See, e.g., Arrand v Graham, 297 Mich 559; 298 NW 281 (1941), and Speaker-Hines & Thomas, Inc v Dep’t of Treasury, 207 Mich App 84, 90-91; 523 NW2d 826 (1994). The dissent of Justice Taylor suggests that we are, in effect, being wilfully blind of the possible effect of Flynn v Korneffel, 451 Mich 186; 547 NW2d 249 (1996). We disagree. We are called on only to answer a simple question: Did the Court of Appeals err in determining that the failure to pay the monthly payments was a “material breach” under MCL 600.5744(6); MSA 27A.5744(6). We find the answer to clearly be yes, and note that a close reading of Justice Taylor’s dissent finds that he does not disagree. The difference, then, is that we are content merely to conclude the task at hand, rather than continue onward toward some particular conclusion, or decide the applicability of a particular case to the facts before us, where that case was not even cited by any of the parties or amici curiae. Accordingly, we should not, and do not, express any opinion regarding the effect of Flynn to these circumstances, as we are simply not called on to do so. As well it should. Were we to adopt the dissent’s view, we would be condoning the use of a writ of restitution to hold a party liable for amounts never subject to proof before the trial court. The mere fact that defendants offered no defenses to the payments due before the entry of judgment does not preclude the possibility that legitimate defenses might exist to some all the payments otherwise due after the entry of judgment. It seems clear that the court should not be authorizing the entry of a writ on the basis of the owing of an amount that has never been (1) accurately ascertained, or (2) even been proven to be owed before the court. We again note that none of the parties have raised the issue what effect, if any, the defendants’ payment of the last $350 after the period of redemption should have on this case. Accordingly, we are not called on to address this matter and decline to do so. To the extent the dissent seems to find our decision to call into question all manner of contracts, we simply do not do so. This case is decidedly unusual, and the factual situation herein is likely not to be repeated often. Which is not to say, of course, that land contract forfeiture cases are uncommon. We today simply restate our Gruskin explanation of the differences between summary forfeiture and foreclosure proceedings, and the availability of each. Individual vendors must select their remedies on the basis of their situations.	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Brickley, J. i We are called upon to decide two issues in this case. First, we must determine whether violations of the soil erosion and sedimentation control act, MCL 324.9101 et seq.; MSA 13A.9101 et seq. (sesca), can form the basis of a prima facie case under the Michigan environmental protection act, MCL 324.1701 et seq.; MSA 13A.1701 et seq. (mera). We conclude that it can and, therefore, reverse in part the decision of the Court of Appeals and reinstate in part the judgment of the trial court. Secondly, we must determine whether the MEPA permits a trial judge to apportion attorney fees in the “interests of justice.” We conclude that it does not and, therefore, affirm in part the decision of the Court of Appeals. n In the fall of 1990, defendant developers began construction of a multimillion-dollar marina, condominium, and hotel project at the mouth of the Manistee River, on the shore of Lake Michigan, on property owned by defendant city of Manistee. Construction involved stripping the vegetation and topsoil from thirty acres of barrier dunes, digging a marina basin, and moving thousands of cubic yards of earth into piles on the edges of the construction site. In December of 1990, after this phase of the construction took place, a storm struck Manistee, and wind and water on the exposed dunes carried sand, snow, fly ash, and other sediments from the construction site to the surrounding area. The sediments buried nearby parcels in drifts several feet deep, destroyed window casings, damaged siding, and were blown into the interiors of homes in the area. Nine months later, a group of residents sued the developers and the city of Manistee. Plaintiffs had several theories of recovery; however, only the allegation of a violation of the mepa is before this Court. Plaintiffs argued that the developers’ violations of the sesca provided sufficient evidence that the developers’ activities violated the mepa by either polluting, impairing, destroying air, water, or other natural resources, or were likely to do so. See subsection 1703(1). The trial court issued a preliminary injunction against defendants on February 28, 1992, nunc pro tunc from December 7, 1991, enjoining excavation of soil and movement of soil in the project area. Neither the construction on the building sites nor the earthmoving activities where the defendants were trying to establish joinder of the Manistee River with the marina basin were enjoined. The trial judge made findings of fact on which he based his grant of the preliminary injunction. First, the court found that the severity of the storm that occurred in 1990 was due to the stripping of the vegetative cover of the project area. The trial court also found that there was “demonstrated indifference” in the past to proper soil erosion control measures by defendants, on the basis of the failure to implement soil erosion control recommendations resulting from the consultations between the city soil erosion officer and the county soil erosion control officer. However, this demonstrated indifference underwent significant change through the course of the litigation. In December of 1991, at the behest of the trial court, the city took steps to put in place a soil erosion control officer — independent of the city’s operational control. Before the independent officer’s insistence, no soil erosion control plan had been submitted by defendants that met the SESCA’s requirements. That officer also issued a cease and desist order, insisting that certain measures be taken before any work could continue on the site. Upon issuance of that order, the developers took immediate steps to conform to the requirements and “lay down this material to hopefully hold the soil in place until a proper mulch cover . . . and grass cover [could] be put in place.” The trial court specifically noted that there was no cover before this because the developers’ efforts in 1991 were not done in a timely fashion; therefore, the mulch and grass cover they attempted to put in was not able to take hold in a manner sufficient to meet the requirements of the sesca. The trial court was satisfied that plaintiffs had established a likelihood of prevailing on the merits; that is, they were harmed by the alleged violations of the environmental statutes. The trial court, in weighing the harm to plaintiffs and the cost to defendant developers, held that the cost of compliance with the injunction was minimal because the project was not “shut down.” The trial court ruled that the preliminary injunction would last until the proper permits by the independent soil erosion control officer were issued because the prior permits were not valid since the permits were not supported by an adequate soil erosion control plan. All that really remained to be done, according to the trial court, was for the developers to apply for the permits and the soil erosion control officer to make his independent evaluation regarding whether the permits should be issued. The injunction did not affect the city of Manistee. The trial court granted plaintiffs’ motion for a permanent injunction on October 27, 1992, and issued its final judgment and order on November 24, 1992. The final judgment and order provided that defendants were permanently enjoined as follows: (1) Enjoined nunc pro tunc, from December 7, 1991, until the issuance of proper soil erosion control permits, from performing any construction activities which include and involve movement of soil. This injunction to exclude solely (a) minor movements of soil for the continuing construction of building sites and (b) earth moving in the area where Defendants are attempting to establish a joinder of the marina basin with the Manistee River, i.e., at the “River site.” (2) Mandatorily enjoined and directed to the same extent and scope of any cease and desist order and/or directive from the Independent Soil Erosion Control Officer, subject to Defendants’ right to an administrative appeal from such order or directive and limited by any reversal or modification or other change thereof on such an appeal, and subject to Defendants’ concurrent right to challenge in this Court the propriety and scope of such Officer’s order or directive. Finally, the trial court awarded attorney fees and costs to plaintiffs, pursuant to the mepa, in the amount of $89,377 against defendants, Abonmarche, Morren, and MacLean, but not against the city of Manistee. The Court of Appeals, in an unpublished opinion per curiam, held that an injunction based on a violation of the mepa was not warranted because the activity of defendants did not “rise to such a level of impairment or destruction of a natural resource so as to constitute an environmental risk,” relying on Dafter Sanitary Landfill v Superior Sanitation Service, 198 Mich App 499; 499 NW2d 383 (1993). Slip op, p 2. Moreover, held the Court of Appeals, the natural resource in question — sand—and its location, was not rare, unique, endangered, or of historical significance. Id. Finally, the Court of Appeals held that sand is easily replaceable and that the movement of sand in that area would not have any significant consequential effect on other natural resources. m The first issue we are called on to decide in this case is whether the trial court properly held that plaintiffs established that defendants violated the mepa by showing that defendants violated the SESGA. Subsection 1703(1) of the mepa provides: When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts apply to actions brought under this part. At the center of this controversy is the proper application of our decision interpreting the mepa in Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975). Plaintiffs argue that the low threshold of harm required by the mepa and Ray has been chipped away by the lower court’s imposition of additional requirements. Defendants argue that a violation of the SESCA cannot, by itself, amount to a violation of the MEPA. First, we must reiterate exactly what is required by Ray. We held that the “judicial development of a common law of environmental quality, as envisioned by the Legislature, can only take place if circuit court judges take care to set out with specificity the factual findings upon which they base their ultimate conclusions.” Ray, supra at 307. We further observed that the MEPA itself provides substantial guidance to trial judges regarding what should be included in the findings of fact for actions brought under the MEPA. See subsection 1703(1). The trial judge must find facts on which the plaintiff claims to have made a prima facie case under the mepa, that is, what conduct of the defendant “has or is likely to pollute, impair or destroy the air, water or other natural resources.” Ray, supra at 309. Importantly, we held in Ray that the necessary showing to establish a plaintiffs prima facie case is “not restricted to actual environmental degradation but also encompasses probable damage to the environment as well.” Id. at 309. General rules of evidence govern this inquiry, and a plaintiff has established a prima facie case when his case is sufficient to withstand a motion by the defendant that the judge direct a verdict in the defendant’s favor. Id. at 309, citing Gibbons v Farwell, 63 Mich 344, 348; 29 NW 855 (1886). The basic import of Ray has not changed. We must now determine what effect plaintiffs’ showing that defendants violated the SESCA has on establishing a prima facie case under the mepa. This first involves an examination of the provisions and purposes of the sesca. The sesca defines “earth change” as a human-made change in the natural cover or topography of land, including cut and fill activities, which may result in or contribute to soil erosion or sedimentation of the waters of the state. [MCL 324.9101(5); MSA 13A.9101(5).] This statute also prohibits anyone from maintaining a land use of earth change except in accordance with this part and the rales or with the applicable local ordinance and pursuant to a permit approved by the appropriate county or local enforcing agency. [MCL 324.9112(1); MSA 13A.9112(1).] Pursuant to § 9104, the Department of Natural Resources has promulgated rules for a unified soil erosion and sedimentation control program, including provisions for review and approval of site plans, land use plans, or permits relating to erosion control and sedimentation control. According to these rules, a landowner or developer who engages in an earth change shall obtain a permit from the appropriate enforcing agency before commencement of an earth change that is within five hundred feet of a lake or stream in Michigan. 1979 AC, R 323.1704(1). Moreover, a soil erosion and sedimentation control plan shall be submitted to the appropriate enforcing agency by anyone proposing to undertake an earth change. R 323.1706(1). The soil erosion and sedimentation control plan shall be reviewed and approved before application for a permit by a person so designated and trained by the enforcing agency. R 323.1707(1). Upon a determination that a permit applicant has met all the requirements of these rules and the sediment act, the enforcing agency shall issue a permit for the proposed earth change. R 323.1707(5). The Court of Appeals agreed with the trial court that defendants “technically” violated the SESCA. Slip op, p 2. It is not disputed that defendants violated the sesca and the rules promulgated pursuant to it. The Court of Appeals also acknowledged that a major purpose of the sesca is to protect Michigan waters from pollution, the greatest source of which is sedimentation. Slip op, p 2; Executive Legislative Analysis, HB 4709, January 18, 1972. However, it then held that plaintiffs presented no evidence that defendants’ violations actually resulted in any type of water pollution. Thus, held the Court of Appeals, the defendants’ sesca violations did not constitute a violation of the mepa. Slip op, p 2. Sedimentation and erosion is a well-recognized source of water pollution. In his treatise, Professor Frank P. Grad of the Columbia University School of Law stated: Sediments carried by erosion represent the greatest volume of wastes entering surface waters. The volume of suspended solids reaching U.S. waters is at least 700 times greater than the total amount of sewage discharges. Sedi ments are washed in from croplands, unprotected forest soils, overgrazed pastures, strip mines, roads, and bulldozed urban areas. Agricultural development increases land erosion rates four to nine times over the rate from lands with natural cover. Construction may increase the rate a hundredfold. Federal studies have estimated the average sediment yield during a rainstorm at highway construction sites at about 10 times that for cultivated land, 200 times that for grass areas, and 2,000 times that for forest areas — depending on the amount of rainfall, land slope, and the exposure of the bank. High rates of sediment production also occur from commercial and industrial construction in urban areas. [2 Environmental Law, § 3.01(l)(f)(i), p 3-18.] Professor Grad’s explanation of the effect of sedimentation and erosion on water supports that contained in the Executive Legislative Analysis. See n 4. Thus, a major purpose of the SESCA is to prevent and control water pollution caused by sedimentation and erosion. Moreover, sedimentation and erosion necessarily implicate soil. The provisions of the SESCA and the rules promulgated thereto clearly evidence the legislative intent to protect soil. Additional evidence of the legislative intent to protect soil and water is found in part 93 — Soil Conservation Districts — of the Soil Conservation, Erosion, and Sedimentation Control portion of article II, chapter 2 of the Natural Resources and Environmental Protection Act, where the Legislature has expressly provided: It is the policy of the legislature to provide for the conservation of the soil and water resources of this state and for the control and prevention of soil erosion, and thereby to conserve the natural resources of this state, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, preserve wildlife, protect the tax base, protect public lands, and pro tect and promote the health, safety, and general welfare of the people of this state. [MCL 324.9302; MSA 13A.9302.] Thus, the Legislature has clearly provided that the protection of the soil and water of this state through the prevention of sedimentation and erosion is of the utmost importance. Now that we have established that the purpose of the SESCA is to prevent environmental harm caused by sedimentation and erosion, the crux of the issue then becomes whether plaintiffs’ showing of defendants’ sesca violations established a prima facie case under the mepa of actual or likely pollution, impairment, or destruction of a natural resource. The import of our examination of the provisions, purposes, and policies of the SESCA is to analyze whether the trial court properly determined the appropriate standard by which to evaluate the plaintiffs’ claim and the defendants’ conduct pursuant to § 1701(2). We conclude, on the basis of the purposes of the sesca and its public policy, that the trial court properly determined the sesca to be the appropriate pollution control standard applicable in this case. At the heart of the Court of Appeals error in this case was its failure to consider subsection 1701(2), which provides; In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may: (a) Determine the validity, applicability, and reasonableness of the standard. (b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court. This is a vital part of our courts’ development of the “common law of environmental quality.” However, the development of the common law in this area certainly does not preclude the Legislature or the dnr from further entering the arena of environmental law. To the contrary, that is expressly contemplated by subsection 1701(2). Nonetheless, the courts must still determine whether such legislative and administrative enactments are the appropriate “pollution control” standards to be applied to a claim under the mepa, as the trial court properly determined in this case. This function of the Michigan courts was discussed by the United States Court of Appeals for the Sixth Circuit in Her Majesty the Queen v Detroit, 874 F2d 332 (CA 6, 1989). Noting that the mepa is supplementary to other administrative and regulatory procedures provided by law, the court correctly stated that the mepa specifically authorizes a court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control “and to specify a new or different pollution control standard if the agency’s standard falls short of the substantive requirements of mepa.” Id. at 337 (emphasis in original). Furthermore, the mepa does not impose specific requirements or standards; instead, it provides for de novo review in Michigan courts, allowing those courts to determine any adverse environmental effect and to take appropriate measures. Id. at 341. Finally, Michigan courts are not bound by any state administrative finding, or any federal law. Even though the federal government may determine that a plant is not in violation with either state or federal environmental laws, Michigan courts are still empowered to determine whether the standards applied by the federal government are appropriate and if not, determine whether the plant would meet any more stringent standards selected by the Michigan courts. In sum, mepa creates a state environmental common law that is unaffected by federal law, and creates an independent state action that is unaffected by anything that happens in the federal sphere of government. [Id. at 341.] By the same token, defendants’ argument that the sesca does not provide for a private cause of action is without merit. The absence of a cause of action under the sesca does not preclude its use as an appropriate “pollution control” standard for a claim under the MEPA. However, the Court of Appeals simply applied the so-called Portage factors, set forth by another panel of the Court of Appeals in Portage v Kalamazoo Co Rd Comm, 136 Mich App 276; 355 NW2d 913 (1984). The Portage Court held: In determining whether the impact of a proposed action on wildlife is so significant as to constitute an environmental risk and require judicial intervention, the court should evaluate the environmental situation prior to the proposed action and compare it with the probable condition of the particular environment afterwards. The factors the court should consider include: (1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable . . . , (3) whether the proposed action will have any significant consequential effect on other natural resources . . . , and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the nature and location of the wildlife affected. [Portage, supra at 282.] This Court also addressed the issue whether the plaintiffs established a prima facie case under the MEPA in West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741; 275 NW2d 538 (1979). We held that the plaintiffs demonstrated a likelihood that the issuance of ten permits by the Supervisor of Wells for the proposed drilling of exploratory wells would result in an impairment or destruction of natural resources, noting that there was little dispute that the drilling of the wells “will have some adverse impact upon some wildlife, particularly elk, bobcat and bear.” Id. at 755. After thoroughly examining the plaintiffs’ proofs, this Court recognized that virtually all human activities can be found to adversely impact natural resources in some way or other. The real question before us is when does such impact rise to the level of impairment or destruction? [Id. at 760.] We then held that the limited number of elk, the unique nature and location of the herd, and the apparent serious and lasting damage that would result to the herd constituted an impairment or destruction of a natural resource. Id. at 760. Defendants argue, on the basis of their reading of Environmental Action Council and Portage, that the trial court made no findings about whether sand or vegetative cover were natural resources, that beach sand is arguably one of the most easily replaceable “elements” in Michigan, that plaintiffs presented no evidence that the excavation would affect any other natural resource, and, finally, there was no showing that there was a direct or consequential effect on a “critical number” of animals or vegetation. Defendants also thought it particularly significant that a witness from the DNR testified that no permit would have been issued if there were any mepa implications. Regardless of the validity of the Portage factors, defendants’ argument is inherently flawed for several reasons. First, the Portage Court acknowledged that the “removal of trees, a form of wildlife, constitutes destruction of a natural resource under the mepa.” Id. at 281. Thus, the holding in Portage was not based on a finding that trees were not a natural resource or that the number of trees in Michigan somehow negated their status as a natural resource. Likewise, the Court of Appeals in this case acknowledged that sand is a natural resource. Slip op, p 2. Second, plaintiffs are not required to show that a multitude of natural resources are affected. Third, simply because a dnr witness testified that the issuance of the permit did not have any mepa implications does not make it so. We found it error for a trial judge to defer to the dnr’s conclusion that no pollution, impairment, or destruction of a natural resource was likely to result. Environmental Action Council, supra at 752. The trial judge has a responsibility to independently determine the existence of actual or likely pollution, impairment, or destruction. Id. Furthermore, the Environmental Action Council analysis involved an evaluation of the plaintiffs proofs to determine the proper standard under which the court should grant relief. However, the factors used, like the Portage factors, were applicable to the facts of that case, the natural resources involved, and the evidence presented. It does not necessarily follow that because the natural resources involved here may not be scarce or unique, no actual or likely pollution, impairment, or destruction exists. The MEPA does not require air, water, or other natural resources to be “scarce” or “unique” to be protected from actual or likely pollution, impairment, or destruction. Indeed, one of the primary purposes of the mepa is to protect our natural resources before they become “scarce.” In Environmental Action Council, the nature of the herd — its limited number, unique nature, and location — provided, in part, the basis for finding that the effect rose to the level of impairment or destruction. This case is not and need not be the same; it is the actual or likely effect on the natural resources implicated in this case that is at issue. Thus, our conclusion is not that the Portage factors are necessarily incorrect or invalid, but that each alleged MEPA violation must be evaluated by the trial court using the pollution control standard appropriate to the particular alleged violation. Assuming that the Portage factors were proper for assessing whether the activity in that case violated the MEPA, it does not follow that the Portage factors, like the factors used in Environmental Action Council, are the proper pollution control standard here. A pollution control standard indeed has been articulated by the Legislature, through the SESCA, and by the dnr, through the rules promulgated by it pursuant to the sesca. It is proper for the trial court to independently determine whether these pollution control standards are valid, applicable, and reasonable in accordance with the courts’ development of the common law of environmental quality. If the trial court finds them deficient, it may direct the adoption of another pollution control standard that it so approves and specifies. Here, the trial court found the SESCA and the rules promulgated thereunder to be valid, applicable, and reasonable pollution control standards by which to evaluate plaintiffs’ mepa claim and defendants’ conduct. The trial court carefully evaluated plaintiffs’ claim and found that plaintiffs met their burden of proving by a preponderance of evidence that defendants’ actions would result in actual or likely pollution, impairment, or destruction of a natural resource in violation of the MEPA. The Court of Appeals held that a “technical violation” of the sesca did not equate to a “per se mepa violation under the circumstances of this case.” Contrary to the Court of Appeals holding in this case based on Dafter a prima facie case under the mepa can be established by proving violations of the SESCA. Where the purpose of the statute used as a pollution control standard is to protect our natural resources or to prevent pollution and environmental degradation, a violation of such a statute can establish a prima facie case under the mepa. The major purposes of the sesca are to protect water and soil through the prevention and control of erosion and sedimentation. Thus, a violation of the sesca can establish a prima facie case under the mepa, provided that the trial judge has deemed the sesca standards appropriate, applicable, and reasonable. Here, the trial court made findings of fact, in compliance with the mepa and Ray, indicating those facts that led it to conclude that defendants had not suc cessfully rebutted plaintiffs’ prima facie case. Id. at 310-311. Subsequent panels of the Court of Appeals have used the Portage factors alone to decide mepa cases. Those factors are not mandatory, exclusive, or dispositive. Thus, the Court of Appeals did not give substance to subsection 1701(2) or follow the mandate of Ray regarding the proper threshold of harm for a prima facie mepa case. The Portage factors may be appropriate or relevant in some cases; however, their use in every case has stifled the development of the “common law of environmental quality.” IV The second issue we are called on to decide is whether the mepa permits a trial judge to apportion attorney fees. The specific provision of the mepa at issue provides that “[c]osts may be apportioned to the parties if the interests of justice require.” Subsection 1703(3). Plaintiffs argue that the MEPA codified the common-law exception to the American rule regarding attorney fees by using the language “interests of justice.” Thus, the courts of this state must give substance to the common law of environmental quality, including this codified common-law exception. Defendants argue that attorney fees may not be recovered as costs unless expressly authorized by statute or court rule. See RJA, § 2405. As we have noted previously, “[f]or better or worse, the common-law tradition in Michigan follows what is sometimes called the ‘American rule’ regarding attorney fees.” Popma v Auto Club Ins Ass’n, 446 Mich 460, 474; 521 NW2d 831 (1994). This rule provides that attorney fees are not ordinarily recoverable unless a statute, court rule, or common-law exception provides the contrary. Id. at 473. Plaintiffs maintain that the Legislature, by use of the language “in the interests of justice,” codified the “well-established” private attorney general exception to the American rule as articulated by the United States Supreme Court at the time the mepa was enacted in 1970. Plaintiffs correctly note that the Supreme Court renounced this doctrine in 1975, but assert that the Legislature enacted the mepa, specifically § 1703, against the background of this “well-established” common-law exception. We shall now examine the history of the private attorney general exception in the federal system. The Supreme Court referred to the private attorney general doctrine in Newman v Piggie Park Enterprises, Inc, 390 US 400; 88 S Ct 964; 19 L Ed 2d 1263 (1968). Referring to congressional legislative history, the Court noted that if a title n plaintiff obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title n. [Id. at 402 (emphasis added).] This mention of the private attorney general doctrine was based on the purpose of and policy underpinning Congress’ specific grant of the prevailing party’s right to attorney fees as part of costs. In Hall v Cole, 412 US 1, 7, n 7; 93 S Ct 1943; 36 L Ed 2d 702 (1973), on which plaintiffs rely heavily, the Supreme Court had “no occasion to consider that question,” whether attorney fees might be justified on the ground that the respondent acted as a “private attorney general,” by vindicating a policy that Congress considered of high priority. In addition to the fact that this case was decided three years after the mepa was enacted, it hardly provides a solid basis for finding that a “well-established” common-law exception to the American rule ever existed in the federal system. Finally, in Alyeska Pipeline Service Co v Wilderness Society, 421 US 240, 245; 95 S Ct 1612; 44 L Ed 2d 141 (1975), the Supreme Court acknowledged the existence of two common-law exceptions to the American rule — the bad-faith exception and the common-benefit exception — but reversed the federal court of appeals holding that litigants who vindicate important statutory rights of all citizens were entitled to attorney fees. The Supreme Court rejected this “far-reaching” exception because it was “inappropri ate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged . . . Id. at 247. The Supreme Court noted that Congress had not repudiated the common-law exception to the general rule, but neither had it modified the limitations on taxable fees mandated by statute nor extended any authority to the judiciary to allow attorney fees as costs whenever the courts deem it appropriate. Id. at 260. This is also true regarding our Legislature’s enactment of RJA, § 2405. In sum, the Supreme Court persuasively held: It is trae that under some, if not most, of the statutes providing for the allowance of reasonable fees, Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation. . . . But congressional utilization of the private attorney general concept can in no sense be construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowance to the prevailing party and to award attorneys’ fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award. Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others. But it would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant and to allow attorneys’ fees only in connection with the former. [Alyeska, supra at 263-264.] The Supreme Court’s analysis in Alyeska Pipeline comports with our holding in Popma and with the observation that the Legislature knows how to provide for attorney fees when enacting a statute and has done so on many occasions, including several environmental protection statutes. Plaintiffs are correct that the mepa’s mandate that Michigan courts develop the common law of environmental quality does give the courts tremendous discretion in developing the substantive law of the mepa. It does not so provide with regard to the apportionment of costs. Contrary to plaintiffs’ assertions, our holding does not conflict with Macomb Co Taxpayers Ass’n v L'Anse Creuse Public Schools, 455 Mich 1, 9; 564 NW2d 457 (1997), in which we held that the voters who ratified the Headlee Amendment understood “costs” to mean “all expenses,” rather than the limited, technical use of “costs” as a legal term of art. We rejected the defendant’s argument that the voters should be charged “with knowledge of technical details of our legal system, such as the so-called American rule ... for awarding costs.” Id at 8. However, the Legislature is the entity that defined “costs” in § 2405. Thus, to charge the Legislature, the body that defined costs in § 2405 and enacted the mepa using the term “costs,” with knowledge of the American rule and with the technical meaning of the word “costs” is the only logical result. Moreover, it is a well-established principle that the Legislature is presumed to be aware of all existing statutes when enacting new law. Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). Perhaps it is true that the inability of a trial judge to award attorney fees to the mepa plaintiffs may impede the enforcement of the mepa. However, the proper forum for this public policy debate is the Legislature. The language of the statute is clear and unambiguous. We cannot create ambiguity where there is none by looking to the legislative history or by assuming the Legislature codified a not-so-“well-established” common-law doctrine. Thus, we cannot and should not unduly expand the meaning of the term “costs.” The Legislature has spoken, in accordance with RJA, § 2405, regarding which costs are apportioned in the interests of justice in an action under the mepa, and it has not included attorney fees. It may be that the inability of a trial judge to apportion attorney fees in the interest of justice is critical to effective judicial administration of the mepa. If attorney fees were apportionable in the interests of justice, plaintiffs would be compensated for pursuing environmental protection actions that protect our natural resources and our environment for the benefit of all Michigan citizens, and defendants would be protected from frivolous lawsuits. However, this is a matter for the Legislature to address. V In conclusion, we hold that plaintiffs’ showing that defendants violated the sesca can establish a prima facie case under the mepa, and, therefore, we reverse the Court of Appeals decision in part and reinstate the judgment of the trial court in part. We also affirm the decision of the Court of Appeals in part, agreeing with its conclusion that attorney fees are not included in the “costs” that may be apportioned pursuant to the mepa. Mallett, C.J., and Boyle and Taylor, JJ., concurred with Brickley, J. Weaver, J., concurred only in the result. Abonmarche Development, Inc., Abonmarche Consultants, Inc., Morren Construction & Engineering, Inc., and MacLean Construction, Inc. Theodore W. Nemeth, Winifred A. Nemeth, Jon C. Falk, Peggy Falk, Art Anderson, Wilma Anderson, and Wayne Hansen. Strictly speaking, in determining whether to issue an injunction with respect to a claim under the mepa, the trial judge should determine the appropriateness of such relief, temporary or permanent, or whether conditions should be imposed on the defendant to protect a natural resource from pollution, impairment, or destruction. See subsection 1704(1). However, in this case, the final judgment was based on alternative theories of recovery. The judgment provided that plaintiffs’ claims under all counts of the complaint for property damage seeking monetary awards, claims of zoning violations, and mandamus claims (count i-negligence, count n-nuisance, count m-nuisance per se, count iv-declaratory judgment and injunction to abate public nuisance, count V-deelaratory judgment and preliminary injunction based on the sesca, count vi-mepa declaratory judgment, preliminary and permanent injunctions) were dismissed with prejudice by agreement of the parties. The final judgment also provided that plaintiffs’ claims under the mepa, in combination with the sesca, and, alternatively, under trespass and nuisance theories seeking injunctive relief, were decided in plaintiffs’ favor by the trial judge. This alternative basis for the injunction explains the trial court’s balancing analysis. This analysis describes the purpose of the sesca: Soil erosion and sedimentation control was officially recognized by the legislature as early as 1937 when it enacted Act 297 of Public Acts of 1937, known as the Soil Conservation Districts Law. Added emphasis to soil erosion and sedimentation control has come to the forefront in recent years with recognition that from the standpoint of volume, sedimentation is the greatest polluter of water. For thirty years the State Soil Conservation Committee and the Soil Conservation Districts have been assisting landowners to reduce erosion. In recent years it has been recognized that many non-agricultural land uses are contributing large quantities of sediment to water. Highway construction, subdivision and shopping center developments and industrial building are examples of such contributors. Several local government units have already enacted construction ordinances which contain provisions for soil erosion and surface water movement control. The purpose of this bill is to provide for a statewide soil erosion and sedimentation control program with uniform rules and guidelines which may be used both statewide and by local entities to control soil erosion and sedimentation. Thus, if the trial court in this case had determined that the sesca did not provide sufficient environmental protection, that is, did not prevent likely or actual environmental harm, it could have specified a different pollution control standard that would have satisfied the mepa. The defendants offered none, resting their case on a denial that the plaintiffs established a prima facie showing that the defendant’s conduct had or was likely to impair, pollute, or destroy a natural resource. Id. at 755. This argument is based on a line of Court of Appeals opinions beginning with Kimberly Hills Neighborhood, Ass’n v Dion, 114 Mich App 495; 320 NW2d 668 (1982). In this case, the Court held that a “dual inquiry must be conducted: (A) whether a natural resource is involved, and (B) whether the impact of the activity on the environment rises to the level of impairment to justify the trial court’s injunction.” Id. at 503. The Court rejected both definitions of “natural resource" proposed by the parties. The plaintiffs argued that all animals, presently existing plant life, and conditions naturally located on land were natural resources. The defendants argued that the Legislature intended the term natural resources to be limited to those resources that are unique and relatively rare or that are somehow ecologically important. Id. at 504. While concluding that the wildlife, plant life, and water involved in that case were indeed natural resources the Court held that the “real question before us is whether the likely impact of defendants’ proposed activities rises to the level of impairment or destruction.” Id. at 505. Placing a restrictive definition of “natural resource” on the courts is not helpful in evaluating a claim under the mepa. What is most significant is determining whether the effect on the environment rises to the level of actual or likely pollution, impairment, or destruction of a natural resource. Defendants’ argument confuses the issues whether a natural resource is involved and the determination of the effect on natural resources. The Portage factors have been used by the Court of Appeals to determine the effect on the environment, not to define “natural resource.” In Dafter, supra at 504, the case on which the Court of Appeals specifically relied, the Court held that the plaintiff’s failure to address the Portage factors and merely alleging violations of another statute were insufficient to establish a violation of the mepa. We emphasize that this is not the end of the inquiry. The trial court held that plaintiffs’ showing of defendants’ sesca violations established a prima facie claim under the mepa. Then, defendants had the opportunity to rebut that prima facie showing either by submitting evidence to the contrary, i.e., that plaintiffs have shown neither pollution, impairment, nor destruction, nor the likelihood thereof, in spite of proof of the sesca violations, or by showing that there is no feasible and prudent alternative to defendants’ conduct. Subsection 1703(1). As plaintiffs point out, one could argue that the mepa is violated any time someone violates the sesca by putting a shovel in the ground within five hundred feet of a lake or stream. However, the rebuttal and affirmative defense provisions of the mepa address such frivolous claims. We recognized a common-law exception to this rule, the common-fund exception, which only applies when a prevailing party creates or protects a common fund that benefits himself and others. Id. at 475, citing In re Attorney Fees of Kelman, Loria, Downing, Schneider & Simpson, 406 Mich 497; 280 NW2d 457 (1979). Courts of equity hold it unfair to allow others to benefit at the expense of the prevailing party without contribution to the costs incurred in securing the common fund. Popma, supra at 475. This common-law exception does not apply in this case. Title n of the Civil Rights Act, 42 USC 2000 et seq. Subsection 2000a-3(b) provides that “[i]n any action commenced pursuant to this sub-chapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.” While plaintiffs’ argument only addresses the Supreme Court precedent regarding the private attorney general exception, we note that the general state of the common law in lower federal courts and state courts in 1970 also contradicts plaintiffs’ position. While we are not purporting to offer an authoritative analysis of the state of the common law on this issue as it stood in 1970, we find several general principles pervasive. First, the lower federal courts adhered to the rule that, absent a contrary statutory provision, court rule, or contractual provision, the prevailing party is not entitled to attorney fees. See Stevens v Abbott, Proctor & Paine, 288 F Supp 836, 848 (ED Va, 1968). However, the federal courts also recognized the same two exceptions acknowledged by the Supreme Court in Alyeska Pipeline Service Co v Wilderness Society, 421 US 240; 95 S Ct 1612; 44 L Ed 2d 141 (1975): (1) the common-fund exception, see Stevens, supra at 848-849; and (2) the bad-faith exception, see Taussig v Wellington Fund, Inc, 187 F Supp 179, 222 (D Del, 1960), aff’d 313 F2d 472 (CA 3, 1963); and Stevens, supra at 849. Second, where the lower federal courts did mention the “private attorney general” doctrine before 1970, it was often in reference to title vn of the Civil Rights Act, which, like title n of that act, permitted courts to award a prevailing party reasonable attorney fees. See Clark v American Marine Corp, 320 F Supp 709, 710 (ED La, 1970), aff’d 437 F2d 959 (CA 5, 1971). After 1970, the lower courts in the federal system began expanding the private attorney general exception. See Alyeska, supra at 270, n 46. The state courts also followed the general rule that attorney fees were not permitted in the absence of a statutory provision to the contrary or an express agreement of the parties. See Stone v Jeffres, 208 So 2d 827, 828-829 (Fla, 1968); Keel v Covey, 206 Okla 128, 132; 241 P2d 954 (1952); Vonachen v Independent Lumber, 172 Kan 545, 547; 241 P2d 775 (1952); Abramson v Abramson, 161 Neb 782, 793; 74 NW2d 919 (1956); Harris v Short, 253 Iowa 1206, 1208; 115 NW2d 865 (1962); Colvin v Superior Equipment Co, 96 Ariz 113, 122; 392 P2d 778 (1964). Some state courts, pre-1970, while acknowledging the general rule, recognized the common-fund exception. See Ewing v First Nat’l Bank of Atlanta, 209 Ga 932, 933; 76 SE2d 791 (1953); Hamilton v Liberty Nat’l Life Ins Co, 207 So 2d 472, 477 (Fla App, 1968). Other state courts simply recognized the general power of a court of equity to award attorney fees under some circumstances. See Gilbert v Hoisting & Portable Engineers, 237 Or 130, 141; 390 P2d 320 (1964); Low v Low, 255 Ala 536, 540; 52 So 2d 218 (1951), overruled on other grounds Starr v Starr, 293 Ala 204; 301 So 2d 78 (1974). Plaintiffs characterized this case as putting an end to a “well-established" common-law exception to the general rule; however, it does not appear from any Supreme Court precedent that this exception was ever “well established.” This section provides, in pertinent part, The following items may be taxed and awarded as costs unless otherwise directed: (6) Any attorney fees authorized by statute or by court rule. For example: water resources protection act, MCL 324.3101 et seq.; MSA 13A.3101 et seq.; hazardous waste management act, MCL 324.11101 et seq.; MSA 13A.11101 et seq.; liquid industrial wastes act, MCL 324.12101 et seq.; MSA 13A.12101 et seq.; environmental remediation act, MCL 324.20101 et seq.; MSA 13A.20101 et seq.; surface and underground coal mine reclamation act, MCL 324.63501 et seq.; MSA 13A.63501 et seq.	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Per Curiam. At the general election on November 3, 1992, the voters approved Proposal B. A part of that proposal, Const 1963, art 4, § 54, limits the number of terms persons may be elected to the office of state senator and the office of state representative. Plaintiffs filed this action, arguing that the submission of Proposal B to the voters was defective in two particulars. Plaintiffs sought an injunctive order preventing operation of art 4, § 54 for the general election of 1998 and thereafter. The circuit court granted summary disposition against plaintiffs, finding their claims without merit. Plaintiffs have filed a claim of appeal from that judgment in the Court of Appeals and have sought leave to appeal in this Court before decision by the Court of Appeals. We grant plaintiffs’ request that we decide the case before decision by the Court of Appeals, but, in lieu of granting leave to appeal, we affirm the decision of the circuit court upholding the validity of Const 1963, art 4, § 54. history of the case At the general election on November 3, 1992, the voters approved Proposal B, adding four new sections to the Constitution of 1963. On March 9, 1998, plain tiffs filed suit in the Wayne Circuit Court. Plaintiffs allege that they are voters in two legislative districts who would like to vote for the reelection of their current representatives but that those representatives are ineligible to run for reelection under Const 1963, art 4, § 54. Plaintiffs allege that art 4, § 54 is void because the submission of Proposal B at the 1992 election failed to comply in two ways with the requirements for submission of petition-initiated proposals set by Const 1963, art 12, § 2. Count I of the complaint alleged failure to comply with the requirement of the second paragraph of art 12, § 2, requiring that the published version of the proposal include “existing provisions of the constitution which would be altered or abrogated . . . Count n alleged that the statement of purpose (also called the ballot language) failed to comply with the requirement of the third paragraph of art 12, § 2 that the statement be “a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.” Plaintiffs sought temporary and permanent injunctive orders that defendant Secretary of State not enforce art 4, § 54. The parties submitted the matter to the Wayne Circuit Court on countering motions for summary disposition argued on April 15, 1998. Only two days later, April 17, 1998, the circuit judge issued a thorough, scholarly opinion and granted summary disposition to defendant. Plaintiffs filed a claim of appeal with the Court of Appeals and an application for leave to appeal to this Court before decision by the Court of Appeals. ANALYSIS GENERAL CONSIDERATIONS This Court has long expressed a preference that challenges such as the one brought in the present case be filed sufficiently before an election, in this case the election of 1992, for the courts to have time to resolve the dispute and, if necessary, to direct election officials to take corrective action or to enjoin submission of the proposal to the electorate. Carman v Secretary of State, 384 Mich 443, 449; 185 NW2d 1 (1971); City of Jackson v Comm’r of Revenue, 316 Mich 694, 714-716; 26 NW2d 569 (1947); Attorney General ex rel Miller v Miller, 266 Mich 127, 133-134; 253 NW 241 (1934). Because of the respect commanded by the vote of the people, postelection challenges bear a heavy burden of persuasion. As summarized in Carman, “the Courts should look at procedural errors of submission through different eyeglasses, once the electors have voted affirmatively.” 384 Mich 455. We stated in City of Jackson, supra at 718: “In reaching the decision, the court must necessarily have in mind the universal rule that, whenever a constitutional amendment is attacked as not constitutionally adopted, the question presented is, not whether it is possible to condemn, but whether it is possible to uphold; that every reasonable presumption, both of law and fact, is to be indulged in favor of the legality of the amendment, which will not be overthrown, unless illegality appears beyond a reasonable doubt.” [Quoted from Bd of Liquidation of State Debt of Louisiana v Whitney-Central Trust & Savings Bank, 168 La 560, 564; 122 So 850 (1929) (citations omitted).] With these considerations in mind, we turn to the allegations of plaintiffs. “ALTERED OR ABROGATED” CLAUSE The second paragraph of Const 1963, art 12, § 2 provides, in part, that the proposal and any “existing provisions of the constitution which would be altered or abrogated thereby . . . shall be published in full as required by law.” The publication of Proposal B included no existing provision of the constitution. Plaintiffs argue that Proposal B had the effect of altering Const 1963, art 4, § 7. Plaintiffs argue, in effect, that art 4, § 7 sets forth the exclusive list of qualifications of legislators. By creating a new condition for election, art 4, § 54 alters art 4, § 7 by making § 7 no longer an exclusive list of qualifications. Plaintiffs’ argument fails both on its premise that art 4, § 7 is an exclusive list of qualifications and on its premise that adding an additional qualification elsewhere in the constitution would alter art 4, § 7 within the meaning of the alter or abrogate clause of art 12, § 2, ¶ 2. Plaintiffs’ implicit argument that art 4, § 54 alters art 4, § 7 by depriving it of its exclusivity fails because art 4, § 7 does not purport to be the exclusive list of qualifications for legislative office. The language of art 4, § 7 does not state it is the exclusive list of candidate qualifications. Moreover, the very next provision of the constitution, art 4, § 8, states what can only be viewed as a qualification for legislative office in addition to those stated in art 4, § 7. Plaintiffs also miss the point of the line of cases in which this Court has defined the meaning of “altered or abrogated” in Const 1963, art 12, § 2, and its predecessor, Const 1908, art 17, § 3. Pontiac School Dist v Pontiac, 262 Mich 338; 247 NW 474 (1933), City of Jackson, supra, Graham v Miller, 348 Mich 684; 84 NW2d 46 (1957), and Ferency v Secretary of State, 409 Mich 569; 297 NW2d 544 (1980). The purpose of the provision is to definitely advise the elector “as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted.” Pontiac School Dist, supra at 344: But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces (“alters or abrogates”) a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published. When the test set out above did not halt arguments that a proposal “altered or abrogated” an existing pro vision by implication, this Court restated the test in Ferency: An existing constitutional provision is altered or abrogated if the proposed amendment would add to, delete from, or change the existing wording of the provision, or would render it wholly inoperative. [409 Mich 597.] The phrase “the existing wording” should be taken literally. An example of a proposal which would alter an existing constitutional provision by adding to its existing wording is found in Carman, swpra, in which the proposal added a new paragraph to an existing constitutional provision, Const 1963, art 8, § 2. Applying the Ferency test to this case is, as it should be, simple. Article 4, § 54 does not add, delete, or change the wording of art 4, § 7. It does not render it wholly inoperative. Quite the contrary, all the qualifications of art 4, § 7 remain in effect. The circuit court correctly dismissed this claim. STATEMENT OF PURPOSE The third paragraph of art 12, § 2 provides: The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment. At a public meeting on September 3, 1992, the Board of State Canvassers adopted the following statement of purpose for Proposal B: A Proposal to Restrict/Limit the Number of Times A Person Can Be Elected to Congressional, State Executive and State Legislative Offices. The proposed constitutional amendment would: Restrict the number of times a person could be elected to certain offices as described below: 1) U.S. Senator: two times in any 24-year period. 2) U.S. Representative: three times in any 12-year period. 3) Governor, Lieutenant Governor, Secretary of State or Attorney General: two times per office. 4) State Senator: two times. 5) State Representative: three times. Office terms beginning on or after January 1, 1993 would count toward the term restrictions. A person appointed or elected to an office vacancy for more than lh of a term would be considered elected once in that office. Should this proposal be adopted? No appeal was taken from the board’s action under MCL 168.479; MSA 6.1479. Plaintiffs argue that this statement of purpose has two deficiencies: first, it should have explicitly stated that the limitations on the terms for state legislative office were lifetime limits, and, second, it should have stated that the limits on the federal offices were severable from those on state offices. We see no merit in plaintiffs’ argument that the failure to state explicitly that the state term limits were lifetime somehow prejudiced the voters in favor of the proposal. In reaching this conclusion, we agree with the circuit court’s observation that .plaintiffs made no offer to show that there was any confusion over the intent of the proposal to impose lifetime limits on election to the specified state offices. A request to grant relief despite such a failure turns on its head the standard rule repeated in City of Jackson, supra, that “every reasonable presumption, both of law and fact, is to be indulged in favor of the legality of the amendment, which will not be overthrown, unless illegality appears beyond a reasonable doubt.” 316 Mich 718. We also agree with the circuit court that, avoiding any arcane or obscure interpretations, the available indicia suggest that the voters would have known the state limits were lifetime. As the circuit court stated: [RJeading the Statement as a whole, this court notes that the introductory sentence expressly states the purpose is to “[Restrict the number of times a person can be elected.” The remainder of the Statement of Purpose details how many times a person can be elected. Without some qualifying language, a reasonable conclusion of a voter could have been that a person could serve the number of terms specified and no more. In other words, there is no reason to suspect that a person reading the introductory sentence would have assumed that the restriction was somehow qualified when no qualification was stated. This point is driven home when the statement indicates that the restriction on terms for the specified federal offices lasts only a certain number of years. As stated by the trial judge, the fact that state legislative “term limits were otherwise unqualified would also lead a reasonable voter to conclude that ... a State legislator could only serve a certain number of terms and no more.” Lastly, we observe, as did the circuit court, that the term limit with which the average voter is most familiar is the limit on the office of President of the United States. That is a lifetime limit. We do not see any potential that the voters might have been misled that the limits set on holding the specified state offices were temporary, rather than absolute. This leaves only plaintiffs’ contention that the statement of purpose should have included a summary of the severability provision. This contention reminds us of the statement in Pontiac School Dist, 262 Mich 344, quoted above in the discussion of the publication requirement that “the ordinary elector, not being a constitutional lawyer, would be confused rather than helped” by a statement on such a technical matter as severability. The ballot language must, after all, “consist of a true and impartial statement of the purpose of the amendment” in not more than one hundred words. Art 12, § 2, ¶ 3. The ballot language relating to art 4, § 54, informed the voter that the purpose of the proposal was to limit the number of times a person could be elected to specified legislative offices. That is exactly what art 4, § 54 does. We affirm the decision of the Wayne Circuit Court. Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred. See MCR 7.303(F)(1). In Citizens for Legislative Choice v Secretary of State, 144 F3d 916 (CA 6, 1998), the Court affirmed a federal district court decision upholding Const 1963, art 4, § 54 against a claim that the provision violated rights guaranteed by the First and Fourteenth Amendments of the United States Constitution. US Const, Ams I and XIV. These are found at art 2, § 10, dealing with limitations on terms of office of members of the United States House of Representatives and United States Senate from Michigan; art 4, § 54, dealing with limitations on terms of office of state legislators; art 5, § 30, dealing with limitations on terms of executive officers; and art 12, § 4, dealing with severability of the other three provisions. This case involves a direct challenge only to art 4, § 54. Specifically, we do not consider the effect of U S Term Limits, Inc v Thornton, 514 US 779; 115 S Ct 1842; 131 L Ed 2d 881 (1995), on art 2, § 10. The section provides: No person shall be elected to the office of state representative more than three times. No person shall be elected to the office of state senate more than two times. Any person appointed or elected to fill a vacancy in the house of representatives or the state senate for a period greater than one half of a term of such office, shall be considered to have been elected to serve one time in that office for purposes of this section. This limitation on the number of times a person shall be elected to office shall apply to terms of office beginning on or after January 1, 1993. This section shall be self-executing. Legislation may be enacted to facilitate operation of this section, but no law shall limit or restrict the application of this section. If any part of this section is held to be invalid or unconstitutional, the remaining parts of this section shall not be affected but will remain in full force and effect. This section provides: Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amend ment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon. Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law. The ballot to be used in such election shall contain a statement of the prnpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of prnpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment. If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail. The circuit court permitted Taxpayers United for Term Limitations, the organization of persons who circulated the petition to put Proposal B on the ballot, to intervene as a defendant. The parties agreed that there were no disputed issues of fact. Plaintiffs relied on their motion for a temporary injunction as their motion for summary disposition. Docket No. 211116. Plaintiffs have also filed a motion for immediate consideration, which we grant. The issues raised in the instant case could have been raised before the election through the process established by MCL 168.479; MSA 6.1479. The entire provision is quoted in footnote 5. As noted in Ferency v Secretary of State, 409 Mich 569, 592; 297 NW2d 544 (1980), “The Constitution places the burden of publishing this information on the state, as a means of informing the voters.” See MCL 168.32; MSA 6.1032 regarding certain duties of the Director of Elections, and MCL 168.474-168.486; MSA 6.1474-6.1486 regarding certain duties of the Board of State Canvassers. The section provides: Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents. The removal of his domicile from the district shall be deemed a vacation of the office. No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature. No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature. All proposed amendments to the constitution and other questions to be submitted to the electors shall be published in full, with any existing provisions of the constitution which would be altered or abrogated thereby, and a copy thereof shall be posted in each polling place. Ferency defined the meaning of “alter or abrogate” in MCL 168.482; MSA 6.1482, pertaining to circulation of petitions. That statute provides, in part, “[i]f the proposal would alter or abrogate any existing provision of the constitution, the petition should so state and the provisions to be altered or abrogated shall be inserted . . . .” Ferency interpreted the words “in the context of the constitutional publishing requirement.” 409 Mich 593. The definition quoted in the text applies both to the statutory and constitutional usage of “alter or abrogate.” We see no reason that the ballot language, like the language of the constitution, should not be read according to the “common understanding” of “the great mass of the people” who voted on it, avoiding “any dark or abtruse meaning in the words employed . ...” 1 Cooley, Constitutional Limitations (8th ed), p 143, quoted with approval by this Court in such cases as Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), and Durant v Michigan, 456 Mich 175, 192; 566 NW2d 272 (1997). US Const, Am XXII, provides, in part: “No person shall be elected to the office of the President more than twice . . . .” The language of Const 1963, art 4, § 54 begins, “No person shall be elected to the office of state representative more than three times. No person shall be elected to the office of state senate more than two times.” The failure of the federal amendment to use the word “lifetime” has caused no confusion.	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Kavanagh, J. Plaintiff commenced an action by attachment against certain land. In its declaration plaintiff declared on 3 counts: First, upon a written contract; second, upon the common counts in assumpsit; and third, in tort for misrepresentation and secretion of corporate assets. Defendants were Pontiac Speedway, Inc., a Michigan corporation, and 2 individuals — William Buettner and John F. Engelhardt, directors of defendant corporation. Buettner was also an officer. Defendants Buettner and Engelhardt answered denying the allegations in the declaration. They admitted fee ownership of the land, but alleged it was acquired subject to a land contract interest. The corporation defaulted. At pretrial proceedings plaintiff waived the contract count. Trial proceeded under the common counts in assumpsit and the tort count. The court gave judgment against the corporation, by default, and in favor of the defendant directors. Motion for new trial was denied, and plaintiff took a general appeal. On June 10, 1957, plaintiff entered into a contract to pave a race track located on the land involved. This contract was between the plaintiff as contractor and defendant corporation. The contract form, prepared by plaintiff, indicated the defendant corporation as “owner.” The contract called for a total price of $18,066.50, and the terms were specified in the contract — $1,000 on completion of the work and the balance in I payments to be secured by promissory notes. Defendant Buettner signed this contract as secretary-treasurer of defendant corporation. Plaintiff performed the work, and, when the defendant corporation was unable to pay, filed this action on July 22, 1958. Defendant corporation acquired title to the land involved in 1952. On December 8,1955, the land was acquired by one Reithmeier at a sheriff’s sale on foreclosure by advertisement, the deed being given by the Oakland county sheriff, to become operative in 1 year if no redemption was made. Four days after the sheriff’s deed became operative, on December 12, 1956, defendants Buettner and Engelhardt acquired the land by warranty deed from Reithmeier. This deed was recorded December 21, 1956. At the trial plaintiff swore only 2 witnesses. One was Daniel T. Murphy, Jr., clerk — register of deeds of Oakland county. The deed from Reithmeier to' Bnettner and Engelhard! was admitted in evidence without objection. Plaintiff then offered the deed dated December 8,1952, by which Pontiac Speedway,. Inc., originally acquired the land in question. Defendants objected to its admission in evidence. The court permitted it to be received, commenting: “The court fails to see the materiality of it, but it will allow it.” The sheriff’s deed to Reithmeier was also received over defendants’ objection. The annual report of Pontiac Speedway, Inc., called the 1956 report, was identified and admitted in evidence. The 1957 annual report was received in evidence. This report was due May 15, 1957; however, it was not filed with the corporation and securities commission until October 9, 1957. It was during this period of default that the contract in question was signed and carried out. Mr. Murphy testified that no further annual reports had been filed. The other witness for plaintiff corporation, its comptroller, Edwin P. Dowd, testified as to the amount owing under the contract. "He stated that Bnettner negotiated and signed the contract in the office of A & A Asphalt Paving Company after the contract was prepared for signatures by plaintiff corporation. A letter from Bnettner, dated February 15, 1958, on Pontiac Speedway’s stationery, addressed to plaintiff, was admitted in evidence. It was signed by Buettner. The letter in substance said, “We have had a bad year. We cannot pay now.” Mr. Dowd was asked on cross examination whether' or not he had ever in his life talked with defendant Engelhardt. He testified he had not and would not know him if he were in the courtroom. He stated he had tallied with Buettner and that he had not known of the sheriff’s deed or the deed to Buettner and Engelhard! Mr. Dowd also testified that no one at the meeting informed him (Dowd) or the representatives of plaintiff corporation in his presence the property was not owned by Pontiac Speedway. Pie further testified no mention was made at that time that the property was owned by Buettner and Engelhardt. ■ At the conclusion of plaintiff’s proofs, defendants’ attorney moved to strike all of the exhibits except the deed to Engelhardt and Buettner. He then moved to dismiss count 2, there being no testimony that the individual defendants made requests of plaintiff to furnish materials, labor, et cetera, as alleged in that count. Defendant’s attorney also moved to dismiss the third count on the ground the only charge of fraud was that title was secreted in the defendants, no testimony having been introduced that any statement was made by the individual defendants which induced plaintiff to enter into the contract. It is admitted by plaintiff that it did not rely upon the representations in the annual reports when entering into the contract and that it did not know what was in the annual reports until some 2 years after the contract was entered into. Defendants introduced no testimony. The burden of proof in this case, as always, is on the plaintiff. The mere making of allegations in a declaration which are denied requires plaintiff to produce testimony to support them. Justice Carr, in Marshall v. Ullman, 335 Mich 66, 73, 74, writing for the Court, said: ' “This Court has recognized that to establish a cause of action based on fraud certain facts are essential. In Candler v. Heigho, 208 Mich 115, 121, the following statement was quoted with approval from 20 Cyc, p 13: “t «ipke general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” ’ “And it was further said: “ ‘That these several elements of such a charge must be established has long been the rule in this State. Parker v. Armstrong, 55 Mich 176; Frohlich v. Deacon, 181 Mich 255 (Ann Cas 1916C, 722); Kimble v. Gillard, 177 Mich 250, 256. In the latter case the Court said: “ ‘ “It is a well-settled rule, familiar and fundamental, that, in order to make misrepresentation actionable, there must be a reliance upon the representation.” ’ ” The allegations in the declaration on which appellant claims it was entitled to judgment constitute a mere conclusion that defendants were guilty of fraud. The supporting factual testimony relied on in support of such conclusion is insufficient to establish a cause of action. There is no proof that defendants made a material misrepresentation to plaintiff at any time. There is no proof that plaintiff acted in reliance upon any such representation. The trial court correctly concluded that no actionable fraud had been proven. Plaintiff raises the question whether CL 1948, § 450.87 (Stat Ann § 21.87), should be applied to the defendant Buettner. 1 In disposing of this question the trial court in his opinion stated as follows: “This statute was not properly pleaded by the plaintiff and was not raised by the plaintiff at the pretrial conference or at the trial. This statute was raised by the plaintiff for the first time in his brief filed subsequent to the trial. This statute has no application to the defendant Engelliardt.” (Engelhardt was not an officer of the defendant corporation.) The court said later in its opinion: “1. Michigan Court Rule No 35, § 4 (1945), dealing with pretrial conference, provides in part as follows: “ ‘The summary of results controls the subsequent course of the action undess modified at or before trial to prevent manifest injustice.’ (Emphasis added.) “2. ‘The pretrial statement, or summary of results of the pretrial conference, controls the triable issues, in the absence of modification at or before the trial in order to prevent manifest injustice.’ (Willingham v. City of Dearborn, 359 Mich 7, syllabus.)” An examination of the record in this case discloses that the pretrial conference was held on April 21, 1960, and was followed by trial the same day. The court requested of each of the attorneys waiver of the filing of the transcript of the results of the pretrial conference prior to starting the trial. The record of the pretrial was not transcribed and filed until June 29, 1960. This Court held in Willingham v. City of Dearborn, 359 Mich 7, 9, 10: “The pretrial statement (now termed ‘a summary of the results of the pretrial conference’), not having been 'modified at or before the trial to prevent manifest injustice,’ controlled and limited the triable issues.” No opportunity in this case was given either party to modify the pretrial statement since neither party had a written pretrial statement until well after the trial was completed. To so conduct a pretrial subverts its purpose, destroys its effectiveness, and constitutes a nullity. We would normally consider reversal for this failure to make available the transcript and the opportunity to both parties to review the transcript of the pretrial before trial. However, we believe that CL 1948, § 450.90 (Stat Ann § 21.90), is applicable to the facts with reference to defendant Buettner, and the statute of limitations having run “it is not within the discretion of a trial court to permit an amendment which states a cause of action barred by the statute of limitations.” Bockoff v. Curtis, 241 Mich 553, 558. Since the 1957 annual report was due May 15, 1957, but was not filed by that date and the corporation was thereby in default by failure to so file, the statute would apply to defendant Buettner for a period of 2 years subsequent to May 15,1957. Plaintiff’s attempted notice to defendant Buettner by raising this issue in its brief submitted subsequent to trial came too late since the statutory limitation under CL 1948, § 450.90 (Stat Ann § 21.90), had expired and plaintiff’s cause of action, based upon CL 1948, § 450.87 (Stat Ann § 21.87), was barred. The other questions raised by appellant do not need discussion. The action of the trial judge in dismissing plaintiff’s cause of action as to defendants Buettner and Engelhardt is affirmed. Defendants shall have costs. Kelly, Smith, Black, Edwards, and Souris, JJ., concurred with Kavanagh, J. Dethmers, C. J., and Carr, J., concurred in result. CL 1948, § 450.87 (Stat Ann § 21.87), provides as follows: “Sec. 87. (1) If any corporation neglects or refuses to make and file the reports and/or pay any fees required by this act within the time herein specified, and shall continue in default for 10 days thereafter, unless the secretary of State shall for good cause shown extend the time for the filing of sueh report or the payment of sueh fee, as the ease may be, as provided in section 91 of this act, and (2) if sueh corporation shall continue in default for 10 days after the expiration ■of sueh extension, its corporate powers shall be suspended thereafter, until it shall file sueh report, and it shall not maintain any action or suit in any court of this State upon any contract entered into during the time of sueh default; but nothing herein contained shall prevent the enforcement of sueh contract against the corporation by the other party thereto, and during the period of such suspension sueh corporation may exercise the power of disposing of and conveying its property and may settle and close its business. Any officer or officers of such ■corporation so in default who has neglected or refused to join in making of sueh report and/or pay sueh fee shall be liable for all d ebts •of such corporation contracted during the period of such neglect or refusal.” As amended. See 852 Mich xv.—Reporter. CL 1948, § 450.90 (Stat Ann § 21.90), reads in part as follows: “All actions and suits based on the neglect or refusal of the officers of such corporation to make and file the reports required by this act shall be commenced within 2 years after such neglect or refusal has occurred and not afterwards.”	[ -23, 38, 29, -15, 13, 16, 20, -37, -6, -3, 33, -29, 10, -3, 17, 4, 30, -61, -44, 13, -7, -53, -47, 13, 5, 28, 52, -55, 9, -18, -28, -34, -27, -12, 0, 26, 8, -38, -4, 36, -11, 20, 15, -59, 6, -8, 2, -34, 18, 0, 20, 27, -5, 5, -16, -9, -24, -20, -11, -2, -23, -30, 38, 15, 27, 14, 49, -24, 46, -7, -16, 3, -11, -1, -23, -15, -7, -1, 13, -14, -8, 14, 24, 23, -30, -5, 7, -40, -1, -39, -11, -8, -30, 29, -14, -11, -37, 21, -17, 7, -22, 33, 4, 46, -18, 43, -22, -57, -10, 10, 7, -3, 29, -47, -27, -23, -24, -41, 36, -3, 1, -40, 7, -6, -38, 31, -15, -1, -42, 36, 9, -38, -51, 21, -22, 7, 15, -17, -3, 25, 18, 10, -16, -4, 12, 45, 22, -39, -21, -8, -31, 4, 44, 30, -13, -4, 22, -6, 6, -70, 54, 14, 5, -20, -31, 8, 3, 35, -6, -6, 0, 7, -24, -74, 20, -14, 51, -31, -9, -17, -5, -6, 6, 15, 5, -14, 31, -16, -31, -2, 30, 26, -11, 50, -22, 12, -3, 24, -20, 15, 34, -46, 9, -43, -27, -24, 28, 8, 24, 3, -21, -28, 20, -22, 3, -3, 36, -10, 48, -6, 5, -38, -61, 27, -28, 2, -17, -29, 4, -12, 31, -12, 28, 26, -64, -56, 9, -10, 39, -11, 2, 15, -20, 15, 22, -14, -8, -43, 10, 6, -23, -19, -70, 25, -5, -16, -31, -11, 16, 33, -16, 37, -35, 43, -27, -13, -27, 11, -10, 36, -14, -30, -10, 11, -49, -2, -9, -15, -12, 18, 33, -4, 18, -16, -38, 63, 2, 41, -71, 0, 8, -7, 16, -3, 33, 7, 25, -83, 15, 7, -47, 14, 13, 20, 22, -13, -41, -7, 11, 20, -6, -12, 33, -27, 9, 15, 34, -22, 23, -41, 32, 33, -21, 34, 20, -4, 68, -54, -54, 3, 16, -26, 7, 18, -6, -62, 12, -7, -9, 14, -5, 27, 37, 44, 41, 25, 7, 10, 19, 4, -14, -51, -29, -17, 2, -39, 16, 8, -54, 16, 23, 20, 10, 4, -16, 7, -30, -30, -9, 49, -4, 34, -18, 43, -21, -34, -7, 0, -32, 67, 22, -19, 18, 33, 92, -19, -16, -10, -40, 46, -55, 1, -4, 41, 25, -47, -12, 32, -33, -1, 21, 26, 4, 4, -66, -29, 46, 20, -7, 5, -57, -34, -31, -9, -5, -16, 14, 0, 29, 3, 47, 23, 19, -41, -16, -34, 33, -13, -25, 15, 9, 4, 13, -19, 76, 14, -85, 21, 6, 7, 11, 8, -24, -1, 35, -48, -38, 4, 26, -8, 35, 15, -58, -29, -25, 45, 32, -9, 7, 52, -3, -65, 28, -6, 11, 19, 21, -16, 34, 33, 10, 28, 3, 12, -30, -14, 9, 0, 1, 0, 0, 7, -32, -26, -11, -34, -34, -3, 42, 17, 24, 23, 29, 22, -5, 15, -31, 52, 45, 1, -32, -28, -2, 18, 10, 16, -13, -26, -60, 31, -37, -3, 39, 51, 6, 77, 13, 44, 8, 22, 42, 17, -62, 11, -3, -8, 54, 54, 9, -23, 60, 8, 15, 33, -28, 30, -6, 16, -45, -7, -9, 38, -7, 23, -42, -26, 18, -38, 11, 22, -11, -27, 4, -10, 7, 16, 47, -48, -5, 31, 0, 11, 18, -31, 83, 1, 6, -21, 24, 6, 3, 0, 59, -22, 18, 0, -27, -4, -22, 15, -45, -15, 27, -7, 8, 19, 43, 17, 35, -22, -35, 2, -60, -50, 4, -2, 34, 33, 21, -3, 30, 39, -78, 0, -26, -45, 19, -5, -28, -23, -63, -10, -6, -4, 53, 29, -13, -48, 40, 19, 13, -7, 8, -39, 7, 2, -33, -3, 1, 25, -4, -13, -60, 29, 27, -5, 31, 7, -25, -45, -15, -4, -32, 14, 35, -67, -34, -42, -7, -4, -35, 37, 2, -6, -1, -7, 7, 22, 1, -42, 27, 26, -9, -27, 14, -58, 44, -6, 10, 0, 20, 21, 1, -11, 1, 40, 14, -4, 77, 28, 37, -22, -2, -19, 0, 1, 29, 2, 2, 13, -20, -13, -26, 13, -9, -2, 3, 13, -18, -29, -11, -10, 2, -4, 22, 38, 0, 27, 62, -10, 15, -42, 4, 11, -13, 82, 1, -4, -43, -5, -1, -35, -19, -41, 0, -3, 17, -40, -6, 3, 66, 0, 14, 7, 26, 26, 45, -25, -52, -2, 6, -44, 4, -6, -16, -5, 33, 38, -23, -12, -29, -1, 38, 47, 2, 2, -24, 7, -31, 31, -45, 26, -10, -5, -17, -8, 0, -2, 37, -19, -47, -9, -52, -46, -14, -14, 65, 3, -18, -4, 33, -5, 26, -21, -29, -28, 0, 0, 38, 26, 7, -19, 31, -33, -27, -3, 20, 38, 0, 1, -12, 34, -37, 15, -10, -28, 11, 17, 38, -19, -48, 50, 5, -65, 44, 4, -31, 45, -59, -21, -34, -5, -11, -21, -11, -33, 24, -36, -21, 20, 43, -24, -38, 33, -13, 3, 46, 6, -16, 15, 5, 3, -29, -8, -17, -7, -47, 20, -29, -37, -31, -33, -53, 3, -26, -7, -27, 27, -18, 0, 26, -4, -53, -3, 17, -39, -32, -26, -21, -20, 45, 27, -26, 45, 5, -60, -51, -36, 9, 10, 15, 29, 4, 14, -22, -26, 14, 1, -25, 27, 2, -27, -36, -22, 1, 9, -9, -3, 14, -35, 3, 70, 14, 4, -1, 51, 12, 2, -22, 17, 11, -70, 18, 18, -62, -9, -20, 6, 5, 23, 28, -13, -57, 1, -33, -13, 0, 33, 2, 45, -40, -22, -3, 3, 0, 39, 11, -56, 27, -50, 15, 2, 11, -6, 2, -23, 20, -20, -20, 4, -37, 56, 7, 22, -10, -24, -15, 1, -14, -14, 54, 51, -20, 2, 31, -25, 12, 14, -3, 10, 3, 3, -42, 32, -35, -4, 34, 29, -29, -5, 24, -16, 4, 30, 21, -28, 38, -6, -2, -35, 19, 24, 20, 16, 20, 6, 36, -9, -13, -20, 13, -13, 15, -15, 31, -36, 18, -17, 58, 52, -13, 14, 61, 8, -23, 42, -40, 8, -55, 16, 9, -26, -7, 47 ]
Kavanagh, J. On January 21, 1958, defendant George Walters purchased a motor truck from plaintiff Gersonde Equipment Company. Defendant executed and delivered to plaintiff a conditional sales note in the amount of $8,926. The terms of the note provided that title to the motor truck would remain in the seller until the purchaser performed a condition, namely, payment of the above sum in 24 monthly instalments of $371.95 each, with the first instalment due March 1, 1958. The note provided in the event of default as follows: “I (Walters) further agree that if I make default in the payment of any one of said instalments, or in paying said taxes, or use said property for any illegal purpose, or if said property is levied upon, or if I attempt to sell or remove the same, or if at any time the payee shall deem itself insecure, then it may in either or any such event either (1) declare the entire sum remaining unpaid hereunder to be immediately due and payable, and elect to sue for the amount due, thereby vesting the absolute title to said property in me, or (2) take possession of said property wherever found and thereafter hold it absolutely free from all claims by me, and retain all payments made by me hereunder as and for reasonable rental for the use of said property, diminution in salable value thereof and liquidated damages.” Defendant took possession of the motor truck on the date of sale. Plaintiff discounted the note to the Benton Harbor State Bank. The indorsement to the bank was as follows: “Pay to the order of Benton Harbor State Bank. For value received I hereby indorse the within note unconditionally and guarantee the payment of the same and of all instalments, renewals and extensions thereof and hereby assign and transfer to the owner or holder thereof all interest in the property thereon described.” Subsequently defendant defaulted in his monthly payments. Under the terms of the indorsement plaintiff made 4 monthly payments to the bank on behalf of defendant. The 4 payments of $371.95 each totaled $1,487.80. Defendant reimbursed plaintiff to the extent of $615, leaving a balance of $872.80. On or about June 21, 1958, plaintiff, because of defendant’s continuing default in the monthly payments, repurchased the note from Benton Harbor State Bank. It then repossessed the motor truck on or about June 30,1958, and sold the truck at public sale, sustaining a loss. Plaintiff filed a declaration in the circuit court for Berrien county containing 3 counts. The first and third counts have nothing to do with the appeal before this Court, and have been otherwise disposed of. Under count 2 of the declaration plaintiff seeks reimbursement for the balance of the 4 monthly payments which it made to the bank as indorser of the note on behalf of defendant. Defendant moved to dismiss count 2 of the declaration for the reason the defendant’s obligation to pay was, as a matter of law, canceled by the plaintiff’s repossession of the motor vehicle. The trial court granted the motion to dismiss and plaintiff appeals. It contends that where a conditional vendor negotiates a conditional sale note to a third party, becoming secondarily liable for the payments, and then makes payments on the note for the conditional vendee in default, the conditional vendor has a legal right to bring an action of assumpsit against the conditional vendee for reimbursement of the payments so made even after repossession of the subject matter of the conditional sale. Plaintiff-appellant admits that by indorsing and guaranteeing payment of the note to the bank, it became secondarily liable on the note. Plaintiff also asserts the indorsement of the note to the bank, with the accompanying guarantee of payment, changed the legal relationship between the maker and the payee. It is plaintiff’s position that the indorser became a surety. One of the rights which a surety has against the principal is the right of reimbursement. Plaintiff, however, admits the instrument in question is a negotiable instrument. The payment of the monthly payments by plaintiff was the performance of the legal obligation created by it by indorsement to the bank. When it repurchased the note from the bank, it paid a lesser sum to the extent of the monthly payments which it had paid on behalf of defendant. Unquestionably plaintiff’s motive in making the monthly payments for defendant was to assist defendant so that he would keep the motor truck and complete payment of the note. To this extent it was beneficial to both plaintiff and defendant. CL 1948, § 439.123 (Stat Ann 1959 Rev § 19.163), provides in part as follows: “Where the instrument is paid by a party secondarily liable thereon it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties.” The following similar statement, followed by numerous citations, is found in 11 ALR 449, 453: “If the original creditor takes up the paper thus transferred, he is remitted to his original rights, and may bring his action upon the paper or upon the original consideration, at his election.” This means plaintiff thereby terminated any rights it may have created by its agreement with the bank and is again in its original position as far as rights under the contract with the maker. Plaintiff contends it has dual rights because of the different capacities in which it was connected with the note. It alleges that by electing to repossess the truck it exercised one of the remedies available to it as holder of the note according to the terms of the note. It argues the present suit was brought to enforce plaintiff’s other right, namely, its right of reimbursement which was acquired as a surety on the note. No such dual rights exist. One contract was entered into — a statutory retail instalment sale contract covering a motor vehicle, a part of which was a provision how the payments were to be made. When the contract was entered into, the maker did so with an understanding that in the event he defaulted he could be sued for the unpaid balance or have the property repossessed in accordance with the terms of the contract. Plaintiff also entered into the contract with the same understanding. No authorization was given by the maker requesting the plaintiff to make the payments to the bank, and none can be implied. Plaintiff made them to protect itself. It is limited by its contract to the alternative remedies of suit for payment or repossession of the property. It is likewise limited by statute, since the contract dicl not expressly provide for personal liability for any deficiency judgment after repossession. If the payee were allowed to compel the maker to reimburse the payee for the defaulted payments, the breach which justified the taking of his property would be cured. This is the reason behind the alternate remedies. If the payee decides to sue for the payments, title passes to the purchaser and, having title and possession of the automobile, he is required to pay the sums owing under his contract. Plaintiff chose to repossess, and the trial court properly found that having made its election, plaintiff could not sue for the payments made to the bank. An argument is made that plaintiff is a surety and that the law of suretyship, with its accompanying rules of reimbursement and restitution, should be applied to the instant case. 50 Am Jur, Suretyship, § 6, pp 906, 907, deals with suretyship as applicable to negotiable instruments, and reads in part as follows: “The law of negotiable instruments, considered in a separate article, has been at least partially codified in the uniform negotiable instruments act, which is universally in force throughout the United States and is controlling in all matters comprehended by its terms. However, nowhere in the uniform negotiable instruments act is the term ‘surety’ mentioned. It is declared that the person ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are ‘secondarily’ liable. A surety is held to come squarely within the definition of a person whose liability is primary. This omission of the term ‘surety’ from the law has led to some conflict in the holdings of the courts in respect of its effect on the law of suretyship as applied to commercial paper. The majority of the courts hold that the uniform act supersedes the law as it stood prior thereto, and that the law of suretyship no longer applies to negotiable instruments.” This statement is supported by numerous authorities from a number of States. In 50 Am Jur, Suretyship, § 9, p 909, the rights and duties of an indorser and surety are distinguished as follows: “The rights and duties of an indorser correspond in some respects to those of a surety. He has in some instances been referred to as a surety, and has been regarded as such where his indorsement was irregular or anomalous. He may, of course, by the terms of his contract expressly assume the liability of a surety. The contract of an indorser, however, differs in some important respects from that of a surety. “As elsewhere stated, an indorser agrees to pay upon certain conditions. Unlike a surety, who is absolutely liable to pay if the principal does not, the indorser is only conditionally and secondarily liable, the extent of the conditional contract of indorsement being to pay on demand made on the maker, and notice of dishonor given to the indorser in case payment is not made by the maker. Hence, without due demand and notice at the maturity of a note, an indorser will be discharged, while a surety continues liable on his contract, although in some jurisdictions, by statute, notice to a surety The same as to an indorser’ is required. Also, in some cases it has been held that a surety may spur the creditor into activity by notice to pursue the principal debtor, on pain, for neglect, that the surety will be no longer bound; but an indorser cannot call on the holder of a protested note to sue the drawer, and if he refuses, thereby relieve himself, for if he wishes instant recourse to the principal, it is his duty to pay the note and sue for himself.” The order of the trial court granting the motion to dismiss is affirmed. Defendant not having filed any appendix or brief, no costs are allowed in this Court. Dethmers, C. J., and Carr, Kelly, Black, and Edwards, JJ., concurred with Kavanagh, J. PA 1939, No 305, §1 (CL 1948, § 566.301 [Stat Ann 1959 Rev § 19.415(1)]), provides in part as follows: “See. i. * * * (a) The term ‘retail instalment sale’ means and includes every retail contract to sell a motor vehicle and every retail sale of a motor vehicle to any person (1) in which the eash price of the motor vehicle may be paid in instalments over a period of time, and (2) in which the seller has taken or retained a security interest in the motor vehicle thereby contracted to be sold. * * * “(g) The term ‘retail instalment contract’ means any written instrument which is executed in connection with any retail instalment sale and includes conditional sales eontraets, pureliase-money chattel mortgages and bailment leases retaining a security interest in the seller.” PA 1939, No 305, § 8 (CL 1948, § 566.308 [Stat Ann 1959 Rev §19.415(8)]), provides as follows: “See. 8. If the proceeds of the resale are not sufficient to defray the expenses thereof and also the expenses of retaking, keeping and storing the motor vehicle and the balance owing under the contract, after crediting the same with that portion of the finance charge above provided, the seller may recover the deficiency from ’ the buyer or from anyone who has succeeded to or assumed the liability of the buyer: Provided, That such instalment sale contract expressly provides for personal liability for such deficiency.” (Emphasis supplied.)	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Kavanagh, J. Plaintiff brought this action to recover damages allegedly caused by the negligence of defendant railroad company. The accident occurred on April 20, 1956, in the village of Gregory, Livingston county, Michigan, on State trunkline M-36 where it intersects the defendant’s railroad. Around noon of that day plaintiff was proceeding in a southerly direction on highway M-36 and defendant’s freight train was proceeding in a westerly direction toward the highway. The Ford truck which plaintiff was driving and the freight train collided. Plaintiff had both his legs severed, one above and the other below the knee. The case was tried to a jury and a verdict of $199,962 was returned in favor of plaintiff. The trial commenced on February 18, 1959, and plaintiff concluded his proofs on March 2, 1959. Various motions to strike and for a directed verdict were presented by defendant and taken under advisement by the court. On March 3, 1959, chief counsel for defendant, Maxwell F. Badgley, became ill and the case was continued until the following day to determine the seriousness of the illness and whether or not Mr. Badgley would be able to proceed with the trial. An attending physician counseled with the court and advised it would be approximately 3 months before Mr. Badgley would be medically fit to carry on the trial. The trial court adjourned the case until March 25th with a suggestion if new counsel was to be procured it should be done by that time. Up to the time of the adjournment the trial was being conducted by Mr. Badgley as attorney for defendant. Mr. Badgley during the first 4 days of the trial had been assisted by defendant’s assistant general attorney, Mr. Livesay, who had participated in the trial on the first and second days, cross-examined at least 1 of plaintiff’s witnesses, and made objections to the testimony and handled himself as associate counsel. On the second day Mr. Livesay was asked to leave the courtroom by Mr. Badgley to obtain an expert witness from Westinghouse Air Brake Company to secure and furnish him data for an opinion on stopping distances. On the fourth day of trial the court ruled that associate counsel Livesay either return and stay until the close of the trial or remain away, and further that trial counsel Badgley make all the arguments. The court at the time of adjournment on March 4th, was advised that a motion for mistrial would be made if Mr. Badgley was not going to be able to return on March 25th. This motion for mistrial was; filed on the 19th of March and presented and argued on the 25th of March. A transcript of the testimony was ordered verbally on March 4th from the court stenographers and by written communication on March 9th. The motion for mistrial was accompanied by affidavit from the court stenographers who had reported the proceedings to the effect that the transcript would not be ready by March 25th. During the argument on the motion for mistrial on March 25th the court questioned the reporters off the record and then stated on the record that the reporters were unable to give a definite date when the transcript would be furnished but they would get it out as quickly as possible and forward it to counsel in different stages. Mr. Cobb, counsel for defendant at the mistrial motion hearing, indicated he believed defendant’s, counsel had the right to choose what part of the testimony he was entitled to and should not be forced to go ahead with only a piecemeal portion of the record. The court denied the motion for mistrial. The court then set April 8th as the date to continue the trial and instructed the jury to report back on that date. On inquiry as to whether the court stenographers would have the transcript ready before that time, the court replied, “They are going to do their very best.” Mr. Livesay advised the court that if the full transcript was ready in time defendant would get new counsel to try the case. Mr. Cobb inquired as to what the reporters had said in chambers to the judge with reference to when the transcript would be ready. The court indicated that was not going to be gone into. Mr. Cobb said, “What I am asking is this, your Honor: that we be given an adequate length of time after the transcripts become available to commence the trial.” The court indicated he would cross that bridge when he came to it. Counsel for defendant moved for a continuance of 30 days after the transcript was ready. This was denied. Counsel then moved for a 15-day continuance. This was also denied. Mr. Cobb indicated that if he had until about April 20th, he 'was advised by Mr. Badgley he would make himself available in court and the defendant would be responsible for going ahead on that date. The court denied this stay and concluded the matter by saying, “I will put it over until April 8th. That is, for trial.” The transcript was not completed on April 8th. In fact, it was not completed until April 17th, the final day of proofs. The trial commenced again on April 8th with new counsel and was completed without counsel Badgley returning to the courtroom. After the jury verdict, defendant made a motion for new trial, claiming the court erred in numerous respects. The court in a written opinion denied the motion for new trial. Defendant appeals, renewing all the reasons given in the motion for new trial and placing the errors complained of in 3 general categories: (1) Procedural matters which include— The trial court’s ruling excluding associate trial counsel from the courtroom; The court’s denial of the motion for mistrial; The court’s denial of a continuance upon defendant’s trial counsel being disabled until the transcript was available for substitute counsel; The refusal of the court to grant an additional ■continuance for 12 days until trial counsel could return and continue the trial; The conduct of a considerable portion of the trial in chambers after objection to such procedure. (2) Errors relating to evidentiary matters. (3) Errors relating to the charges of the court. The adjournment of a case is always a matter of discretion on the part of the trial judge. This Court has held the allowance of a continuance on account of the illness of a party or an important witness is not a matter of right, but rests in the sound discretion of the court. Stevens v. N. Z. Graves Corporation, 210 Mich 585. The rule that appellate courts will reverse only when they find an abuse of discretion on the part of the trial judge has been followed in People v. Fenner, 217 Mich 239; Kranich & Bach v. Lobell, 227 Mich 288; Baker v. Wetherald, 291 Mich 646; In re Earle, 316 Mich 295. In McLay v. McLay, 354 Mich 19, this Court has lately held that the court did not abuse his discretion in denying a motion for continuance where the appellant’s attorney was unable to be present; where there had been 1 previous adjournment; where there were out-of-town witnesses present; where the adjournment request was based on unavailability of counsel, whose presence could not be promised for a considerable period of time; where the appellant was known to the judge as a lawyer and known to him to have a competent law partner immediately available; and where there was no showing made of any effort to secure or summon witnesses prior to the date set for hearing or as to what such witnesses would testify if called. This Court reviews the discretion of the trial judge with reference to the facts in each individual case to determine whether or not an abuse of discretion has taken place and whether that abuse has created an injustice which denies a party due process and a fair trial. In view of the above we consider the facts with reference to this particular case. This was a lengthy trial involving complicated legal questions. The testimony of expert witnesses, both of an engineering and medical nature, was presented at great length. Many of the objections and motions had first been made and discussed in the chambers of the trial judge without the stenographers being-present. In addition to this, of the more than 1,100 pages of the transcript of the case approximately 300 pages represent proceedings in chambers on at least 30 different occasions. We consider, too, the order of the court, even though in the alternative, excluding co-counsel Livesay, so that the only defense counsel familiar with the testimony, rulings of the court, exhibits, motions, and the granting and denial of objections to testimony, including unrecorded conversations with the court in chambers, was defense counsel Badgley. Taking all these facts into consideration, we conclude the trial court abused his discretion in this particular case by refusing to grant a continuance until the new trial counsel had the full transcript for examination at least several days before he would be required to proceed with the trial. We recognize the trial court was faced with a difficult situation where plaintiff had concluded his proofs and the granting of a mistrial would have caused great expense. However, we do not see where the continuance for the preparation of the transcript would have injured plaintiff in any way. We are not ruling upon the alleged error in conducting a considerable portion of the trial in chambers, except as this relates to a factor in the lack of knowledge of any new counsel as to what had transpired during the trial. We do say, however, that such practices are not to be encouraged but should be limited to unusual circumstances. A general statement of the law is contained in 53 Am Jnr, Trial, § 36, p 51, as follows: “Policy of the law requires that proceedings of the court in the trial of actions, with certain exceptions, be open and public. In criminal cases the accused has a constitutional right to a public trial. Publicity of proceedings implies that doors of the courtroom be kept open and that the public or such portion thereof as may be conveniently accommodated be admitted, subject to the right of the court to exclude objectionable characters and persons of tender years. And in civil cases the policy of the law requires that all proceedings of the court should be open and notorious, and in the presence of the parties, so that they may take exceptions in the mode pointed out by law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.” Since we hold the trial court abused his discretion in not granting the continuance requested, a new trial will result. We, therefore, cannot anticipate that improper rulings would be made with reference to admission of evidence and other errors relating to the charge of the court and the failure to make certain requested charges. We conclude it is not necessary for us to review or discuss the other alleged errors complained of on appeal. Reversed. New trial granted. Defendant shall have costs. Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred.	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Smith, J. This case involves the estate of Nellie M. Zimmerman, a resident of Lansing, who passed away on May 3, 1956. Her last will and testament provided, in part, as follows: “I further declare that I have no children or issue thereof surviving me and further that I have no relatives other than cousins of various degrees, all of whom I hereby specifically disinherit.” The person nominated as executor filed a petition praying that the said will be admitted to probate. This petition stated: “I further represent that the names, relationship, ages and residences of the devisees, legatees and heirs-at-law of said deceased are as follows: “Cousins of various degrees only, all of whom are unknown to the petitioner and all of whom are specifically disinherited in will. “Last will names the John and Elizabeth Whiteley Foundation as sole beneficiary' — which foundation has been and is now duly incorporated under the laws of the State of Michigan.” Upon consideration of this petition the court, on May 3, 1956, entered an order of publication requiring that public notice “be given by publication of a copy of this order for 3 successive weeks previous to said day of hearing, in the Ingham County News, a newspaper printed and circulated in said county and that the petitioner in said estate give known interested parties additional notice as required by law.” Subsequently a hearing upon claims and for determination of heirs was held, as a result of which it was determined as follows: “This day having been appointed for a determination of the heirs-at-law of the deceased and for the examination and adjustment of all claims and demands against said deceased, and due notice thereof having heen given as required by law, the executor •of said estate appeared, and upon hearing the proofs taken thereon, the court finds and determines that there are no known heirs-at-law of said deceased.” Thereafter, and in due course, orders allowing final account and assigning residue were entered, and, on February 10, 1958, the administrator cle bonis non with will annexed (the executor having died) was discharged. We thus approach the issue. The appellants presented themselves for the first time in the following month, March of 1958, and filed a petition in the probate court stating that they were heirs-at-law of Nellie M. Zimmerman, that they had had no notice of the probate proceedings, that the court “lacked jurisdiction” because the “file and record, upon its face, fails to show that the names and addresses of petitioners and others in their class could not be ascertained by the exercise of reasonable diligence, and in fact said file and record, upon its face, shows a lack of any diligence or effort of any kind to locate heirs-at-law,” and prayed that an order be entered setting aside all decrees and orders theretofore entered in the cause. These allegations having been controverted by appellees, the probate court denied the relief prayed, primarily upon the ground that it was a court of limited jurisdiction, and that its statutory authority in setting aside orders was limited “to cases in which a petition is filed within 3 months of the entering or making of the order in question.” Appeal to the circuit followed, appellees appearing specially and moving to dismiss. Such motion was granted upon the ground that the orders admitting will to probate, and determining heirs, were not appealed within the statutory term. As for appellants’ assertion that the orders entered subsequent to the admission of the will to probate were “not in accordance with the law and jnst rights of said appellants,” the trial court held that the grounds therefor were not set forth with requisite certainty and particularity and allowed appellants 10 days for amendment thereof. Such amendment, however, was not made. Rather, appellants dismissed their appeal and filed a petition for order to show cause why writ of mandamus should not issue requiring the probate judge to set aside the order admitting the will to probate and all subsequent orders. Upon hearing, such petition was dismissed and application for leave to appeal filed with this Court. Subsequent to our denial thereof appellants filed the bill of complaint in the case at bar. It sets forth, substantially, the same claims as formerly made and asserted in the application for leave to appeal, namely, that the probate orders hereinabove referred to were null and void because of “want of jurisdiction of the probate court over the person of the heirs-at-law of Nellie M. Zimmerman, deceased,” coupled with a prayer that they be so declared. Motion to dismiss having been filed, the pretrial statement provided that such motion be considered at the trial on the merits. Apparently, however, decision was made to hear arguments upon the motion alone, it being granted, on February 16, 1960, upon the grounds that the probate court had jurisdiction and that appellants had an adequate remedy at law. The legal point is extremely narrow. For purposes of clarity it should be observed that, although it involves, generally, the question of notice to heirs, it does not involve the ancient controversy as to whether they should be notified at all. Despite the fact that in many States wills may be probated without the necessity for notice to the heirs-at-law or' other interested parties, it being a proceeding in rem, not in personam, in others, including Michigan, the governing statutes require some sort o f notice. The problem of notice to the “unknown” heirs, however, those of the family who have left the testator’s presence and knowledge, and whose whereabouts are unknown, is a sizeable one. Should personal service upon such be required, the administration of the assets of a deceased would be a lengthy if not impossible process. It is provided, therefore, that, in a petition that a will be admitted to probate, the petitioner must state the names and addresses of heirs only “if known.” Furthermore, as to service upon such unknown persons it is provided as follows : “Such service by registered or certified mail may be dispensed with whenever the names or addresses of such interested persons are unknown and cannot be ascertained by the exercise of reasonable diligence.” The statute, it will be noted, does not require the recitation by affidavit, or otherwise, of the acts amounting to the exercise of reasonable diligence. Nor does the provision prescribing what is commonly known as the printer’s affidavit which, on its face, refers merely to the situation where the “address” of some person, obviously known and entitled to service, is unknowm. Whatever the steps constituting reasonable diligence may be, they will vary, with the circumstances, from case to case. There is no requirement that they be proved in affidavit form. As a matter of fact, appellants make no charge that reasonable diligence was not exercised. Their point is much narrower. They assert that the files do not show it. The answer is that the-statutes make no such requirement. The diligence-exercised is a matter for the satisfaction of the probate judge. If challenged (and it has not yet been),, and the challenge is timely, the proponent will have to meet it, but he will not have to meet it in advance-in affidavit form. "We observe moreover, in the record, findings by the probate judge, on the probate of the will, that all interested persons had been duly notified, and, in addition, on the determination of heirs, that upon proofs taken after due notice, there were no known heirs-at-law. We cannot assume that the testimony on these findings was insufficient, nor does the appellant make any such claim. There was jurisdiction over both the subject matter and the person, and, as the trial chancellor properly held, if appellants were aggrieved they “had an adequate remedy at law, and are not now in a legal position to complain in equity.” Decree affirmed. Costs to appellees. Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred. See Levy, Probate in Common Form in the United States: The Problem of Notice in Probate Proceedings, 1952 Wis L Rev 420. Simes, The Administration of a Decedent’s Estate As a Proceeding in Rem, 43 Mich L Rev 675. CL 1948, § 702.21 (Stat Ann 1943 Rev § 27.3178 [91]). CLS 1956, § 701.32 (Stat Ann 1959 Cum Supp § 27.3178 [32]). CLS 1956, § 701.35 (Stat Ann 1959 Cum Supp § 27.3178 [35]).	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Black, J. (for affirmance). We scrutinize for validity statutory proceedings designed to incorporate the new home-rule city of Dearborn Heights. If the proceedings are held to be of legal force, such new city will include — coterminously—all of former Dearborn township plus an area taken from the then and now incorporated home-rule village of Inkster. A map, appearing in the margin, was attached to the statutory petition. The north-south (heavier shaded) rectangle shown as connecting the separated parts of Dearborn township was, prior to such election, a part of the village. The remainder of the village lies immediately west of such rectangle. The incorporated city of Dear-born lies immediately east thereof. Thus we perceive the rectangle as an adopted means (probably the only means) of connecting, for incorporation purposes, a township which had been separated into 2 noncontiguous parts by previous incorporation proceedings. The facts are stipulated and the parties agree that our answer to the sole and agreed question will deter mine the right or wrong of that which the defendant board of canvassers certified below. The agreed question: “In proceedings to incorporate portions of Dear-born township as a home-rule city under the home-rule city act may a part of the village of Inkster, a home-rule village duly incorporated under the home-rule village act, he included in said home-rule city without the consent of said village expressed in proceedings to detach said part of the village?” The board’s answer was affirmative. So was that of the chancellor. The plaintiff village, appealing, insists upon a negative answer. It relies upon sections 2 (CL 1948, § 78.2, amended by PA 1958, No 140 [Stat Ann 1959 Cum Supp § 5.1512]) and 5 (CL 1948, § 78.5 [Stat Ann § 5.1515]) of the home-rule village act of 1909 and says that the only method by which part of an incorporated village may he separated from that village is by “detachment or annexation proceedings in accordance with the home-rule village act or by annexation proceedings in accordance with the home-rule city act.” The defendant township, on the other hand, relies upon section 9 of the home-rule city act of 1909 (CLS 1956, § 117.9 [Stat Ann 1959 Cum Supp § 5.2088]); recently considered in Cavanagh v. Calhoun County Board of Canvassers, 361 Mich 516, and particularly upon the proviso which, by PA 1931, No 314, was added to that section. Citing Bray v. Stewart, 239 Mich 340; Presque Isle Prosecuting Atty. v. Rogers Township, 313 Mich 1; City of Dearborn v. Village of Allen Park, 348 Mich 449; and Ford Motor Co. v. Village of Wayne, 358 Mich 653, the defend ant township alleges that the questioned election and its certified result effectively incorporated such new city. Carefully hearing in mind that the proceeding-before us is one to incorporate a new city (under sections 6 through 11 of the mentioned home-rule city act ) and that it is not a proceeding to annex, detach, or consolidate, we find that the stated question is controlled by the interpretive declaration of legislative intent appearing in the cited eases of City of Dearborn v. Village of Allen Park and Ford Motor Co. v. Village of Wayne. In each of these cases like proceedings under the same statutory provisions were considered. Ruling was made that: “In annexation or consolidation the people interested are the people in the annexing municipality, the people in the area to be annexed and the people in the area from which the annexed portion is taken, but in the incorporation of a new city the people interested and the area affected consist of the area proposed to be incorporated only. It follows that only those living within the affected area can petition for the incorporation and vote for or against the resolution.” (p 665 of Village of Wayne; p 454 of Allen Park.) In this case the proceedings were designed and conducted in strict accordance with such declaration of legislative intent. They were, in fact, instituted and pursued within a few days after the handing-down of our unanimous determination, in the Village of Wayne Case, to reaffirm the quoted declaration. The case manifestly is one where all duty-bound public officials and their counsel have proceeded according to the guidance of recent and authoritative decisions. It is our duty in these circumstances to confirm their action. This case, originally assigned to the writer, was fully submitted on briefs and oral argument October 12, 1960. The foregoing proposed opinion thereof was delivered December 17th to the other Justices for their consideration. The opinion omits — as I think it should — reference to the presently considered racial-constitutional question which, during oral argument, was injected into the case by a member of this Court. Now, on the eve of over-delayed decision of the briefed and argued question (with respect to which no member of the Court has as yet expressed disagreement), the attorney general has intervened and moved to remand for the taking of testimony to determine whether this incorporation proceeding “represents an attempt unlawfully to segregate races of citizens * * * or an attempt to segregate white and colored voters by eliminating-all Negro citizens from the proposed city of Dear-born Heights.” Such question was neither raised nor tried below. It has not been raised, briefed, or discussed by the parties in this Court. It was repudiated by all counsel during oral argument when they were questioned with respect thereto. Nonetheless it is moved now that we make of this specific case of statutory construction a vehicle for presentation and trial of a fresh issue as in Gomillion v. Lightfoot, Mayor of TusJeegee, 364 US 339 (81 S Ct 125, 5 L ed 2d 110). How that is to be done is not explained. Possibly it is contemplated that the case on remand shall be held in abeyance until some new suit, brought by necessary and proper parties plaintiff on necessary and proper original pleadings, is attemptedly tried through all courts to final determination of the new and Gomillion-suggested issue. In the meantime, as recently suggested by a Brother Justice, this abstruse statute may be amended again, thus necessitating new starts and new interpretive lawsuits. I protest this gratuitous interposure of an issue which belongs only in an original class action, filed in a court of original jurisdiction and supported by such testimonial record as might raise, to the plane of due justiciability, that which the attorney general has alleged ex parte under date of February 24th. Such an issue cannot even be framed until and unless the agreed question of statutory construction has been settled by this Court as the chancellor settled it. By failing to decide that question, and by order for remand on motion of a mere intervenor, we cast an important case adrift on an uncharted sea of doubt and delay. The right and orderly way to go about raising and presenting the attorney general’s stated issue is to pursue the route which, by original class complaint, was started in Gomillion v. Lightfoot (MD Ala), 167 F Supp 405, after the statute of Alabama had—per its tenor—changed the boundaries of Tuskegee. Here section 9 can have no Gomillionattackable effect on the boundaries of the respectively involved municipal units until this Court determines the statutory propriety of that which was voted and upheld below. > I vote again to affirm. Affirmance will nowise impede or blockade an original suit based on the allegations of the attorney general. It will in fact open the way to prosperous prosecution of such a suit if there be provable ground therefor. APPENDIX (Taken from stipulation of facts.) The election on the proposed incorporation was held June 20, 1960, in the area proposed to be incorporated with the following results: Northern part of Dearborn township: Yes ...... 2,525 No....... 2,869 The part of the village of Inkster proposed to be included within the new city of Dearborn Heights: Yes ...... 627 No....... 48 Southern part of Dearborn township: Yes...... 3,056 No....... 1,062 Total vote of the electorate in the area proposed to be incorporated as the new city of Dearborn Heights: Yes...... 6,208 No....... 3,979 Carr, J. (for affirmance). This case involves the interpretation and application of certain provisions of the city home-rule act*. In accordance with said statute a petition was submitted to the board of supervisors of Wayne county seeking the approval of that body and submission to an election by the qualified voters of the question of incorporating the city of Dearborn Heights from lands located in Dear-born township, a portion of such territory being contained within the village of Inkster. Said board found that the petitions were in compliance with the statute and adopted a resolution fixing the date of an election to be held in the territory proposed to “be incorporated. Thereupon the plaintiff village instituted the present suit in equity in the circuit court of Wayne county alleging that all proceedings taken with reference to the petitions were illegal and void, and that any election held on the question of incorporating the proposed new city would be a nullity. Injunctive relief against the holding of the election was sought and a decree in accordance with the averments of the bill of complaint. It was the claim of the plaintiff as set forth in its pleading that the city home-rule act does not permit the incorporation of a city including any part less than the whole of a home-rule village, and that before a portion of a village organized under the village home-rule act of 1909 may be included in a city such part must first be legally detached from the village by proceedings instituted under the village act. Following the filing of the bill of complaint the trial court denied injunctive relief against the holding of the election but issued a restraining order forbidding the defendant Wayne county board of canvassers from certifying the results of such election pending the further order of the court in the premises. The election was held, the question of incorporation of the proposed new city being submitted to the voters entitled to vote thereon within the territory proposed to be incorporated. A total of 6,208 votes were cast in the area in favor of incorporation and 3,979 votes against such action. The cause was submitted to the trial judge on a written stipulation of facts and the briefs and oral .arguments of counsel. An opinion was rendered sustaining the proceedings taken as in compliance ivith the statute, and a decree Avas entered setting aside the restraining order and dismissing the bill of complaint. From such decree plaintiff has appealed. The trial judge concluded that the question at issue involved the interpretation of pertinent provisions of the statute under which the incorporation proceeding was instituted, and that this Court had in prior decisions passed on the questions at issue adversely to the contentions of plaintiff. That such is the situation is not open to question. In Ford Motor Company v. Village of Wayne, 358 Mich 653, the statutory provisions concerned were discussed, and interpreted in accordance with prior decisions cited. Reviewing the matter in detail would serve no useful purpose. We are in accord with the holding of the circuit judge and the decree entered by him is affirmed. In view of the nature of the controversy no costs are allowed. Dethmers, C. J., and Kelly, J., concurred with Carr, J. Edwards, J. (for remand). Subsequent to presentation of oral arguments and briefs in the above-styled matter, this Court has received notice of intervention from the attorney general of the State of Michigan under the power given him by virtue of PA 1919, No 232, § 1 (CL 1948, § 14.101 [Stat Ann 1952 Rev § 3.211]). The notice of intervention filed with this Court indicates that intervention is made by the attorney general for the purpose of recommending the remand of the above-styled matter to the circuit court for the taking of testimony as to whether or not the proposed annexation of a portion of the village of Inkster represents an attempt unlawfully to segregate races of citizens in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States (Brown v. Board of Education of Topelta, 347 US 483 [74 S Ct 686, 98 L ed 873, 38 ALR2d 1180]; Cooper v. Aaron, 358 US 1 [78 S Ct 1397,1399, 1401, 3 L ed 2d 1, 3, 5, 19]), or an attempt to segregate white and colored voters by eliminating all Negro citizens from the proposed city of Dearborn Heights in violation of the Fifteenth Amendment to the Constitution of the United States (Gomillion v. Lightfoot, Mayor of Tuskegee, 364 US 339 [81 S Ct 125, 5 L ed 110]), or both. These questions were not considered at the trial •of the cause, nor were they the subject of oral argument or briefing in the briefs now before the Court. The cause should be, therefore, remanded to the -circuit court for testimony upon the questions set forth above, and for such further proceedings as may he required by the testimony adduced. Smith, Kavanagh, and Souris, JJ., concurred with Edwards, J. The proviso reads: “Provided, however, that when a territory is proposed to be incorporated as a city only the residents of the territory to be incorporated shall vote on the question of incorporation.” See appendix for stipulated details showing the manner of conduct and certified result of such election. So far as concerns the village, only those electors residing in the area of the village designed to he included in the new municipality were permitted to vote. CL 1948 §§117.6-117.11, as amended (Stat Ann 1949 Eev and 1959 Cum Supp §§ 5.2085-5.2090).—Reporter. The ease in OCA 5 is reported in 270 E2d 594.—Reporter. CLS 1956, §117.9 (Stat Ann 1959 Cum Supp § 5.2088)—Re-porter. PA 1909, No 278, as amended (CL 1948, § 78.1 et seq., as amended [Stat Ann § 5.151Í et seq., as amended]).—Reporter. PA 1909, No 279, as amended (CL 1948, § 117.1 et seq., as amended [Stat Ann 1949 Rev § 5.2071 et seq., as amended]).	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Smith, J. This case involves a dispute between 2 neighbors. They live across the road from each other. One has blocked it off and the other objects. At an earlier time the neighbor raising the objection, Leslie F. Feighner, and his wife, owned all of the property here involved. Between the years 1938 and 1911 they conveyed to the plaintiff, Robert Dryfoos, the land to the north of the road and a portion of the land to the south, retaining, however, that portion upon which their home stood, which was to the west of the portion conveyed. The road, alleged to be a public highway, is only about 30 rods in length, running east from a road called “East road” (sometimes called “Cemetery avenue,” or “road”) to a lake, described in the record as “Lake One.” ' The road, short though it may be, is long enough to arouse both recrimination and resentment. Controversy over its status (public road or private way) had smoldered for years. It was fanned into flame by the action of plaintiff Dryfoos in installing posts in it near its intersection with East road. The defendant highway commissioner served notice on the plaintiff to remove them, whereupon plaintiff filed a bill of complaint to enjoin the township from removing obstructions and to decree that the public has no right, title, or interest in the premises owned by the plaintiff. Mr. Feighner thereupon sought and obtained permission to intervene, and filed a cross bill claiming that the road is a public road. It is not asserted that there was any formal dedication but it is asserted that there has been long and established user. The trial chancellor having found no acceptance of the road, the defendants and intervenor are here on a general appeal. The difficulty with the defendants’ case lies in the facts. There has been some user of the way since long before the' turn of the century. Forty or 50 years ago some persons used to get their summer ice from Lake One, but whether this use was permissive or not is not shown. Ice fishermen have used it, some with permission, others with knowledge of trespass. Still others said they considered it a public road and at least 1 witness concluded his testimony by guessing it was a public road. Some permissive use of the road through the kindness of Mr. Feighner himself was shown and in this connection it was of significance to the trial chancellor, as it is to us, that when Mr. Feighner himself deeded property to plaintiff in 1941 he reserved a “right to access to the lake,” a precaution hardly necessary if, in truth, the road in question was a public highway. All of this is a far cry from the situation in Pulleyblank v. Mason County Road Commission, 350 Mich 223, upon which appellant relies, wherein the user was found to have been continuous by the general public, including the transportation thereon of lumber and farm produce for some 35 years. As for upkeep of the road the showings are equally thin. There may at one time have been some working by village officials, though the extent is doubtful. Since 1943, when the disputed road and adjacent area was disconnected from the village of Nashville, no work has been done on it. It has never been accepted as a part of the Barry county road system, nor has any work been done on it by the township. Actually, it is in poor condition, there being some testimony that it is rutted and washed out. Whether actually passable or not, we note that both plaintiff and Mr. Feighner have built new roads into their properties, not relying upon the one here under consideration. I There seems to be no possible theory upon which defendants may prevail. We cannot find an implied' dedication by the landowner, or prescription, for lack of use by the general public, exclusive, open, and notorious. See Alton v. Meeuwenberg, 108 Mich 629. Moreover, a dedication in this State as a matter of general law, as well as under the statute relied upon by defendants, must be followed by an acceptance by the public authorities, with the way taken and maintained as other highways, Chapman v. City of Sault Ste. Marie, 146 Mich 23, proof of which, also, is here lacking. The decree is affirmed. No costs, a public matter. Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred. CL 1948, § 221.20 (Stat Ann 1958 Rev § 9.21).	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Edwards, J. Plaintiffs-appellants are home owners in a developing subdivision who filed a bill of complaint in equity to restrain alleged violation of a building restriction and a drainage easement in the construction of an adjacent house. After hearing plaintiffs’ testimony, the Oakland county circuit judge granted defendants’ motion to dismiss the bill of complaint, holding that plaintiffs had not proved their entitlement to injunctive relief and that they have an adequate remedy at law in a suit for damages. Plaintiffs appeal. Appellant Jeffery bought a home in September, 1956, in the Woodcroft subdivision of Farmington township. The price was $29,500. The salesman involved in the deal was defendant-appellee Earl Lathrup. Mr. and Mrs. Lathrup also owned the adjacent lot to the south of appellants, and were the original subdividers of Woodcroft. The original deed to the Jeffery lot made reference to the recorded plat of the Woodcroft subdivision. At the time of the Jeffery purchase, the plat for the Woodcroft subdivision showed a 20-foot “easement for drainage” running over the rear portion of the Jeffery property, diagonally across the adjacent lot owned by the Lathrups. At the time of the sale Lathrup discussed the drainage with Mr. Jeffery and told him that there was an 8-inch tile line in this 20-foot easement. Mr. Jeffery claimed Lathrup represented that his lot would have perfect drainage. For 3 years Jeffery claims he had no drainage problems. In the fall of 1959 appellees commenced construction activities involving the building of a house squarely across the 20-foot easement for drainage shown on the Woodcroft subdivision plat. The Lathrups had previously sold the lot adjacent to the J'efferys to appellee Dahl. In preparation for Dahl’s construction of a house for appellees Kozub, Earl Lathrup undertook to reroute the 8-inch drain. The easement referred to followed a natural draw and the effect of the building plan was described as follows: “The Court: Do you concede that the natural drainage has been changed? Remember, we are dealing with acreage. “Mr. Wilmot: We admit that the property of the defendants is located in a draw oyer which the normal —a certain amount of the normal watershed passes. We also admit that there was in this draw to take care of that water, an 8-inch tile and that we have diverted the 8-inch tile from the point at the northwest corner of the defendants’ property along the north boundary of the property until it arrives at the easterly portion of the property and then along the easterly portion of the property back into the same tile drain.” Construction of the house was begun while the Jefferys were on vacation. On their return on September 21, 1959, Mr. Jeffery claimed that he found the condition described below: “A. Well, the ground, the lowest part of our septic drain field became saturated and caused back pressure in our septic tank so that we couldn’t flush our toilets and the drains, we couldn’t drain water out of them and my wife couldn’t wash and it occurred 2 or 3 weeks after they commenced their basement, the water wouldn’t flow away. We also had a drain in our basement and this drain together with our conductor drains are connected to the pipe in the field and because of the fact that the water couldn’t run away it backed up in the spill-well and ran into our basement, causing our basement floor rugs to gather large areas of alga mold. In addition to that when we came back from our vacation, the odor in the house was such we couldn’t live there unless we aired it out. * * * “Q. Now, will you explain to the court how the changing of the course of that tile, in your opinion has created an odor? “A. Well, I can’t tell you how it is causing the odor but -I know the odor is there and I am not kidding about it. My wife vomited for 3 days when we came back from our vacation, she couldn’t keep food down and I will bring my mother-in-law in, she is 82 years old, when she walked in the house after we came back, she said, ‘What in the world is that awful smell,’ and it was coming from the basement.” Plaintiffs’ testimony tended also to show that the drainage easement which followed a natural draw was important for more reasons than that the 8-inch tile was located in it: “A. Yes, in the spring of the year, shortly after we bought — it was in the spring, I believe, lo and behold we woke up one morning and saw this water coming down over the hill following that natural watercourse where this drain is and I went out there to clear off the grass that had flowed onto the catch basin and the water was right up to my knees, right where that catch basin is at the back of our lot and it flowed in a gusher down over this natural valley and the easterly portion of that south half of lot 94 had 2 feet of water on it and it remained there and flowed away slowly down into the drain where the catch basin is at the south half of lot 94. * # * “A. During these conversations, Mr. Lathrup represented to both Mrs. Jeffery and I that we had perfect drainage and we would never be bothered with drainage problems because of the natural slope of the land and even when we told him about the freshet coming over the hill, he assured me that it would flow away and go down its natural drainage, which it did, and I had extreme confidence in Mr. Lathrup and I didn’t question him further because the water did exactly what he said it would, straight across and down into the catch basin in the road and flowed away in an orderly fashion and didn’t hurt anybody. “Q. When you say it flowed away in an orderly fashion, you mean it flowed on the surface of the land ? “A. Yes. “Q. How deep was that water? “A. Two feet. “Q. In other words, the drainage tile, in your opinion, was never adequate to take care of the natural flow of water? “A. No, I don’t think any drainage tile would ever take care of the flow that came down that day because it was 20 feet wide.” This evidence lends considerably greater importance to plaintiffs’ contentions pertaining to violation of the grade-line building restriction. The 8th restriction in the Woodcroft deeds provided : “8. Each residential lot shall have an established grade line of 18 inches above the average level of the crown of the road in front of said lot.” As to this restriction, plaintiffs presented evidence tending to show that the final grade of the ground level of the house being built by defendants would exceed the 18-inch grade line by a matter of several feet. As to this, Mr. Jeffery testified: “A. Well, the brick wall on the front corner at the north wall of the house is approximately 6 feet above the grade of our land and they will have to grade down in an area of 10 feet or from 6 feet and it is going to leave me down in a hole and since the water has no place to go it is naturally going to flow to the lowest level.” A builder called by plaintiffs, after describing the location and construction of the house under construction, testified: “Therefore, when the house is completed you will have a sheer wall of dirt that will act as a spillway onto Mr. Jeffery’s property.” We take this record, of course, as it comes to us containing the evidence of plaintiffs, but not of defendants since defendants’ motion to dismiss was granted at the close of plaintiffs’ proofs. The chancellor may have believed that plaintiffs’ claims as to the situation were exaggerated. If so, we must say that the record did not disclose in what particular they were. Plaintiff had alleged, and his proofs tended to show, violation by defendants of a drainage easement and a building restriction, and both present and continuing damage. When plaintiffs rested they had presented a prima facie case, and a full record of the dispute should have been written prior to decree. We believe the circuit judge erred in granting the motion to dismiss. The chancellor may have been moved by the fact that at time of hearing the footings and basement walls of the new house were in and that no injunctive relief was possible absent great financial damage to defendants. As the testimony stood before him, however, it was obvious that plaintiffs had presented evidence of great and continuing damage to their quiet enjoyment of their own home, resulting from defendants’ violations of an easement and a building restriction. There can be no question that in such a situation as plaintiffs alleged, equity has jurisdiction. Sokel v. Nickoli, 347 Mich 146. Defendants, however, contend on this appeal that neither easement nor restriction was effective. They assert that since the easement was not dedicated to the public and was not recorded as a covenant in the deeds it was totally ineffective and could be disregarded. We believe this contention is erroneous. Under Michigan law, an easement recorded on a subdivision plat by reference to which subdivision sales are made is binding on the parties. Pulcifer v. Bishop, 246 Mich 579; Westveer v. Ainsworth, 279 Mich 580; Rindone v. Corey Community Church, 335 Mich 311. As to the restriction, defendants claim abandonment, contending that many violations of the 18-inch grade already existed in the subdivision. None was shown, however, which nearly approached the extent of violation involved here. Where the restriction has been violated in some degree, it does not thereby become void and unenforceable when a violation of a more serious and damaging degree occurs. Carey v. Lauhoff, 301 Mich 168; Polk Manor Co. v. Manton, 274 Mich 539; Morgan v. Matheson, 362 Mich 535. We must presume that this house may now have been completed since no injunction appears to have been in force. If such proves to be the case, expert testimony should be taken on remand as to present and future damages (if any), along with engineering testimony as to possible drainage solutions. Such a solution might be presented to defendants as an alternative to damages representing permanent impairment of the value of plaintiffs’ property if the proofs warrant so doing. Once equity has taken jurisdiction for one purpose, it should dispose of all aspects of the litigation. Second Michigan Cooperative Housing Association v. First Michigan Cooperative Housing Association, 358 Mich 252. We agree with the circuit judge that this record discloses no laches on plaintiffs’ part. We have granted plaintiffs’ motion to strike certain statements contained in defendants’ brief by which defendants have sought to introduce into the record on appeal facts which were not before the chancellor below. Reversed and remanded for further proceedings consistent with this opinion. Costs to appellants. Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred. Same ease, 362 Mich 460.	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Souris, J. This appeal involves the sufficiency of service of a notice of tax sale made upon the joint owners of real estate. Mr. and Mrs. Mardigian, 2 of the defendants herein, are record joint owners of real estate in the city of Detroit. Plaintiff, in 1957, purchased that land at a tax sale for 1954 delinquent taxes. No redemption having been made from such sale within the statutory period therefor, a tax deed was issued to plaintiff in accordance with the general property tax law. The deed was duly recorded, and thereafter plaintiff delivered to the sheriff of Wayne county the statutory purchaser’s notice for service upon parties in interest. This controversy revolves about the attempted service upon Mr. and Mrs. Mardigian of said notice. The issue is framed in plaintiff’s suit for a writ of assistance, plaintiff claiming that redemption from the tax sale was not made within the 6-month statutory period following notice thereof. Counsel for the parties stipulated and agreed before trial that the only issue to be resolved by the court was the sufficiency of service of the notice upon the Mardigians. The circuit judge, after hearing testimony from the parties, determined that no proper service had been made upon them. There is in evidence a duly executed return of service by a deputy sheriff upon Mr. Mardigian. The trial judge, after hearing somewhat conflicting testimony from the deputy sheriff and from Mr. Mardigian, concluded that service was not in fact made personally upon Mr. Mardigian hut rather upon some other person at Mr. Mardigian’s place of business and that such service was not made within the contemplation of the statutory provision for substituted service because not made at Mr. Mardigian’s usual place of residence. The controlling statute is found in the general property tax law, which provides: “That such service may be made upon any resident of this State by leaving such notice at his usual place of residence with some member of his family of mature age.” Without determining the propriety of the circuit judge’s ruling with reference to the attempted service upon Mr. Mardigian (there having been, as noted, somewhat conflicting testimony relating thereto), disposition of this case can be made upon the basis of undisputed facts relating to the attempted service of the notice upon Mrs. Mardigian, an owner by the entireties with Mr. Mardigian, and as such, also entitled to be served with notice under the statute. Dolph v. Norton, 158 Mich 417; Hansen v. Hall, 167 Mich 7; and McVannel v. Pure Oil Co., 262 Mich 518, 522. Plaintiff concedes that the deputy sheriff attempted substituted service upon her by giving an extra copy of the notice to the person whom he believed to be Mr. Mardigian. The statute clearly requires that substituted service be made at the usual place of residence of the person sought to be served. Plaintiff concedes that the service here attempted was made not at the residence of the Mardigians but rather at the place of business of Mr. Mardigian. For .that reason and that reason alone, the trial court’s decree denying plaintiff’s petition for writ of assistance is affirmed. Costs to defendants. Dethmers, 0. J., and Carr, Kelly, Smith, Black,, Edwards, and Kavanagh, JJ., concurred. CL 1948, § 211.1 et seq., as amended (Stat Aim 1960 Rev § 7.1 et seq.). CL 1948, § 211.140 (Stat Ann 1960 Rev § 7.198). CL 1948, § 211.140 (Stat Ann 1960 Rev § 7.198).	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Montgomery, J. This is an action against the principal and sureties on a bond given on a sale of real estate made by authority of an order of the probate court by an executor, the principal on the bond in suit. Under the record as presented to us, we find it impossible to deal with most of the points made in the brief of counsel for appellant. It is first contended that there was error in receiving the-bond in evidence, and in basing judgment upon it, for the reason that no authority was shown for bringing suit upon the bond. The court found as a fact, however, that such authority had been duly and regularly given, and no exception to this finding of fact appears in the record. Unless the point is made, therefore, by an exception to the introduction of testimony, the question is not properly before us. The introduction of the bond in question was objected to, it is true, but the objection was put upon the-distinct ground that no suit or proceeding had previously been brought against the principal or bondsmen on the general bond of the executor, and that action could not be brought upon this bond until a suit had first been brought upon the executor’s general bond. No other point was suggested by the objection, and the exception must be. limited to the ruling upon the objection made. Detzur v. Brewing Co., 119 Mich. 286 (77 N. W. 948, 44 L. R. A. 500). The brief of defendant’s counsel also attacks certain of the special findings of the court. The record shows no exception to these findings. Under Cir. Ct. Rule 26 it is settled by repeated decisions of this court that the record will not be examined for the purpose of ascertaining whether the testimony supports the findings of fact, unless the findings are excepted to under the rule. Haines v. Saviers, 93 Mich. 440 (53 N. W. 531); Robards v. Waterman, 96 Mich. 233 (55 N. W. 662). It is, of course, competent for the appellant to assign as error that the findings do not support the judgment. While there is no such distinct assignment in terms, yet, as error is assigned upon the finding concluding that judgment should be entered for plaintiff, we think it sufficiently raises the question as to whether, upon the findings, the plaintiff is entitled to judgment; and, as there is no finding that any suit had been brought against the sureties on the original bond of the executor, the meritorious question in the case is fairly presented for our consideration. Both counsel rely upon the case of Durfee v. Joslyn, 92 Mich. 211 (52 N. W. 626). The appellant contends that, under the authority of that case, the bond here in suit is an additional security, and that the primary obligation is upon the general bond of the executor; and deduces from that the conclusion that, until the remedy upon the executor’s general bond is exhausted, no action can be maintained upon the bond in suit. We do not so construe the holding of the court in that case. It is distinctly stated in that case by Mr. Chief Justice Morse that “the representatives of the estate are entitled to recover upon both bonds, with the only limitation that they cannot recover more in both suits than the whole amount due from the administrator, and no greater sum upon the special bond than has been realized from the sale of real estate under it.” It is true that the special bond is referred to as an additional security, which does not supersede the general bond; but, had the term “cumulative security” been employed, it would have been equally apt, as appears by the holding above quoted. We think the circuit judge was right in holding that an action upon the executor’s bond was not a prerequisite to the maintenance of the suit upon the present bond. As this is the only question which it is open to the appellant to raise upon the present record, and the court rightly ruled this, the judgment will be affirmed, with costs. Hooker, C. J., and Moore, J., concurred. Grant, J., took no part in the decision.	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Grant, J. (after stating the facts). 1. We think the tax law does, not confer upon the auditor general the right to proceed upon his own motion to withhold the conveyance of lands sold for taxes, or upon his own motion to proceed to cancel deeds. Thousands of acres of land in this State have been intentionally abandoned, and the payment of taxes intentionally neglected or refused. Owners are presumed, under the law, to know that taxes are imposed upon their lands. It is their duty, therefore, to look after their taxes and attend to their payment. If they fail to do so, the statute has wisely provided a limitation to their right to take proceedings to cancel the tax deed and set the proceedings aside. Under the contention of the respondent, he could absolutely set aside the running of the statute of limitations by his own voluntary act, ■when no one solicits his action. The statute clearly contemplates that somebody interested in the lands shall set the auditor general in motion in order to confer upon him the authority to act. No case is cited holding that the auditor general may proceed on his own motion to cancel deeds. The State and the parties interested are entitled to a hearing. 2. The right of the auditor general to cancel deeds under section 98, where the lands have been sold under section 84 of the tax law, is not disputed. Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128). The claim of the relator is that that power does not extend to lands which have been deeded to the State, and placed under the charge and control of the land office, as homestead lands. That question is now presented to the court for the first time. The statute (section 127) provides for an adjudication and determination by the auditor general and the commissioner of the State land office as to whether the lands have been abandoned, and their value. They are required to ascertain if the lands have been delinquent for taxes for five years or more; if they have been bid off to the State one or more times; if the time of redemption has expired; if no application has been made to pay, redeem, or purchase the same; and if no action is pending in the circuit court of the county where the land is situated to set aside the taxes, or to remove the cloud on the title occasioned thereby. If these things are found, the statute provides that.“the title to the State shall be deemed absolute in and to said lands.” The auditor general and commissioner of the State land office are further required to determine what lands so examined come within the provisions of this section, and then to record their determination in a book to be kept for that purpose. Pursuant to the determination of these two State officers, the auditor general then issues a deed to the State. The deeds are then delivered to the commissioner of the land office, whose duty it is to record them. The statute above quoted (section 127) then provides a way by which the owner of the land may proceed in the courts to test the validity of the finding of these officers. We think it was the clear intention of the legislature, in enacting this law, to put these lands, after the determination has been made by the auditor general and commissioner of the State land office, beyond the control of the auditor general, and to place the power to question their proceedings in the courts. All the cases cited in behalf of the respondent are cases where the lands have been sold under section 84, and the language used in those eases is applicable, and must be confined, to sales made under that section. 3. It is conceded by the respondent that no certificate of error can be legally issued by him against those lands which were homesteaded prior to the time Act No. 107 took effect, as the statutory limitation of six months had run before any proceeding was taken to set the deed aside. Similar statutes of limitation have been sustained in other jurisdictions. Meigs v. Roberts, 162 N. Y. 371 (56 N. E. 838, 76 Am. St. Rep. 322); People v. Turner, 145 N. Y. 451 (40 N. E. 400); Terry v. Anderson, 95 U. S. 628; Saranac Land & Timber Co. v. Comptroller of New York, 177 U. S. 318 (20 Sup. Ct. 642). Under this disposal of the case it is unnecessary to pass upon the other provisions of the statute in regard to the limitation of the right to take proceedings to cancel deeds. The writ of prohibition will issue, without costs. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.	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Hooker, C. J. The bill in this cause was filed by the complainant, a building and loan association, to foreclose a mortgage upon defendant’s premises. A decree was granted in favor of the complainant, and the defendant has appealed. Many points are raised in the brief, but the one which is in its nature meritorious is that the defendant was induced to take stock and a loan, according to the plan of business pursued by the complainant, upon the representation that the 'amount of his indebtedness would be fully paid in eight years if he made certain specified payments monthly. The learned circuit judge, who saw the witnesses, was of the opinion that the defendant had failed to prove the alleged statement that the stock would mature in eight years at the furthest, and we are of the same opinion. At the time this defendant procured his loan, he was told that he could appear and bid for his loan, or he could send in his bid, and he chose the latter course, authorizing an officer of the company to bid 25 per cent. He asserts that he was informed that the association would not receive bids below 25 per cent., and his counsel insist that a practice that does away with competitive bidding is a noncorn. pliance with the statute, which entitles the borrowing stockholder to a loan for such premium as he may be able to bid it in for. The learned circuit judge found from the evidence that, while a motion to fix a minimum rate of premium at 20 per cent, was made nearly two years before the defendant made his application for this loan, it was not adopted, and that the offer to pay 25 per cent, was volun tary. In our opinion, he might have added explicitly, what, perhaps, should be inferred from his language, i. e., that the evidence failed to prove that he was given to understand that competitive bidding below 25 per cent, would not be considered by the directors, and that the evidence does not satisfactorily show that it would not have been. We therefore agree with him that the contract was not usurious. We are also satisfied that the statements relied upon as warranties were the expressions of opinion, and that they do not affect the contract. It is said that a rule was afterwards adopted fixing a minimum premium, and that,the rule was followed; that there came a time when inducements were offered for the withdrawal or surrender of immature stock; that money was loaned to persons who did not use it for the erection of homes; that nonmembers were induced to become members by the promise of loans; that the defendant was injured by complainant’s allowing corporations to become members and obtain loans; compromising disputed claims; referring bids to a committee before they were passed upon by the board; refusing to make a loan to a lady member from Marinette, upon the ground that their business from that locality would not justify it; payment of excessive salaries, etc. Whatever remedies may exist against the continuance of any or all of these practices, they do not constitute a defense to his mortgage, nor does the claim that the contract was ultra vires. As a stockholder, he has the right to insist that the business shall be conducted according to law, and may enforce his right by appropriate remedies; but he cannot permit practices which affect others as well as himself, and then claim advantages over them. The decree is affirmed. Moore, Grant, and Montgomery, JJ., concurred.	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Grant, J. (after stating the facts). Insurance companies may lawfully contract with the insured that the contract of insurance shall be void upon a conveyance of the title to the property without notice to, and the assent of, the insurer. Insurance companies may decline to insure the purchaser and grantee, while willing to assume the moral hazard of the person originally insured. This provision was therefore valid. Plaintiff seeks to avoid the result by insisting that this policy was in fact issued for the benefit of Mr. Eckert, and that he had a contract with defendant. This contention is settled against the plaintiff by Van Buren v. Insurance Co., 28 Mich. 398; Hartford Fire-Ins. Co. v. Davenport, 37 Mich. 609; Minnock v. Insurance Co., 90 Mich. 236 (51 N. W. 367). The contract of insurance was made with Mr. Navrot alone. He alone could bring suit upon it. He alone was liable for the premiums. Counsel for plaintiff cites Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834 (60 N. W. 133, 35 L. R. A. 679), and other similar cases. In that case the policy contained a mortgage slip by which it was agreed that, “as to the interest of the mortgagee, the insurance should not be invalidated by any act or neglect of the mortgagor or owner of the property.” The mortgagor had forfeited his rights in the policy. It was held that the mortgagee had not, but that this clause gave him an independent right of action against the company. No such clause is found in the present policy. The direction of the court was correct, and the judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred.	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Montgomery, J. In this case it appears that, while plaintiff was driving east, the front wheel of her buggy was struck by a car approaching from the west. The testimony shows that she turned in towards the track to pass another buggy standing by the curb. Before this inturn was made, the appearance did not indicate to the motorneer any danger. It is defendant’s contention that the turn was made so suddenly that the motorneer had not time to check the car after discovering plaintiff’s danger, and that the case falls within the case of Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), and is not within any exception to the rule there laid down. The circuit judge so held. The evidence tended to show that there was standing by the side of the road a buggy, which made it necessary for the plaintiff to turn in towards the track, and that she did in fact turn in. One witness testified that she turned in towards the track when she was about 20 feet from the other buggy, and that at this time the car which came in contact with her was half a block away. The- block, according to the offer of proof, treated as made, was 500 feet in length, and the plaintiff offered to show that the car could be stopped on that track within 100 feet. It is true that one witness was made to state, on cross-examination, that from the time plaintiff turned in on the track until she was struck did not take very long, and, in answer to'the question, “Wasn’t it instantly, almost?” replied that it was. The examination was attempted of another witness upon this subject, on cross-examination, when the following occurred: “ Q. If she was midway between the curb and street-railway track, how did she get within a foot of the track ? “ A. When the car struck her, she was pretty well past this other buggy, and she had to come near to the track. “Mr. Brennan: I don’t want that. “Mr. Humphrey: I object. “The Court: Ask another question.” The circuit judge held that the plaintiff was guilty of negligence in going so near the track without looking for the approaching car. We think the question whether the plaintiff was in position to have been seen by the motorneer a sufficient length of time to have enabled him to stop the car was a question for the jury. See Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and cases cited; Quirk v. Railway, 130 Mich. 654 (90 N. W. 673). Judgment reversed, and a new trial ordered. Hooker, C. J., and Moore, J., concurred with Montgomery, J.	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Montgomery, J. This is certiorari to review the decision of the circuit judge granting a mandamus. The question involved is whether the ordinance under which respondent occupies Michigan avenue, in the village of Dearborn, requires the respondent to construct street crossings from sidewalk line 'to sidewalk line, or whether it is satisfied by the construction of a crossing of respondent’s tracks. Two provisions of the ordinance bear upon the question. Section 4, after providing that from Military avenue easterly to the village limits the track should be laid in the center of Michigan avenue, and that the space between the rails should be planked, and that two planks should be placed outside the rail, eight inches wide and four inches' thick, further provides: “It is also further provided, between the points of Military avenue and the westerly limits of said village, that the said grantee, its successors and assigns, shall at all times construct and maintain public and private crossings, constructed in the same manner as is herein provided for planking laid on the said grantee’s railway track between the points at the corner of Military avenue and Michigan avenue and the easterly limits of the said village of Dearborn.” Section 8 provides: “The said grantee, its successors and assigns, shall have the right to construct and maintain all necessary bridges and culverts along the line of said railway, or use, where feasible, the bridges and culverts now existing, and shall maintain pine plank crossings at all cross and intersecting roads and highways, and shall also build and maintain private pine plank crossings where such crossings now exist, or may be in the future reasonable or necessary.” It is altogether clear that, if the provisions of section 4 measure the respondent’s duty in the premises, a cross-walk from sidewalk line to sidewalk line was not contemplated, and cannot be required. The circuit judge was of the opinion, however, that the obligation of the company was enlarged by section 8, and that the provisions of that section, so far as they relate to crossings, are meaningless, unless some further requirement than that named in section 4 was intended. We do not find this difficulty. A reference to section 4 shows that the particular crossings required are not specified. The provisions of section 8 were apparently intended to make more certain the requirements imposed by section 4, namely, by requiring crossings at all cross roads, and private crossings where they now exist, or may in the future become reasonably necessary. We are all agreed that the character of the crossing required is fixed by section 4. It follows that the order of the circuit judge must be reversed, and the application denied, with costs of both courts. Hooker, C. J., Moore and Grant, JJ.; concurred. Long, J., did not sit.	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Hooker, C. J. At its 1901 session, the legislature passed local act No. 315, entitled: “An act to incorporate the public schools of the village of Jerome, Hillsdale county, Michigan; define the boundaries thereof, provide for the election of trustees and fix their powers and duties, and provide for the distribution of the territory of the disorganized districts.” By this act it sought to incorporate in one union and graded school district lands described in the act, which had previously been divided between several primary school districts. It named the persons who should constitute the first board of trustees, and provided for the distribution of long and short terms between them by lot; their successors to be elected by the electors of the district shortly before the expiration of their, respective terms. It provided that the primary and graded school law should apply to this district; and it may be said, in a general way, that it gave to the new district the property within its limits which had belonged to the respective districts from which it was created. It also required the new district to assume and pay the outstanding debts and obligations of the old districts. The new district did not include all of the lands comprised in the several districts from which it was organized, and the act provided that, within 30 days after the act should take effect, the board of school inspectors of the township of Somerset should meet, and attach to other school districts the portions of the several districts not included in the new. This proceeding is in the nature of a quo warranto against the persons constituting the board, to inquire into their right to exercise and enjoy the office of trustee of said new district, which they were doing at the time the proceeding was instituted, in the effort to carry out the provisions of the act. It was commenced in October, 1901, and it cannot be said to have been unreasonably delayed. Counsel for relatora attack the validity of this legislation. Their brief states the points thus: “ First. It deprives this school district or municipality of the right of local self-government, guaranteed to all municipalities by the Constitution. “ Second. The title to the act indicates, and the act itself embraces, more than one object. “Third. The act is broader than the title. The body of the act embraces many objects not covered by the title. “Fourth. The act, as passed, impairs the obligation of contracts, within the meaning of the Constitution of the United States and the Constitution of the State of Michigan.” Does this act impair the right of local self-government ? Cases have, of late, been frequent where legislation has been said to impair this right of local self-government, and it would seem that different views are entertained by counsel and by the public as to the character and extent of this alleged, right. It may, therefore, be profitable to consider briefly what it is, whence it is derived, and whether it has limitations upon it, or is itself a limitation upon the authority of the State. It is often alluded .to under the name of “home rule.” As descriptive of a policy, “home rule ” is a significant and appropriate term; but, as descriptive of a right, it is indefinite, for it is legally coextensive with the right of local regulation or control, and its extent must always be tested by the Constitution. The State, ■consisting of its electors, has absolute political power, except as limited by the Federal Constitution. Until the electors have adopted a Constitution, there is no public corporation, either municipal or quasi municipal, that can resist the authority of the State, which has power to create both, and to destroy them, and to make governmental ■agencies of them. It is not necessary to discuss municipal corporations proper, because we are not dealing with one; so we may pass them with the suggestion that, under repeated decisions, they exist through the action or acquiescence of the State; are subject to regulation and control by the State, except as qualified by the provisions of the United States Constitution; and this has application to interests in the nature of private rights only, which such corporations have and enjoy. The quasi corporations are radically different. They consist of counties, townships, school districts, highway ■districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are for and about the business and policies of the State, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, bridges, etc. This may be called a right or an obligation, according to the views of the citizen who is taxed locally for the several purposes; but, whatever it is called, it depends upon the Constitution or law of the State, and otherwise would not exist. If upon the Constitution, the legislature has not the power to change it; but, if upon an act of the legislature, it is so subject to change. There is danger of confusing rights derived from these different sources, and it is possible to erroneously conclude that any apparent injustice in legislation is an invasion of local rights of self-govern ment, and therefore’invalid, when that can be truly said only of such as invade constitutional rights of self-government. The school district is a State agency. Moreover, it is of legislative creation. It is true that it was provided for in obedience to a constitutional requirement; and, whatever we may think of the right of the district to administer in a local way the affairs of the district under the Constitution, we cannot doubt that such management must be in conformity to the provisions of such laws of a general character as may from time to time be passed, and that the property of the district is in no sense private property, but is public property, devoted to the purposes of the State, for the general good, just as almshouses and courthouses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general. We insert here from counsel’s brief the alleged infringements upon local rights, upon which reliance is placed: “ (a) The act names and appoints for definite terms (not provisionally) the officers of this municipality. “(5) It fixes definitely the site of the central school building for said district, and the uses to be made of said building, and does not allow the resident taxpayers and voters any voice in the matter. ‘ ‘ (c) It gives arbitrary power to a board appointed by legislative enactment (and to no other) to confiscate the property of the old districts, and fixes definitely what is to be done with this property; thus depriving the resident taxpayers and voters of all voice in the matter. “ (d) It fixes definitely what shall be done with the property of the old districts, and the uses to which it shall be put, and leaves absolutely no discretion in the local authorities nor in the trustees of said district. “ (e) It fixes definitely what shall be done with the territory of the old districts not included in the new district, and appoints by legislative enactment the officers that are to make the disposition of this territory. “ (/) It appoints by legislative enactment a board of school inspectors for this district, which are constitutional officers, and deprives the local taxpayers and voters of all voice in the matter.” Among the above points, our attention is naturally attracted to “c,” wherein it is stated that the territory excluded is deprived of any share of the public property. It does not seem to be denied that the legislature may change the boundaries of districts. That has been too often done to admit of question. Numerous school districts have lost territory through city charters, and the case of Keweenaw Ass’n v. School Dist. No. 1, 98 Mich. 437 (57 N. W. 404), is conclusive upon the point. See, also, Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391), and Pingree v. Board of Education, 99 Mich. 408 (58 N. W. 333). The authority of the legislature to change the boundaries of counties, -townships, and school districts does not necessarily involve the obligation to reimburse the portion deprived of the use of the public property. Frequently such laws contain provisions for the purpose, but it is not necessary. The property is public property, held and used for the purposes of the State, which may, in the absence of constitutional prohibition, make such disposition of it as it sees fit. Mr. Dillon, in his work on Municipal Corporations (4th Ed., § 185), in discussing the enlargement of boundaries, states the general rule: “Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory. And it is no constitutional objection to the exercise of thispoiver of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a pre-existing municipal indebtedness, since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the legislature to determine.” A-copious note fully vindicates the text. Again (section 187) he says: ‘ ‘ In connection with the power of the legislature to create municipal corporations and to determine their territo rial extent, reference may be made to the division of toions or public corporations by legislative act or authority. There is no restriction on the general power, unless it be found in the constitution of the State. In case of division, the legislature may, as we have already seen, apportion the burden between the two, and determine the px-oportion to be borne by each. In Connecticut, ‘ the legislature,’ says the supreme court, ‘ have immemorially exercised the power of dividing towns at its pleasure, and, upon such division, apportioning the common property and common burdens in such manner as to it shall seem reasonable and equitable.’ Accordingly it may impose on one town, upon such division, the entire expense of erecting and maintaining a bridge across a river which is the dividing line between the two towns.” And again, in section 188: “ So it has been frequently held that if a new corporation is created out of the territory of an old corporation, or if part of its territory or inhabitants is annexed to another corporation, unless some provision is made in the act respecting the property and existing liabilities of the old corporation, the latter will be entitled to all the property, and he solely answerable for all the liabilities.” In further elucidation of this rule, we quote section 189: ‘ ‘ But upon the division of the old corporation, and the creation of a new corporation out of part of its inhabitants and territory,-or upon the annexation of part to another corporation, the legislature may provide for an equitable appropriation or division of the property, aixd impose upon the new corporation, or upon the people and territory thus disannexed, the obligation to pay an equitable proportion of the corporate debts. The charters and constituent acts of public and municipal corporations are not, as we have before seen, contracts, and they may be changed at the pleasure of.. the legislature, subject oxxly to the restraints of special constitutional provisions, if any there be. And it is an ordinary exercise of the legislative dominion over such corporations to provide for their enlargement or division, and, incidental to this, to apportion their property, and to direct the manner in which their debts or liabilities shall be met, and by whom. The opinion has been expressed that the partition of the property must be made at the time of the division of or- change in the corporation, since otherwise the old corporation becomes, .under the rule just before stated, the sole owner of the property, and hence cannot be deprived of it by a subsequent act of the legislature. But, in the absence of special constitutional limitations upon the legislature, this view cannot, perhaps, be maintained, as it is inconsistent with the necessary supremacy of the legislature over all its corporate and unincorporate bodies, divisions, and parts, and with several well-considered adjudications.” See, also, Township of Springwells v. Wayne County Treasurer, 58 Mich. 240 (25 N. W. 329), which impliedly recognizes this rule. See, also, Perrizo v. Kesler, supra, where Morse, C. J., explicitly concedes this power to the legislature in a school-district case. Whatever we may think of the justice of this act (and we cannot say that the situation was not fully known and discussed by the legislature), we cannot doubt the legislative authority to change these districts, and provide for the disposal of their property and payment of their debts, as was done in this case. The law is said to fix the site of a school building. This is not usual, but we are not convinced that it is beyond the power of the legislature to locate its schoolhouses, courthouses, and almshouses. No authority is cited to the contrary, and, without deciding the question, we may say that the sites alluded to had already been located, and one built upon, by the districts. In saying that these should be deemed to be, respectively, a schoolhouse site and the central schoolhouse for the new district, the legislature, if it had not the power to fix beyond revocation such sites, can easily be held to have made a provision which was directory merely, and, whatever we may think of their power in the premises, no one would claim that it was designed to forbid future action by the board, and we might safely eliminate the provision, if necessary to sustain the act, in accordance with a common and well-understood rule. But it.is said that some of the territory was left out of the new district, and that the legislature fixed definitely what should be done with it, and appointed the officers who should attach it to new districts. I£ this opinion is correct upon the first point discussed, it cannot be doubted that the legislature might itself have attached this territory to specific districts. This it did not do, but attempted to confide the subject to the township school inspectors. This was the board authorized to deal with such questions, and had been elected by the township for such purposes. This cannot be said to be an appointment by the legislature, within the case of Moreland v. Millen, 126 Mich. 381 (85 N. W. 882). The further objection is made upon the ground that the officers were named by the legislature, and their terms fixed at one, two, and three years, respectively. We understand that four of these have been superseded by 'Successors duly elected. Presumably, two still hold their offices, and, if the legislature had not the power to appoint them, the district should have filled them under the general law. We are of the opinion that the Constitution refers to school districts as they existed under our previous Constitution and laws, and that it was expected that they would be managed by local officers, and therefore that the rule laid down in Moreland v. Millen applies as to .officers. The officers were named by the legislature for unnecessarily long terms, even if it be supposed that the appointments were intended to be provisional. Under the general law, the offices might have been filled, and may be yet. We understand from counsel, though the record does not appear to so state, that only four of respondents do not now hold under such appointment, if they are still acting as officers. The other two unlawfully hold the office, but we have no means of telling which ones of the six they are. Perhaps this is not important, as the attack seems aimed at the legislation, rather than the appointees. The other two points need little discussion. We have so often discussed titles to acts that the law is pretty well understood; and we therefore content ourselves with say ing that, in onr opinion, this title does not indicate more than one purpose, which is to give school facilities to all of the territory mentioned, under changed conditions. Nor do we think the act broader than the title. We have already shown that the obligation of contracts is not impaired. The districts did not hold this property' under any contract with the State, but as a public agency. The judgment of ouster should be affirmed as to such officers as now hold under the legislative appointment, if there be any thus holding. As to others, if any, it will be reversed. Neither party will recover costs. Montgomery, J., concurred with Hooker, O. J.	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Montgomery, J. The plaintiff recovered a judgment of $300 in an action against the defendant based upon the defendant’s failure to keep a certain highway in a condition reasonably safe for-travel. The testimony tended to show that the highway in question, on the west side of Black Lake in defendant township, consisted, in one portion of its length, of a corduroy way some 30 to 40 rods in extent; that the plaintiff had occasion to go to the farm of one John Grant to get some hay, which he had contracted for; that the usually traveled way was the one in ques tion; that he started out two teams in charge of drivers, and that he himself followed with a single driving horse. The testimony further tended to show that the corduroy was not in good condition, and that, while crossing this portion of the road, the plaintiff’s driving horse stepped on a rotten piece of corduroy, and broke through, receiving injuries. Plaintiff repaired this place in the corduroy, and proceeded to the residence of Mr. Grant, caused the hay to be loaded, and started the teams in charge of the drivers homeward, cautioning the drivers to use care in crossing the corduroy. In crossing, one of the teams passed safely, but the other broke through. There was another road on the opposite side of the lake, but it was a much longer route, and there was some testimony to the effect that a bridge on this road was out of repair. Plaintiff testified as follows as to his knowledge of the condition of the road: “This road is a pretty bad piece of road. The corduroy is dangerous to drive over. I can’t say that I ever drove over it when I considered it was not dangerous. I had not driven over it that summer since the snow went off. I told my men to be careful. I found enough to warrant me in telling them. I went down to look after the men, to see if they got through all right, and, if anything happened, to help them out. I told them to be careful on the corduroy when they started from home. “ Q. What did you say to them ? “A. Why, I told them to be careful in going over, and they would get over all right, Other teams had done the same, and I supposed I could, and charged them to be careful expressly on the corduroy. “ Q. You knew there was a poor road there, didn’t you? “A. Yes, but what difference would that make to me? How could I help it ? “ Q. ■ Then you was a little °kittish about that highway? You stopped, and tied your horse, and went to help these other teams; is that the idea ? “A. No, I tied the horse, and followed them along, so that, if anything happened, I would be there to help them. “ Q. Why did you do that ? • “A. Why, I knew it wasn’t altogether right. I knew that there might be a chance to get them horses in. I just tied my horse there, because, if one of the teams got hurt, I didn’t want to get out and in again. I knew that there was a better chance of them getting in than her. ‘ ‘ Q. The first team got over all right ? “A. Yes.” At the close of the plaintiff’s case, an amendment to' the declaration was permitted in the statement of the number of the town and range. Plaintiff recovered for the injury to the driving horse, and also for the injury to the team. Two questions are raised by this appeal: First, was the amendment properly permitted ? and, second, was the plaintiff guilty of contributory negligence, as a matter of law, in attempting to pass over the way ? The amendment was properly allowed, as the declaration on its face showed that the attempt was to describe a highway in the defendant township, and the misstatement of the town and range was a clerical error, which could not have misled the defendant. We are not prepared to hold that the knowledge which the plaintiff possessed that this highway was in general in a dangerous condition precluded him from the right to attempt to pass over it, using care for that purpose. He knew that the highway was in constant use; that others were daily using it. And while he knew that it was not in perfect condition, we are not prepared to say that he must be held bound to have anticipated the exact danger encountered. There are cases in which one knowing of the existence of a hole in the way, or a particular defect, stepping into which would necessarily result in injury, has been held guilty of negligence in walking into such danger. In such cases the exact danger is known and assumed. Such cases are Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868); Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844); King v. Township of Colon, 125 Mich. 511 (84 N. W. 1077). But the true test is, Was the danger arising from the kndwn defect obvi ously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the highway at that point ? If not, it is not negligence, as matter of law, for one to attempt to pass over a highway known to be defective. Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Laughlin v. Railway Co., 62 Mich. 220 (28 N. W. 873); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7). See, also, 15 Am. & Eng. Enc. Law (2d Ed.), 470. Had there been an accessible way to drive around this corduroy, or to turn the team out to pass it, the case might have been different. We think it was not error to submit the case to the jury. Judgment affirmed. Hooker, O. J., Moore and Grant, JJ., concurred.	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Montgomery, J. This is an action of replevin for a quantity of coal, which was seized by the defendant, as marshal of the city of Gladstone, for a personal tax that had been assessed upon the roll of that city for the year 1900. The assessment is made to “J. M. Beattie, agent for the Pioneer Fuel Company.” The tax extended is $964.58. As the case stood at the close of the testimony, there was, in addition to the facts of the assessment and the seizure by the marshal, evidence that the coal, which was assessed in the manner above stated, was not the property of the plaintiff, but was the property of the Erie Railroad Company; that it was stored at Gladstone; that from time to time shipments were made from it, under a contract, to parties resident of Minnesota; but that shipments from this mass of coal were also made to residents of Michigan. At the close of the testimony, the circuit judge directed a verdict for the defendant for the amount of the tax, with interest. The plaintiff, by this appeal, presents four- questions: It is contended — First, that the marshal had no authority to make the levy, the warrant being directed to the city treasurer; second, that the property was not assessed to the plaintiff, but to Beattie, and •that the process is not process against the present plaintiff, but against Beattie, and that plaintiff’s property cannot, therefore, be seized; third, that the procedure under the tax law, being directed against the property of the plaintiff, who is a nonresident, and claims not to be the owner of the property assessed, is not due process of law; and, fourth, that the coal assessed was in transit, and the subject of interstate commerce. As to the first question, it is conceded by plaintiff that, if the amendment incorporated by'Act No. 349 of the Local Acts of 1897, which purports to authorize the marshal to collect taxes, is legal, the proceedings are regular. Without discussing at length the criticism made upon this enactment, it will suffice to say that the act is not unconstitutional for the reasons urged, and that authority for this holding will be found in People v. Judge of Superior Court of Grand Rapids, 39 Mich. 195, Fort-St. Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631), and Common Council of Detroit v. Schmid, 128 Mich. 379 (87 N. W. 383). Under the showing made, we think, also, that the point that the assessment of this property is an interference with interstate commerce is without force. It appears that from this mass of coal shipments were being made to cities within the State, and, as the circuit judge rightly held, if any portion of the coal was assessable in the city of Gladstone, this action will not lie. The question remains whether, under an assessment in form such as this, property of the present plaintiff could be seized, where the property assessed was not the property seized, and not the property of the present plaintiff. It is conceded in the brief of plaintiff’s counsel that, had the property actually assessed been seized, it would be immaterial in what name it was assessed. But it is contended that, the plaintiff being a nonresident of the State, and not in fact owning any property subject to the jurisdiction of the taxing officers, it is not due process of law against this plaintiff to assess property of a third party to plaintiff’s assumed agent, and then subject the plaintiff’s own property to the payment of the tax. 1 Comp. Laws, § 3837, provides for the assessment of property, under circumstances such as those existing in the present case, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse. Section 24 of the tax law (Id. § 3847) provides that assessments to one other than the owner shall show in what capacity it is assessed to him; and, as we held in Spanish River Lumber Co. v. City of Bay City, 113 Mich. 181 (71 N. W. 595), this section does not limit the authority conferred upon the assessing officer by section 3837, to assess property to the person having control. It is very clear that, under the authorities, the assessment to the person having control makes such.person personally responsible for the tax. See Forster v. Brown, 119 Mich. 86 (77 N. W. 646); Spanish River Lumber Co. v. City of Bay City, 113 Mich. 181 (71 N, W. 595); Township of Orion v. Axford, 112 Mich. 179 (70 N. W. 417); Minneapolis & Northern Elevator Co. v. Traill County, (N. Dak.) 82 N. W. 727, 50 L. R. A. 266; Lockwood v. Johnson, 106 Ill. 334. This tax was, therefore, a valid tax against Mr. Beattie. Was it also a valid tax against the plaintiff? To determine this, we may ask, Against whom should suit have been brought to recover the tax? If brought against Beattie, we .think he could not have defended successfully upon the ground that he was described in the assessment as the agent of the Pioneer Fuel Company, if, as a matter of fact, he was the person having control of the property, as must be assumed from the assessment. We think it could not be said, therefore, that it was an assessment against the Pioneer Fuel Company, which would entitle the municipality to bring suit to recover the tax. Reliance is had upon section 99 of the tax law (1 Comp. Laws, § 3922), which provides that no tax shall be held invalid on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, etc. This curative provision might be urged if the property assessed were that in con troversy in the case, or, possibly, if the .plaintiff were shown to be the actual owner of the property assessed. But neither of these facts is conceded on the present record. For a discussion of the question of when replevin will lie for property seized under a tax warrant, see Forster v. Brown, 119 Mich. 86 (77 N. W. 646). We think the present case comes within the line of cases there discussed, in which the property of plaintiff has been seized for a tax assessed against a third party. It follows, from the views expressed, that the judgment of the circuit court must be reversed, and a new trial ordered. ' Hooker, C. J., Moore and Grant, JJ., concurred.	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Per Curiam. Lee Mills, a juvenile offender, was sentenced to the “reform school” at Lansing upon his plea ■of guilty. The record indicates that the statute (1 Comp. Laws, § 2261) requires a report from the county agent to be made after the arrest and before further proceedings. That said report must be in writing is clear, for the reason that the law provides that it shall be attached to the commitment if the offender is sentenced to imprisonment. As the commitment is dated October 16, 1901, while the report attached is dated five days later, it is manifest that the-statute was not complied with. The prisoner is therefore discharged.	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Grant, J. Respondent was convicted of resisting an officer. The treasurer of the village of Benzonia, in July, 1901, by virtue of his tax roll and warrant, levied upon certain personal property as the property of Otis Smith for a tax levied against him. While in the act of removing it, the respondent interfered, and resisted the officer. Two defenses were interposed: 1. That the property seized belonged to respondent, although in the possession of Otis Smith, and he offered to show ownership in himself. 2. The illegality of the organization of the village of Benzonia. Both defenses were ruled out, and respondent was convicted. Upon the first point counsel for respondent relies upon People v. Clements, 68 Mich. 655 (36 N. W. 792, 13 Am. St. Rep. 373). In that case a sheriff levied u'pon exempt property, and it was held that the debtor was not compelled to submit to a trespass without reasonable resistance. That case does not apply to property not exempt, and which is seized by virtue of a tax' warrant, and the officer has already seized and is in possession of the property. The treasurer in this case loaded the property, and was in the public highway in the act of removing it, when the repondent forcibly interfered. Under Sears v. Cottrell, 5 Mich. 251, the levy was lawful. The village of Benzonia was organized by an act of the legislature in 1899. Its organization cannot now be collaterally attacked. Carleton v. People, 10 Mich. 250, 255; Coe v. Gregory, 53 Mich. 19 (18 N. W. 541). Conviction affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.	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Moore, J. This is an appeal from an order of the probate court approving the findings of a jury in condemnation proceedings brought under the provisions of 2 Comp. Laws, §§ 6361-6366, inclusive. The petition averred that petitioner was a body corporate organized under Act No. 244, Pub. Acts 1881; that its capital stock had been subscribed as required by the act; that it had surveyed its depot grounds and the route of its proposed tracks, made a map, etc., and filed it in the register’s office. “Your petitioner further shows that the lands and properties hereinafter described are required and necessary for the purpose of its incorporation, and that the taking thereof is necessary for public use, to wit, for the purpose of your petitioner’s incorporation in constructing, operating, and maintaining its said railway freight and passenger depots, with the necessary railroad tracks, dock and wharf properties, and the appurtenances thereto, and as and for a right of way; that under this petition the said Benton Harbor Terminal Railway Company seeks to acquire title as and for a right of way, by special proceedings under the statute of the State of Michigan in such cases made and provided, to the following described pieces or parcels of land, situated in the county of Berrien and State of Michigan.” Then followed a description of nine different parcels of land, with a statement as to who owned them, respectively, .with a further statement that the petitioner had been unable to acquire title to the lands, and asking for the appointment of commissioners “to ascertain and determine the necessity for taking and using each of said parcels of land, and all of said land, by your petitioner, for the purpose aforesaid, and, if they deem the same necessary to be taken for the purpose aforesaid, to ascertain and determine the damage or compensation which ought justly to be paid by your petitioner to the several parties interested therein, and to each of them, in manner and form as required by law.” An order was made by the court, which was served upon all the respondents. On September 20, 1901, Weldon Bros, entered their appearance for Charles W. Hall. Gore & Harvey entered their appearance for Alexander C. King and Julia King, William S. Dunbar and Alice T. Dunbar, and William Hamilton, Angelina G. Hamilton, and Theodore W. Hamilton. Motion on behalf of all the respondents was made to dismiss the proceedings because : “1. The petition is filed under an act to authorize the incorporation of companies for the construction of union railroad stations and depots, with the necessary connecting tracks, and. the management of the same (Act No. 244, Pub. Acts 1881, approved June 9th); and said petition fails to show that it is filed on behalf of any company or companies whose existence and business render the condemnation of lands necessary for the purposes stated in said act. “2. Said petitioner, as incorporated, is not entitled to the lands prayed for in its said petition, for the reason that the property sought to be condemned is not for ‘union railroad stations and depots,’ but it affirmatively appears to be for general railroad purposes, as stated in paragraph 4 thereof.” Motion to dismiss proceedings was denied. Answer of Chai'les W. Hall was filed. Mr. Hall demanded a jury," and one was summoned. After the jury was sworn, Mr. Hall demanded a separate trial, which was denied. After the jury was sworn, the following occurred: V. M. Gore, one of the attorneys for the respondents, demanded of said jury that the testimony be taken in writing, and that a stenographer be employed to take the testimony offered in the case. The court thereupon instructed the jury that a stenographer was not necessary, unless they desired the services of such stenographer, and the jury could take such testimony themselves as they wished. Mr. Gore excepted to the remarks of the court. No further action on this matter was taken. The jury were then provided with paper for the purpose of making such notations as they desired. Several witnesses were sworn upon the part of petitioner. The attorneys expressed a desire that the jurors visit the premises. They did so. After viewing the premises, three witnesses were sworn on behalf of the petitioner. Several witnesses were sworn upon the part of the respondents. On convening at 1:30, the jury expressed a desire to hear no more testimony, unless the parties had proofs on new points. Mr. Gore remarked they would offer no more testimony, as they did not wish to offer testimony unless the jury desired to hear it. The court asked Mr. Gore if he desired the respondents King or Dunbar to tes tify. Mr. Gore replied he did not. Mr. Weldon desired to introduce further proofs, and the following-named witnesses were sworn and testified on behalf of the respondent Charles W. Hall: Seeley McCord, J. N. Norrington, and F. E. Avery. Testimony then closed. The jury'declined to hear arguments of counsel. A vote of the jury was then taken by the court, which resulted in a unanimous vote declining to hear arguments of counsel. The jury were then instructed by the court that it was their duty first to find whether it was necessary to take the private property described in the petition in this cause for the use and benefit of the public for the proposed public improvement, and, if they found that the taking of this property was necessary, they should make a return to the court in writing that the taking of the property was nec-. essary, and fixing the compensation and damages to be paid to the persons owning such property for the property taken for this purpose described in the petition. The jury then retired to a private room in charge of Martin Dwan, deputy sheriff. At 11 o’clock p. m. the jury rendered their verdict in writing, signed by all of said jurors, finding said proposed public improvement to be necessary, and awarded the compensation to be paid for such property as therein described as follows: William Hamilton, Angelina G. Hamilton, Theodore W. Hamilton, $850; Alexander C. King, Julia King, $150; Charles W. Hall, $450; William S. Dunbar, Alice T. Dunbar, $150. The Hamiltons did not appeal. The others did. The three cases involve practically the same questions. It is said: “1. The respondents were denied their rights and greatly prejudiced by the refusal of the jury to take the proceedings in writing, as' required by law, upon request of the respondents. “2. The respondents were prejudiced by the jurors proceeding to hear all the testimony concerning the several tracts of land jointly, and rendering one finding thereon, instead of obeying the statute, and determining the necessity for taking each parcel separately. “3. There was no evidence of public necessity for taking the said lands. “4. It nowhere appears in the record that the jurors were residents of the county of Berrien. “ S. The jury refused to hear the arguments of counsel, and the jury determined the question of public necessity and the important question of damages without any instructions from the court or counsel with reference to the elements of damage the jurors should take into consideration in such case.” The record shows the request was not simply that the testimony be taken in writing, but was coupled with a request that a stenographer be employed. When the jury were told by the judge that a stenographer was not necessary unless the jury desired it, counsel did not then request that the testimony be taken in writing, but appeared to acquiesce in letting the matter pass. There is nothing in the statute which requires the jury to employ a stenographer ; and it is not made to appear that the jury refused to have the testimony reduced to writing. As to the action of the jury in hearing testimony as to the several descriptions of land, the jury followed the requirements of section 6363. As to the third objection, the testimony is not all before us, and we cannot say there was no evidence that there was a public necessity to take the land. As to the suggestion that the record does not show that the jurors were residents of Berrien county, that objection was not made in the court below, but the parties appeared and took part in the trial. If in fact the jurors had not been residents of Berrien county, it is altogether likely the objection would have been made before the trial proceeded. It is too late to raise that question now. As to the suggestion that counsel had a right to be heard by the jury before they rendered their verdict: The jury had viewed the premises, and had listened to such testimony as the parties presented. It does not appear that the respondents insisted upon the right to be heard by counsel. The record does show that considerable tes timony was taken after 7:30 o’clock in the evening, and the verdict of the jury was rendered.at 11 o’clock at night. There is nothing in the record to show that, if counsel had insisted upon being heard, the jury would have refused to hear them. We are not called upon to say whether, under the statute, it would be error for the jury, after they have viewed the premises and listened to the witnesses, to refuse to hear counsel when counsel insist upon being heard. The record discloses an attempt to comply with all the essential provisions of the statute, and we think there was such compliance. Fort-Street Union Depot Co. v. Jones, 83 Mich. 415 (47 N. W. 349), and cases there cited. The judgment is affirmed. Hooker, C. J., Grant and Montgomery, JJ., concurred.	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Montgomery, J. The plaintiff is a Michigan corporation, with headquarters at Adrian, incorporated for the purpose of “the buying, selling, and merchandising of cheese, all kinds of meats, fruits, vegetables, canned goods, groceries, oysters, and all kinds of fish and provisions.” The defendant is likewise a Michigan corporation, incorporated for “ the buying and selling of live stock, the slaughtering, packing, and selling the same, both at wholesale and retail, the rendering of fats, and dealing in all kinds of meats, both salt and fresh, and pork and beef .products, and transacting all business incidental thereto.” Beginning in 189?, an account appeared upon the books of defendant company headed “Da Z. Mason,” and was opened under the following circumstances, as testified to by Mr. Craig, defendant’s manager: “In 189? Mason was at our office at one time, and he wanted to buy some lard in Chicago, and said that he wasn’t acquainted with any commission firm over there, and wanted to know if we could accommodate him by buying some goods for them; and I explained to him how the commissions were. I told him that they would buy and sell for 6.25; that they usually charged 6.25 for buying, and 6.25 for selling. I told him I could save him a little that way, and that we would be glad to accommodate him. Nothing was said at that time about the name in which the account should be carried. I told him my brokers over in Chicago were Hately Bros. * * * We sent money for Clark, Mason & Co. before they gave it to us, because we had guaranteed to Hately Bros, the account of A. Hayward, our traveling salesman, in whose name these deals were made; and therefore we were responsible, in a way, for that money, and we had to send it as soon as called for. I talked with Mason about it. I had told him previously that when we were called on for money he must send it as soon as it was called for, and he didn’t always do it. * * * When the $200 came in, I" didn’t know exactly what to do. I had to make some entry to keep a record of it. I didn’t want to put it into Clark, Mason & Co.’s 30-day business, and so, as a memorandum, I put it right under their account, and opened it, ‘Account of Ira Z. Mason,’ so as not to get it mixed up with the regular 30-day business; and I gave them credit for the $200 there, and charged them with the $500 sent to Chicago. There was no credit business in Chicago; it was all cash. I remitted to Chicago all the moneys that were sent from Adrian, — to Hately Bros. * * * Mr. Hayward was one of our traveling salesmen, and we had guaranteed his account with Hately; and we didn’t want to guarantee Clark, Mason & Co.’s account, and we didn’t want to have it mixed up with our own business. . We were dealing ¡with Hately, and we put it that way so as to keep it separate and distinct, so that it could be traced,— not mixed up with our business. Mr. Mason was informed of that. He knew it was in the name of Hayward when he came in the next time.” This commission business continued during the years 1897 and 1898, and until November, 1899. During a considerable portion of this period remittances were made by the checks of Clark, Mason & Co. There was testimony tending to show that the transaction was a transaction on behalf of Mason, although the defendant’s testimony controverted this; and the plaintiff sued to recover upon the grounds: First, that the dealings were the personal transactions of Mason; that, without authority to do so, he used the plaintiff’s money; and that the fact that checks were drawn on the bank account of Clark, Mason & Co. was sufficient notice to put the defendant upon inquiry; and, second, that, if the transactions were not the personal transactions of Mason, they were gambling transactions, in which Clark, Mason & Co. did not, nor did Parker, Webb & Co., intend any actual sale or purchase, nor any actual receiving or delivery, of the lard, but both intended that accounts should be settled by the payment of differences, according as the market price of lard might rise or fall. The court below left it to the jury to determine whether or not these transactions were those of Mason individually, or of Clark, Mason & Co.; but complaint is made of the instructions given to the jury as to the plaintiff’s rights in case the jury should find that the deals were the personal deals of Mason. The defendant, in this court, contends that in no view of the case was the plaintiff entitled to recover against the defendant. A careful examination of the record leads us to the conclusion that this contention is sound. The testimony of the directors is that no such business as that attempted to be transacted was authorized by the board of directors of Parker, Webb & Co. It is also in evidence, and, so far as we discover, undisputed, that a majority of the directors remained in ignorance of these transactions until after they were closed. It is to be noted that the plaintiff was not misled in any way 'by an appearance of authority on the part of those connected with the business. We think it is manifest that no authority in fact existed. The defendant company was not organized to act as a gratuitous agent. It appears that the attempted services which Mr. Craig undertook to render for Mason, or for the plaintiff, were entirely gratuitous, and rendered as an accommodation. Neither the articles of incorporation nor any authority of the board of directors conferred upon him this power. The company was the mere conduit through which these funds were transmitted. No benefit whatever inured to the defendant company. While, if the money had remained in the hands of defendant, it might be recoverable, the mere fact that it passed through its hands does not entitle the plaintiff, to an action for money had and received. See Wixson v. Haywood, 33 Mich. 68. The case presents a very different aspect than it would had the dealings been for the ostensible benefit of the defendant corporation. But the party representing the plaintiff, or acting on its behalf, was in no way misled by any apparent authority of Craig. He knew that the transaction was not engaged in in the interest or on behalf -of the defendant company, or, at most, with any idea of profit to the company, but that it was solely for the benefit of either himself or the corporation which he represented. Under such circumstances, the same - considerations which would deny to defendant the right to assert that the plaintiff’s agent, Mason, was acting within the line of his authority, entitled the defendant to assert that Craig was acting without authority from his board of directors. See Shavalier v. Lumber Co., 128 Mich. 230 (87 N. W. 212); Merchants’ Nat. Bank v. Detroit Knitting & Corset Works, 68 Mich. 620 (36 N. W. 696); Rice v. Peninsular Club, 52 Mich. 87 (17 N. W. 708); 7 Am. & Eng. Enc. Law (2d Ed.), 790, and cases cited. We think the case should have been determined upon the ground that the contract was wholly ultra vires, so far as the defendant corporation was concerned, and that, as no benefit accrued to that company, no recovery should be had. Judgment affirmed. Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.	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Hooker, C. J. The plaintiff, a married woman, recovered a verdict and judgment of $750 against the defendant village by way of recompense for an injury suffered through a fall occasioned by a loose board in a sidewalk. The defendant has appealed. The accident is said to have happened in the evening after dark. She was walking with two of her children, when she was tripped by the board, which flew up in front of her as one of the children stepped upon its end, outside of the stringer. There was evidence tending to show that the walk was old, and that the boards had been loose for a long time. The plaintiff testified that she knew that the boards in the walk were accustomed to rattle as they were walked upon. Several witnesses were examined, and testified in relation to the walk, and error is alleged upon the ground that this testimony was not confined to the place of the accident, and that it was not properly restricted in point of time. The accident happened near an alley, and the testimony referred to a board walk in front of a lot owned by McKay, upon which the woman fell. It was plaintiff’s theory that the stringers were rotten, and did not hold nails well, and it was competent to show the general character and condition of that walk. Campbell v. City of Kalamazoo, 80 Mich. 660 (45 N. W. 652); O’Neil v. Village of West Branch, 81 Mich. 546 (45 N. W. 1023); Fuller v. City of Jackson, 92 Mich. 205 (52 N. W. 1075); Grattan v. Village of Williamston, 116 Mich. 463 (74 N. W. 668). Witness Congdon was asked to state the condition of the walk, and replied that he did not think it good. He proceeded to describe it. Mrs. Clifton answered a similar question by saying that it appeared to be in bad condition. Plaintiff’s counsel at once admonished her that her answer was not proper, and asked her to state the shape that it was in. Both questions were objected to when asked, and an exception was taken to the answer given by Mrs. Clifton. It is obvious that, if the witnesses gave opinions of the condition of the walk, they were not asked to do so, and counsel could not well have prevented it. It was corrected at once, and should not be made a ground for a reversal of the case. One Gillum testified that he repaired the walk a short time before the accident, and it is insisted that this made testimony regarding its previous condition immaterial. He was called by the plaintiff, and testified that he was street commissioner; that he found this walk in front of McKay’s premises in bad condition, the stringers gone,— rotted out; that he could not nail through and get the boards to stay down; that he reported that condition to the council; and that he was directed to take stuff and patch it up. He visited the place and nailed the board in. The stringer was so that it wouldn’t hold the nails; and he said that he “kind of toe-nailed them crossways to the other boards.” That the council had notice of the defective condition of this walk, if Gillum’s testimony is true, admits of no doubt. Their duty was then to put it in a condition reasonably safe and fit for travel. That duty was not discharged by sending a man to repair it. It was therefore for the jury to determine whether the repairs made by Gillum were such as to render the walk reasonably safe and fit for travel. Counsel beg the question when they ask us to assume that Gillum’s repairs were adequate because his statement that he made repairs is not directly contradicted. We think no error was committed in admitting the depositions. No exceptions were taken to one, and the condition upon which the other was to be read was complied with. There was prima facie proof that the witness could not attend court, and no attempt was made to contradict it, except by the unsworn statement of counsel. The hypothetical question objected to is not open to the objection made, as there was testimony which warranted it. Moreover, the objection, when made, was very general, and did not point out what facts were assumed by the question. A piece of wood was offered upon the claim that it was a part of the stringer of the walk. It was not claimed that it came from the exact spot where the accident occurred, but that it was a part of the stringer in immediate proximity. It was said to have been taken from the walk after it had been taken up. We think the testimony was competent. It is unnecessary to discuss the questions raised upon the testimony of witnesses Potts and Shockley, further than to say that, if the questions asked the former were improper, they elicited no harmful testimony, and it was within the discretion of the circuit judge to permit questions tending to show Shockley’s interest as a taxpayer. A number of errors assigned relate to the charge. Counsel asked that the jury be instructed that the plaintiff was guilty of contributory negligence and could not re cover. We think that this was a question for the jury. A way might be in condition which would justify a court in saying that it was negligent to attempt to walk upon it; but that cannot be said of all highways that are out of repair, or that are not reasonably safe and fit for travel. They afford the only avenue for locomotion from place to place, and the exigencies of life are such that persons may go upon highways, though not in perfect condition, using reasonable prudence and care under the circumstances. Usually these questions are for the jury, as it was in this case. Mackie v. City of West Bay City, 106 Mich. 242 (64 N. W. 25); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517). Other cases are also cited by counsel. It was proper to leave the question of the extent of the plaintiff’s in jury to the jury, although the physician called to see her did testify that her injury was trivial. We think the court did not err in refusing to give the requests of counsel. Some of them have been covered by what has been said, and of others it is sufficient to say that the charge as given covered their substance. We think it was competent for the jury to award damages for plaintiff’s expenditures in and about her sickness, and she was under no obligation to this defendant not to compensate her nurse merely because she had made no charge, and she is not compelled to lose her damages of any kind merely because she does not prove the amount with mathematical precision and certainty. The circumstances being laid before the jury, they ascertain the amount that it is reasonable to believe will be compensatory. The court said to the jury that “fright and suspense may be treated as elements of damage.” If there was no direct proof of fear as to the consequences, and suspense, they are readily inferable from the circumstances, and. it was not error to leave these questions to the jury. The statement of the plaintiff immediately after her fall was properly treated as a part of the res gestee; and, if this accident happened after dark, there was no error in stating to the jury that it is the duty of the village to keep its sidewalks in a condition reasonably safe and fit for travel by night as well as by day. There is proof that the accident occurred after 5 o’clock on the evening of December 19th, and that it was after dark. It was therefore proper to instruct the jury upon that theory. The motion for new trial was passed upon by the circuit judge, and we think his order denying it should not be disturbed. The judgment is affirmed, Moore, Grant, and Montgomery, JJ., concurred. Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 13 Am. St. Rep. 457); Fuller v. City of Jackson, 82 Mich. 480 (46 N. W. 721); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 35 Am. St. Rep. 561); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7); Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).	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Marston, J: Plaintiffs in error, as co-partners, engaged in the business of banking, on the 22d of October, 18?3, issued a certificate, of which the following is a copy: “Certificate of deposit. Not subject to check, and no interest.” “$800. S. A. Tripp & Co., Bankers, 1 “South Haven, Mich., Oct. 22, 1873. j “Daniel Howard has deposited in this bank eight hundred dollars, payable to the order of himself, in current funds, on the return of this certificate properly endorsed. “No. 265. $800. “S. A. Tripp & Co.” Howard endorsed this certificate and transferred it to B. H. Dyckman, who, being indebted to the defendants in error, bankers at Kalamazoo, delivered to them this certificate to apply upon his indebtedness, shortly prior to February 14, 1876. The certificate was presented for payment February 14th, 1876, and payment refused, and an action was commenced March 10th following to recover the amount thereof. Hpon the trial counsel for plaintiffs in error offered to prove that four hundred and sixty-two dollars and six cents had been paid upon this certificate at or about the time it was issued, leaving a balance which had afterwards been tendered to Dyckman while he held it, and since then paid into court. This evidence was objected to, principally upon the ground that the plaintiffs below were hona fide holders. The objection was sustained and judgment rendered for the whole amount of the certificate. In Cate v. Patterson, 25 Mich., 191, it was held that a certificate of deposit, similar to the one issued in this case, contained all the elements necessary to constitute, and was in legal effect a promissory note, and such is the undoubted weight of authority, as will appear from the cases collected and cited in the brief for plaintiffs in error. This being the case, it is difficult to see .why the principles applicable to promissory notes, payable on demand, should not apply to this class of paper. It is but a promise to pay money on demand, without interest, which indicates an intention to leave it on deposit but for a short period. It is argued that a certificate of deposit and a certified cheek are in legal sense the same thing, are governed by the same rules, and that no mere lapse of time will render such check or certificate' past due or dishonored. The authorities cited to sustain this view are Willets v. Phœnix Bank, 2 Duer, 121; F. & M. Bank v. B. & D. Bank, 4 Kern., 624; Smith v. Miller, 43 N. Y., 176; Meads v. Merchants’ Bank, 25 N. Y., 147; Merchants’ Bank v. State Bank, 10 Wall, 648; and Girard Bank v. Bank of Penn, 39 Penn. St., 92. In these cases the court in discussing the legal qualities and effect of a certified check, likened it to a certificate of deposit, and held, that a check, when certified good by a-bank, cannot be dishonored by lapse of time alone; that the bank, when it so certifies a check, at once charges the amount thereof up to the drawer on his account, and that funds are retained from that time by the bank to meet such check. Upon a very careful examination we were able to find but one case where the question came up directly upon a certificate of deposit. In the case of The National Bank of Ft. Edward v. Washington Co. National Bank, 5 Hun, 605, it was held that where a bank issues a certificate of deposit, payable on its return'properly endorsed, it is liable1 thereon to a bona fide holder, to whom it was transferred seven years after its issue, notwithstanding a payment thereof to the original holder; that such a certificate was not dishonored until presented. The reasoning in this case is not very satisfactory, the court laying stress apparently upon the fact that the certificate is payable only upon its return, and also the fact that it was issued by a bank. The first argument is equally applicable to a promissory note. Such paper is properly payable only upon presentation and return, and the mere fact that the instrument is issued by an individual, copartnership or corporation engaged in the banking business, cannot, in our opinion, or at least should not, make any difference. Certificates of deposit are not intended for long circulation, or for more than a temporary convenience, and as a substitute for a draft or a certified check; and to hold that any ostensibly demand paper could be circulated and used as bank bills, would be contrary to the general policy of our banking laws. Bank bills, notes, or other evidences of debt issued by any bank, are excepted from the provisions of our statute relating to the limitation of actions. — § 7151, Q. L. The notes here referred to are the circulating notes,' in the similitude of bank notes, of the different denominations authorized to be issued under our general banking law, and would not include certificates of deposit, — Gomp. L., § 2192j while the other evidences of debt has reference to the ordinary deposits which arer like a running account, on which the time of limitation only begins when there is a special occasion for making a new departure. But upon all demand paper not excepted by the statute, the time runs from the beginning, and no one can become a Iona fide purchaser who does not take it within some reasonably short period. To hold otherwise, would enable banks to issue certificates •of deposit, of any denomination, for circulation as ordinary bank bills, and with' a like effect. In Brummagim v. Tallant, 29 Cal., 503, it was held that the statute of limitations begins to run against a banker’s certificate of deposit, payable on demand, from the ■date of the same, and that no special demand is necessary to put the statute in motion. We think this is the safer and better doctrine, and is correct in principle. To hold such instruments to be in legal effect promissory notes payable on demand, and yet not apply the principles applicable to demand promissory notes, either because of the peculiar form of the instrument, or because issued by a firm engaged in the business of banking, would be to create a distinction unsound in principle and one not warranted by any reason ■or necessity that we can discover. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.	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Cooley, Ch. J: This action is brought to recover back four hundred dollars paid in the plaintiff’s name on a contract for the purchase of lands. The contract was entered into April 24, 1875, and purports to be between Jesse C. Widoe as vendor and Henry Armitage as vendee. The purchase price was thirteen thousand dollars, of which three thousand dollars was payable on or before May 10, 1875, and the balance in ten annual installments of one thousand dollars each, with annual interest. Henry Armitage was about seventeen years of age at the date of .the contract, and his name was signed to it by William H. Armitage, his father. The plaintiff, by his own evidence showed that he was ignorant of the contract at the time it was made, and never saw it until after this suit was brought; that he had no money to pay upon it and did pay none; and that his father told him what had been paid on the contract was to be recovered back in his, the son’s, name. The father was sworn as a witness, and testified that he made the contract and paid the money for his son, and that the son afterwards, on being informed of it, assented to what had been done. There is some complaint of refusal or unwillingness on the part of the defendant to perform the contract on his part, and on the contrary he relies upon it as a valid contract, and offers to perform, but the suit appears to be grounded upon the right of an infant to disaffirm his contract and recover back what has been paid upon it. 1. Obviously the first question in the case 'is, how this infant, who had nothing to do with the making of this contract in the first place, has become entitled to any benefit under or because of it. If he has any right at all, it would seem that he must have acquired it in one of three ways; no other being conceivable. These are— 1. By virtue of the contract itself, made in his name, and which, though made without his knowledge, purported to assure to him rights which we may suppose were of value; 2. By the adoption of the act of his father in making the contract; 3. By accepting the contract as a gift from his father. It is not claimed, as we understand it, that by the contract itself, independent of any action afterwards taken, the infant would have had any rights at all. No contract is binding upon any party until he assents to it. Even a deed must be delivered and accepted; and much more must a contract be which contains onerous conditions, and assumes to bind the party to the payment of a large sum of money. Any suggestion therefore, that the contract as made entitled the infant to any rights, may be dismissed from consideration. If when made it was a valid contract in favor of any one as vendee, it must have been in favor of the father, who, having made it in the name of another person without authority, might possibly have been compelled to perform it as his own contract, and been entitled to the benefit of it as hjs own. What rights there may have been by or against him, we need not consider, as they are not involved in this litigation. II. If the contract became that of the infant through the adoption of the act of his father in making it, it must be because the infant has thus retrospectively made the father his agent. This, and this only, must he the force of the adoption; it is giving authority retrospectively, by claiming as his own that which without authority at the time was done in his name. Had the infant in the first place "undertaken to make another his agent to enter into the contract for him, the appointment would not have been valid. On the authorities no rule is clearer than that an infant cannot empower an agent or attorney to act for him.—Whitney v. Dutch, 14 Mass., 457, 460; Lawrence’s Lessee v. McArter, 10 Ohio, 37; Fonda v. Van Horne, 15 Wend., 631, 635; Trueblood v. Trueblood, 8 Ind., 195; Cole v. Pennoyer, 14 Ill., 158; Knox v. Flack, 22 Penn. St., 337; Sadler v. Robinson, 2 Stew. (Ala.), 520; Robbins v. Mount, 4 Robt., N. Y., 553. But if he cannot appoint an agent or attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he could not authorize.—Doe v. Roberts, 16 M. & W., 778, 781; Fonda v. Van Horne, 15 Wend., 631, 636; Trueblood v. Trueblood, supra. It would be extraordinary if a party who has no power to do a particular act could yet do it indirectly by the mere act of adoption. Such a doctrine would deprive the infant wholly of his protection; for one has only to change the order of proceeding, assume to act for the infant first and get his authority afterwards, and the principle of law which denies him the power to give the authority is subverted. But such a doctrine is wholly inadmissible. The protection of infancy is a substantial one, and is not to be put aside and overcome by indirect methods. III. Did the infant become entitled to the contract by the gift of his father? That he did, might perhaps be claimed with some degree of plausibility had the payment made on the contract been the whole or the principal part of the purchase price. But- the payment was in fact insignificant when compared with what remained to be paid. If the infant took the contract, he took it with all its conditions, one of which was the payment of the sum of twelve thousand six hundred dollars in the manner provided for therein. Now there can be no presumption whatever that such a gift was for the benefit of the infant, — and even if he were an adult, acceptance could not be presumed without some express evidence to establish it. In this case, instead of there being evidence that the infant accepts the contract, the suit itself assumes that he rejects it. But treating the act of the father as a gift to his son, how does this entitle the son to demand and receive back the four hundred dollars paid on the contract? This sum never belonged to the son, and there is no pretense that it was ever given to him. The gift was of a right under the contract acquired by means of the payment of this sum. This right is offered to the son, and according to the testimony of the father, he at first accepts it, but then turns around and says in effect: “No, I will not take this right, but I will demand and have what was paid for it.” If he may do this, then what he obtained from his father was not the contract itself, but the right to repudiate the contract. But the right to repudiate a contract is not the subject of gift at all. Besides the father never had it to give. If the contract was valid in his hands, he could not repudiate it, and he mild not empower another to do what he could not do himself. In what has thus far been said, we have not touched upon the authority of the infant to disaffirm a contract of purchase before coming of age. If the contract had become his in any way, it would be, we take it, only a voidable contract, and in Dunton v. Brown, 31 Mich., 182, the right to disaffirm a voidable contract during infancy was denied. But it is enough in this case to show that the infant never became entitled either to the contract or to the moneys paid under it. The judgment must be affirmed, with costs. The other Justices concurred.	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Graves, J: On the 14th of July, 1873, McHugh gave his note to one Eyan for one hundred dollars payable six months after date with interest at ten per cent. A mortgage was given upon a span of horses to secure the note. October SO, 1874, the note and mortgage were transferred by Eyau to Brown, the plaintiff. He was not aware that there was any defense to the note, and he paid full value for it. Soon after he bought it he commenced this suit to recover the amount. The court tried the case without a jury, and the only obstacle to a recovery by Brown was the defense that the note was void under the liquor law in force at the time it was given. The facts reported by the judge on this subject were, that Eyan was a grocer, and that four dollars of the consideration of the note was for “intoxicating liquors” which McHugh had got at Eyan’s store. On the strength of this fact, and this alone, the court found, as a conclusion of law, that the note ivas void. This finding of fact was not sufficient to sanction the defense and lead to the conclusion of law stated by the court. Whether the court might not have gone further and found all the conditions of fact requisite to show upon the face of the record that the item of four dollars was illegal consideration under the liquor law, is not a question to be investigated here. The judgment must find its support in the actual state of facts ascertained and reported by the judge, or fail. No aid can be derived from facts not embodied in the finding; nor can facts of equivocal import be reduced to certainty by conjecture, or a ground of illegality be presumed. The finding should afford the means for its own interpretation and for fixing its own sense, and should be sufficiently distinct and definite to enable the court to decide upon the judgment due. Any clause equally open to two meanings, where one would import or indicate lawful conduct or action, and the other unlawful, should be received in the former sense. Now whether the item of four dollars carried into the note sued on was illegal under the liquor law or not, depended on the character of the liquor. If the “intoxicating liquor” mentioned in the finding was native wine or beer, as permitted under § 19 of the liquor law, and was sold in lawful quantities and as prescribed in that section, then the charge for it was not unlawful and the note was not tainted by it. And there are no facts to show that the liquor belonged to the forbidden class, and was not of the sort tolerated by the provision cited. It is therefore seen that the finding is lacking in facts to maintain the defense of illegality in consideration, and that the judgment given for the defendant upon the assumption of sufficient facts to make the defense good, is not sustained by the finding. The judgment should be reversed, and one entered here in favor of plaintiff in error for one hundred and thirty-seven dollars and seventy-eight cents, and costs of both courts. The other Justices concurred.	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Cooley, Ch. J: This case has twice before been in this court: Montgomery v. Merrill, 18 Mich., 338; Merrill v. Montgomery, 25 Mich., 73. It is an action of ejectment brought for lands which the plaintiff claims under an execution sale on a judgment against the Calhoun County Bank. The defendant is in possession, and though the nature of her claim is not disclosed by this record, it appeared when the case was before us in the first instance that she claimed under proceedings against the bank ante-dating the plaintiff’s judgment. The only questions which the present record brings up are: First, The validity of an amendment made to the record of plaintiff’s judgment in order to show that the court had jurisdiction to render it; and second, whether, if the amendment was not admissible, the facts upon which it was made could be shown on the trial in order to sustain the jurisdiction of the court which rendered the judgment. The charter of the Calhoun County Bank expired in 185?, but by statute the bank was continued in existence for three years longer for the purpose of winding up its concerns. The suit in which the plaintiff obtained his judgment was commenced in 1858, after the bank had ceased to do business. Service of the declaration was made upon persons who, the attorney showed by affidavit, he' was informed and believed were the last president and two of the last directors of the bank. This showing was held insufficient to warrant - such service; a positive showing of facts being requisite when an exceptional service is' to be made.—Merrill v. Montgomery, supra. After the decision to that effect had been made by this court, the plaintiff made an ex parte application in the court below for leave to amend by making the positive showing that should have been made in the first instance, and this was granted August 3, 1875. The showing consisted in affidavits that Sidney Ketchum, one of the parties upon whom service of the declaration was made, was the last president of the bank. That showing, if originally made, would have been sufficient to support the judgment. When the cause went to trial again, this amended record was offered in evidence, objected to and rejected on the ground that the amendment was unwarranted. The plaintiff then offered to show, by affidavits and parol evidence, that Ketchum was in fact the last president of the bank, and he claimed that such a showing would sustain the service on Ketchum and support the action of the court in rendering judgment -upon it. This offer was rejected, and the plaintiff being then unable to support his title, judgment passed against him. Counsel for the plaintiff have been very diligent in collecting cases to show how liberal have been the rulings of the courts in permitting amendments in support of their proceedings and in furtherance of justice. The power to amend is a highly valuable one, and we should not willingly see. it limited beyond what is necessary to keep it within safe bounds. So many errors occur through inadvertence or the carelessness of officers that some power of correction is absolutely essential, and the errors occur under such a variety of circumstances and differ so greatly in the manner in which they affect interests when discovered, that it is not safe to lay down any very strict rules regarding the time and the manner of permitting amendments. Where the record itself furnishes the data for the required amendment, great liberality should be allowed, because the danger of injustice in permitting amendments is very slight.—Emery v. Whitwell, 6 Mich., 474. But where the amendment is to be made on an extrinsic showing, all practicable precautions should be taken- that no one be wronged by the action of the court; and as most facts are susceptible of contradiction, there ought always when practicable to be notice to the party adversely interested, in order that he may have the opportunity to make a counter showing. And the more ancient are the proceedings, the greater is the importance of giving this notice, because the danger of a false showing increases as the distance in time from the facts increases. In Denison v. Smith, 33 Mich., 155, it was decided that a party who would be affected by an amendment of proof of service could not be bound by one which was made ex parte. The right to notice in such cases is affirmed by Mr. Freeman in his treatise on Judgments, § 72, who cites cases in its support. It is also recognized tacitly by the great majority of all the cases cited by the plaintiff’s counsel on the argument, for the amendments sanctioned by them were made on notice and after a hearing. We refer to the following as cases which either expressly affirm the right or tacitly recognize it.—Chichester v. Cande, 3 Cow., 39; Hamilton v. Seitz, 25 Penn. St., 226; Wilkie v. Hall, 15 Conn., 32; Weed v. Weed, 25 Conn., 337; Farmington v. Somersworth, 44 N. H., 589; Den v. Fen, 12 N. J., 321; Hill v. Hoover, 5 Wis., 386; Gillett v. Robbins, 12 Wis., 319; McGlaughlin v. O’Rourke, 12 Iowa, 459; Blaisdell v. Steamboat, 19 Mo., 157; Webster v. Blount, 39 Mo., 500; Jackson v. O. & M. R. R. Co., 15 Ind., 192; Young v. Thompson, 14 Ill., 380; Means v. Means, 42 Ill., 50; Dorsey v. Pierce, 6 Miss., 173; Alexander v. Stewart, 23 Ark., 18. The requirement of notice is only a matter of common right in such cases, for the party is condemned unheard if an amendment is allowed which gives to the proceedings an effect adverse to his interests which they did not have before, without his being allowed the opportunity to dispute and disprove the grounds of the action. In a few cases amendments made on an ex parte showing have been supported, but we cannot regard them as consistent with principle. But it is said that the bank having gone out of existence, there was no one upon whom notice could be served. Whatever force there might be in this excuse in some cases, it could have none under the facts of this case. The amendment was desired for the purpose of controlling this very case, and this defendant was the party to be affected by it. She was the party, and so far as we know the sole party interested adversely to the amendment, and as this was perfectly well known to the plaintiff, the duty to give notice was apparent. This seems to us a fatal defect; we cannot assume that the defendant, if allowed the opportunity, might not have disproved the showing which was made. At any rate she should have been allowed the opportunity. In general such amendments are not suffered to affect rights which third parties may have acquired while the proceedings remained defective,—Freeman on Judgments, § 74; Herman on Executions, 56; but if the defendant’s rights, such as they are, accrued previous to the judgment, probably she would not be within the protection of this principle. Her right to notice, however, is at least as good as would have been the right of the bank if still in existence. Another objection seems to us fatal. The application for leave to amend was not made until seventeen years after the service had been made. If it be urged that the delay in the application was because the defect was not discovered until the case was last in this court, the case is helped but little, for even then there was a delay of three years, which is only excused by showing that the circuit judge had been of counsel in the case and was incompetent to hear an application. But with other circuit judges within easy reach at any time we cannot attach much importance to this fact. The matter had been delayed longer than is now necessary under our laws to bar a right of entry; and it is the party’s misfortune if he has lost rights in consequence. The utmost promptness is required when application is to be made to correct errors in the record.—Rogers v. Rogers, 1 Paige, 188. We think also that the court was right in rejecting the evidence offered by the plaintiff on the trial to show that Sidney Ketchum was in fact the last president of the bank. Jurisdictional facts cannot rest in parol, to be proved in one case and disproved, perhaps, in another. The record must be complete in itself. The judgment must be affirmed, with costs. Campbell and Marston, JJ., concurred. 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Graves, J: A verdict having been returned by direction of the court against Reynolds, who was plaintiff below, he has brought error. The action was on an alleged agreement of July 18th, 1874, to insure his interest up to three thousand dollars for one year in a steam mill and its appliances, at. Manchester, in Washtenaw county, the property having been destroyed "by fire August 3d, 1874, and no policy having been received by him. He claimed the agreement was made on the part of the company by one Kirchhofer, then its agent at Manchester, and that he paid one hundred and thirty-five dollars as premium. ' The insurance company maintained that, conceding Kirchhofer to have been its agent to take common risks, he had no power to take any of the class of plaintiff’s, and that if he assumed to • agree as alleged, his act was unauthorized, and hence was not a ground of action against it. Excluding a point now made on the rejection of an offer by Reynolds at the close of the trial, relative to proof, and which will be noticed at the proper time, the record of the trial shows that in the first place Reynolds insisted upon giving evidence of a bargain for the special risk in question, with Kirchhofer, ánd without any evidence of power in Kirchhofer to make such a bargain; and as ground for maintaining that he was fully justified in regarding Kirchhofer as authorized to bargain for the risk in question, he insisted secondly that he was entitled to prove that there was a practice at other agencies to take such risks; that Kirchhofer was entrusted with policies in blank, signed by the president, and actually solicited the risk and received the premium. These facts, it was claimed, entitled Reynolds to ' transact with Kirchhofer upon the faith that the latter had power to bind the company by the bargain for the risk in question, notwithstanding the fact, unknown to Reynolds, that the commission and policies debarred Kirchhofer. The company resisted these claims and contended that before adducing .evidence of a bargain with Kirchhofer it was incumbent on Reynolds to prove that Kirchhofer was empowered, and that the practice at other agencies as to the kinds of risks agents assumed power to take, and the other facts proposed in connection, were without force to sustain the theory on which they were suggested, or to hold the company on the supposed bargain, and hence were inadmissible. This outline will give an idea of the attitude of the parties at the trial. The court was very indulgent to the plaintiff and allowed great latitude in his various efforts and expedients to get over inherent difficulties. When the trial opened, the plaintiff took the witness stand and having sworn that at and before July 18th, 1874, Kirchhofer acted as insurance agent at Manchester, was then asked by his counsel for what com.panies he was acting. The question was ruled out and error • is assigned upon the ruling. The true object of the question must have been to draw an answer that Kirchhofer was acting for the defendant corporation, and yet it had not been shown that the plaintiff had any other means of knowledge than the very transaction which was in dispute, and surely if Kirchhofer assumed the power the existence of which was the point in issue, his act could not be made use of by the plaintiff as- evidence that the power so assumed actually existed. Immediately after this rejection, plaintiff’s counsel put this question: “ State whether any agreement or bargain was: made for the insurance of your- mill property and the fixtures, machinery, etc., contained therein, in behalf of defendant?” and plaintiff at once replied: “Yes, sir,' he insured me.” The counsel for defendant then objected that the question did not ask for any bargain with him as agent for the company; that if it did it would be inadmissible until the agency, the authority to make the bargain and agreement, had been proved, and following this objection defendant’s counsel produced the commission given by the company to. Kirchhofer, and the plaintiff submitted it in evidence. It. bore date June 23, 1874, and defendant’s counsel admitted that Kirchhofer received it before July 18, 1874. It ex pressly excepted from his authority the power to grant policies upon “manufactories and other special hazards,” and for the classification of hazards referred to the provisions of the policies of the company. The fact of Kirchhofer’s agency was therefore shown at the outset, and there is no plausible ground whatever for the first charge of error. Indeed, the real controversy concerning Kirehhofer’s authority was •not upon the fact of his being an agent, but upon the extent of his power as agent. That he was actually an agent was not denied. The next charge of error is founded on the exclusion of a question to the witness Millen. He was local agent at Ann Arbor for several companies, and had been for many years. ' His practice was to take risks on all classes of property. He was aware that his companies gave greater authority to some agents than to others, but he had no knowledge of the course pursued at other agencies. His ability to speak of the practice in this respect was confined to his own agency. The excluded question required him to state, so far as he knew, what the usual custom was in the county as to .agents taking risks on all kinds of property. As he had already stated distinctly what his own practice was and that he knew nothing of the practice at other agencies, and that the- same companies did not give as .extensive powers to some agents as to others, the inquiry could only elicit in effect, and most likely in a form calculated to mislead the jury, a repetition of what was the practice at his own agency alone. Again, waiving all questions touching the right to prove that there existed in Manchester a practice to take all risks, and still the practice at that place could not be inferred from the fact of there being such a practice at Milieu’s agency.—1 Starkie Ev., 618, 619 (mar.), and notes. The precise theory which the plaintiff’s counsel had in mind at this point is not readily discerned. Surely he could not have meant to claim that usurpation of power by agents of one concern, and followed by acquiescence of the principal, could be urged as a reason for holding another concern bound for its agent’s unauthorized act, and which was not acquiesced in, but repudiated. As to whether there was any showing whatever of power in Kirehhofer to make the alleged bargain, the case appears clear. The plaintiff submitted the commission, and that withheld authority in express terms to take his risk. It was also shown by plaintiff that the company furnished Kirehhofer with blank policies signed by its president. But' such of these as there was evidence to explain excluded such risks. There was no evidence that different ones were ever confided to Kirehhofer, or in fact that the company used any others. No facts were adduced tending to show a grant of greater power than the commission gave. Again, there was no evidence of any act of the insurance company tending to show the creation of any apparent power to exceed the commission and insure such property as plaintiff’s. There was not a scintilla of proof that Kirehhofer was held out by the company as authorized to do any thing beyond the terms of the written delegation, or that the company had in any instance acquiesced in an act of his in excess. Indeed, it did not appear that in any instance he had previously assumed to insure property excluded by his commission, and certainly it will not be pretended that his own proceedings, the authority of which was the fact in issue, could be brought forward to sustain that side of the issue which asserted the authority. The single circumstance that he was the company’s local insurance agent at Manchester, ivas not tantamount to a declaration of the company that he had power to insure every kind of property and to exercise unlimited authority as to risks, modes and terms. By itself it could imply nothing more than authority to insure in the mode allowed by the company’s charter, and to take such risks as the policies of the company in common use by its agents would warrant, and we have seen that so far as there was evidence the plaintiff’s risk was not within the purview of the policies in use. There- was no evidence of the power conferred by the charter.—Security Insurance Co. v. Fay, 22 Mich., 467; Meister v. The People, 31 Mich., 99; Mussey v. Beecher, 3 Cush., 511; Markey v. Mutual Benefit Life Ins. Co., 103 Mass., 78; Turner v. Quincy Mutual Fire Ins. Co., 109 Mass., 568; Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 3 Ker., 632; Adraince v. Roome, 52 Barb., 399; Risley v. Ind., B. & W. R. R. Co., 1 Hun, 202; De Grove v. Metropolitan Ins. Co., 61 N. Y., 594; Bush v. Westchester Fire Ins. Co., 63 N. Y., 531; Swazey v. Union Manufacturing Co. (Sup. Ct. of Conn., Sept., 1875); Kornemann v. Monaghan, 24 Mich., 36; Farmers’ Ins. Co. v. Taylor, 73 Penn. St., 342. Hitherto the case has been considered without reference to the point made upon the exclusion of the plaintiff’s final offer of proof. It remains to examine that point. Does-it affirmatively appear from the bill of exceptions that the judge erred in refusing the offer? Unless it does the charge of error- is not sustained. In submitting propositions' of proof it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one.—Clay Fire & Marine Ins. Co. v. Huron Salt, etc., Co., 31 Mich., 346, 356. ■The object is to economize time by getting an admission of the facts or a ruling on their admissibility without the tedious process of examination, and the facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility. Common fairness, as well as the nature of the proceeding, demand this. If the judge is compelled to rule upon the offer he may possibly go beyond its obvious import and concede an intent not fairly indicated. This, however, is not to be intended. It must be clearly shown. He must be supposed to have passed upon the statement in view of what it actually seemed, and in case of exclusion, his decision, if correct when applied to the proposition as it appeared, cannot be questioned in an appellate court upon the claim of the party who made the offer, that the proposition covered some meaning which required a different ruling. The ruling must be presumed to have been made on the proposition as it appeared, and not on it as it did not appear. In Daniels v. Patterson the court had occasion to consider a question somewhat similar to the present, and Judge Bronson, who gave the opinion, observed: “We all know that offers of evidence are usually made in as broad and strong terms as the facts will warrant. Before a party excepts on account of the rejection of evidence he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appears that it was so understood by the court which rejected the evidence, and if the meaning of the offer depends upon argument arid inference, he must have much the best of the argument before a court of review should reverse the judgment.”—3 Comst., 47. See also Elwell v. Dodge, 33 Barb., 336; First Baptist Church v. Brooklyn Fire Ins., 23 How. P. R., 448; Johnson v. Carnley, 6 Seld., 570, 575, 576; Pepin v. Lachenmeyer, 45 N. Y., 27; Harger v. Edmunds, 4 Barb., 256; Van Buren v. Wells, 19 Wend., 203; Hosley v. Black, 28 N. Y., 438; Wheeler v. Rice, 8 Cush,, 205; Weidler v. Farmers’ Bank of Lancaster, 11 Sergt. & R., 134; Wright v. DeGroff, 14 Mich., 164; Gilbert v. Kennedy, 22 Mich., 117; Albright v. Cobb, 30 Mich., 355. In the light of these considerations we may proceed to notice the terms of the plaintiff’s proposition and in connection with the course of proceeding. After repeated rulings, which were well warranted, that the alleged bargain with Kirchhofer could not be shown, for the reason that no evidence had been adduced of his power to bargain for plaintiff’s risk, the plaintiff took the stand for the third time, and swore that there were other insurances and that the whole amount of premium for all was twelve hundred and fifty dollars; that he paid Kirchhofer for this insurance one hundred and thirty-five dollars, and that the money had not been returned; that he did not know to which of the companies Kirchhofer applied it, and that he might have applied it to this company and might have applied it to some other. Plaintiff’s counsel then said: ‘‘We now offer to prove by the witness the other facts alleged in the declaration, not proposing to offer any other evidence on the subject of agency, but the other facts to entitle us to recover three thousand dollars, with interest from the fourth day of August, 1874, the day of the fire; that they received the money for this loss and kept it.” The’judge then observed: “It is not necessary to take up time. I think the ruliug before made should govern, if that is all the evidence.” Plaintiff’s counsel replied: “That is all on the subject of agency.” “It is conceded that the other proof is made.” The judge responded: “It has been offered once before, and I think it may bo governed by the ruling before made.” And counsel rejoined: “We offer to prove the other facts to entitle us to recover.” Whereupon the judge answered: “It is objected to and the objection is sustained.” Plaintiff’s counsel thereupon excepted. The charge of error is, that the court refused to allow the plaintiff to prove that the insurance company received this money for this loss and kept it, and hence ratified the bargain alleged to have been made with Kirchhofer. It ■will be noticed, in passing, that although the judge clearly indicated how his mind was directed by the general and ambiguous statements of plaintiff’s counsel, and that he ■regarded them as only amounting to reassertion of claims and theories ruled previously, and not to an offer to adduce facts to make out a case in some other way or on some ■other theory, still the plaintiff acquiesced in the judge’s construction and made no attempt to correct his impression if not right. The charge of error supposes the offer to have meant something else, and that the judge mistook in his understanding of it. There is high authority for saying that the plaintiff cannot question the correctness of the judge’s construction, for the reason that it was virtually assented to at the trial.—Morrish v. Murrey, 13 Mees. & Wels., 52; Boeklen v. Hardenbergh, 60 N. Y., 8. But the point need not be disposed of on this principle. An examination of the course taken at the trial and of the proposition make it very apparent in the first place that the judge did not understand the offer in the sense now sought to be imposed on it by the plaintiff, and in the second place that there is no solid ground for considering that it was fairly open to any such meaning. The main part of it was a proposal in so many words to make out the case set forth. The declaration had already made this proffer, and in better form. An offer of particulars was required upon ■which some judgment could be formed. No hint was given of any ratification, and all further proof relating to agency was disclaimed. Again, the whole of the evidence suggested was to be made by the plaintiff himself. This was expressly stated. Nothing was proposed from any other source. The offer was distinctly confined to testimony by the plaintiff. And yet, he had just sworn that he knew nothing as to whether the insurance company had or had not received -the money paid to Kirehhofer. Indeed, the offer did not propose in terms to prove that the company had received the money. As worded, the proposition was not distinctly unequivocal. It was capable of being so construed as to be consistent with the fact the plaintiff had sworn to, that the agent, Kirchhofer, had received it; but it could not be-very well reconciled with the notion that the plaintiff would swear that the company had received it. Certainly the court could not be expected to understand from the language that plaintiff’s counsel proposed to show by the plaintiff, in plain contradiction to what he had distinctly sworn to only a moment previous, that as matter of fact the corporation actually received the money. There was no intimation that the plaintiff had testified under a mistake or that any error had been committed. Considered as an offer of proof, the statement was insufficient, blind and indefinite, and in view of. all the circumstances, it would have been remarkable if the judge had accepted it as having the sense and drift now imputed to it on the part of the plaintiff. As represented in the record, and as it must have looked at the1 trial, it was natural for the judge to view it rather as a compendious reassertion of positions already ruled, than as a regular offer of proof of facts to make out a case, and there is some reason for thinking that the construction now claimed by the plaintiff for the proceeding was not thought of at the trial at all. This charge of error must be overruled. Finally, it is considered clear that no case for the jury was made, and that the judge did not err in directing a verdict for defendant. Had the plaintiff purposed to sue in equity to enforce performance of the alleged agreement, his-want of material facts to enable him to set forth a prima facie provable agreement against the company on the basis, either of an original authority in Kirchhofer, a subsequent-ratification, or matter of estoppel, would have been very-conspicuous to him. The judgment should be affirmed, with costs. The other Justices concurred.	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Campbell, J: Plaintiff sued the three school districts named as defendants, as jointly liable upon a debt of a formerly existing district, number seven, which was extinguished by dividing up its-territory among the three named. Where the territory of a school district is absorbed by other districts, the statute contemplates that the township board of school inspectors shall make an equitable adjust ment of property and debts so as to apportion them fairly among the districts which have succeeded to the jurisdiction of that which has been divided. — O. L., §§ 3644, 3645, 3646. How far this may have been attempted in the present case we are not informed, nor can we now discuss the completeness or efficiency of the statutory proceeding to reach the equities of those parties. The only question before us is, whether a joint action lies against defendants for the debt of the dismembered district. The court below held there was no such liability. This holding was correct. There is no legal identity or corporate succession between the various bodies, out of which a joint obligation can be made to arise. Where one district is made up out of two entire districts, 'it is clear enough that it must succeed to their rights and liabilities, because no part of their territory is left out from it, and there is nothing to apportion.—Brewer v. Palmer, 13 Mich. R., 104. But where one is parceled out among three other existing districts, the amount which should properly fall to each of them out of the property, and the amount each should bear of the debts, depends partly on the valuation of the taxable property divided, and partly on the location of the school-house, according as it is retained or sold. There is no presumption that they will be on exactly equal footing; and even if this were assumed, there is no law making them jointly interested, or jointly responsible. Whatever they are bound to pay must be a several, and not a joint obligation. We can find no support for an action like the present. The judgment must be affirmed, with costs. The other Justices concurred.	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Marston, J: This case was before us and decided at the October term (35 Mich., 169), when we held the contract was an executory one, and that the title to the oats and wheat had not passed. A new trial having been ordered, was had and proceeded upon the theory that the parties at the time of their agreement did not intend that the title to any particular one hundred bushels of oats should then pass, but that the oats should be delivered at some future time when demanded, but that the title to the wheat should and did then pass, and that such possession as could be given of growing wheat was given at that time: in other words, that there was a present sale of the wheat and possession given, payment therefor to be made, not in money, but oats at a future day. The case was submitted to the jury upon this theory, and they found in favor of the plaintiff below. There can be no doubt but that the parties had a right to make such a contract, and that when made it would be binding. The wheat could have been sold for money payable in the future, and it could in the same way have been made payable in oats, or any other commodity the parties chose to agree upon, and time could as well be given for the delivery of the oats, as for the payment of the money. It is also claimed that the wheat being in shocks, and not divided at the time the writ of replevin was issued, such an action could not be sustained. Thé defendant in that suit did not have or claim any interest in the other undivided half of the wheat, and we do not see how he has any right to raise this question. We discover no error. The judgment must be affirmed, with costs. The other Justices concurred.	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Per Curiam: 1. The court are of opinion that the statute does make the county of Kent liable for jurors’ fees in the superior court of Grand Bapids, and that it is competent to do so.—People v. Auditors of Wayne County, 13 Mich., 233. 2. The court also think that under the constitution it was competent to establish the superior court. The constitution, it is true, declares that “the judicial power is vested in one supreme court, in circuit courts, in probate courts and in justices of the peace.” But it also in the same section declares that “municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.” — Art. VI., § 1. This is a plain reservation to the legislature of the power to carve out of the judicial power vested in the other courts named such authority as it would be proper to confer upon city courts, and to create such courts for its exercise. Where that is done, the legislature must determine the extent of the authority to be given the municipal courts, subject to the restriction that it must not exceed that which can properly pertain to a municipal court. Whether the statute in this instance has overstepped the bounds, is a question not before us. But we do not think' it was the intention of the constitution that every municipal court should possess both civil and criminal jurisdiction. This opinion will probably bo conformed to without the issue of any writ of mandamus, and we therefore make no order at this time.	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The action was tried without a jury and the judge found the facts and decided that defendant was entitled to judgment upon them. The plaintiffs ask that the proceedings be reviewed on a case. No point is made on the findings. Unless some error was committed in rulings in regard to evidence, the judgment cannot be disturbed. In respect to most of the facts there was no dispute. But the result hinged upon a conveyance the defendant claimed to have been made by Andrew Rector and Edwin R. Cobb to one Charles A. Rosevelt, in April, 1859, and this conveyance was a deed of assignment with schedules. The main instrument contained apt words of conveyance, but no specific descriptions. The identification of parcels was left to schedules. The defendant claimed that soon after they were made, the deed and schedules were copied by the register of deeds into one of the books of deeds in his office on the request of Rosevelt to record them, and that Rosevelt was dead and the original papers lost,. and he gave evidence which was sufficient, prima facie, to show the existence and delivery of the papers and their loss, and also that they were copied by the register into the book of deeds, and he was allowed to introduce these copies for the purpose of proving the contents of the lost originals. A number of objections were taken by plaintiffs’ counsel, during the course of this proof, but it is unnecessary to detail them. They were all grounded upon the assumption that the copies in the register’s book were cither records or adduced as records. This was a misapprehension of the scheme of proof. When the entries in the book of deeds were first offered by defendant, plaintiffs’ counsel objected to them as not lawful records, and the court sustained the objection. Defendant’s counsel then shifted ground and suggested that he would seek to show the conveyance by secondary evidence, and following up the suggestion, he proceeded to give evidence of the existence and loss of the originals, and of their contents, and adduced the entries by the register for this latter purpose. This method of proof was not illegal. It was entirely regular, and the objections, that the record was the best evidence, that it must prove itself, that parol evidence was not admissible to prove the contents of a deed, or change or explain a record, were entirely inapplicable. Moreover, as already stated, the plaintiffs’ counsel had just taken the position that the entries were not records, and had secured a ruling to that effect, which excluded them as records, and when, in consequence of such objection and ruling, the defendant proceeded to use them as mere copies, as a step in making secondary proof, it was scarcely consistent to assume they were records, as a ground for urging new objections. But whether they were or were not regular records, we do not see upon what principle the plaintiffs could object to their use by defendant as inferior proof, if he chose so to use them. Whether the evidence actually given for that purpose was or was not of sufficient weight to show what the originals contained, is not a question for discussion here. The exceptions only go to the admissibility of the evidence, and it was clearly admissible. The case presents nothing further. No ground is seen for disturbing the judgment, and it must be affirmed, with costs. The other Justices concurred.	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Marston, J: Marvin, who was plaintiff below, brought an action of assumpsit to recover the value of certain meat furnished by him to be used in a boarding train upon the D., L. & L. M. R. R. It appears from the testimony that one Hiram Cook, who was engaged in keeping such boarding car, had obtained his supply of meat from the plaintiff, and in June, 1875, was owing him for meats furnished one hundred and seventeen dollars and seventy-eight cents; that about the 14th of June he refused to trust Cook any longer or furnish him with any more meat unless some different arrangements were made; that Welch, who had been supplying Cook with groceries, went to see Marvin, in company with Cook, to make some arrangement about this matter. Marvin testified that he (Welch) then said: “This pay is now assigned over to me from the railroad company, and I am going to become responsible for the meat, and I want meat to run this train, and what meat you let Cook have from now, I will pay you for.” Marvin then told Welch that Cook had got meat there from the middle of April up to the 1st of June, that had not been paid for, and that he would not let any more meat go until he was paid for that; that Welch replied: “Well, you get an order on me from Cook, and I will accept that order, and pay you as fast as the money comes into my hands to pay that.” The next morning an order was drawn up for the one hundred and seventeen dollars and seventy-eight cents; this order was accepted by Welch, providing money enough came into his hands from the company to pay his own account first, the balance to be paid on this order. Different amounts were paid by Welch, in all amounting to two hundred and fifteen dollars; but it does not appear that any other orders were given. It also appeared from plaintiff’s testimony that he, in September, received an order from Cook on the railroad company for one hundred dollars, which he endeavored to collect. After the arrangement made with Welch, plaintiff continued to charge the meats thereafter delivered to-Cook, in the same manner he had previously done, no change having been made on his books in the manner of keeping the account. There was considerable conflicting evidence, as is usually expected in such cases, as to what the agreement really was, as to the reason of continuing to charge the meat to Cook upon plaintiff’s books, and the efforts made to collect the account. The court, in charging the jury, very properly left it to them to find what the agreement between the parties actually was, and the conclusion to be drawn from such finding. Defendant’s counsel requested the following instructions to be given: “If the jury find that Marvin sold meat to Cook and charged the same to Cook, and that Welch became responsible for it, in order to take the promise out of the statute of frauds, and make Welch legally liable, they must also find that Marvin thereupon absolutely discharged Cook from liability, and looked only to Welch for pay.” Other instructions having a similar tendency were requested to be-given. These requests were refused, the jury being merely instructed that the manner of keeping the account, and efforts to collect from Cook, were facts capable of explanation, and might be considered by the jury. We are of opinion that defendant was entitled to have the jury instructed as requested. Under no theory of this case, could Cook and Welch both be responsible to plaintiff, severally, at his option. If Cook was liable for the meats furnished after the arrangement with Welch was made, then clearly Welch’s, liability could not be an original one. It is equally clear, that if Welch’s promise was an original promise, and the debt his debt, then Cook could not be held liable thereon. The parties might have made an agreement under which they would have been jointly liable, which is not claimed in this case. But they could not, under the circumstances, be severally liable, at plaintiff’s option. We know of no better test than this, in a case like the present.—Bresler v. Pendell, 12 Mich., 224; Gibbs v. Blanchard, 15 Mich., 292; Corkins v. Collins, 16 Mich., 480. The judgment must be.reversed, with costs, and a new trial ordered. The other Justices concurred.	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Cooley, Ch. J: This is a. foreclosure suit, based upon a purchase money mortgage. The bill did not waive an answer on oath, and the mortgagor answered, admitting the mortgage, but setting up various defenses, the chief of which were, that he received from the mortgagee a warranty deed of the lands, the covenants in which were broken by the existence of paramount outstanding titles to a portion of the land, and that under the advice of the mortgagee he had paid fifteen hundred dollars to one adverse claimant, which should be applied on the mortgage. Also that one parcel of land was twice described in the deed and twice taken into account in computing the amount to be inserted in the mortgage. The allegations of the answer are not disproved by complainant, and as it was called for on oath, it is claimed by defendant that it must be received as true. This would be so, so far as it is a response to the averments in the bill; but affirmative matters of defense must be proved.—Schwartz v. Wendell, Wal. Ch., 267; Attorney General v. Oakland County Bank, Ibid., 90; Van Dyke v. Davis, 2 Mich., 144; Hunt v. Thorn, Ibid., 213; Roberts v. Miles, 12 Mich., 297. The existence of paramount titles was not proved by the production of any documentary or record evidence, but the mortgagor was made a witness on his own behalf, and gave evidence which it is claimed tended to show admissions by the mortgagee of the defects in his title, and a consent that fifteen hundred dollars, which the mortgagor had paid to an adverse claimant, should be accounted for on the mortgage. This evidence was taken after the death of the mortgagee, and as it related to matters which in his lifetime must have been equally within his knowledge, it was' inadmissible under the statute, and was properly disregarded in the court below.—Comp. D., § 5968; Kimball v. Kimball, 16 Mich., 211; Wright v. Wilson, 17 Mich., 192; Twiss v. George, 33 Mich., 253. Rejecting this evidence, no part of the defense is found to be established. We are not satisfied that any understanding existed that the fifteen hundred dollars, which was undoubtedly paid by the mortgagor in settlement of a dispute growing out of the cutting of timber by a third party on the mortgaged lands, should be accounted for on the mortgage. The settlement left a large amount of timber in the mortgagor’s hands ready for working up, and the fact that this was cut without expense to him was undoubtedly taken into account by him in negotiating for a settlement. It is not to be assumed that the mortgagee agreed to allow this sum, until a reason is shown which either in law or in morals would require him to do so. As to the parcel said to have been twice described in the deed of conveyance, there is no evidence that it was twice taken into account in fixing upon the amount of the mortgage, and therefore the defense on this point must fail. The decree must be affirmed, with costs, but with such modifications as will allow the defendants ninety days from this day in which to make payment before a sale under the decree shall be advertised. The other Justices concurred.	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Per Curiam: The relator had applied for letters of administration on an estate, and his application appeared to make out a satisfactory case. On the hearing, the probate judge denied it. Held, That if there was any error in this denial, the relator could not correct it by this proceeding. Writ denied.	[ 51, -55, -21, -3, 5, -12, 48, 61, -5, 20, -32, -33, 39, 89, -103, 18, 21, 40, 2, -75, -32, 30, -76, 68, 7, -58, 11, 60, 46, -28, -50, -6, -93, -5, -34, -17, -6, -39, 38, -23, 20, -26, 19, 14, -87, -45, -21, -5, -51, 7, 7, -24, -9, -35, 33, 34, 40, -44, -43, -56, -8, 12, -19, 20, -8, 70, -54, -8, -42, 66, -14, -2, 19, 36, 5, 3, -8, -22, -29, 54, 21, 24, 20, 60, -37, 58, -19, -10, 63, -53, -25, 0, -40, 19, -81, 75, 11, -2, 38, -6, -11, 18, 45, -6, -39, -17, -12, -3, 30, -21, -23, 15, 16, -19, 0, 55, 4, -38, 15, -32, -67, -12, 15, -14, 31, 29, -1, 26, 12, -17, 24, 45, 26, 6, 7, -18, -9, -6, -50, -87, 31, -12, 50, -16, -17, -74, 47, -13, -94, 29, 26, 44, -64, 42, -13, 60, 27, -22, 32, 4, 11, -1, -26, 0, 47, -10, 15, 20, 35, -6, 8, 62, -17, 12, -41, -43, 21, 10, -9, -2, 17, 19, 17, 1, 12, -24, -22, 35, -23, -25, -42, 6, 70, 69, 39, 16, 15, -9, 7, 23, -23, 49, -16, 22, 29, -44, -70, -72, -11, -7, -7, -26, -43, -26, 60, -50, 18, 20, 12, 81, 35, 66, 7, 7, -17, -26, 13, -33, -21, 27, 2, -5, -8, 52, 108, 26, 46, -27, -21, -2, -35, 53, -8, -2, -16, -57, -42, 50, 16, -28, -37, -18, 20, 2, -28, -41, -49, 48, -18, -47, 8, 22, -65, 9, -19, -7, 9, -2, 20, -23, -12, 19, -27, 3, 39, -4, -17, -51, -1, -19, -2, 19, -32, 0, -58, 29, -11, -21, -11, 28, 56, 16, 19, -30, 51, -13, 12, -24, -15, -48, -59, 7, 17, 38, 55, -35, 15, -58, 27, 15, 4, 8, 15, 64, -10, 34, -19, -57, -35, -28, 0, 13, -25, -11, -16, 51, -10, 17, 70, 67, -3, -33, -12, -16, 13, 53, 13, 9, -55, 42, -7, 17, -61, 25, 9, -47, 35, -14, 55, 68, -34, -4, -3, -49, 30, -69, 12, -32, -81, 55, 36, 20, 27, 19, 14, -41, 47, 38, 38, 17, 64, -33, 18, -3, 19, -3, 54, 5, -9, -42, -20, -40, 16, 71, 19, 30, 13, 55, -5, -17, -10, 10, -49, -40, -24, 44, 7, 25, -28, 8, 25, 25, -58, 29, 33, 6, -31, -14, -12, -28, 4, 43, 14, 5, -9, 23, 54, 1, 103, 31, -34, -19, -55, 0, -36, -25, -59, 9, 22, -3, 11, 21, 19, -9, 15, -18, -25, 33, -11, 37, 21, -46, -5, 16, -50, -15, -23, -36, -17, -26, -4, 16, -87, -41, -28, 8, 32, 20, 19, 14, -3, 7, 29, 11, 45, 0, 14, 13, 25, -7, -58, 9, -41, 12, -26, -29, -70, -25, -21, -3, -18, 20, -35, -46, 18, 23, 17, -15, -13, 7, -39, 4, 26, -11, -13, -46, 8, -14, -21, 13, -2, 52, 13, 10, 54, -34, -56, -7, 19, -13, -11, -18, 8, 63, 28, 32, 0, -20, -48, 27, -19, -39, -44, -3, -2, 48, -27, -1, 26, 31, -1, -46, -44, -52, -20, -59, -7, 30, 0, 33, -53, 61, 13, 32, -8, 126, -18, 17, -3, -17, -18, -38, 10, 27, 7, 0, 49, -29, 1, -8, 60, -16, -17, -6, 12, -18, 10, 6, -1, 11, -12, -75, 15, -9, 28, -47, 8, -29, 13, -23, -56, 10, 6, -18, 34, -5, -36, -18, -11, -14, -57, 18, -18, -39, -46, -16, -79, -8, 5, -2, -32, 48, 1, -1, -19, 30, 70, 25, -38, -56, 3, 50, -41, -6, -50, 10, 34, 6, 55, 9, -2, 9, -2, -4, -23, -18, 13, -6, 0, 49, 11, 13, -34, 0, -24, 51, -24, 31, -42, -15, 3, 18, 28, -43, 36, -21, 72, -17, 29, 44, 70, 48, -5, 3, 25, -15, -10, -39, 49, -9, -16, -37, -5, -23, -48, 64, 10, 32, -7, 17, -2, 17, 5, -37, -14, 22, 4, 25, 19, 9, 34, -4, 52, 12, 43, -27, 31, 18, -41, 64, 19, -34, 42, -13, 20, -23, -39, 34, -23, 52, 31, 1, 18, 56, -16, -47, -19, -18, -8, -58, -38, -22, 25, 22, 0, 2, 31, -29, 46, -26, 37, 24, -3, 4, -38, 19, 42, 5, 36, -10, 18, 4, 29, -16, -38, -60, -9, -47, 32, -56, -45, 14, -13, -19, -8, 11, 7, 41, -23, 0, 36, -12, -28, 21, -2, -13, -8, -65, 87, 3, 0, -49, -31, 45, -39, 18, -25, -20, -53, 38, 35, -34, 52, -30, -10, 11, 7, 20, 68, -5, -34, -37, 6, 47, 9, -23, 4, -61, -4, -25, 19, 3, -37, 23, 6, -15, 9, -50, 32, 2, -29, -36, 9, 57, -7, 10, -87, 81, -52, 53, 17, -8, -104, -48, -29, 1, 17, 24, -43, -19, -17, 21, 41, 19, -7, -3, 74, -3, 1, 78, -2, -51, -5, 52, -38, -42, 49, 35, -5, -42, 2, -5, 9, 22, 21, 8, -33, -20, -15, 43, 43, -67, 15, 66, 23, -35, 10, -19, -14, 19, 18, -13, 0, -59, 1, 35, -4, 9, 48, -25, 35, -30, -21, -23, 54, 25, 45, 13, -59, -17, -2, 54, 0, 44, -4, 23, 22, -55, -6, -7, 45, 0, 2, 15, 23, -16, 20, -37, -33, 24, -70, 6, -14, 28, 13, -4, 3, -8, 47, -31, -6, 7, -5, -72, 16, -14, 30, 27, -69, -11, 21, 46, -13, -1, 40, 7, 52, -9, -32, -64, 73, -9, 5, 0, -5, -4, 2, 33, -35, 61, 15, -5, -15, -12, -5, 21, -25, -5, 15, 26, -10, -2, 0, -47, -46, 25, 30, 0, -29, -16, -48, 39, -11, 44, 9, -9, -32, 54, 14, -6, -48, -64, -6, -18, -34, -22, 25, -18, -5, 24, -16, -50, -35, 20, -70, -35, -10, 22, 4, -55, 16, -20, -7, -18, 48, 24, -52, 32, -68, 41, -28, 13, 41, -7, 14, 23, 17, -23, -46, -36, -8, 11, -11, 6, 42, 3, 38, -53, 28, 36, 0, -57, -6, -55 ]
Campbell, J: This is a certiorari to review the proceedings of a circuit court commissioner, dissolving an attachment sued out by plaintiff against defendants in the Muskegon circuit court. The action was had by Edwin Baxter, circuit court commissioner for the adjoining county of Ottawa, founded on a showing that J. E. Jamison, the only circuit court commissioner for Muskegon, was disqualified. The facts of disqualification were, that Jamison was engaged in practicing law with Mr. Keating, the plaintiff’s attorney, and that a portion of the papers in the cause were in his handwriting, and that he had told the defendants’ attorney that he was interested as counsel and could not act as commissioner in the matter. On the hearing of the application by Mr. Baxter, Heyn appeared by counsel specially, and after a preliminary motion for security, moved to dismiss the proceeding for \yapt of jurisdiction, on the ground that the application could only be made to the circuit judge or commissioner of Muskegon. Heyn’s affidavit averred that Jamison was never employed as his counsel. It did not deny his connection with Keating, nor his action'in drawing the papers, nor his statements of disqualification; and Jamison and Keating made no affidavits. The affidavit for certiorari is also silent on this. The statute authorizing the commissioner of an adjoining county to act in such cases was passed two years after the act for the dissolution of attachments, and declares “ that in all cases where, by the laws of this state, any duties are required to be performed by a circuit court commissioner of the proper county, if such circuit court commissioner be attorney, solicitor or counsel in such suit or matter, or be a party thereto, or otherwise interested or unable to act' or incapable of acting therein, such duties may be performed by a notary public of such county, being an attorney of the supreme court of this state; or, if there be no such notary public in such county, then such duties may be performed by a circuit court commissioner of an adjoining county.”— O. L., § 6596. Section 5597 requires that such other'officer, before acting, shall be satisfied, by affidavit or other competent proof, that such disability exists. The statute (O. L., § 5580) renders a commissioner incapable of acting where his law partner is interested. It was held in Chandler v. Nash, 5 Mich. R., 409, that a notary public could not lawfully act under this statute, to dissolve an attachment. The evidence before Mr. Baxter was such as to authorize him to decide that Jamison was disqualified, and from the affidavits he would have found it difficult to decide otherwise. The point that application should have been made to the circuit judge' is without force. The statute placed applications to dissolve attachments on no different footing from other official action, and we cannot import any such excep tion into the law. It is for the legislature to define public policy; but we cannot perceive any special hardship in compelling a plaintiff who has sued out an attachment, which he cannot honestly do without means of proof of its propriety, to show that proof before an officer who must be presumed to be as competent in one county as in another. The facility with which plaintiffs satisfy their consciences in making such affidavits needs no extraordinary encouragement from the courts. The objection that the proceedings before the commissioner should have been entitled in the original cause, is not well taken. The proceeding is a special one, applicable to proceedings before justices and other courts besides those in circuit courts; and the commissioner acts as an independent judicial officer, and not as a referee in the cause itself. The proceedings were correct, and should be affirmed, with costs. The other Justices concurred.	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Cavanagh, J. We granted leave to appeal in this case to determine whether the 1996 amendments of the Michigan housing facilities act, MCL 125.651 et seq., sever the employment relationship between a municipality and its housing commission by operation of law. We hold that the 1996 amendments, specifically MCL 125.655(3), do sever a coemployment relationship by operation of law, thus we affirm the decision of the Court of Appeals. 1. BACKGROUND AND PROCEDURAL HISTORY In 1933, the city of Detroit established the Detroit Housing Commission (dhc) under the authority of the housing facilities act, 1933 PA 18 (Ex Sess), MCL 125.651 et seq. Section 2 of the act provided that any city or incorporated village with a population of over 500.000 was authorized “to purchase, acquire, construct, maintain, operate, improve, extend, and/or repair housing facilities and to eliminate housing conditions which are detrimental to the public peace, health, safety, morals, and/or welfare.” Section 3 of the act authorized any city with a population of over 500.000 to create by ordinance a commission with the power to accomplish the purposes set forth in § 2. Under the 1933 version of the housing facilities act, the dhc was under the control of the city, and dhc employees were city employees. The United States Department of Housing and Urban Development (HUD) funds, monitors, and regulates public-housing authorities, including the DHC. From 1979 through 1990, the hud Public Housing Management Assessment Program rated the dhc a poor performer. The dhc was consistently on hud’s list of severely troubled public-housing authorities because it was failing its essential purpose because of an unreasonable number of vacant and dilapidating properties, untimely rent collections, and a general failure to meet hud standards. In an attempt to cure these problems, the city entered a series of agreements with hud that would permit the dhc to make substantial improvements in its performance, effectiveness, and efficiency. In July 1995, hud and the city entered into a memorandum of agreement, followed by a partnership agreement in December 1995. One of the primary objectives of the partnership was a com píete separation of the dhc from the city’s governmental systems. Hud and the city entered into a revised memorandum of agreement (revised moa) approved by the city council in September 1996 and executed in October 1996. The revised MOA, by its terms, expired on June 30, 1997, and also focused on a complete separation from the city’s governmental systems. In June 1996, the Legislature passed 1996 PA 338, effective June 27, 1996, which substantially amended the housing facilities act. The 1996 amendments designated housing commissions, such as the dhc, as distinct “public bodies corporate” with enumerated independent powers and authorities. See MCL 125.654(5). In addition, housing commissions such as the dhc were authorized to employ and fix the compensation of their directors, officers, and other employees and to prescribe the duties of those persons. MCL 125.655(3). The dhc was removed from hud’s troubled list in 1997. In 1998, the mayor prepared a memorandum of understanding and related ordinances, seeking to establish the dhc as a separate entity, which the city council rejected. Thus, all dhc employees were treated as city employees from 1998 through 2001 under the city’s compensation and classification plan and the city housing ordinance, which expressly subjected DHC employees to the provision of the city charter related to civil service. See Detroit Code, subsection 14-5-3(7). On July 17, 2001, relying on the 1996 amendments of the housing facilities act, the mayor notified the city council that the dhc would begin functioning as a “public body corporate” on September 21, 2001. The mayor asked the city council to approve a proposed intergovernmental agreement between the city and the dhc to allow current city employees who elected to be employed by the dhc to continue to participate in the city’s health and retirement plans. The mayor also submitted a proposed amendment of the executive organization plan recognizing the dhc as a separate “statutory agency” and a proposed ordinance to implement the minimum statutory requirements of the housing act. The city council rejected the mayor’s proposals and adopted a series of ordinances and resolutions, which effectively avowed dhc employees as city employees and prevented the separation of the dhc from the city. Specifically, on September 17, 2001, the city council adopted a resolution opposing separation of the dhc from the city and retaining all dhc employees as city employees. On September 26, 2001, the city council enacted the following ordinance: All housing commission employees shall be members of either the classified service or the unclassified service as is provided under Section 6-517 of the Charter of the City of Detroit, and shall be entitled to all rights of all employees of the City of Detroit, including but not limited to pensions and benefits. [Detroit Code, subsection 14-5-3(7).] Subsequently, the city council formally rejected the mayor’s proposed amendments to the city housing ordinance and the executive organizational plan. The council also overrode the mayor’s vetoes of the city council’s resolutions and ordinances. The American Federation of State, County and Municipal Employees (afscme) filed suit on September 19, 2001, in the Wayne Circuit Court against the city of Detroit and the dhc, seeking an injunction to maintain the status quo while it pursued an unfair-labor-practice charge against the city and the dhc with the Michigan Employment Relations Commission (merc). On September 20, 2001, the parties stipulated the court’s entry of a temporary restraining order indicating that all afscme dhc employees remained city employees. On September 21, 2001, the city council intervened as a plaintiff and sought a declaratory judgment to clarify the validity of the ordinances pertaining to the operation, procedures, and employees of the dhc. Afscme amended its complaint on October 18, 2001, to add a request for declaratory relief concerning whether the housing facilities act gave the city the power to divest itself of the dhc and to sever its relationship with dhc employees. On October 19, 2001, the city council amended its complaint, seeking to extend the temporary restraining order, relative only to afscme employees, to all dhc employees. The city council further sought a declaratory judgment to clarify the validity of the ordinances and the resolution, which provide that all DHC employees are and will remain city employees. The council also sought a permanent injunction restraining defendants from acting in a manner inconsistent with the declaratory judgment. The trial court issued a declaratory ruling on November 19, 2001, holding that severance of the city’s employment relationship with dhc employees is permissive under the 1996 amendment of the housing facilities act and that the housing facilities act did not sever the DHC from the city by operation of law. The court also found that, as recently as April 2001, the mayor had taken affirmative action to continue to treat dhc employees as city employees by proposing the budget for the fiscal year of July 2001 through June 30, 2002, which included funds for those employees. On January 25, 2002, the court entered an order declaring that the city had appropriately exercised its authority under the housing facilities act to establish employee compensation ranges and classifications to be used by the dhc, and that all dhc employees are city employees “at least until June 30, 2002.” With respect to afscme’s request for declaratory relief, defendants filed a motion for summary disposition on February 15, 2002, on the basis that the 1996 amendments of the housing facilities act made housing commissions separate independent employers by operation of law. With respect to the city council’s request for declaratory relief, defendants moved for summary disposition on the basis that certain ordinances and resolutions adopted by the city council violate state law and are preempted. Afscme filed a cross-motion for summary disposition, essentially arguing that the court had already determined that the 1996 amendments of the housing facilities act did not sever the city’s relationship by operation of law and that the city had continued to exercise the power to reserve employment through its continued inclu sion of dhc employees in the city’s compensation plan, the inclusion of the dhc in the city budget through June 30, 2002, and the continuation of the housing ordinance until September 2001. Afscme also argued that any changes in the status of dhc employees can only be effectuated in accordance with the city charter. On May 21, 2002, the trial court entered an order of declaratory judgment that certain ordinances pertaining to the employment status of dhc employees were valid and enforceable. The trial court also entered a preliminary injunction barring the city from severing its employment relationship with dhc employees until further “legislative action” by the city council. The trial court, however, invalidated two of the ordinances related to the dhc because they were preempted by the housing facilities act. Defendants appealed and plaintiffs cross-appealed to the Court of Appeals. A unanimous panel affirmed in part, reversed in part, and vacated in part the trial court’s judgment. 252 Mich App 293; 652 NW2d 240 (2002). Specifically, the Court of Appeals reversed the trial court’s ruling that the 1996 amendments of the housing facilities act did not, by operation of law, sever the city’s employment relationship with dhc employees, because the plain language of MCL 125.655(3) explicitly authorized housing commissions to act as independent employers. The Court of Appeals further reversed the trial court’s ruling that such a severance could be attained only with the concurrence of the city council by means of direct “legislative action.” Additionally, the Court reversed the trial court and held that subsections 14-5-3(2), 14-5-3(5), 14-5-3(6), and 14-5-3(7) of the Detroit Code were invalid because they were preempted by the housing facilities act. The Court affirmed the trial judge’s order declaring subsection 14-5-3(9) and § 14-5-10 invalid and subsection 14-5-7(1) valid. Finally, the Court of Appeals vacated the injunction enjoining the city from divesting itself of dhc employees. We granted afscme’s and the city council’s applications for leave to appeal. 467 Mich 899 (2002). II. JURISDICTION Afscme asserted, as a preliminary matter, that the Court of Appeals lacked jurisdiction to accept this case because count I of afscme’s first amended complaint was still outstanding. This count requested a preliminary injunction to maintain the status quo while afscme litigated an unfair-labor-practice change in MERC. The Court of Appeals stated that it has the jurisdiction to entertain appeals by parties aggrieved by a final order of the circuit court. MCR 7.203(A)(1). “Final order” is defined in MCR 7.202(7)(a)(i) as “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties . . . .” “Claim” is defined in MCR 2.111(B)(1) as a “statement of facts, without repetition, on which the pleader relies in stating the cause of action, with specific allegations necessary to reasonably inform the adverse party of the nature of the claims the adverse party is called on to defend . . . .” Count i of afscme’s first amended complaint requested the issuance of a preliminary injunction to keep the status quo while afscme litigated an unfair-labor-practice charge in MERC. The circuit court issued a preliminary injunction in favor of afscme in both the January 2002 and May 2002 orders. The Court of Appeals concluded that these orders disposed of afscme’s claim for a preliminary injunction and adjudicated the rights and liabilities of the parties concerning this cause of action. The Court stated that if the injunction was not as broad as afscme desired, while the issue may be relevant in regard to the circuit court’s actions, it is not relevant to the jurisdiction of the Court of Appeals. We agree with the Court of Appeals analysis on the matter of jurisdiction. The circuit court’s preliminary injunctions meet the criteria of a “final order” as set forth in MCR 7.203(A)(1). Therefore, the Court of Appeals had jurisdiction to entertain the parties’ appeals. We also agree with defendants’ assertion that the jurisdiction issue is moot because MERC issued its final ruling, dismissing the majority of plaintiffs’ claims. Therefore, the Court of Appeals had jurisdiction to entertain this appeal. IH. STANDARD OF REVIEW “We review de novo decisions on summary disposition motions.” CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002). Likewise, we review questions of statutory interpretation de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). IV. DHC AS AN INDEPENDENT EMPLOYER — MCL 125.655(3) The trial court held that the 1996 amendments of the housing facilities act did not, by operation of law, sever the city’s employment relationship with DHC employees and that such severance could be accomplished only with the consent of the city council by means of the council taking “legislative action” under the Detroit City Charter. The Court of Appeals reversed, holding that the plain meaning of MCL 125.655(3) evidences that the Legislature explicitly authorized housing commissions to act as independent employers, separate from their incorporating cities. 252 Mich App 307. Additionally, the Court of Appeals stated that nothing in the housing facilities act implies, much less mandates, formal acquiescence by the city council before the DHC may act as a separate and autonomous employer. Id. We agree with the Court of Appeals and hold that the 1996 amendments of the housing facilities act, specifically MCL 125.655(3), sever the city’s employment relationship with the DHC as a matter of law, unless the mayor recommends, and the city council approves, a resolution declaring otherwise. Because the issue is one of statutory interpretation, we must apply familiar principles of statutory interpretation that were recently restated in Omelenchuk v City of Warren, 466 Mich 524; 647 NW2d 493 (2002): “The paramount rule of statutory interpretation is that we are to effect the intent of the Legislature. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). To do so, we begin with the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). In reviewing the statute’s language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).” [Omelenchuk at 528, quot ing Wickens v Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001).] Additionally, we may not read into the statute what is not within the Legislature’s intent as derived from the language of the statute. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). At issue in this case is MCL 125.655(3). Before its amendment by 1996 PA 338, MCL 125.655(3) provided: A president and vice-president shall be elected by the commission. The commission may appoint a director who may also serve as secretary, and other employees or officers as are necessary. The commission shall prescribe the duties of its officers and employees and, with the approval of the appointing authority, may fix their compensation. The commission may employ engineers, architects, and consultants, when necessary. [1978 PA 205 (emphasis added).] Under the 1978 version of MCL 125.655(3), a housing commission could fix the compensation of its employees only with the approval of the appointing authority. Without this approval, a housing commission was a coemployer with the incorporating unit, not a separate employer. See Grand Rapids Employees Independent Union v Grand Rapids, 235 Mich App 398, 403; 597 NW2d 284 (1999). As amended in 1996, MCL 125.655(3) provides: A president and vice-president and other officers designated by the commission shall be elected by the commission. The commission may employ and fix the compensation of a director, who may also serve as secretary, and other employees as necessary. Upon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the governing body or establishing compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees. The commission shall prescribe the duties of its officers and employees and, shall transfer to its officers and director those functions and that authority which the commission has prescribed. The commission may employ engineers, architects, attorneys, accountants, and other professional consultants when necessary. [Emphasis added.] The statute’s language is clear and unambiguous. Housing commissions have the authority to employ and fix the compensation of their employees, as well as the express authority to determine the duties of their employees. We believe MCL 125.655(3) presents an alternative to severance. As a matter of law, the statute provides that the housing commission may employ and fix the compensation of a director and its employees as necessary. However, if the appointing authority makes a recommendation, the alternative becomes viable and the governing body may then adopt one of the two resolutions as set forth in the statute. However, if the appointing authority does not make a recommendation, or if the governing body does not adopt a resolution based on the recommendation in accord with the statute, then the housing commission retains the exclusive authority to fix the compensation of its director and employees. Thus, we agree with the Court of Appeals that the Legislature explicitly authorized housing commissions to act as independent employers, separate from their incorporating cities. We reject afscme’s argument that the Court of Appeals holding renders MCL 125.655(3) a nullity. Afscme maintains that the Court of Appeals analysis does not take into account the current status of dhc employees, which is the product of seven years of “proposals,” both before and after the 1996 amendments. However, we note that the city’s actions as a coemployer with the dhc, in the absence of any valid resolution, do not negate the legal status of the dhc as an independent employer. Merely because the city has been acting as a coemployer with the dhc does not mean that MCL 125.655(3) does not sever the employment relationship as a matter of law. Additionally, as has been noted by counsel for the city and the dhc, and as is apparent in several documents including the revised moa, the dhc was not in a position to immediately separate from the city in June 1996, when the amendments of the housing facilities act became effective. Afscme argues that while MCL 125.654(5) provides that a housing commission shall be a “public body corporate,” subsections a through e recite public body corporate attributes and make no reference to employment capabilities. Therefore, afscme would have us conclude that the designation of a housing commission as a “public body corporate” divests it of employment authority. We believe, however, that whether the attributes of a “public body corporate” specifically include employment is irrelevant because MCL 125.655(3) expressly designates employment authority to housing commissions. Afscme makes the same argument in relation to MCL 125.657, which sets forth the enumerated powers and duties of housing commissions. We reject this argument for the same reason. MCL 125.655(3) clearly designates employment authority to housing commissions, thus, it is irrelevant that MCL 125.657 does not set forth employment authority as an enumerated power or duty. AFSCME also argues that MCL 125.655(3) “expressly” reserves employment classification and compensation powers to the city. This is incorrect. Contrary to afscme’s argument, MCL 125.655(3) automatically gives housing commissions unfettered authority unless the appointing authority engages the alternative in the statute, as discussed above, by making a recommendation to the governing body. We also agree with the Court of Appeals that the trial court erred in holding that concurrence or “legislative action” by the city council is required before the dhc may act as a separate and autonomous employer. In fact, quite the opposite is true. Contrary to the trial court’s holding, it is apparent that MCL 125.655(3) declares a housing commission an independent employer as a matter of law. Only upon the recommendation of the appointing authority and the adoption of a resolution by the governing body establishing compensation of dhc employees could the city be regarded as a coemployer. A. ACTIONS BY THE MAYOR The mayor submitted four different proposals to the city council that the various parties argue satisfy the “recommendation” requirement prescribed by MCL 125.655(3): (1) the mayor’s proposed resolution dated February 27, 1996, (2) the revised moa dated October 1996, (3) the mayor’s proposed amendment dated July 17, 2001, and (4) the budgets submitted by the mayor from 1997-2001. For the reasons that follow, we do not believe that any of these actions by the mayor constitute the type of recommendation required by the statute. 1. FEBRUARY 27, 1996, PROPOSED RESOLUTION Afscme and the city council argue that the February 27, 1996, resolution proposed by the mayor constituted the “recommendation” required in MCL 125.655(3) before the city council could adopt a resolution. However, the 1996 amendments of the housing facilities act did not become effective until June 27, 1996. See MCL 125.655. Therefore, a resolution proposed before the effective date cannot satisfy the requirement under the statute. 2. THE OCTOBER 1996 REVISED MOA The revised moa was entered into between hud and the city of Detroit. It was approved by the city council in September 1996 and executed in October 1996. Relevant to employment, the moa at page five stated: The revised moa also provides for steps to be taken to create a separation of systems for public housing. The City of Detroit has acknowledged its support for the transfer of certain operational functions to the DHC. .. . The reasons for the transition are due to the dhg not being able to manage all of the critical components of its public housing program while having to depend on city operated systems (e.g.[,\ in the areas of personnel, financial management, automated data processing and procurement) .... The DHC is troubled and needs to not only have the capacity to operate all public housing activities in-house but it can also not afford to pay other departments for services for public housing in the long term. It is important to note that the dhc can not immediately separate from the city with respect to all of the functions relating to financial management, procurement and personnel. The agency does not have its own systems in place but will take steps under this MOA to create its own administrative systems and then move toward operating these systems separate from the City of Detroit. Dhc will follow the model used by other Housing Commissions in the State of Michigan. Transferring responsibilities to the Commission will meet hud’s concerns that the public housing program operate with significant independence and authority. The Commission will have control over necessary functions for public housing and be a part of the plans and programs for revitalization of the City of Detroit. This moa also requires the DHC to seek additional approvals from City Council in order to take full advantage of state legislation providing greater authority for housing commissions. [Emphasis added.] Assuming that this moa meets the recommendation and adoption requirements under the statute, it does not contain the necessary information regarding compensation or classification of employees. MCL 125.655(3) is precise: if the appointing authority makes a recommendation, the governing body may adopt a resolution “either conditioning the establishment of any compensation . . . upon the approval of the governing body or establishing compensation ranges and classifications . . . .” Therefore, the 1996 MOA cannot serve as a recommendation sufficient to constitute a joint employer relationship between the city and the DHC. In fact, to the contrary, the MOA notes that one of the reasons for the transition is the dhc’s inability to manage all the critical components of its public-housing program while having to depend on city-operated systems. One of these “critical components” was personnel. Additionally, the MOA recognized that these transitions could not occur overnight, because the DHC did not yet have the resources. This does not evidence a recommendation that the city retain control over the compensation and classification of dhc employees. 3. JULY 17, 2001, PROPOSED AMENDMENTS The purpose of the mayor’s July 17, 2001, proposed amendments of the city code was to recognize the status conferred on the dhc by the housing facilities act as a separate “public body corporate.” The proposed amendments tracked the language in MCL 125.655(3) that “the commission . . . may [employ] and fix the compensation of a director . . . and . . . other employees While the mayor’s July 17, 2001, proposed amendment may constitute a “recommendation” to the city council, the recommendation was not to “establish^] compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees” as required by the statute. MCL 125.655(3). Instead, the recommendation merely attempted to comply with the housing facilities act by providing the DHC with authority to fix compensation for and describe duties of its employees. Therefore, the July 17, 2001, proposed amendments do not meet the statutory requirements. 4. BUDGETS The trial court agreed with AFSCME and the city council that the mayor’s actions in submitting budgets that included funding for employees assigned to the DHC constituted the mayor’s “recommendation” to the city council to fix the compensation and classification of dhc employees. The Court of Appeals rejected this position, as do we. The mayor proposed a lump sum budget for the entire city for July 2001 through June 30, 2002. This does not constitute the detailed “classification” or “compensation” recommendation required by MCL 125.655(3). We recognize that the budgets incorporated by reference the city of Detroit White Book, which contains specific compensation ranges and classifications for all employment positions in the city of Detroit. The White Book includes positions that are unique to the DHC. The attorney for the city council informed us at oral argument that, where a separate public agency is established, such as the library, positions unique to that agency are no longer included in the White Book. The crux of AFSCME and the city council’s argument is that the budgets constitute the recommendation of the mayor required for engaging the MCL 125.655(3) alternatives because the budgets reference the White Book, which includes compensation ranges and classifications for employees of the DHC;. thus, the mayor recommended that the city council adopt a resolution regarding DHC compensation and classification. We disagree and hold that the budgets did not constitute the necessary recommendation to the city council. The budgets for the city of Detroit include the recommended allocation for every imaginable service the city provides. We decline to accept the inference that the mayor, by submitting a budget that encompassed all the operating costs for the entire city, was recommending that all dhc employees remain city employees. The budget submission is too broad in scope to allow the specific conclusion that the mayor was recommending that the city council adopt a resolution regarding dhc employees compen sation and classification. Further, the mayor did make specific recommendations that the dhc separate from the city with respect to personnel and employment functions, which were rejected by the city council. Therefore, the mayor’s submission of the general lump sum budget for the entire city could not have constituted a recommendation from the mayor on which the city council could have taken action. B. GRAND RAPIDS EMPLOYEES INDEPENDENT UNION v GRAND RAPIDS Afscme and the city council argue that the Court of Appeals failed to follow a previous Court of Appeals decision, Grand Rapids, supra. In Grand Rapids, the city executive proposed that the city council amend existing ordinances to transfer all employment authority from the city to the housing commission. The Grand Rapids city council agreed. The Grand Rapids Court held “in the absence of a city resolution to the contrary, housing commissions are now permitted to fix the compensation of their employees.” Grand Rapids at 405. Afscme and the city council maintain that the Court of Appeals holding in this case is contrary to the decision in Grand Rapids. Afscme and the city council argue that if there is a city resolution to the contrary, which there is in this case, the housing commission is not permitted to fix the compensation of its employees. Afscme and the city council further maintain that the 1996 amendments permitted the city to continue to exercise employment oversight for the commission and that it did so between 1996 and 2002 when it included the dhc in its budgets. Defendants, however, counter that the Court of Appeals decision is not in conflict with the decision in Grand Rapids because it also held that housing commissions are independent bodies corporate and the sole employer of commission employees. Defendants interpret Grand Rapids as providing that the city council may adopt an ordinance defining powers of the commission as the employer if it is consistent with the housing act, but the ordinance may not withhold or deny powers granted by the statute. We agree with this interpretation; the ordinance in Grand Rapids did not conflict with the housing facilities act; Detroit’s does. We decline to accept plaintiffs’ position that the Grand Rapids Court holding that “in the absence of a city resolution to the contrary, housing commissions are now permitted to fix the compensation of their employees,” is applicable in this case. The Court of Appeals in this case is not bound by that language to conclude that because there was a resolution to the contrary in this case, the DHC could not be the sole employer. The Grand Rapids panel and the instant panel are consistent in their reading of the housing facilities act, but differ on the facts under consideration. The Grand Rapids Court was not faced with a resolution in conflict with the statute and, thus, did not have to address what happens when there is such a resolution. Therefore, the Court of Appeals did not err by declining to follow the fact-specific holding from Grand Rapids. V. DETROIT CITY ORDINANCES The Court of Appeals opined that subsections 14-5-3(5) to (7) of the Detroit City Code are in direct conflict with MCL 125.655(3). The city council argues that this is incorrect. We reject the council’s arguments, however, and agree with the Court of Appeals. The city of Detroit is a “home rule city.” Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 637, 652, 669 n 8; 537 NW2d 436 (1995) (opinions by Weaver, Cavanagh, and Mallett, JJ.). We have held that “home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied.” Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994). As a home rule city, certain powers are left to the city under Michigan’s constitution: Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [Const 1963, art 7, § 22 (emphasis added).] While prescribing broad powers, this provision specifically provides that ordinances are subject to the laws of this state, i.e., statutes. See also the Home Rule City Act, MCL 117.1 et seq., specifically MCL 117.4j(3), which provides: For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state. This Court has held that a municipality may not enact an ordinance that directly conflicts with the state statutory scheme or if the state statutory scheme preempts the municipality’s ordinance by “occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.” People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977). As analyzed below, it is clear that the city ordinances at issue directly conflict with the housing facilities act. A. SUBSECTIONS 14-5-3(5) AND (6) The city council amended subsections 14-5-3(5) and (6) to provide: (5) The mayor shall recommend to the City Council either a compensation Schedule or compensation ranges and classifications for the [housing] Commission officers and employees. (6) The City Council shall adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the City Council or establishing compensation ranges and classifications by the commission in fixing the compensation of its officers and employees. [Emphasis added.] The city council's position is that the plain meaning of MCL 125.655(3) suggests that the mayor (or “appointing authority”) has an affirmative duty to make recommendations to the city council (or “governing body”). The city council maintains that the statute is discretionary because it provides that “[u]pon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt. . . (Emphasis added). The city council would have us interpret this as giving the governing body discretion to adopt either a requirement that the compensation of each officer or employee be approved or establish compensation ranges and classifications. The city council believes that while it may choose either of the two alternatives, it must in fact act. If the city council has the affirmative duty to choose an alternative, the city council states that it is incumbent upon the appointing authority to make the appropriate recommendations. Under the city council’s interpretation, the appointing authority has discretion regarding what is recommended, not whether to make a recommendation. If the city council’s interpretation is correct, it would follow that subsections 14-5-3(5) and (6) do not conflict with the statute and thus axe not invalid. The city council’s position, however, is flawed. Subsections 14-5-3(5) and (6) do conflict with MCL 125.655(3) and are preempted. We cannot read into the statute what is not there. Omne Financial at 311. MCL 125.655(3) includes no duty to make a recommendation. Likewise, we cannot read into the statute a duty mandating the adoption of a resolution regarding employee compensation and classification. Rather, as discussed in part iv, we believe MCL 125.655(3) presents two alternatives. As a matter of law, the housing commission may employ and fix the compensation of a director and employees as necessary. If the appointing authority makes a recommendation, the second option becomes viable and the governing body may adopt one of the two resolutions as set forth in the statute. However, if the appointing authority does not make a recommendation or if the governing body does not adopt a resolution in accord with the statute, the housing commission has the exclusive authority to fix the compensation of its director and employees. Subsection 14-5-3(5) provides that the mayor shall make a recommendation to the city council regarding compensation and classification of DHC employees. Likewise, subsection 14-5-3(6) states that the city council shall adopt a resolution regarding compensation and classification of DHC employees. The city code makes the mayor’s recommendation and the city council’s adoption mandatory. However, MCL 125.655(3) clearly provides, in pertinent part: The commission may . . . fix the compensation of a director . . . and other employees as necessary. Upon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the governing body or establishing compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees. [Emphasis added.] Subsections 14-5-3(5) and (6) are clearly contrary to the plain language of the statute. First, the statute gives the housing commission the express authority to fix the compensation of its director and other employees. Second, the statute provides that “[u]pon the recommendation of the appointing authority, the governing body . . . may adopt a resolution” regarding the compensation and classification of housing commission employees. There is nothing in the language of the statute mandating that the appointing authority make a recommendation to the governing body. Therefore, subsection 14-5-3(5) is contrary to the plain language of the statute and is invalid. Likewise, there is nothing in the language of the statute mandating that the governing body adopt a resolution. Therefore, subsection 15-5-3(6) is also contrary to the plain language of the statute and is also invalid. Because the mandates in subsections 14-5-3(5) and (6) directly contradict the express language of MCL 125.655(3), which gives the appointing authority the discretion to make a recommendation and the governing body the discretion to adopt a resolution, subsections 14-5-3(5) and (6) are invalid. B. SUBSECTION 14-5-3(7) The city council’s amendment of subsection 14-5-3(7) provides: All housing commission employees shall be members of either the classified service or the unclassified service as is provided under Section 6-517 of the Charter of the City of Detroit, and shall be entitled to all rights of all employees of the City of Detroit, including but not limited to pensions and benefits. We hold today that the 1996 amendments of the housing facilities act, specifically MCL 125.655(3), sever the city’s employment relationship as a matter of law, unless the mayor recommends and the city council approves a resolution declaring otherwise. As we have already established, the mayor did not make such a recommendation; therefore, there was nothing for the city council to approve. As a result, subsection 14-5-3(7), declaring that all DHC employees are city employees, is contrary to MCL 125.655(3) and the mayor’s actions in this case; thus, subsection 14.5-3(7) is invalid. C. OTHER ORDINANCES To the extent afscme argues that if the ordinances are declared invalid, the status quo will revert to the prior housing ordinance, which still maintains DHC employees as city employees, AFSCME is mistaken. Any prior ordinances that conflict with the housing act are invalid and have no effect. VI. CONCLUSION We hold that the 1996 amendments, specifically MCL 125.655(3), sever a coemployment relationship between a municipality and its housing commission by operation of law. The only way to establish a coemployment relationship is under the unambiguous language of MCL 125.655(3): upon the recommendation of the appointing authority, the governing body may adopt a resolution regarding the compensation and classification of housing commission employees. In this case, the mayor of the city of Detroit did not make such a recommendation, therefore, the dhc is the sole and independent employer of DHC employees. As a result, ordinances enacted by the Detroit city council to the contrary are invalid. The judgment of the Court of Appeals is affirmed. Corrigan, C.J., and Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred with Cavanagh, J. See also In re Brewster Street Housing Site, 291 Mich 313, 323; 289 NW 493 (1939). Id. Section Cl(b) of the partnership agreement stated: The separation plan shall deal with all aspects of the housing commission, which will have the power of governance and by-laws (written draft by March 1, 1996), including: housing commission capacity to hire, fire, transfer, [and] assign employees as well as set job descriptions, compensation levels, and performance criteria. The plan will include a timetable and date certain for complete separation from the City.	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On order of the Court, the Judicial Tenure Commission has issued a Decision and Recommendation for Discipline, and the Honorable Helen E. Brown has consented to the Commission’s findings of fact, conclusions of law and recommendation of public censure. We are called on in this case to discipline a judge for the two ethical transgressions outlined below. One of the situations presented relates to the respondent’s involvement with a charitable organization. The respondent has volunteered as a part of the consent resolution of this matter to refrain from participating in charitable activities that would otherwise be well within those allowed by our Code of Judicial Conduct. Thus, while we adopt the findings and conclusions of the Judicial Tenure Commission, this should not be interpreted in any way as discouraging members of the judiciary from participating in civic and charitable activities in conformance with Canon 5B of the Code of Judicial Conduct, such as forming a civic or charitable organization, serving on the board of directors of such an organization, or attending a charity fundraiser. As we conduct our de novo review of this matter, we are mindful of the standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000): [Ejverything else being equal: (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct; (2) misconduct on the bench is usually more serious than the same misconduct off the bench; (3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated; (6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery; (7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship. The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations. In this case those standards are being applied to the following findings and conclusions of the Judicial Tenure Commission, which we adopt as our own: 1. Respondent was a judge of the 3rd Circuit Court, Family Division, in the City of Detroit, Wayne County, Michigan at all relevant times mentioned. 2. As a judge, Respondent is subject to all of the duties and responsibilities imposed on her by the Michigan Supreme Court, and is subject, at a minimum, to the standards for discipline set forth in MCR 9.104 and MCR 9.205. 3. The Commission has conducted a preliminary investigation of certain grievances filed against Respondent, which are identified as Grievance Nos. 01-13491, 01-13598, 01-13717 and 02-13858 (collectively referred to as “Investigated Grievances”). 4. On March 8, 2002, the Commission provided notice to Respondent of the charges being made in the Investigated Grievances pursuant to then-MCR 9.207(C), in what is commonly referred to as a 28-day letter. 5. On June 13, 2002, the Commission issued a supplement to the 28-day letter to Respondent. 6. The Commission and the Respondent have engaged in negotiations to resolve this matter. As a result of those negotiations, Respondent has consented to the resolution of this matter through an order of public censure by the Supreme Court. 7. The recommendation for order of public censure is based on the following facts: A. Respondent is the founder and Chairman of the Board of Trustees of the Coalition for Family Preservation (“Coalition”), a Michigan nonprofit corporation. 1) On Friday, October 5, 2001, the law firm of Garber & Mayers, P.L.L.C. held a golf outing fundraiser for that organization. 2) On or before September 5, 2001, Garber & Mayers presented a number of the invitations for the event to Respondent by delivering them to her staff. 3) The invitation states that Respondent sponsored the golf outing. 4) The invitation also identifies the Coalition for Family Preservation as a “501(c)(3) non-profit organization,” when it did not yet [have] such status under section 501(c)(3) of the Internal Revenue Code[.] 5) The program for the event prominently identifies Respondent as the “Coalition Founder.” 6) A sign recognizing donors to the golf outing and a handout identifying the prizes for the outing, which were posted at the event, prominently identify Respondent as the “Coalition Founder.” 7) The sign and handout also erroneously state[d] that the Coalition had received 501(c)(3) status, when it did not. 8) Respondent was aware of Canon 5B(2), which prohibits judges from individually soliciting funds for charitable organizations, or using her prestige of office for that purpose. 9) In relation to the use of her name and the identification of the Coalition as a 501(c)(3) organization, Respondent failed to: a) Take sufficient care to review all materials distributed in accordance with the golf outing to insure that her name was not used in an improper manner, and that the tax exempt status of the Coalition was correctly identified; b) Take action to revise the invitation; c) Notify personnel at Garber & Mayers of the need to make changes to the invitation; or d) Advise personnel at Garber & Mayers of limitations regarding the use of her name, and the erroneous identification of the organization as having received 501(c)(3) status, for other documents relating to the golf outing, after receiving the invitation. 10) MCL 450.2911 requires all corporations authorized to conduct affairs in this state to file a report with the State of Michigan no later than October 1 of each year. 11) Respondent, as Chairman of the Board of Trustees, is ultimately responsible for the filing of all required reports of the Coalition. 12) As of October 1, 2002, the Coalition had not filed annual reports for the years 2000, 2001, and 2002 with the State of Michigan. As a consequence, the Coalition was dissolved on October 1, 2002 pursuant to MCL 450.2922. B. Respondent was at all relevant times assigned to Elizabeth Bousquette v David Bousquette, Third Judicial Circuit Court Case No. 00-024584 DM. 1) One of the issues in the case concerned the custody of two minor children. 2) After the plaintiff moved out of the state, custody was temporarily awarded to the maternal grandparents, Norman and Deborah Bresinski, as the defendant could not provide a suitable residence for the children, and as he was working a midnight shift. 3) On December 14, 2001, the Bresinskis and the defendant, both with counsel, appeared before Respondent for an evidentiary hearing to determine if the house purchased by the defendant was a suitable residence for the children, and to confirm that the defendant had begun working a day shift so he could care for them. 4) During the hearing, the attorney for the grandparents raised the issue of where the children would spend the approaching Christmas holidays. 5) Counsel for the parties noted that there were conflicts in the judgment of divorce and a subsequent order, which clouded the issue of where the children would spend Christmas Eve and Christmas Day that year. 6) Respondent encouraged the parties to resolve the matter themselves, but when they were unable to agree and where each side had equally compelling arguments as to why the children should be with one party on Christmas day instead of Christmas Eve she told the parties it was nothing more than a coin flip. 7) Instead of just issuing a decision regarding the dispute, Respondent stated that she would decide it by the flip of a coin. 8) Although the Bresinskis’ attorney and Norman Bresinski protested using a coin flip to determine the issue, Respondent produced a coin, allowed the defendant to call heads or tails, and flipped it. 9) The defendant called heads, which is what appeared on the coin, and Respondent thereby ordered that the children would spend Christmas Eve with defendant. 8. By consenting to this recommendation for discipline, Respondent expresses her deep regret for her conduct as set forth above, and for the resulting negative impact on the public perception of judges, the institutional integrity of the judiciary, and the administration of justice. 9. By consenting to this recommendation for discipline, Respondent will: A. Take no measures to reactivate the Coalition for Family Preservation or to incorporate any other charitable organizations; B. (1) Refrain from being an officer or board member of any other charitable organization, (2) refrain from participating in any charitable fundraising as an individual, and (3) refrain from lending her name to assist in the solicitation of funds for any other charitable organization. Respondent is not precluded from making contributions of her time or money to a charitable organization should she choose to make any; and C. Refrain from resolving any disputed issue by the flip of a coin. 10. In consideration of Respondent’s consent to discipline and her promises as to future conduct, the Commission agrees to dispose of all pending Investigated Grievances and to refrain from entertaining any further grievance or Request for Investigation for any act set forth in the Investigated Grievances. 11. Respondent’s conduct as admitted and described above constitutes: (a) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205; (b) Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205; (c) Failure to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1; (d) Irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A; (e) Non-adherence to the usual and accepted methods of doing justice, contrary to the Code of Judicial Conduct, Canon 3A(9); (f) Individual solicitation of funds on behalf of a charitable organization, or permissive use of the prestige of the judicial office for that purpose, contrary to the Code of Judicial Conduct, Canon 5B(2); (g) Conduct which is prejudicial to the proper administration of justice, in violation of MCR 9.104(1); (h) Conduct which exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2)[.]”	[ -12, -50, 15, -10, -1, 32, -60, -6, -14, 19, -39, -27, 30, -15, 10, -59, 27, 17, -51, -11, 0, 11, 5, 22, -20, 54, -20, 34, 10, 17, -35, -13, -4, -61, -6, -31, 13, 44, 30, 17, -14, -27, -8, -10, -16, 30, 27, 1, 14, -58, 0, 67, 24, 39, -5, 47, 18, 33, 17, -35, 14, 34, -46, -68, 60, 3, -17, 32, -16, 17, -5, 38, -37, -35, -22, -13, 69, -6, -44, -7, -17, 43, 0, 26, -17, 4, 70, 19, 79, -51, -1, 44, -67, -23, -60, -1, -18, -2, 24, 18, -39, -49, -6, -1, -54, 1, 41, 5, 49, -18, 40, 27, -19, -58, 2, -13, 8, 8, -47, -46, 35, -7, 5, 11, 21, 37, 53, -42, 3, 27, -23, -29, 4, -63, -31, 3, 6, 31, 36, 12, -32, 22, -43, 70, -25, -66, -57, 20, -3, -28, 38, 16, 29, -8, -20, -70, -9, -31, 60, 12, -36, 75, -46, -23, 1, -15, -23, 20, 42, 14, 15, 67, 35, -15, -6, -62, -23, 11, 13, 28, -14, 36, -17, 24, -58, -5, -22, -19, -14, -26, -58, 27, 42, -12, 67, -11, 14, 54, -3, -62, -28, 19, -24, 30, -61, 26, -42, -18, -69, 25, 25, 54, 21, -7, -43, -53, -10, -7, 0, -18, -16, -32, 12, -16, -22, -90, 3, 24, -22, -50, -32, -14, 59, -52, 75, 14, 27, 86, 48, 38, -6, 40, 17, 38, -43, -32, 7, -6, -12, 16, 5, 24, 63, 44, -59, 0, -2, 57, 17, 19, -19, 0, 29, 23, 2, -50, -15, 85, -5, -41, 6, 15, -15, -56, -42, 17, -9, -36, -13, -17, -18, 17, 17, -4, -8, 7, -22, -43, 32, -18, -13, 25, -38, 43, 88, 4, 42, 22, 4, -49, 18, 19, -6, 17, 8, 24, -14, -11, 36, -45, 52, -75, -22, 5, 13, -16, -50, -9, 33, 1, -39, -35, 11, -12, -84, -50, 67, -52, 46, -23, 11, 58, 20, 45, 76, 24, 59, 47, -55, -28, 19, -10, -9, -29, 0, -50, -9, 15, -71, -8, -7, 62, -7, 43, 5, 3, 10, 7, 16, 14, -10, 26, 43, -40, 21, 24, -18, -33, -11, -13, 10, -49, -45, 4, -12, 16, 52, -33, 25, 17, -53, 22, 44, -15, -25, -33, -37, 22, -43, -51, -9, 34, -3, 17, -17, 33, 48, 15, 13, 21, -34, -5, 17, -25, -10, 24, 0, -72, 36, 27, -15, 1, 25, 22, 46, -10, 11, -18, 47, -54, 42, 36, 58, -21, 7, 26, -4, 42, -1, 23, -12, -55, 49, -5, 2, -3, -16, 0, -24, 28, 22, -19, -23, 12, -33, -21, 60, 33, 18, -9, 66, -21, -2, 10, -7, -7, 8, 26, -22, -35, -36, -16, -43, 13, 4, 19, -42, 12, 38, 0, 3, -28, 15, 95, 5, -32, -43, 15, 18, -27, 73, -15, -25, -22, -5, 33, -62, -31, -38, -22, -23, 13, -16, 8, -44, 20, 30, 17, -17, 58, 10, 9, -43, -11, -20, -105, 4, 9, 17, 5, -1, -34, 15, 46, 18, 9, 14, 6, 20, -44, -27, -51, -1, 2, 11, -31, 8, 12, -35, -59, 45, 35, -8, 6, 63, 47, -44, -71, 45, -76, -1, 4, -1, 42, 29, -14, 0, 13, 33, 61, 21, 18, -19, -24, 8, -42, -36, -3, 75, -18, -74, 46, 39, 15, 35, 29, -41, -7, 45, 8, 90, 35, -9, -13, -36, 35, 55, 57, 14, -48, 40, -49, 9, 11, -2, -16, -2, -40, 39, -56, 8, -11, -23, 32, 1, -53, 38, 7, 7, 6, 32, 39, -32, -16, 54, -32, 21, -19, -1, -53, -30, -20, -29, -9, 4, 33, -9, 13, -4, 55, -60, -83, 13, -107, 48, -22, 38, 22, 55, -68, 40, 18, 20, 7, -41, -4, -45, -43, -30, 2, 46, 34, 9, 46, 76, 42, 32, 53, -20, 2, 67, -21, 27, -51, 3, 20, 2, 76, -36, -45, 52, 26, -22, 77, -7, 33, -35, 59, -7, -10, -29, 35, 75, 10, -19, 9, 37, -59, -13, -38, -50, -14, -44, -23, -20, -4, -27, 28, -6, -6, 9, -1, 23, 25, 80, -5, 40, -20, 1, 13, -20, 17, -24, 9, -14, -45, 12, 0, -30, -10, -48, 27, -22, 62, -56, -32, -105, -28, -35, 32, -7, 39, -12, -3, 65, -4, 6, 40, 23, -29, 26, 0, -12, -7, 11, 13, 12, -8, -30, -7, -2, 42, -15, -17, 2, 18, 42, 29, -49, -9, 13, -15, 33, -17, -6, 28, 37, -15, -28, -12, -5, 41, 23, -8, -7, 3, -23, 0, 3, 26, -12, -24, 6, 25, -11, 13, -24, -17, -16, 15, -18, -10, -11, -9, -7, -1, -2, -19, -2, -3, -12, -38, -16, -4, 32, -16, -33, 39, 42, -25, -22, 50, -27, -63, -70, 48, -3, -12, 29, 15, 15, -14, -34, 11, 12, -17, 12, 0, 18, -47, 31, -35, -7, -19, 35, -74, 0, -50, 40, 0, -20, 6, -4, 34, -19, 14, -66, 17, 37, 7, -29, 2, -8, -17, 14, 12, -12, 7, -23, 1, 9, 23, -26, -36, 22, 30, -44, -41, 38, -18, -63, 11, 2, -54, 32, 76, 34, -8, 43, -6, -45, 78, 12, 14, -63, -15, 15, 9, -21, 8, 12, 20, -11, 24, 33, 0, -17, -35, -13, 4, 60, -15, 19, 27, -34, 3, -30, 10, -56, -19, 20, 66, 26, -45, -59, 22, -14, -18, -34, 30, -14, 13, -27, 64, 3, -24, 8, 27, 51, -51, -27, 4, 17, -28, -25, -9, -8, -51, -20, -11, 18, 3, 9, -46, 10, -19, -21, -9, -3, -43, -34, -25, 7, -5, -13, 4, -120, 10, -56, -21, -14, 24, -13, 10, -36, -21, 25, 62, 1, -17, 14, -3, 5, -36, 23, -23, -41, -11, -30, 35, 42, -24, -55, 28, 20, -9, -19, -18, -47, -32, -19, -25, -19, 16, -43, -31, -24, 48, 20, -5, 26, -20, 35, -28, -36, 0, -24, -6, 19, -42, 49, 25, -56, -4, 28, 9, -13, -25, -33, -2, 27, -40, 55, 27, 19, -8, 34, -59, 5, -35, -36, 77, 23, 9 ]
Grant, J. (after stating the facts). We deem it unnecessary to state more fully the proceedings taken and the objections thereto. The appellants stood by; saw these proceedings taken; do not claim to be damaged; their assessments are small; and they took none of the statutory steps to contest the legality of the drains. They are now about completed. Under the repeated decisions of this court, we think they are not now in position to raise the questions. The drain law provides methods for the speedy determination of all questions involving the validity of the proceedings. The evident intent and purpose of this is to have the validity determined before large expense is incurred and the drains constructed. The following decisions are conclusive against the appellants: Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22). The constitutionality of this act has been attacked before, but perhaps not on the specific ground now alleged against it. A similar provision is found in the general tax law. We see no constitutional objection to adding an amount to cover contingent expenses. The decree is affirmed, with costs. The other Justices concurred.	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Montgomery, C. J. This is a contest over the will of Elnora Saier. The grounds of contest are undue influence and mental incapacity. The record discloses that in 1895 Mrs. Saier had executed a will in which she had devised her property to her children, share and share alike, except William and Joseph. The shares which, had she died intestate, would have been theirs, were devised to their respective wives. Before the making of this first will, Mrs. Saier had loaned to her son William $800 on mortgage security, and had loaned to Joseph Saier $500, and to Charles $500. The will offered for probate was executed on the 11th of January, 1898, the day of the testatrix’s death, and differs from the first will only in that the shares given by the first will to the wives of William and Joseph were given direct to her sons, and that by the will in question it was recited that these loans of $800, $500, and $500, respectively, should be treated as advancements to William, Joseph, and Charles, and deducted from their respective shares, the will reciting that these sums remained unpaid. The testimony tended to show that the mortgage given by William had on the 2d of November, 1894, been formally discharged by Mrs. Saier, and that William had, by her direction, paid the money due thereon to Joseph. The children of deceased consisted of Mrs. Mary Hen-rich, of Milwaukee; Charles Saier, John B. Saier, Joseph Saier, and Mrs. Kate Savage, of Lansing; William Saier, of Millett; and Clara O’Neil, of Gharlotte. About a week before Mrs. Saier’s death, Mrs. Henrich was sent for, from Milwaukee, and arrived in Lansing five days before the mother’s death. She arrived Friday morning, and her mother died the following Tuesday evening. On her arrival she went to the house of her sister Mrs. Savage, and there had a conversation with Mrs. Savage about William’s mortgage. By her direction, Mrs. Savage wrote a letter to Mrs. O’Neil, at Charlotte, the same morning. The object of the letter was to haye Mrs. O’Neil go to the register’s office and ascertain if William had placed on record a discharge of the $800 mortgage. The next Monday, about 10 o’clock, a telegram was received from Mrs. O’Neil, stating that the mortgage was discharged December 7th. Mrs. Savage and Mrs. Hen-rich were at their mother’s house when the telegram came, and Charles was at work at Mrs. Savage’s house. On receiving the telegram, Mrs. Savage went over and talked with Charles about it, and they then went back to their mother’s house, and read her the telegram and talked to her about it. Mrs. Henrich,.Mrs. Savage, and Charles all assert that their mother denied, at once, having made any discharge of the mortgage, and pronounced it a forgery. There was testimony relating to other facts and circumstances from which an inference of undue influence might be drawn by the jury. There was testimony tending to show a want of memory, in some measure affecting the disposition made of her property by the testatrix. The jury found that the discharge of William’s mortgage was executed and acknowledged by Mrs. Saier, and that she had apparently forgotten this fact, as she charged that it was a forgery. There are numerous assignments of error based on the admission of testimony. But two of these require discussion. Charles Saier was permitted to testify to statements of Joseph to the effect that William had admitted to him that the mortgage given to his mother was unpaid. This testimony was hearsay and clearly inadmissible, unless there is some fact to take it out of the rule excluding hearsay testimony. It is suggested that Joseph Saier had testified in his deposition to the payment of the $800 mortgage, and that this made the testimony of his admissions competent; but it does not appear that any foundation for impeaching the testimony of Joseph Saier was laid. It is also suggested that, if the mortgage was not paid, William Saier and Joseph were co-conspirators. We discover no evidence in the case tending to show conspiracy, unless it be in the fact that the testimony of one witness was corroborated by the other upon this point. It would be an exceedingly dangerous doctrine to admit into the law of evidence that, where two witnesses testify to the same state of facts as to the payment of a sum of money, the opposite party is to be permitted to introduce declarations of one not a party, affecting the rights of a party, under the claim that their testimony shows that they are guilty of conspiracy. We think it was error to admit the testimony. There is one other item .of testimony which was improperly excluded, in our opinion. As tending to show that the testatrix retained her mental faculties, evidence was offered that, a few hours after executing the will, a priest was called to administer the last sacrament, and that Mrs. Saier participated in the service, repeated audibly and properly the prayers, made the sign of the cross at the proper time, and appeared to comprehend the service. On cross-examination of Mrs. O’Neil, who was'called as a witness by proponents,— it appearing that she was present at this time,' — ■ she was interrogated as to what this service consisted of, and, under objection, the testimony was excluded. We think it should have been admitted. It had a direct bearing upon the condition oí the patient. The charge, in the main, was full and fair, but there is one portion which, while the rule as laid down is, in the main, correct in the abstract, yet, as applied to the facts in the case, was calculated to mislead the jury: “Neither, in a case of this kind, are you to be moved by any appeals of any kind made to you. I wish those things could be eliminated from the court-room; * * * and all appeals to your prejudice, all appeals to your passion, all appeals of any kind made to you, are simply so many strings to pull you away from the pure question of fact that you have to determine. And when you go to your rooms I want you to act upon your own judgments, upon your own consciences, in the matter. It is not for you to make a will one way or the other; that is none of your business. You have got no more right to make a will for Mrs. Saier, now that she is dead and gone, than you would have had to step into her room when she was living, and impudently dictate to her what she should do with her property. Whether it is such a will as you would have made is immaterial. Whether she did just right, or did not do right, is immaterial. Those are not questions for you. You gentlemen have the control of your own property, and she had the right to control hers, if she was mentally competent.” It is true that a jury has no right to substitute its own judgment for that of a testator as to what a will ought to be. It is true that whether she did just right was not the ultimate question for the jury to determine. But if she discriminated against William to the extent of this mortgage, claiming that it had not been paid, when in fact it had, this was a circumstance which was to be weighed by the jury, in connection with the other facts in the case, in determining her mental condition, and determining whether she acted under undue influence. It does not require any argument to show that such a provision is against natural justice, and the fact that a provision of the will is against natural justice may be considered, with other facts, as bearing upon this question. Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566). We think the other questions raised do not call for special discussion. The rule of the case is sufficiently in dicatecl by the foregoing. We cannot, however, pass by in silence certain matters contained in the brief of Messrs. Smith & Hood, attorneys for contestants. The brief contains strictures upon the trial judge which are unwarranted by anything which appears in the record, and which have no place in a legal argument. Some allowance may be made for zeal of counsel, but we cannot permit such matter to be spread upon the records of this court, and a repetition of the offense will call for something more than a reprimand. For the errors pointed out, the judgment will be reversed, and a new trial ordered. Moore, Long, and Grant, JJ., concurred. Hooker, J.. did not sit.	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Hooker, J. The plaintiff’s testate was drowned through riding a bicycle off from a bridge, at night, while the draw was open to permit the passage of a vessel. Deceased had a place of business about two blocks from the bridge, and was in the habit of crossing the bridge on his way to and from his home. The testimony varies as to the degree of darkness, but it is shown to have been a moonlight night, and a red lamp upon the center of each side of the bridge was facing the street. Commonly a chain was stretched across the bridge when the draw was open, and this chain had been stretched on this occasion, but had been driven against and broken. Notwithstanding this fact, the draw was opened for the approaching boat, without any steps to provide warning to persons approaching being taken. The learned circuit judge left the questions of negligence and contributory negligence to the jury, and they returned a verdict as follows: “We find that George P. Burgess came to his death through contributory negligence, ánd therefore no cause of action.” No requests for special findings had been submitted to them, but, as this verdict clearly shows that it was based on contributory negligence, it necessarily implies that they found the defendant guilty of negligence. It becomes unnecessary, therefore, to discuss the -assignments of error bearing alone upon defendant’s negligence. There are other bridges in Port Huron where conditions are similar. The defendant showed that on one or two other occasions the deceased had ridden his bicycle against the chains upon the bridge where he ultimately met his death, and had been violently thrown down upon the bridge. An attempt was made to show that he had done the same upon another bridge, and, after the answer had been excluded, a similar question was asked as to a third bridge. It was not answered, however. The argument was afterwards made that the fact that the deceased rode against the chain on other occasions tended to show that he was a careless rider, and corroborated the testimony of witnesses that on the night in question he started from ¡ his place of business at a rapid pace, with his head down, (and was seen thus riding, and warned, when near the chain. It is urged that the admission of this testimony, and the conduct of counsel in relation to it and to that excluded, call for a reversal of the case. In his charge the judge said upon this subject: “Now, in determining whether or not Mr. Burgess on that night in question was guilty of contributory negligence, you have a right to take into consideration his knowledge of the surrounding facts and circumstances. There was some testimony introduced here tending to show that Mr. Burgess on one or two other occasions had run against the chain on the bridge, and was thrown off his bicycle. Now, that testimony was admitted for the single and sole purpose of showing, or tending to show, that Mr. Burgess knew the kind of a barrier that was used there, and so far as it tended to throw any light on the fact that he knew it was a drawbridge, and that it was opened at times for vessels to pass through. The defendant’s counsel, in his arguments, said to you that the evidence tended strongly to show what kind of a rider Mr. Burgess was, on his bicycle. Now, that argument was not proper. Counsel was distinctly advised before that testimony came in that it could not be used for that purpose. You have no right to consider that testimony for the purpose of showing that Mr. Burgess was a careless rider, because, though he may have been careless at other times, that does not show that he was careless on this night. Whether he was or was not careless on the night he was drowned must depend upon the evidence bearing upon his conduct that night, and not at any other time, so that for that purpose you will disregard that testimony; but you may consider it for the purpose of showing his knowledge of the bridge and the surrounding circumstances and the guards that were used there, but for no other.” It was certainly competent to show that the deceased was acquainted with the situation, and the fact that on other occasions he had ridden his wheel up to the verge of the chasm, and had stopped at or been stopped by. the chain, would be convincing evidence of such acquaintance, admissible notwithstanding the fact that it showed carelessness upon those occasions. It is a well-understood rule that testimony that is offered for a purpose for which it is competent is not to be excluded because it tends to prove another fact which is incompetent. The court carefully restricted the use of this proof, and plainly instructed the jury to disregard the objectionable argument. This was all he could do, and in the absence of intentional professional misconduct, or some evidence that the jury disregarded the instructions of the court, we should not reverse the case for the offer of proof. Counsel for plaintiff requested the court to charge that: “The love of life is instinctive. Men do not usually expose themselves to great discomfort or great danger without some strong motive. Mr. Burgess is dead, and cannot speak; but his estate is entitled to any presumption that may arise from this instinct of self-preservation, and you should not find him guilty of negligence without satisfactory proof or strong inference that he is so.” The request is objectionable, because argumentative; but, furthermore, the inference which a jury may draw, in the absence of testimony, in a case where the victim of the accident is dead, may be overcome by any proof which, in the opinion of the jury, reasonably tends to show want of care, and the judge was not called upon to instruct the jury that the “proof must be satisfactory, and the inference strong,” without further explanation of the subject. It is contended that the court should have instructed the jury that the deceased had a right to assume that the city would do its duty in the premises. A request of this kind was offered, but it was coupled with the implication that the deceased was under no obligation to look for danger if he could not reasonably be expected to see or expect that the draw was open. Under undisputed proof, we think that the deceased knew he was approaching a place that might be dangerous; and if, as the court said, he could not see, there was occasion for caution, and he should not blindly push on, in reliance upon the expectation that he would be stopped by running into a chain on the brink of a chasm. Again, the claim that, if he momentarily forgot the conditions, it would excuse his failure to act upon his knowledge, is not tenable. If it were, no one need do more than to forget his knowledge of conditions (%. e., be absent-minded or preoccupied), to be excused from all care. But these things amount to inattention, and inattention is heedlessness, and this is not to be thus excused. The cases cited do not support this claim. They go no further than to say that it is for the jury to determine what is due care in attempting to avoid a known danger. Again, a request was offered to the effect that if deceased rode over the draw because of the absence of the chain, which he was looking for, the plaintiff was entitled to recover. This should not have been given. It left out other circumstances. It would not be due care to ride rapidly towards a place of danger in a dark night, in the expectation of seeing a small chain on the brink of a chasm in time to avoid danger. It would be- a very hazardous performance. It is contended, also, that the court ought to have called attention to differences in the condition of the bridge and surroundings at the time of the accident from those existing at the time of the trial, but we think the request was more in the nature of an argument than a proper request. The jury could not have failed to understand, if they were possessed of ordinary intelligence, that it was the condition upon the former, and not the latter, occasion that they were considering. The court told the jury that: “ It is the settled law of this State that no person can recover damages against a city for injuries, -nor for the death of any person, if the person who was killed or person injured was guilty of contributory negligence. Now, that means merely this: If they were guilty of some act which in itself was negligence, and contributed to the injury they received, or to the death they complained of, it would make no difference how slight the negligence may be, if it contributed to the result, it defeats recovery absolutely.” I't is now argued that this was error, and that the contributory negligence must be such as to materially contribute to the injury. This is based on an expression, probably used out o'f “abundant caution,” in the case of Denman v. Johnston, 85 Mich. 396 (48 N. W. 565). No such question was involved or passed upon in the case, and no other is cited. On the other hand, it is settled that if the plaintiff was guilty of any want of ordinary care and prudence, however slight, which neglect contributed directly to produce the injury, he cannot recover. Cremer v. Town of Portland, 36 Wis. 92. The language quoted from the charge might, under some authorities, be objectionable, if standing alone; but, in connection with the remainder of the charge, it is clear that want of ordinary care was made the test of contributory negligence. E. g., the court sums up the subject by saying: “All these matters are proper for your consideration, and from them determine whether or not Mr. Burgess, when he rode into that draw, was in the exercise of that reasonable care and caution that a prudent,.careful, and cautious man would have exercised on such a night as that was, approaching that bridge, with the knowledge of the surroundings Mr. Burgess had. From this testimony, and all the surroundings, and your own view of the bridge, you must determine the fact whether he was in the exercise of reasonable care and caution, — in other words, whether he was guilty of contributory negligence. ” For an interesting, but perhaps rather technical, discussion of this question, see Beach, Contrib. Neg. § 20, and notes. We have endeavored to give the questions raised a critical examination, and think that the plaintiff’s case was fairly tried, and clearly submitted to the jury. The judgment is affirmed. The other Justices concurred. Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).	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Moore, J. Pingree & Smith are engaged in the business of manufacturing boots and shoes in the city of Detroit, and have a good many men and women in their employ. Prior to December 16, 1899, differences arose between the employers and employed over the scale of wages. December 16, 1899, an agreement was signed by Pingree & Smith, on the one side, and Timothy O’Connor and Ernest A. Allen, on the other side, representing the employed, reading in its material part as follows: “Being unable to agree on prices of the following work, we hereby jointly request an arbitration of the same by your honorable board, agreeing to abide by your decision. Prices to remain in force until May 1st, 1900.” A hearing was had before the court. The taking of testimony was completed March 9, 1900, and the case was argued by the counsel for the respective parties. On March 31st the court made a decision in writing, and filed the same in the office of the county clerk of Wayne county April 19, 1900. Pingree & Smith were dissatisfied with the decision of the court, and on April 6th moved for a reheai’ing of the case. June 23, 1900, the court granted the motion for a rehearing. The relators ask for a writ of prohibitioxx or a writ of mandamus, or other appropriate writ, to prevent the respondent from rehearing the controversy. It is the claim of the relators that, when the court rendered its decision, it exhausted its powers, and had no authority to grant a rehearing. Three questions are involved in this proceeding: First. The existence of the court of mediation and arbitration. Second. Its power to grant a rehearing after it has once decided a controversy submitted to it. Third. Have the relators sought a proper remedy ? The existence of the court is attacked by the attorneys who argue the case axxd submit briefs in the interest of Pingree & Smith upon constitutional grounds. We cannot s'tate their position more clearly than by quoting from bxúef of counsel: “The act under which this court of mediation and arbitration was organized is unconstitutional. By section 1 of article 6 of the Constitution, the judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities. By section 23 of article 6, the legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law. “The general scheme of the Constitution, as far as it relates to judicial officers, is for their election, and not for their appointment, as shown by article 12, which provides for impeachments and removals from office. Section 4 of that article provides that no judicial officer shall exercise, his office, after an impeachment is directed, until he is acquitted; and section 5 of that article provides that the governor may make a provisional appointment to fill a vacancy occasioned by the suspension of an officer, until he shall be acquitted, or until after the election and qualification of his successor. Chandler v. Nash, 5 Mich. 409. “Section 23, art. 6, of the Constitution, provides for the establishment of courts of conciliation; and by ‘courts,’ here, as well as elsewhere in the Constitution, is meant a permanent organization for the administration of justice, and not a special tribunal provided for by law, that is occasionally called into existence by particular exigencies, and that ceases to exist with such exigency. Streeter v. Paton, 7 Mich. 341; Shurbun v. Hooper, 40 Mich. 503; Risser v. Hoyt, 53 Mich. 185 (18 N. W. 611). If the administration of justice embraces the enforcement of the orders or decrees of courts, the court of mediation and arbitration, being deficient in authority given by the legislature to do this, is not such a court as is meant by section 23 of article 6; for, by the act of its creation, it can do nothing but render a decision on subjects submitted to it in a particular way, and file its decision with the county clerk. The Constitution provides for the formation of a court of conciliation, while the act provides for the establishment of courts of mediation and arbitration, which are not courts of conciliation. * * * Under the act there is no authority given to the judges or members of the court to compel the appearance of either party, nor is there any method of composing the differences or questions in dispute by turning over the parties to a court with authority to enforce its decrees. From the terms of the act, it is clear that whoever drafted it had in mind the definition given above of ‘arbitration,’ which, as that definition says, usually implies a tribunal without power to compel attendance.” It is true that as to the members of the supreme court, the circuit judges, judges of probate, and justices of the peace, the Constitution provides that they shall be elected; but we think it is not open to question that, if the Constitution did not require these judicial officers to be elected, but authorized the legislature to establish these courts and prescribe their powers and duties, it would be entirely competent for the legislature to do so. This is just what is done by section 23, art. 6, of the Constitution. The act does not fail because the legislature, in creating the court, did-not provide' its members should be elected. We are, then, confronted with the question, Is the court of mediation and arbitration a court of conciliation ? When the constitutional convention met which framed our present Constitution, in 1850, courts of conciliation had been in practical-operation in Norway for more than 50 years. They had accomplished most excellent results in the way of harmonizing differences between parties who were otherwise likely to resort to litigation. The purpose of these courts was to create an inexpensive and speedy tribunal, before whom parties between whom differences had arisen in civil cases must go before resorting to the courts of law for relief. The parties were required to appear personally and without counsel, and state their differences, and present such proofs as they could in support of their respective claims. It was the duty of the court to advise with the parties, and, if possible, to bring about an amicable settlement of their differences, and have them depart as friends, and not enemies. If an amicable settlement was agreed upon, a judgment was entered, which would have the same effect as a judgment in any court. As these courts were first constituted, if the parties did not agree upon an amicable settlement they were left to their remedy in the courts of law; but, as we shall see later, further powers were afterwards conferred upon them. Interesting descriptions of courts of conciliation are to be found in 68 Atlantic Monthly, 402, and 72 Atlantic Monthly, 671. Courts of a like character had also been in operation with most satisfactory results in France and Sweden, and possibly in some other countries of Europe. It is possible that, because of the results attained by these inexpensive and speedy tribunals, the framers of the Constitute were led to incorporate in it section 23, art. 6, which reads, “The legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law.” This language is simple and clear, and would seem to give the legislature abundant authority to create courts of conciliation, and to clothe them with as little or as great power as to the legislature seemed proper. At an address made at Michigan’s semicentennial celebration, Justice Campbell called attention to this constitutional provision. He had no doubt of the authority of the legislature to create these courts, .and expressed regret that the legislature had not brought them into existence. In 1889 an act was passed by the legislature entitled “An act to provide for the amicable adjustment of grievances and disputes that may arise between employers and employés, and to authorize the creation of a State court of mediation and arbitration.” The act is a brief one, containing but 10 sections, and is very general in its provisions. 1 Comp. Laws 1897, §§ 559-568. It is in marked contrast with the edicts or statutes calling these courts into existence in some of the countries of the old world. The Norwegian law of 1824 relating to courts of conciliation is a carefully-drawn statute, of 87 sections. It has been amended at various times. In 1869 the functions of this tribunal were considerably enlarged. These courts were primarily instituted for the purpose of being peacemakers in civil causes, and had no authority to enter judgment, except by the consent of- the parties. As a rule, resort must be had to them in civil cases before the aid of the law courts could be invoked. By the later amendments, in case the parties do not agree to an amicable settlement after listening to the advice of the court, the court is authorized, by the consent of the parties, to arbitrate, the differences between them, and, in cases involving small amounts, may adjudicate the controversy at the request of either party. In the decision of this case we áre not aided by precedents. The constitution of the State of Louisiana makes it the duty of the general assembly “to pass such laws as • may be proper and necessary to decide differences by arbitration.” Const. art. 165. A law was passed calling into existence a board of arbitration, conferring upon it powers of a very similar character to those with which the court of mediation and arbitration is clothed.- The action of this board was invoked in a matter of difference arising between the employés of a railroad company and their employer. The railroad company sought to have the board of arbitration enjoined from proceeding with the hearing. This the court refused to do. In disposing of the case, it used the following language: “It is in place here to state that the board is not vested with judicial functions. It sits as a court of conciliation, with the authority to formulate a decision and to have it recorded.” New Orleans, etc., R. Co. v. Board of Arbitration, 47 La. Ann. 879 (17 South. 418). It is to be regretted that the law passed by the legislature is not a more perfect one, but we think it very clear that the power conferred upon the respondent, if exercised, is calculated to bring about conciliations between those employers and employed between whom differences have arisen, and that the law was enacted, as suggested by its title, to provide for the amicable adjustment of grievances and disputes that may arise between employers and employed. The act does not apply to all classes of cases, and the aid of this tribunal is not a prerequisite before bringing an action in a court of law, as is required in Norway and in some other countries, but the provisions of the act are intended to bring about amicable adjustments of differences. "We are not concerned with the extent of the power conferred by the legislature upon this court, nor with the effect of its decisions. Those are questions we reserve until they are properly before us. The act does not undertake to confer power or impose duties in relation to all classes of civil cases, but such power as it does confer is within the constitutional right of the legislature. ' We now come to the second question: Has the court a right to grant a rehearing after it has once rendered its decision ? From what has already been said, it is apparent that the purpose to be served by the establishment of this court is to have a speedy and inexpensive disposition of the differences submitted to it. It was not the purpose of the legislature to create what we ordinarily understand by a court of law. The Constitution provides that these courts shall have such powers and duties as shall be prescribed by law. The law which called this court into existence is the limit of its power. The act nowhere authorizes the court to grant a rehearing. When its decision has been rendered and filed, it has exhausted its power in a given case. Some question is raised by counsel as to the effect of the decision rendered by the court, and the method of its enforcement; but we do not regard tjiat question as properly before us in this proceeding, and do not pass upon it. We now come to the final question: Have the relators sought a proper remedy? We have already stated that the court had no authority to act further in the proceeding. The statute does not provide for an appeal from the action of the court of mediation and arbitration. It has been repeatedly held that, unless the statute expressly or by plain implication provides for an appeal, none can be taken. See Sullivan v. Haug, 82 Mich., at page 555 (46 N. W. 795, 10 L. R. A. 263), and the many cases there cited. Section 191, 1 Comp. Laws 1897, provides when the Supreme Court shall have general superintending control over all inferior courts, and for the issuance of various writs,- — among them, writs of prohibition and writs of mandamus. Section 9977, 3 Comp. Laws 1897, provides when writs of prohibition shall issue. This section of the statute was construed in Maclean v. Wayne Circuit Judge, 52 Mich. 257 (18 N. W. 396). In that case a mandamus was ordered to vacate a restraining order improperly made, and a writ of prohibition was ordered to stay further proceedings in a case where the court attempted to exercise jurisdiction improperly. See, also, 2 Green, Prac. p. 827, and the cases there cited. The writ of mandamus will be granted, to vacate the order granting a rehearing; and the writ of prohibition, staying any further proceedings in the cause by the respondent. The other Justices concurred.	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Montgomery, C. J. The bill in this case was originally filed by the complainant to enforce a land contract between the intestate, as vendor, and the defendants, as vendees. The contract was signed by the intestate and wife and by Frank E. Snow, trustee. The bill avers that: “Said Frank E. Snow executed the same as Frank E. Snow, trustee, but your oratrix avers the fact to be that said Frank E. Snow, in executing said contract, acted for and on behalf of himself and said defendants Fremont Woodruff and William A. Jackson, and that said Frank E. Snow, Fremont Woodruff, and William A. Jackson were the joint purchasers of the premises in accordance with the terms of said contract, and should be held liable and decreed to perform the said contract.” To this bill the defendants interposed a demurrer, setting up the following grounds: “ 1. The bill is by the personal representative of a deceased vendor, and the heir is not made a party. “2. There is no offer in the bill to put the defendants in possession, nor any averment that they are in possession. “8. It appears that defendants Woodruff and Jackson did not sign the contract of purchase, but the bill avers that they, with defendant Snow, ' were the joint purchasers of the premises.’ The bill contains no averments to show them to be such, nor how or in what manner, or upon what authority to Snow, they became such. The bill is multifarious and uncertain. “4. The prayer of the bill is for judgment and execution, and not for a sale. “5. It does not appear that any tender of performance was made by complainant, or that a deed was tendered before the bill was filed.” -On the hearing the court sustained the demurrer as to want of parties, and overruled it as to other grounds, at the same time permitting an amendment to the bill making the heirs at law of the deceased parties defendant. From the order overruling the demurrer, defendants have appealed. Counsel for appellants discusses the question of want of parties, but that question is not before the court. The appeal can only be considered as one from so much of the order as overruled defendants’ demurrer. The contract in this case is under seal, and does not name or purport to bind defendants Woodruff or Jackson. The technical rule that a party not named in a sealed instrument cannot be made liable upon it, in the absence of some act of subsequent ratification, applies. Mechem, Ag. § 418 et seq.; Briggs v. Partridge, 64 N. Y. 357 (21 Am. Rep. 617); Henricus v. Englert, 137 N. Y. 488 (33 N. E. 550). No facts showing subsequent ratification are averred in the bill. The demurrer was therefore well taken, and must be sustained. The case will be remanded, with leave to complainant to amend under the rule. Defendants will recover costs of this court. The other Justices concurred.	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Grant, J. (after stating the facts). Plaintiff was a passenger, invited to ride in the defendant’s car, and entering at the time and place with the knowledge and assent of the defendant. He was not guilty of contributory negligence in entering the car and taking a seat, although the rest of the train was then backing towards it. The law governing the rights of passengers riding upon freight trains, and the duties of railroads in carrying them, is stated in Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112), and the authorities there cited. The contract of defendant was to carry plaintiff with the care and precaution incident to the usual and proper methods of running freight trains. Plaintiff gave evidence tending to show the backing of the train with unusual and unnecessary force. We think the record leaves a fair inference that this bed frame was a part of the equipment of the car. If the train was backed with the customary caution and speed, and any portion of the car overhead gave way and fell, the onus was then shifted to the defendant to show due care. If it was backed with such great force as to cause some part of the car to give way, and injure a passenger, then negligence is established, to which proof of a properly-constructed car would be no reply. If plaintiff had depended solely upon negligence in backing the cars, by reason of which some portion of the car fell upon him, he would not be required to show that the car was negligently constructed. If the seat on which plaintiff was sitting, or the back of the seat in front of him, to which he was holding, had given way, he would not have been required to allege and prove that the seats were improperly constructed. Mr. Cooley approves the rule stated in Sullivan v. Railroad Co., 30 Pa. St. 234 (72 Am. Dec. 698), that— “When, in performing this contract, they hurt a passenger without fault of his, the law raises prima facie a presumption of negligence, and throws on the company the onus of showing it did not exist.” Cooley, Torts, 663. The author adds: “ This is the rule where the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control as a part of its duty to carry the passengers safely. But this rule of evidence is not conclusive. The carrier may rebut the presumption, and relieve himself from responsibility, by showing that the injury arose from an accident which the utmost skill, foresight, and diligence could not prevent.” The same rule is approved in Wilson v. Railroad Co., 130 N. Y. 675 (29 N. E. 1034, 9 N. Y. Supp. 277); Memphis, etc., Packet Co. v. McCool, 83 Ind. 392 (43 Am. Rep. 71); Railroad Co. v. Walrath, 38 Ohio St. 461 (43 Am. Rep. 433); White v. Railroad Co., 144 Mass. 404 (11 N. E. 552); Och v. Railway Co., 130 Mo. 27 (31 S. W. 962, 36 L. R. A. 442). The learned counsel for defendant cites, in support of his contention, 4 Elliott, R. R. § 1644, which reads: “It is, therefore, too broad a statement of the rule to say that in all cases a presumption of negligence on the part of the carrier arises from the mere happening of an accident or an injury to a passenger, regardless of the circumstances and nature of the accident. The true rule would seem to be that, when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, without contributory negligence on the part of the passenger, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.” Under this rule, we are of the opinion that the case was one for the jury. It would be so unusual that a hat-rack or other equipment of a car should give way by a jar, when trains are made up in the ordinary manner, that it may fairly be inferred it could not have happened without negligence in construction. But, -aside from the question whether the bed frame was properly secured, plaintiff was entitled to go to the jury upon the question whether there was negligence in backing the freight cars against the caboose, and whether that caused the accident; and, as already stated, the company could not defend by showing the proper construction of the bed frame. Judgment reversed, and new trial ordered. The other Justices concurred.	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Moore, J. The case comes here upon exceptions before sentence. The respondents were convicted of the larceny of a cow. The important part of the information filed against the respondents reads as follows: “In the Circuit Court for the County of Mecosta. “Albert B. Cogger, prosecuting attorney-for the county of Mecosta, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court at the November term, in the year of our Lord one thousand eight hundred ninety-eight, and gives the said court here to understand and be informed that William Turney and John Hendricks, late of the township of.Martiny, in the county of Mecosta and State of Michigan, on, to wit, the 20th day of September, A. D. 1895, at, to wit, said township, county, and State, one cow, of the value of fifty dollars, ‘of the goods, chattels, and property of one Stephen W. Foster, then and there being found, feloniously did steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.” A motion was made to quash the information because it does not charge that any offense was committed within the jurisdiction of the court. The trial judge overruled the motion. It is said he erred. We think the information charges the offense to have been committed at the township of Martiny, in the county of Mecosta and State of Michigan, on the 20th of September, A. D. 1895, and that the trial court made a proper disposition of the motion. James Lowrey was called as a witness for the people. He testified that he knew the cow said to have been stolen, and that he saw it on the farm of the owner. He says he was in charge of the meat-market of one Mr. Thomas; that at about midnight he was called up by respondents, who said they had a cow for Mr. Thomas, who was then absent from home; and that he went with them to the slaughter-house, and with their assistance butchered the animal, and put it into the cooler belonging to Mr. Thomas. On the cross-examination of this witness, for the purpose of discrediting him, it was sought to show that he had proposed to various persons to steal cattle and sheep, they to divide the profits with him. The defense was not allowed to pursue this line of cross-examination. If Mr. Lowrey was a man who proposed to others to steal cattle and divide the profits, jt would very properly affect his credit as a witness, and the cross-examination should have been allowed. For-the purpose of showing that the testimony of Mr. Lowrey was actuated by spite, it was sought to show by him that an animal had been stolen from one of the respondents, and that Mr. Lowrey had been accused by respondent of stealing it. The court refused to allow the inquiry to be made. In this we think he erred. Upon the part of the defense an effort was made to impeach Mr. Lowrey. A number of witnesses were sworn who testified they knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad. For the purpose of rebutting this testimony, witnesses were called who were allowed to testify that they had had dealings with Mr. Lowrey, and that he treated them fairly in those deals. This was not competent sustaining testimony. Other errors are assigned, but they are either not well taken or are not likely to occur again. For the errors pointed out the conviction is set aside, and a new trial ordered. The other Justices concurred.	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Hooker, J. The defendant was convicted of burglary, upon a charge of breaking and entering a farmer’s barn and stealing a double harness. The outline of the case for the prosecution is that the barn door was found open in the morning, and the harness gone. The yard gate was open, and tracks showing that a buggy had stood near by, and afterwards gone south, were distinguishable. The defendant and his companions were shown to have hired a buggy in Bay City that night, about 12 midnight. The harness was found in possession of one Sackles, south of Saginaw, the next morning. He had traded a horse for it, the morning that it was missed, to Burkhardt and Wines, the men who were with defendant in the buggy. The defendant claimed that he had a slight acquaintance with one Martin, and that, a few days before the harness was stolen, he met Martin, who told him that he had a harness to sell. Defendant had no use for the harness, and the subject dropped. On July 9th defendant met Wines, who told him of a man who would trade a horse for a harness, and defendant mentioned his talk with Martin. On July 12th defendant again saw Martin, who agreed to bring the harness to Burkhardt’s barber shop for inspection that evening, which he did about 10 o’clock. Defendant paid Martin $10 for it, $3 of which he borrowed from Burkhardt, and $2 from a young woman named Hattie Smith. The horse and buggy were then hired, and used for the purpose of getting and taking the harness to Saginaw county, where it was traded for the horse. Wines was taken because he alone knew where to find the man with whom they were to trade. This horse was afterwards sold to Boutell. Burkhardt, who had been previously convicted, was sworn, and testified to the facts claimed by the defense. Martin was not called by the defense. During the examination of Burkhardt, the following colloquy occurred: “ The Court: You have had the services of the sheriff of the county at your disposal. Why haven’t you brought this Mr. Martin here ? “Mr. Simonson: We have endeavored to get Mr. Martin. “ The Court: Why haven’t you taken a subpoena for him? “Mr. Simonson: We sent a man yesterday to try to find out where this Mr. Martin was, in order to get a subpoena. We took the— ' “The Court: You haven’t sent the sheriff to look for him at all. I have been so advised, and I think there is an order in the case that the witnesses be subpoenaed at the expense of the county. “Mr. Simonson: We take an exception to the remarks of the court. “ The Court: It looks to me like an imposition on the court. “Mr. Simonson: We take an exception to the remarks of the court. “ The Court: Take all the exceptions you are a mind to. Good faith in an attorney must be exacted in every court of justice. I cannot allow you to pick up or look after a straw man here, in order to tempt people to commit perjury. “Mr. Simonson: We take an exception to the remarks of the court. “The Court: If there was any such man as Mr. Martin, he can be produced or accounted for. You have had the assistance of the whole State of Michigan at your back to do it, without a cent of costs. “Mr. Simonson: We take an exception to the remarks of the court. “The Court: It seems to me that you are trifling with the court, and occupying its time sillily and foolishly. Not only that, but you are encouraging the commission of a crime. If there is no such man as Martin, then the testimony is all false. “Mr. Simonson: We take an exception to the remarks of the court. Shall I go on with the witness ? “The Court: You can do whatever you are a mind to. “Q. You came back after you took Miss Smith home, and you found Mr. Daniels and O’Hare in front of your place ? “A. Yes. “Q. What did you do then, and what conversation did you have ? “A. Mr. Daniels got up and leaned against a pole, and I sat down, and we were talking, and I says: ‘I believe Mr. Vanderbilt has an opening at his place, and a dance. I ought to go out, as he comes to my place, but I guess I won’t go; it will be too far to walk back.’ “The Court: Where does Martin live? “A. I couldn’t tell you. It seems to me that I saw the man once or twice previous to that. “The Court: You told us on the other trial that he lived up at Portsmouth. “A. That is what I learned from a man in the jail. “The Court: You haven’t taken any subpoena for him or sent the sheriff after him ? “A. I mentioned it to the sheriff. “Q. You mentioned it to your attorney? “A. Yes. That day when he came in I told Mr. Anneke about it. Mr. Anneke was the first one I mentioned it to. “Q. Why didn’t Mr. Simonson send for him? “A. I never spoke to Mr. Simonson. “Q. You knew he was a necessary and material witness? “A. Certainly, we would like'to have him. “'The Court: But you made no effort to get him? “A. I couldn’t do anything. ' “The Court: You could ask the sheriff. ‘ ‘A. I did tell the sheriff over there. “The Court: Instead of getting a man that you thought, if he existed and would tell the truth, could help you out of this scrape, you saw fit, both of you, to ransack every crib and bad place there is here to get some witness that would tell a lie. It seems to me that has been the practice, instead of the legitimate practice of the law. “Mr. Simonson: We take exception to the remarks of the court. “The Court: I don’t think a lawyer is fit to practice law that would be guilty of such a practice as that. “Mr. Simonson: We take an exception to the remark of the court. “The Court: You can have no exception here. “Mr. Simonson: Shall I proceed with the witness? “ The Court: There is an order of the court assigning you to defend this man, which directed the sheriff to subpoena all of his witnesses at the expense of the county. ‘ 'Mr. Simonson: How could I know what Mr. Martin— “ The Court: You knew the importance of Mr. Martin, and that, of all things in the world, he ought to be produced. “Mr. Simonson: As soon as I was appointed I directed a man to go up there, and to go to every Martin family up there, and find out who he was. ‘ ‘ The Court: Whom did you send ? “Mr. Simonson: John L. Averill. “ The Court: Why didn’t you send the sheriff ? ‘ 'Mr. Simonson: How could the sheriff go and subpoena a man until he knew whom to subpoena and where he was ? Suppose I say, ‘ Go and get Mr. Martin.’ What would he tell me? He would say, ‘Who is Mr. Martin, and where does he live ? ’ “The Court: I cannot have this class of work done here, and I won’t have it. ” In his charge the court alluded to the subject as follows: “Now, under this state of facts, as to that man Martin, I think the defendant was bound to produce him, or account for him, if he could. You have heard the testimony of the defendant, and of this man Horn, and of this girl, and of his accomplice, Burkhardt. Horn testified that he saw a man come into the Grand Central Hotel and speak to O’Hare, and that finally he went out with him to the corner; looked at the man and the harness; he had a very small horse. Both Burkhardt and O’Hare testify about O’Hare borrowing the money,— that he had $5, Burkhardt only had $3, and that they borrowed these $2 of the girl to make up the $10 that he wanted. Now, gentlemen, if a $38 harness was offered in the night for sale for $10, a prudent man ought to be on his guard about buying it. He ought to be able to show, if he bought it, that the transaction was honest and free from suspicion. You have heard the testimony of both Burkhardt and the defendant here, and you must be aware of the terrible strain and temptation they are under to controvert this evidence by false testimony, if false testimony will do them any good. As to the relations between the girl and this Burkhardt, she testifies that he was her lover, and they were engaged to be married. A wife has often as much interest for her husband as the husband himself can have. But now I reach a branch of the case which I think I ought to fully submit to you. Last Monday, I think it was, Mr. O’Hare applied to the court to assign him counsel and means to procure his witnesses with. An order was made assigning Mr. Simonson to aid him. A similar order was made that the sheriff summon, at the expense of Bay county, all the witnesses that he might need in his defense. The sheriff is an officer of the court, over which the court has absolute control about the service of papers, and the court can punish him for contempt for any'violation or lack of duty. Simply giving the name of a witness to the sheriff was all that was needed in order to secure his attendance here if he could be found. This court does not recognize any constable at all, except as the sheriff may employ him to preserve order in the court-room. I cannot take his return as any evidence, as I do that of the sheriff or deputy sheriff. He has no business to perform any service of this court except the solitary duty of attending court when requested by the sheriff. Mr. Averill, a constable, an officer not recognized by the circuit court of this county, is sent out by Mr. Simonson to find this man. He starts out at 3 o’clock, and is back that night. He takes a city directory and looks over four or five names, and he goes out to look for Martin. If the story was true that such a man existed, did he or his attorney avail themselves of what the law had placed in their hands in order to get him here? If it is not so, it casts a very black shadow over this defense. You may look at it as part of a scheme to fabricate a defense, to justify it by perjury, and force it through by an immense number of witnesses swearing falsely.” The witness Hattie Smith corroborated Burkhardt. She was interrogated upon cross-examination as to her relations with Burkhardt, and denied any impropriety in them. Afterwards an officer was permitted to testify that she was a street-walker, and had such a reputation among the police officers, and that she associated and roomed with another woman, not a witness, of bad repute. Wines was not a witness, yet a witness was permitted to testify that on one occasion he knew of his being arrested. The course taken by the circuit judge cannot be approved. His strictures upon counsel were excessive, and it was not for him to make a partisan argument upon the failure of the defendant to produce Martin. Again, it was error to admit proof of Hattie Smith’s reputation, and of Wines’ arrest. The judgment is reversed, and a new trial ordered. The other Justices concurred.	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Montgomery, C. J. In 1893 defendant was engaged in the wholesale grocery business in the city of Detroit. The capital invested in the business was $36,000, of which plaintiff had contributed $10,000 under an agreement that she should share in the profits and losses of the business, and with the further agreement that plaintiff might, on giving 60 days’ notice, withdraw the funds so furnished by her. It was stipulated that plaintiff should not have any voice in the business. This relation continued until May 1, 1895, the plaintiff’s husband being employed in the business as cashier. On May 1, 1895, or shortly thereafter, a new agreement under date of May 1st was entered into in the following terms: “For and in consideration of the sum of ten thousand dollars ($10,000.00) furnished me by Frances M. Scudder, of Detroit, Mich., receipt of which is hereby acknowledged, for the purpose of carrying on a wholesale fruit and fancy grocery business at 53, 55, and 57 Jefferson avenue, as Ward L. Andrus & Co., of which firm I am sole partner, I hereby agree to pay said Frances M. Scudder or assigns, at the end of each year, ten thirty-fourths (10-34) of the net profits of said business. Said Frances M. Scudder may withdraw at any time the aforesaid funds so furnished by her by giving sixty days’ notice thereof. This agreement shall be in force five years (5) from May 1st, 1895, unless otherwise terminated. It is expressly understood that the said Frances M. Scudder shall not in any manner or in any way have any voice, direction, or control in the management of said firm on account of said funds so furnished ; and I hereby agree not to, personally or otherwise, sign or indorse any note, bond, or other obligation not pertaining to the business of said firm, or do any act which would place in jeopardy the money furnished by said Scudder.” In February, 1897, plaintiff elected to withdraw her funds from the business. Within the 60 days fixed by the contract, defendant repaid $5,000, hut insisted, when demand was made for the balance, that plaintiff should bear her portion of the losses, while plaintiff insisted on her right to the $5,000 without abatement or deduction, and instituted this suit. Defendant thereupon filed a bill in chancery alleging that he was induced to sign the last agreement by the fraud of plaintiff’s agent, John Scudder; that the agreement should have stated that the amount contributed was the amount of the worth of plaintiff’s interest in the business on May 1, 1895; and that it should also have provided, as did the first agreement, that plaintiff should share in the losses as well as in the profits of the business. The bill filed by Mr. Andrus was dismissed on final hearing, and this decree was affirmed by this court on appeal. Andrus v. Scudder, 120 Mich. 502 (79 N. W. 794). It was contended on the trial of this case that the chancery case was res judicata of the question as to whether plaintiff should participate in the losses, and also as to all questions raised in thi's case. The effect of the chancery decree was this: It determined that there was no fraud inducing the execution of the agreement of May 1, 1895, and, as a consequence, it was not competent for defendant to assert that plaintiff should bear a portion of the losses occurring after that date; but it was competent to introduce any defense which would have been open on this trial had no bill been filed. The defense attempted on this trial was to show that the recital of consideration was inaccurate in fact; that plaintiff, on May 1, 1895, contributed only the amount of her then present interest in the business, and that this amount, deducting losses then and subsequently ascertained, was but $7,424.55. The recital in the agreement of May 1, 1895, is not a recital of the amount advanced at the time, necessarily. Whatever the amount of Mrs. Scudder’s interest then was on the basis of the first agreement, the fact was that she had at one time $10,000, and this agreement of May 1, 1895, was a substitute for the agreement of 1893. It was strictly accurate and truthful to state that Mrs. Scudder had advanced $10,000, therefore. The circuit judge admitted testimony of the actual value of the plaintiff’s interest, on the 1st of May, 1895, and charged the jury .that the plaintiff should recover no more than the unpaid portion* of that interest, unless the parties agreed to call her interest $10,000 at the time the agreement in question was made. This instruction was sufficiently favorable to defendant, unless, as is contended, there was a failure of consideration or the contract was usurious. John Scudder, who acted for the plaintiff in the transaction, testified that the defendant agreed to call plaintiff’s interest $10,000, and that the parties took into account.the good will of the business, and the fact that Andrus had, by drawing out of the business a consider-' able sum, crippled the business. Defendant contends that at this time the evidence shows conclusively that the business had sustained a loss, of which plaintiff’s portion was not less than $1,250, and that subsequent events have shown the loss to have been even more. There can be little doubt on this record that the loss sustained by the firm prior to May 1, 1895, as it noto appears, was considerably in excess of $5,000; but the important question is whether there was any such uncertainty as to the actual condition of the business as that the parties, by agreement, might fix upon the terms of settlement which they chose to make. The evidence discloses that on May 1st the books showed a profit of $2,196.92. True, it appears that there were included in the statement of assets suspense accounts, $5,076.28, which have since proved worthless in the main; but the parties had a right to fix a value upon them. Mr. Scudder testified that he considered these suspense accounts of some value, and defendant’s witness John L. Lewis testified that a suspense account had an element of hope in it, which a profit and loss account does not have. In view of the fact that the loss had not been definitely ascertained, and of the claim, that defendant had injured the business by his overdraft, can it be said that there was no uncertainty as to the rights of the respective parties which they might adjust? We think not. The jury have found that they did reach an agreement as to the amount of Mrs. Scudder’s interest. That fact determines the case. Watkins v. Ford, 69 Mich. 357 (37 N. W. 300). We do not overlook the fact that Cochrane, who occupied a similar relation to the defendant, settled with him on the theory -that the firm had sustained losses up to May 1, 1895, and that Mr. Scudder took some part in the figuring ; but this fact did not prevent the two parties to this suit adopting a different basis by agreement. No error was committed to the prejudice of defendant, and the judgment is affirmed. The other Justices concurred.	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Moore, J. The statement of facts is taken largely from the brief of counsel for defendant. Catherine Boyle, the plaintiff, brought suit against the city of Saginaw, the defendant, to recover damages for injuries she sustained on a defective sidewalk on October 29, 1898. On the trial of the case she recovered a verdict of $1,000. She was a married woman, and at the time of her injuries, and previous thereto, she was a healthy woman, weighing 150 pounds, who always did her own housework, and, in addition, frequently did washing by the day for other people. She supported herself by her own earnings, her husband, for 15 years previous to this time, not having contributed to her support, though he did to the support of the children. She was the mother of 11 children, 7 of whom are alive, and the youngest of whom was 10 months old at the time of her injuries. The plaintiff lived on North Bond street, about three blocks southwest from the place where the injury occurred. She left home on the night in question, about 8 o’clock, to go to Stingel’s meat market, which is several blocks from where she lived. The night was dark,» and the condition of the walk was not familiar to the plaintiff. There were no artificial lights within a block or two to throw light on the walk on the west side of Stone street at the point where she fell. The plaintiff took the west side of Stone street, and went north to a point within five or six feet from the corner of Union street, when she stepped into a hole in the sidewalk, and fell. After remaining there a few minutes, she got up, and started to go, and took another step forward, when . her foot was caught by a broken board, and she again fell forward, and hurt her hip and ankle. She called for help, and Mrs. Doak, who lived in the house in front of which she fell, came out with a light, and removed the board which held Mrs. Boyle’s foot, and brought her to the stoop, where she sat a few minutes. Mrs. Boyle then went across the street to the store of Mr. Gager, and had him drive her home. She secured a doctor the Monday following the injury. She applied liniment and otherwise treated herself according to the doctor’s instructions. She became nervous, and was sick more or less from the time of the injury to the trial. Previous to the injury she was strong and healthy, and did her own work and work for others, and had never been sick. She was a married woman and it was agreed between herself and husband that she should have her earnings for herself. This agreement was made about 15 years ago, and whatever she earned she collected and used for herself. After her injury, Dr. J. W. Freeman made one visit to her, for which she paid him §1.25. Dr. F. W. Freeman made three or four visits, which were charged to her. Dr. J. W. McMeekin called a number of times. She does not know how much she owes him for these visits, which were 16 or 17. The plaintiff earned about five dollars a week at times working for different people in the city. She spoke to Dr. Mc-Meekin about his bill when he first came to visit her, and said she would pay him in a short time. He 'told her he could wait for his pay. She told him she would pay him herself, and the account was charged to <her. Some payments had been made by her to the doctor at the time of the trial. The first question to be decided is, Did the court err in permitting plaintiff to show the condition of the sidewalk in front of the lot at other places than where the plaintiff’s testimony tended to show she was injured? It is claimed by defendant that, where the defect which caused the injury can be definitely pointed out, the evidence as to defects must be confined to the hole which caused the injury; citing Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Tice v. Bay City, 78 Mich. 209 (44 N. W. 52); Campbell v. City of Kalamazoo, 80 Mich. 655 (45 N. W. 652). It was the claim of the plaintiff that, at the place where she was injured, there was a plank out of the walk, and another broken in two, the broken ends resting on the ground between the stringers, and the planks and the stringers were rotten. The declaration, after describing the walk, alleged that the city— “Knowingly and negligently permitted the same to become out of repair, and to continue out of repair, and to become and remain unsafe and unfit for public travel for a long space of time, to wit, six months, prior to said 29th day of October, and that during all of said time the boards, planks, and stringers of said sidewalk upon the west side of said Stone street, between Congress and Union avenues, were in a condition not reasonably safe and fit for public travel, in that the planks and boards of that portion of said sidewalk were decayed, rotten, loose, shaky, torn up, unfastened, broken, and displaced, and in an unsafe and dangerous condition for the public to travel upon.” Under the repeated decisions of this court, we think the testimony was competent for the purpose of charging the defendant with notice of the condition of the. walk. Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616); Will v. Village of Mendon, 108 Mich. 251 (66 N. W. 58); Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444); Haynes v. City of Hillsdale, 113 Mich. 44 (71 N. W. 466); Rodda v. City of Detroit, 117 Mich. 412 (75 N. W. 939). The next question calling for our attention is, Was the trial judge justified in submitting to the jury the question of fact whether the plaintiff was entitled to recover the medical expenses for treatment of her injuries? Upon this feature of the case the judge charged the jury as follows : “Now, in addition to such damages, if you find any, you may consider in connection with the question of the loss of services and her doctors’ bills; and I will say to you if you find, by a preponderance of the evidence in the case, that the plaintiff has paid, or has agreed to pay, the charges for medical treatment for the injuries which she sustained by reason of the negligence of the defendant, out of her own personal estate, and that such expenses were charged to her individually, and she was given sole credit for the same, she would be entitled to recover such sum so expended or incurred for such medical treatment. * * * But before you can allow her anything for her medical treatment and for her loss of services, you must find that the agreement existed between her and her husband that she should have her earnings; and, on the question of her doctors’ bills, you must find first that the credit was given to her solely and individually, without any expectation of coupling somebody else with her in paying the doctors’ bills.” The charge of the court was in harmony with the decisions of this court. Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583); Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153); Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17). There was testimony justifying the verdict. The other assignments of error do not call for discussion. Judgment is affirmed. The other Justices concurred.	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Grant, J. (after stating the facts). The claim of the defendant is that because Mr. Cowin had no insurable interest in Mr. Maxted’s life, and could not be made a beneficiary, therefore the contract between complainant and defendant is void, as against public policy, and that the courts will not afford relief. This position ignores another legal and equitable rule, — that a trustee cannot be heard to say, “I will not carry out the trust, because the parties had no legal right to repose the trust in me.” The Ancient Order of United Workmen is not here complaining. If it were, a different question would arise. There was no attempt to defraud the association. It was fully informed of the situation, and, after being so informed, consented to pay over the money. Upon what principle of justice or equity can the trustee be heard to say, “I will profit to the full extent of the money placed in my hands by the consent of all parties, although one of them might, if it chose, contest its legality?” If the association had issued a certificate to the defendant, and provided therein that she should hold the money in trust to pay his creditors, the certificate would be void, if the association saw fit to make that defense ; but if the association should choose to waive such defense, and pay over the money to the trustee, neither law nor equity would permit the trustee to profit by the transaction, and keep the money. The rule is settled against the defendant by numerous authorities: Peek’s Ex’r v. Peek’s Ex’r, 101 Ky. 423 (41 S. W. 434); Town of Remington v. Ward, 78 Wis. 539 (47 N. W. 659); Gilmore v. Roberts, 79 Wis. 450 (48 N. W. 522); Wells v. McGeoch, 71 Wis. 196 (35 N. W. 769); Hurd v. Doty, 86 Wis. 1 (56 N. W. 371, 21 L. R. A. 746); Standard Life & Accident Ins. Co. v. Catlin, 106 Mich. 138 (63 N. W. 897); Hosmer v. Welch, 107 Mich. 474 (65 N. W. 280); Woodruff v. Tillman, 112 Mich. 188 (70 N. W. 420). The sole parties concerned in the validity of this transaction are Mr. Cowin and the association. If they are satisfied, it does not lie in the mouth of the defendant to complain. She has no equities. She paid nothing. Mr. Cowin parted with his interest in the homestead, worth $600, in consideration of making this agreement, and, besides, paid Mr. Maxted’s assessments for several years. The decree is affirmed, with costs. The other Justices.concurred.	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Long, J. The claimant, Cynthia A. Blackburn, is the widow, and administratrix of the estate, of George N. Blackburn, who died intestate on October 9, 1895. She ■was married to him in the year 1883, at Alpena, where both had resided for some years. At this time she was a 'widow, and Blackburn a widower, with two children, of whom the contestant, William A. Blackburn, is one. On May 7, 1884, Mrs. Blackburn sold and conveyed to her husband an undivided one-half of a house, and lot, of which she was the owner, in the city of Alpena, together with a considerable amount of household furniture, for the sum of $2,300; receiving therefor three promissory notes, bearing the common date of May 7, 1884, with interest at 7 per cent., — the first for $700, payable one year from date, and the second and third each for $800, payable, respectively, two and three years from date. On the trial the execution of these notes by the deceased was duly proved, but, when the same were offered in evidence, the estate objected to their reception because said notes, upon their face, appeared, to be outlawed. There were upon each of these notes indorsements of payment sufficient to save the bar of the statute of limitations, if they had been in the handwriting of deceased, but they were not; and claimant was unable to make any proof in regard to such indorsements or payments, except by her own testimony, which was rejected as incompetent. It was then made to appear that said George N. Blackburn, together with his wife and family, removed from the city of Alpena, with their household effects, and took up their permanent residence in the State of North Carolina, on the 16th day of May, 1888, and that said George N. Blackburn, together with his wife and family, continued to reside in the State of North Carolina, and remained absent from the State of Michigan, from that date until July 3, 1892 (a period of 4 j'ears, 1 month, and 17 days), when said Blackburn, wife and family, returned to and continued to reside in Alpena until his death. Upon this being made to appear, the court held the first of said notes to be outlawed, and the second and third not outlawed, and permitted a recovery upon such last-named notes for the amount conceded to be due thereon, after compelling claimant to deduct the amount of said indorsements and interest therefrom. Contestant, William A. Blackburn, brings error. It is claimed by counsel for claimant that the second and third of these notes, falling due, respectively, May 10, 1880, and 1887, were saved from being barred by the statute of limitations by the exception created by the latter part of section 9736, 3 Comp. Laws 1897, which provides: “If, after any cause of action shall have accrued, the person against whom it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.” It is conceded by counsel for contestant that if George N. Blackburn alone had been absent from and resided out of the State, and in the State of North Carolina, the time of such absence could not be taken as a part of the time limited for commencement of action; but it is claimed that where' both parties (the maker and the payee of the note) go out of the State, and take up a residence in the same State, the statute above has no application. The argument in support of this contention is that, if a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim, by failing to present it. If it were to be admitted that these notes were barred by the statute of limitations of North Carolina, it would constitute no bar to an action in this State. As was said by Kent, C. J., in Ruggles v. Keeler, 3 Johns. 267 (3 Am. Dec. 482): “A foreign statute of limitations can no more be pleaded to a suit instituted here than it can be replied to a plea under our statute. Statutes of limitations are municipal regulations founded on local policy, which have •no coercive authority abroad, and with which foreign or independent governments have no concern.” It is, we think, well settled that, though the claimant resided with the deceased in the State of North Carolina for the time stated, yet that fact would not take the case out of the exception created by this section of the statute. Kempe v. Bader, 86 Tenn. 189 (6 S. W. 126); Ruggles v. Keeler, 3 Johns. 263 (3 Am. Dec. 482); Graves v. Weeks, 19 Vt. 178; Hartley v. Crawford, 12 Neb. 471 (11 N. W. 729); Bulger v. Roche, 11 Pick. 36 (22 Am. Dec. 359); 2 Wood, Lim. § 245, and note. In Kempe v. Bader, supra, the action was upon two promissory notes made in the State of Missouri, both maker and payee being residents of that State at that time and for several years thereafter. At the time suit was brought, the maker of the note (Bader) had become a resident of Tennessee, while the payee, Kempe, still remained a resident of Missouri. The defendant pleaded in bar of the action the statute of Tennessee of six years, but the plaintiff replied the section of the statute of Tennessee similar to our statute under consideration; and it appeared that defendant, after his removal to Tennessee, had been absent from that State from July, 1878, to November, 1879, or a sufficient time, if this exception was applicable to these parties, to save the action. It was insisted that this section was not applicable, inasmuch as both parties were nonresidents at the time the right of action accrued, and that the plaintiff was still a nonresident. The court held that the residence of either or both of the parties when the cause of action accrued or when the action was brought had no effect in limiting the effect of this exception, and that the suit was not barred. In Graves v. Weeks, 19 Vt. 178, it was held that an action in which both parties were nonresidents would be sustained, although the cause of action was barred at the commencement of the suit by the statute of limitations of the State of which both parties were resident citizens. But, whatever may be said of the general rule, it is well settled by the decisions of North Carolina that these notes were not barred by the statute of limitations of that State. Under the statutes of that State, both as to personal and real actions, a woman under the disability of coverture is expressly excepted from the operation of all their statutes of limitations. 1 Code 1883, §§ 148, 163. The courts of that State have uniformly held that none of the married woman’s acts has any effect to cause the statute of limitations to run against a woman under the disability of coverture. State, ex rel. Lippard, v. Troutman, 72 N. C. 551; Campbell v. Crater, 95 N. C. 156; Summerlin v. Cowles, 101 N. C. 473 (7 S. E. 881). The judgment of the court below must be affirmed. The other Justices concurred.	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Per Curiam. This cause is referred to in the case of Ernest v. Woodworth, ante, 1 (82 N. W. 661). That case was in replevin for certain apples. In the present case, a bill was filed to restrain the defendants from selling the apples in controversy. The facts are sufficiently stated in the other case, except that it now appears in the •present case that the court on the hearing entered a final decree making the injunction perpetual, with costs in favor of complainants. Defendants have appealed. The other case having been affirmed, the decree here must be affirmed under the decision in that case. Complainants will recover costs.	[ -31, 19, -7, 72, 23, 13, 8, 15, 3, 17, 1, -29, 13, 53, -1, -13, 22, -42, 24, -9, -21, 17, 79, 8, -32, -29, 26, 8, 10, 34, -40, -23, 25, 11, -27, -30, 19, 21, 51, -11, -28, -48, 11, -2, -3, -18, 8, 6, 17, 22, -17, 2, -23, -19, -31, 30, -19, -4, 0, 14, -49, 28, 46, 6, 6, -3, -10, 0, -11, 3, -4, 4, 9, -34, 58, -53, -13, -7, -13, -27, -26, -3, 6, -5, -45, 10, -27, -26, -22, -41, -66, -2, -70, -37, 10, 54, 9, 2, 11, -18, -8, -1, -38, 12, 42, 21, -4, 14, -7, 3, 5, 6, 9, -34, -18, 9, -35, 9, -23, -8, 22, 41, -1, 29, -30, 53, -12, -19, -34, -4, 23, 27, 16, 48, 18, 39, 19, -8, -38, -43, 62, 13, -5, -1, -5, -13, -32, -5, -23, 9, 30, 23, -49, -1, 12, 16, 43, -45, 22, 35, 30, 33, -19, -17, -18, -12, -30, -25, -4, 16, 12, 8, -16, 25, 13, 2, 8, 35, -43, 11, -18, 1, -39, -29, -39, 16, -25, 23, -69, -22, -30, -25, 38, 11, 17, -2, 28, 37, 8, 39, -78, -2, -34, 17, 21, -32, 13, -11, -29, 41, -33, 15, -8, -52, 34, -32, -2, 2, 12, 63, 21, 17, 7, 6, -34, -42, 34, 21, 46, -5, 2, 18, 39, 15, 2, 30, 9, 1, 40, 10, -16, 22, -44, -49, -37, 28, 37, 34, -8, 24, 19, 5, 0, 23, 1, -41, 10, 15, 0, 13, 32, 13, 1, -16, -11, -24, 14, 72, 31, 20, -27, -1, 2, 14, -2, 4, -62, -42, 6, -24, -18, 45, -2, -31, -20, -15, 33, 1, 50, 21, 51, -11, -54, -23, 63, 32, -32, 21, -16, 3, -13, -37, -8, 2, 30, 14, -17, 1, -7, -61, -80, 10, 29, -14, -57, 27, -18, 45, 17, -78, 0, 30, 26, 7, 33, 0, 81, -19, 36, 10, -7, 3, 16, -8, 4, 4, 41, 7, -5, 33, 66, 24, -10, 40, -10, 17, 1, 9, 20, 27, 16, 4, -13, 0, 34, -73, -14, 19, -58, 86, -21, -36, 29, -5, 17, 29, 4, 28, -21, 37, -51, 24, -42, 26, -33, -1, 11, 12, 3, 52, 12, -17, 1, 7, 0, 17, -20, 48, -3, -31, -8, -26, 23, 25, -39, 26, -66, -15, -5, 22, -11, -22, -30, -72, 5, -9, -16, 37, 46, 12, 29, -9, -14, 0, -51, 21, -12, -11, 26, -5, 10, 25, -40, 17, -1, 1, 2, 4, -41, -5, -8, -30, 13, -10, -40, 33, -1, 4, 2, 19, -18, 2, -40, 4, -8, -12, 6, 31, 57, -32, 49, 10, 21, 3, -53, 22, 8, -13, -11, -10, -47, 8, -59, 0, -11, 0, -26, -2, 24, -39, 1, 18, 14, 40, -10, -14, -1, 4, -31, 29, -26, 9, 41, -23, -43, 42, 9, 61, -17, 4, 24, -5, 21, 0, -18, -33, 17, -32, -40, -16, -7, 5, 37, -7, 32, -37, 9, -12, 47, 44, -34, -20, 53, 31, -16, -12, 11, 43, -14, 19, 9, -21, -43, 10, -45, 56, -5, 36, 28, -29, 17, 24, -11, -60, -5, 35, 1, -31, 37, -22, -44, 28, 36, 6, 29, -44, -25, -27, 16, -2, 1, -27, -11, -4, -20, 68, -62, 46, 52, -6, -13, -19, -31, -3, 66, 30, -2, 22, 56, 87, 16, -36, 63, 24, 33, -35, 8, -21, -21, -1, -24, 4, -42, -44, -36, -21, 16, 24, 23, -46, 4, 28, 25, -40, 39, -12, -18, -43, 42, 34, -17, 9, -14, -18, 13, -9, -15, 42, -32, -3, 9, 49, -5, -60, 22, 0, -32, -15, -9, 31, -2, -37, -57, -34, 17, -11, 31, -8, -2, 10, 20, -22, 32, 7, -63, 37, 25, 33, -39, -29, -56, -16, -69, -28, 0, 9, -19, 37, -42, 11, 19, 12, 8, -17, 6, -21, 24, -55, 19, -51, 4, -40, -5, -35, -55, -9, -63, 47, 12, 27, 26, 6, 6, 5, 56, -7, 16, 43, -25, -16, -11, -22, 83, -20, -37, 50, 9, -29, -27, 33, -8, -68, 10, -64, -16, 1, 21, 31, 49, 13, -4, 5, 25, 13, -23, 7, -17, 17, 4, 29, 4, -17, 5, -43, 12, -16, 39, 13, 6, -57, 19, 40, 9, -27, -54, 18, -4, -51, -28, 18, 0, 33, 5, -16, -52, 55, 1, -44, -4, -60, -7, 61, 4, 13, 5, -10, -20, 48, -19, 16, 9, -49, 23, 38, -36, -46, 12, -15, -12, -8, 19, -28, -18, -7, -17, 7, 2, -50, -13, 15, -10, -27, 5, 47, 0, -15, -5, -23, 32, -7, -38, -48, 26, 6, 30, -34, 26, -65, -1, 25, 62, -65, 20, 18, 27, 54, -54, 15, 9, -36, 14, 1, 39, 25, -27, 10, -20, 0, -5, -5, -9, -40, -19, -15, 7, -28, -22, -38, -20, 0, 2, 15, 16, 18, 22, 0, 0, -20, 27, -44, 65, -62, -46, 34, -2, 45, -17, -40, 6, -15, -40, 37, -11, 20, 19, 30, -41, 9, -36, -59, 5, -25, -15, 27, 50, -12, -38, -39, 1, 38, 15, -34, -5, -49, -14, -17, -46, -5, 21, -14, -6, 18, -17, 0, -11, -52, 6, -40, -30, -1, 3, -4, -39, 41, 17, 8, -33, -21, -18, -11, 61, 40, -19, 17, 15, 10, -67, -4, 25, 18, -67, 18, 51, 0, -41, 3, 20, 37, 7, -27, 19, -1, -1, -17, -16, 23, -25, -9, -37, 1, 60, 18, -9, 38, -36, -24, 28, -29, -21, 21, 17, -37, 50, 10, -38, -15, 16, -2, 41, -34, -17, 4, 18, 48, -73, -63, 15, 47, -6, -56, 25, 7, -30, -1, -25, -40, -56, 31, 3, -1, -5, 24, 11, 9, 4, 2, 12, 64, -29, -8, -6, 36, 11, 17, 34, 7, -16, 50, -31, 101, -17, -29, 18, 23, -34, -1, -65, -2, -50, 1, 23, 2, 18, 13, -3, -13, -19, 35, -36, 1, -28, 19, 29, 21, -53, -38, 2, 8, -11, 21, -59, -1, -10, 7, 29, 11, 22, -1, -29, 23, 21, 48, -19, -20 ]
Hooker, J. The petitioner was complainant in foreclosure proceedings wherein John W., John H., and H. Kirk Howry were (among others) defendants. They appeared in the case by resident counsel, who required and 'received a copy of the bill, but did not answer, and a decree was taken pro confesso. This decree recited that they were personally and primarily liable for the debt, and that, unless they should pay the same, the premises should be sold, and a report of sale, including any deficiency, should be made by the commissioner. It was further decreed that “the right is reserved to John W. Howry, John H. Howry, and H. Kirk Howry, and to each of them, to make the defense that they have been discharged in bankruptcy, in any proceeding that may be hereafter had or taken to enforce any deficiency that may be reported by the commissioner in his report of the sale.” A deficiency was reported. All of these three defendants were nonresidents of the State, and each was personally served with a copy of the petition for execution, and the notice of hearing the same, at a place not within this State. No order for a substituted service was procured, but this was waived, so far as it could be, upon the hearing. Copies of the petition and notice were also served upon the solicitors who had represented the defendants in the foreclosure case. They appeared specially, and moved to quash the service and proceedings as invalid, and this motion was granted. We are asked to compel the court to vacate that order, and proceed to hear the questions raised by the petition. The right to a decree for a deficiency remaining after sale, and application of the proceeds of mortgaged premises to the debt secured, depends upon statute. See Laws of 1833, p. 361, § 37 (Rev. Stat. 1838, p. 376, § 105); 1 Comp. Laws 1897, § 517; Lawrence v. Fellows, Walk. Ch. 470; Johnson v. Shepard, 35 Mich. 122; McCrickett v. Wilson, 50 Mich. 516 (15 N. W. 885). See, also, 9 Enc. Pl. & Prac. 451, 452; McCarthy v. Graham, 8 Paige, 480. Where the bill alleges the necessary facts and contains the requisite prayer, and a subpoena, accompanied by the proper underwriting, is personally served upon a defendant, the court may, in its original decree, determine the question of personal liability for a deficiency. Outhwite v. Porter, 13 Mich. 540; Johnson v. Shepard, 35 Mich. 123; Gies v. Green, 42 Mich. 107 (3 N. W. 283); Booth v. Insurance Co., 43 Mich. 299 (5 N. W. 381); Ransom v. Sutherland, 46 Mich. 492 (9 N. W. 530); Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440); Ward v. Obenauer, 119 Mich. 17 (77 N. W. 305); Simons v. McDonnell, 120 Mich. 621 (79 N. W. 916). Such decree is final, and cannot be afterwards questioned, except upon rehearing or bill of review. Johnson v. Shepard, 35 Mich. 125; Ransom v. Sutherland, supra; Haldane v. Sweet, 58 Mich. 429 (25 N. W. 383); Wallace v. Field, 56 Mich. 3 (22 N. W. 91); Corning v. Burton, 102 Mich. 97 (62 N. W. 1040); Jehle v. Brooks, 112 Mich. 133 (70 N. W. 440); Ward v. Obenauer, supra; Simons v. McDonnell, supra. Before payment can be decreed or execution issued, the amount of the deficiency must be adjudicated, after the report of sale has been made. Johnson v. Shepard, supra; Howe v. Lemon, 37 Mich. 166; Gies v. Green, 42 Mich. 108 (3 N. W. 283); Ransom v. Sutherland, supra. That is the object of the proceeding commenced by the petition. The crucial question in the case is whether the defendants are properly before the court. It is contended on their behalf that no absolute decree for the payment of a deficiency can be made, except on personal service of a copy of the sworn petition, and notice of the time and place of hearing. We have cases which hold that a decree in personam cannot be made where the defendant is not personally served with proper process. Booth v. Insurance Co., supra; Gies v. Green, supra; Vaughan v. Black, 63 Mich. 218 (29 N. W. 523); Ransom v. Sutherland, supra. But, where this has been done, not only have we held that the decree is final, but also that a substituted service may be made in the supplementary proceeding. It is true that this has been called a “new proceeding,” but it has always been considered supplementary. Johnson v. Shepard, supra,; Ransom v. Sutherland, supra; Shelden v. Barlow, 108 Mich. 377 (66 N. W. 338); Prentis v. Richardson’s Estate, 118 Mich. 259 (76 N. W. 381). And the cases seem to con template that something less than personal service will support an execution for the deficiency, which could hardly be said if it were not that the court had already jurisdiction of the parties by the service of the original process. Ransom v. Sutherland, supra; McCrickett v. Wilson, 50 Mich. 515 (15 N. W. 885). The statute has not provided for a service of any particular kind, or by any prescribed method, in such cases; and we are of the opinion that the court might prescribe the kind of 'notice, and method of service, and, although it did not in this case, the notice actually given being a copy of the petition, and information as to the time set for. hearing, served personally upon each defendant and the solicitors, such notice is all that any court could require, and the omission of the order may he treated as an irregularity, which, under the facts in this instance, was waived. There are many other States where the practice of rendering decrees for deficiencies rests upon statutes. In others it is based upon the general rule that equity has power to render full relief when it has jurisdiction of the cause for foreclosure. In others the practice is based upon rules of court, which seems to imply that the original subpoena gives adequate jurisdiction, but that justice requires notice of the supplementary proceeding. In New York, from which it is said that our statute is derived (see Prentis v. Richardson’s Estate, 118 Mich. 262 [76 N. W. 382]), it appears to be unnecessary to wait for confirmation of the report. McCarthy v. Graham, 8 Paige, 480; Bank of Rochester v. Emerson, 10 Paige, 115. In this case, then, there was substantially a substituted service. We think it was sufficient to support proceedings upon the petition. The writ is granted. The other Justices concurred.	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Hooker, J. The plaintiff’s horses and wagon were injured in a collision with the defendant’s trolley ear. The defendant has appealed from a verdict of $125 in favor of the plaintiff. The only questions in the case are whether the record conclusively shows contributory negligence, and, if it does not, then whether the verdict is so clearly wrong as to make the denial of a motion for a new trial error. The distance that a car was visible from the point where the accident occurred is in dispute; defendant claiming it to be at least 70 or 80 rods, while the plaintiff and his witnesses place it at 40 rods. The plaintiff was driving along the road, until he should come to a point where a private lane turned off, and where he intended to cross the track. He testified that he looked both ways before turning in towards the track, and neither saw nor heard a car, and, as he drew up nearer the track, the step of the car hit his forward hub and the horse. There is opportunity for the belief that he did not turn short upon the track, and that he drove some 8 or 10 feet before he was struck, after looking and not seeing the car. We cannot say, therefore, that he drove immediately in front of the car, or that it was so close that it was necessarily negligent not to see it when he looked. He had a right to suppose that the car would be run at an 8-mile rate of speed, in conformity to the ordinance; and, if no car was within 40 rods, we cannot say, as a legal proposition, that he should not attempt to cross the track, had he seen it. In this respect the case resembles Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278). Upon a motion for new trial, affidavits were produced which show that, by actual measurement, the car was visible for a greater distance than plaintiff claimed; but the view that we have taken precludes reversal upon this ground. The judgment is affirmed. The other Justices concurred.	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Long, J. The parties were married in 1893. They lived together about five years, when they separated. They have no children. Complainant was about 26 years of age at the time of the marriage, and was a school teacher by occupation, earning $70 per month. She filed a bill for divorce some time before the present bill was filed. Their differences were settled, and they commenced living together again. Defendant is about 3G years of age, is engaged in business in Detroit, and has considerable property. The complainant filed the present bill in September, 1898. It charges the defendant with adultery and cruel treatment. On the hearing the defendant did not deny the charges made. The court found that the material allegations in the bill were sustained by the proofs, and entered a decree of divorce on the ground of adultery. The complainant was awarded a large amount of alimony. She was given the household furniture, excepting the silverware and china, .which came- from defendant’s family. The defendant was required to release and transfer to complainant all his interest in a policy of insurance, which had a cash value of $800, and to pay the complainant $7,600 in cash; these payments to be in lieu of temporary alimony or for maintenance of complainant, and for bills incurred by her in connection with the former divorce proceeding instituted by her. This was to be in full satisfaction of her interest in defendant’s property. She was also given a lien upon all of his property in this State to secure the payment of the alimony, and a receiver was appointed to take possession of the property. The defendant appealed from this decree, and gave a bond to release the property. The only question raised in this court is the amount of the alimony. The defendant’s property consisted, at the time of the entry of the decree below, of the following items: Baseball irfterests, the highest value stated at_____$12,000 Insurance policy.................................. 800 Furniture................-...........-........... 400 Cash..................... 800 Western lands, which, it is argued, were worth____ 5,600 $19,600 It is claimed by his counsel that he owed debts amounting to $3,000. We think, under the proofs, the court below very properly granted the decree of divorce, but we are satisfied that the award of alimony was excessive. The proofs show that the defendant, while living with the complainant as his wife, was guilty of the most lewd conduct. He apparently consorted constantly with lewd women, and was guilty of adultery upon several occasions. The law is well settled that these facts should be taken into consideration. The court should, however, in fixipg the amount of alimony, have taken into consideration the property affairs of the defendant, the amount of property, what cash assets he had, and the other available property. It is apparent that the land, which is situate in another State, is not available for immediate sale. If the baseball interest is worth $12,000, which defendant denies, the payment out of that of $7,600 would leave him without much available funds to carry on his business, which would apparently be thus broken up and destroyed. There was included in the amount given complainant the sum of $500, which she claimed she owed her solicitor in the former divorce proceeding. It appeared all that was done in that matter was the drawing and filing of a bill for divorce. No proofs were given of the value of those services. Ordinarily, from $25 to $50 would be the limit allowed by the law for such services, and, as no proofs were given of their value, we think but $50 should be allowed complainant for that item. It is conceded that $135 should be allowed for other debts of complainant. The alimony must be reduced, and the following awarded: The defendant will be required to deed to complainant one-half of the land in the foreign State, she to take it at the value of $2,800; $450 will be deducted from the $500 which was allowed to complainant to pay for divorce proceedings ; the defendant will be required, not only to make the deed as above provided, but shall pay in cash to complainant or her solicitors the sum of $3,000. The .complainant will therefore be awarded: Cash....................-_________________________ $3,000 Household furniture, valued at----•.................. 400 Insurance policy............-...................... 800 Western land, valued at....................-....... 3,800 Making a total value of..........-...............$7,000 —Out of which complainant can pay her solicitors and the other debts. With this modification, the decree below will be affirmed. No costs of this court will be allowed. The other Justices concurred.	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Hooker, J. The relator, De Gaw, instituted quo warranto proceedings to try the right of Fitzsimmons to the office of justice of the peace, to which each claims to have been elected at the election in the fall of 1898 in the city of Detroit. The cause was heard by the circuit judge without a jury, and the court found that the respondent received, and was elected by, a majority of the votes cast, and rendered judgment of not guilty. The relator brought the cause here by writ of error. At the commencement of the trial, the court, by consent of the parties, appointed auditors, who opened the ballot-boxes of those precincts in which the correctness of the count was questioned. They tabulated the undisputed ballots, and marked and returned to the court such ballots as were questioned, with the result of their count. The questions before us are (1) whether the entire vote in certain precincts should have been excluded; (2) whether certain rejected ballots in different precincts should have been counted for the relator; (3) whether other ballots counted for the respondent should have been rejected. Counsel have also discussed some ballots alleged to have been erroneously counted for relator. We have inspected the disputed ballots, and the tabulation. which follows will serve to explain the result reached by us in relation to them. The finding of the circuit judge does not give the total vote of each party, or the plurality received by either. These are deducible only from the various findings, and, as we understand them, the court counted for the relator 18,255, and for respondent 18,260, ballots. We are of the opinion that to these should be added some ballots improperly rejected (13 for relator and 7 for the respondent), and there should be deducted some that were improperly counted (viz., 5 for the relator and 12 for the respondent). This is exclusive of the 22 disputed ballots in the Fifth district of the Twelfth ward, 4 of which should be deducted from the respondent, because we are compelled to say, under the decision of Attorney General v. Glaser, 102 Mich. 405 (61 N. W. 648), that they bear distinguishing marks. It is urged with plausibility that the other 18 ballots are subject to the same rule, but we find it unnecessary to determine as to them. As already said, we compile the following table of votes counted, from the finding of the circuit judge: De Gaw. Fitssimmons. Reported by auditors.--!_______________■ 16,786 16,671 Fifth district of Twelfth ward, undisputed------------:__________________ 91 158 Fifth district of Twelfth ward, disputed, but counted.......... 4 18 Ballots initialed in blue pencil, counted 699 906 Bromley ballots, Second district, Fourteenth ward.............. 158 120 Bleil ballots, Second district, Fourteenth ward........... 84 56 Bridgman ballots, Seventh district, Sixth ward---------- 216 180 Theo. ballots__________________ 193 114 Of disputed ballots_________ 24 37 18,255 18,260 We make changes in the above as follows: De Gaw. Fitzsimmons. Disputed ballots erroneously rejected-.. 13 7 Add---------- 18,255 18,260 18,268 18,267 Erroneously counted, deduct.......... 5 12 18,263 18,255 From 22 ballots, Fifth district, Twelfth ward, reject and deduct.............. 4 18,263 18,251 The table shows three classes of ballots that were questioned, of which the relator has a majority, viz., those designated “Bromley,” “Bridgman,” and “Theo.” Messrs. Bromley and Bridgman were clerks of the respective boards of inspectors. Theodore E. Vitalius was an inspector. The ballots were initialed by each of these persons in his respective district, by order of the board of inspectors. Bridgman wrote his own initials, and handed some of the ballots to the voters, and Vitalius wrote “Theo.,” instead of the first letters of each "of his names. The circuit judge found that these things were done in good faith, and that no injury resulted to either candidate through the departure from the letter of the statute. Should these ballots be deducted, it would reduce relator’s aggregate 153 votes. Upon the other hand, there were many ballots initialed in blue pencil.' The court took proof tending to show that the material of which these pencils were made was Prussian blue and clay, and that the former, if dissolved in water, would make ink, and held that this was a substantial compliance with the law. Of these ballots the respondent received a plurality of 20?, and, if thrown out, that number would be deducted from his aggregate. The law requires that ballots shall be initialed by an inspector, and with his own initials, in ink, and be handed to the voters by him. Each party maintains that these provisions are mandatory in part and directory in part. Relator will be benefited by the exclusion of the ballots initialed in blue pencil; respondent, by the exclusion of the others. To our mind, the law is mandatory as to all of these requirements, or directory as to all. At all events, if it is to be held mandatory as to the requirement that only inspectors can handle the ballots, it must be so construed as to the requirement that they be initialed with ink. The blue pencil was not, in effect, ink. Not only does the proof fail to show that clay is an ingredient of the ink made from Prussian blue, but there was no proof that water was used in the application of the initials, and an experiment shows that common India rubber will efface the blue initials upon these ballots. Taking the view that all of these provisions are to be treated alike, it becomes unnecessary to decide whether they are mandatory or not, because the result would be the same if all these votes were excluded as it is under the count made, as the respondent would lose the difference between 207 votes and 153 votes; and, as this would be still further increased if the vote of the Fifth district of the Twelfth ward were to be excluded, u is unnecessary to discuss the questions relating to those votes. We must therefore reverse the judgment of the circuit court, and, as the finding is conclusive of the questions involved, we may properly enter a judgment of ouster here. It will be so ordered, with costs of both courts to the relator. The other Justices concurred.	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Moore, J. In July, 1898, complainant filed a bill for the purpose of foreclosing a mortgage given to it by the defendants Albert H. Burch and wife upon lands in Muskegon, Mich. The complainant claimed there was due upon the inortgage at the time the decree was made upwards of §1,000. The circuit judge granted a decree in favor of the complainant for the sum of §157.14, from which decree the complainant has brought the case here by appeal. It is claimed upon the part of the defendants that the bond and mortgage are usurious, and that the circuit judge gave a decree for all that complainant is entitled to. Defendants did not appeal. It is claimed on the part of the complainant that the contract is a New York contract, governed by the New York law, and is not usurious. The complainant is a corporation organized under the laws of New York. It claims to be a building and loan associa'ion. Its articles of association provide that the principal office shall be in the city of New York. Section 2, art. 4, provides: ‘ ‘ The board of directors may appoint a general advisory board and local advisory boards from among the shareholders at such places as they may deem best.” The articles provide the capital of the association to be accumulated shall be $50,000,000. The shares are $100 each. Three kinds of shares may be issued, among them: “Paid-up shares of the par value of $100 will be issued for $70 per share, upon which there will be paid to the holder semi-annually, from the earnings of the share, interest at the rate of six per cent, per annum upon the purchase price. Such shares shall be liable for no further dues or assessments, and will be payable at the maturity of, and in the same manner as, installment shares of the same date.” Section 4, art. 8. One person may hold 200 shares, enabling him to invest $14,000, upon which he shall receive 6 per cent, interest on the purchase price, and share in the profits the same as the installment shares. Another section provides: “Interest at the rate of six per cent, per annum will be charged upon all loans, which interest must be paid monthly, with the monthly dues, on or before the last business day of each month, until the maturity of the pledged shares, and a premium of fifty cents per month will be charged on each one hundred dollars borrowed, which premium must be paid on or before the last business day of each month, for the period of eight years, or until the maturity of the pledged shares, should they mature before the expiration of the eight years. The premium for six months in advance will be deducted and retained from such loans.” Section 2, art. 13. The mortgage follows the terms of this provision. Article 13 provides for loans upon the withdrawal value of shares upon the same rates for interest and premiums as charged in the case of loans upon real estate. It is then provided: ‘ ‘ The residue of the loan fund not required by shareholders may be invested in such securities as the laws of New York permit for investment of savings banks deposits.” Article 14. In 1890 the complainant appointed George W. Howell its agent at Muskegon, ‘ ‘ with full power and authority to solicit and receive applications for shares of our association in the said territory, and he is fully authorized and empowered to collect and receipt for entrance fees on all shares of the association so taken by him, but has no authority to collect any other moneys of the association.” A local board was organized at Muskegon. Mr. Howell was supplied with the literature of the company, and was active in its interests. His testimony, in part, is: '' The association had a local board here. I organized it. There was a president, vice-president, secretary, treasurer, and board of appraisers. The object of the local board was to look after the interest of their business here in' Muskegon, — to do the local business of the association. It did this up to the time when the local board was dissolved. This local board was in existence at the time this mortgage was given by Mr. Burch, and for some time afterwards; I have forgotten how long. I think the first treasurer of the local board was W. R. Laughray. The local treasurer gave a bond, and collected the money here.” Mr. Burch was the owner of a lot upon which there was a mortgage of $400. He was interviewed by Mr. Howell, and assured that, if he would become a member of the association, he could obtain from it a loan of $1,000, which would enable him to pay off the mortgage and build a house upon his lot, and could obtain this money at a cost of 6 per cent., and that all sums of money above that amount paid by him would be applied upon the principal of the loan. Mr. Burch says that, relying upon these statements, and for the sole purpose of borrowing the money to enable him to pay off the mortgage on his lot and build a house thereon, he subscribed for 10 shares of stock, and soon thereafter applied for a loan of $1,000. Mr. Howell’s version of the matter is not very different from that of Mr. Burch. He undoubtedly believed the statements he made to be true. The application for the loan was accepted by-the company, and for the purpose of securing its payment Mr. Burch assigned to the com pany his shares of the stock as collateral security, and executed a mortgage on his land in Muskegon for $1,000. Mr. Howell took the application for the loan. The land was appraised by members of the local board, and the loan approved by the officers in New York city. The loan, according to the terms of the mortgage and the bond accompanying it, was payable at the office of the company in New York. After the loan was approved, a check for $582 and one for $18 were sent to the local attorney of the company at Muskegon. They were both indorsed by Mr. Burch, who was allowed to retain the one for $582. The $18 check was used by the company as six months’ premium on the loan. Afterwards a check for $379.87 was given to Mr. Burch, the company retaining $11.13 as premium on the loan, and $9 as interest. These items made up the $1,000 for which the mortgage was given. The local attorney examined the title to the lands, and turned over the checks to Mr. Burch. The mortgage was delivered to the local attorney, put upon record, and sent to the complainant. Mr. Burch made payments to the treasurer of the local association. He paid, in all, the sum of $1,080.26. It is claimed by the association that the paypaents were applied as follows: For dues on the shares, $402; fines, $42;'interest on loan, $318.13; premium on loan, $318.13. Mr. Burch was unable to keep up his payments. The association, in June, 1898, applied the withdrawal value of the shares, said by them to be $381.66, upon the mortgage, and filed this bill to foreclose it, claiming, as we have before stated, that more than $1,000 was due. The first thing to be considered is, Was the contract in violation of our usury law ? According to the articles of the association, and the terms of the mortgage also, Mr. Burch was to pay for this loan 6 per cent, interest, and as premium five dollars a month for eight years, or until the loan was all paid or the shares matured. If we eliminate the payment of dues upon the shares, it is apparent the mortgage calls for a payment for interest of upwards of 12 per cent, on the loan for a period of eight years, or until the pledged shares mature, and would be usurious, under our usury laws (section 4856, 2 Comp. Laws 1897), unless it is saved by the provisions of our laws governing building and loan associations (section 7584, Id.). That section refers only to corporations organized under the act. The Michigan act also requires the directors to loan the surplus to the stockholder who shall bid the highest premium (section 7581); while it will be observed there is no such provision in the New York association, but, on the contrary, it requires a borrower to pay, in addition to 6 per cent, interest, a fixed premium on the sum borrowed. In this State such a contract could not be enforced by an association organized under our law. Myers v. Building Ass’n, 117 Mich. 389 (75 N. W. 944). Such a provision is contrary to the spirit and purpose of a building and loan association. See McCauley v. Saving Ass’n, 35 L.R. A. 244 (97 Tenn. 421, 37 S. W. 212, 56 Am. St. Rep. 813), and note, where there is a full collation of the authorities. The articles of association also provide for loans on shares, at the withdrawal value thereof at the same rate of interest charged uppn real loans. The directors are authorized to .invest the residue of the loan fund in such securities as the laws of New York permit for the investment of savings banks deposits. Our statute applying to building and loan associations (section 7584, 2 Comp. Laws 1897) reads as follows: ! “Corporations organized under this act being of the nature of codperative associations, therefore no premium, fines, nor interest on such premiums that may accrue to .the said corporation, according to. the provisions of this act, shall be deemed usurious, and the same may be collected as other debts of like amount may be collected by law in this State. ” Our law does not authorize the issuance of paid-up shares, thus allowing persons to make investments which shall bring them rates of interest much in excess of that allowed by our usury laws. We think it very clear that a Michigan building and loan association could not do what was done here. It is said the contract is a New York contract, and must be governed by the New York law, and for that reason can be enforced. We db not think it at all clear this is a New York contract, or that it was so understood to be when it was made. While by the terms of the mortgage the loan was to be paid in New York, it was expected the money would be paid to the treasurer of the local branch at Muskegon, and most of it was paid to him. A case quite similar to this was passed upon in Meroney v. Loan Ass’n, 116 N. C. 882 (21 S. E. 924, 47 Am. St. Rep. 841), where the following language is used: “Wharton, in his treatise on the Conflict of Laws (section 510), says of the question ‘whether, when a mortgage is given as security for a loan, and the mortgage is in one State and the place of payment of the loan in another, the law of the former State or that of the latter State is to prevail in the settlement of interest,’ that it has been frequently litigated in the United States, and ‘ with results which, on their face, are .irreconilable.’ And the learned author says: • ‘ ‘ The true test is, Was the mortgage merely a collateral security, the money being employed in another State and under other laws, or was the money employed on the land for which the mortgage was given ? If the former be the case, then the law of the place where the money was actually used, and not that of the mortgage, applies. If the latter, then the law of the place where the mortgage is situate must prevail.’ “ It is stated in the elaborate brief of the learned counsel #or appellant that the authorities cited by Wharton do not sustain the rule thus laid down by him. Among these cases is Chapman v. Robertson, 6 Paige, 627 (31 Am. Dec. 264), in which it was adjudicated, as stated in the head-notes of that case in 31 Am. Dec. 264, that ‘the construction and validity of personal contracts depend on the laws of the place where they were made, unless they were entered into with the view of being performed elsewhere;’ and also that ‘ transfer of lands or other heritable property, and the creation of liens thereon, is governed by the laws of the place where such property is situate.’ Of this case Folger, J., said in Dickinson v. Edwards, 77 N. Y. 573 (33 Am. Rep. 671): " ‘ Chapman v. Robertson is a case often cited and relied upon, but it does not impugn the general rule that the validity of a purely personal contract is to be tried by the law of the place of its performance. The learned chancellor concedes that the case would have come clearly under that principle if the contract in suit had been only the personal contract of the defendant; but he holds that, as it was a mortgage actually executed here, by a resident here, upon lands here, for moneys loaned to be used here, though to be repaid elsewhere, the law of this State would fix the legality of the rate of interest reserved; and he further reasons that the contract was partly made here actually in reference to our laws, with an appeal to our courts contemplated by the parties, if necessary:’ “A distinction seems thus to be clearly recognized between a contract ‘purely personal’ (as, for instance, a promissory note executed in this State, but made payable bona fide in Georgia) and a contract not ‘ purely personal ’ (as, for instance, a loan of money by a citizen of Georgia to a resident here to be repaid in that State, and to be evidenced by note so payable, and mortgage on land in this jurisdiction). “In Jackson v. Mortgage Co., 88 Ga. 756 (15 S. E. 812), Bleckley, C. J., speaking of a loan of money made by the defendant to the plaintiff in New York, but secured by a mortgage on land in Georgia, where he resided, says; “ ‘There was not one contract for making notes and another for securing them by a conveyance, but a part of one and the same contract was expressed in the notes, and a part in the deed executed at the same time. * * There was no intention to make a loan without having it secured both by notes and a deed. It was, therefore, impossible to accomplish the object without calling in the law of Georgia as to a part of the transaction. New York had no law which could make any contract conveying land situated in Georgia operative or obligatory. As the law of Georgia would thus be essential with respect to a part of the transaction, that law, if possible, ought to be applied to the whole. There was no intention to make a mere personal contract, but the scheme was to make one partly personal, and partly confined by its very nature to a given situs, to wit, the State of Georgia.’ “See, also, Martin v. Johnson, 84 Ga. 481 (10 S. E. 1092, 8 L. R. A. 170), which was a suit to foreclose a mortgage, the debt being payable, in Massachusetts. It is there said: “ ‘There is a portion of this contract which, under no circumstances, could he enforced in the State of Massachusetts,— that as to the land upon which it is sought to set up a lien. Nor can we very readily see how any portion of this contract could he enforced in the State of Massachusetts against a person resident in the State of Georgia.’ “The difference in the contracts makes a difference in the rule applicable to their enforcement. Hence, in Pine v. Smith, 11 Gray, 38, it was decided, that a note made in, Massachusetts, and secured by mortgage on land in that State, although payable in New York, was to be construed by the Massachusetts law; and in Thompson v. Edwards, 85 Ind. 414, it was held that if A., of Indiana, borrowed in Indiana, on notes secured by a mortgage on land there, money of a citizen of New York, some of the notes being payable in New York and some specifying no place of payment, the' contract was an Indiana contract, and the question of its being usurious was to be tested by the law of that State. In Pancoast v. Insurance Co., 79 Ind. 172, the notes and mortgage were payable in Connecticut, and the court said: ‘“It is true that the notes and mortgage are made payable at Hartford, in the State of Connecticut. But it is true that they were executed in this State, the mortgagor lives in this State, the lands lie in this State, and from the terms of the mortgage it is clear that the intention of the parties was that the contract was to be enforced in this State. The mortgage could be enforced nowhere else. In such a case the law of this State governs, the rate of interest being fixed in accordance with the laws of this State.’ ‘ ‘ The doctrine which Dr. Wharton announces seems to us just and reasonable. It has been repeatedly held that such transactions would constitute ‘ doing business ’ in this State, so as to subject the foreign money lender thus conducting himself to a license tax. Murfree, Foreign Corp. §§ 65, 69, and cases cited. The contention of the defendant corporation seems to us to amount to this: That it must he allowed to do business in North Carolina in total disregard of North Carolina’s statutes and the decisions of her courts; that it shall be allowed to take mortgages on North Carolina land, from a resident owner, for money loaned to the resident, to be used here, and foreclose them in North Carolina courts, where alone jurisdiction for foreclosure could reside, and where alone it must have contemplated enforcing its rights, if a resort to courts should be necessary, not by North Carolina statutes and the decisions of her courts, but by Georgia statutes and the decisions of its courts; in fine, that it shall be allowed to override, in the courts of this State, the laws of this State, and its well-settled policy as to the borrowing and lending of money. We cannot accede to this-proposition, but, instead, we choose to adopt the doctrine announced by Wharton, quoted above, which seems to us more reasonable, and which he assures us is sustained by the authorities.” In Freie v. Savings Union, 166 Ill. 128 (46 N. E. 784, 57 Am. St. Rep. 123), the following language is used: “ But it is insisted that a foreign corporation organized as a building and loan association cannot contract for premiums and fines in addition to interest without violating the statutes against usury. The rule as to foreign corporations is that such a corporation created in another State may, upon the principle of comity, exercise within this State the powers conferred by its charter, if not inconsistent with the public laws or policy of this State. Stevens v. Pratt, 101 Ill. 206; Santa Clara Female Academy v. Sullivan, 116 Ill. 375 (6 N. E. 183, 56 Am. Rep. 776); Barnes v. Suddard, 117 Ill. 237 (7 N. E. 477). By the statute of Indiana, under which complainant was organized, it had power to enter into the contract in this case, and it was not contrary to the laws or policy of this State, which permit the organization of like corporations with the same powers.” To the same effect is Rhodes v. Loan Co., 173 Ill. 621 (50 N. E. 998, 42 L. R. A. 93). See, also, Lindsay v. Loan Ass’n, 120 Ala. 156 (24 South. 171, 42 L. R. A. 783); Interstate Sav. & Loan Ass’n v. Strine, 58 Neb. 133 (78 N. W. 377); National Mut. Bldg. & Loan Ass’n v. Keeney, 57 Neb. 94 (77 N. W. 442); Falls v. Building Co., 97 Ala. 417 (13 South. 25, 24 L. R. A. 174, 38 Am. St. Rep. 194); Cotton States Bldg. Co. v. Reily, (Tex. Civ. App.) 50 S. W. 961. These cases are not in conflict with Russell v. Pierce, 121 Mich. 208 (80 N. W. 118), or Phelps v. Loan Ass’n, 121 Mich. 343 (80 N. W. 120). It does not appear in either of those cases that what was done would be in violation of our law if done by a Michigan building and loan association. In 1895 the legislature passed a law making it unlawful for a building and loan association, organized outside of the State of Michigan to conduct or engage in business in this State without filing with the secretary of state a copy of its articles of incorporation, and paying at the same time a franchise fee. % Comp. Laws 1897, § 7592 et seq. The record discloses this company never complied with this provision of the law. The question is now raised as to whether it can resort to our courts to enforce contracts, even though they were made before this law was enacted,—counsel citing People’s Mut. Ben. Soc. v. Lester, 105 Mich. 716 (63 N. W. 977); Equitable Loan & Investment Ass’n v. Peed, 153 Ind. 697 (52 N. E. 201); Seamans v. Temple Co., 105 Mich. 400 (63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457). The record does not disclose that the jurisdiction of the court was questioned in the court below. The defendants did not appeal from the decree. We decline to enter upon a discussion of that branch of the case. The taxes of 1892 upon the mortgaged- land were not paid. The defendant Thorpe obtained a tax title thereon. The bill charges a conspiracy between Mr. Burch and Mr. Thorpe to allow this land to be sold for the purpose of cutting off the lien of the mortgage. The circuit judge dismissed the bill as to Mr. Thorpe. We think the conspiracy is not shown. The decree of the court below is affirmed. The other Justices concurred.	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Moore, J. The plaintiff sued defendants in an action of trover, and recovered a judgment against them, for the conversion of personal property which she claimed to own. The record does not purport to contain all of the testimony offered in the case. The plea of the defendants was simply the general issue. Upon the trial they were allowed to amend their plea by giving notice that they would show that plaintiff was not the owner of the goods, but that they were conveyed to her by her husband in fraud of defendant the Northern Michigan Building & Loan Association, and that, as to said defendants, Theophile Grenier is still the owner of said goods. On the trial of the case plaintiff offered in evidence a lease of the property in question, made between her and Charles Gamache. It is said that this is error, because it allowed plaintiff to make testimony in her own interest. It was the claim of plaintiff that she owned the property in question, that she leased it to Charles Gamache, and that, while it was in his possession as her tenant, it was wrongfully taken from him by defendants, and converted to their own use. As one link in her chain of testimony, we think it was not error to permit the receipt of the lease in evidence. It was claimed by defendants that plaintiff stood by and saw a conversion of this property without claiming to be the owner. On the cross-examination of a witness upon that phase of the case, the following occurred: “Q. She made the remark that they were being robbed by the building and loan association ? “A. No; I don’t think she did. “Q. They took it very quietly, of course; didn’t manifest any anger ? “A. Took it with as good grace as could be expected. “ Q. They took it in about the same way that any other person would that was being crucified, did they not? (To which counsel for the defendants then and there objected to the style of examination, and to the word ‘crucified’ being used by the plaintiff’s counsel.) “ The Court: The jury will pay no attention to that word ‘crucified.’ And Mr. Mapes should not use such language, and must refrain from it.” This is said to be reversible error. If counsel are right, few cases come to this court which would not be reversed. The circuit judge at once instructed the jury that they were not to consider the objectionable word, and reprimanded the attorney. The court refused to give a request reading as follows: “It appearing from the undisputed testimony that the plaintiff was informed, had fpll knowledge, of the levy, and was present part of the time of the levy, and had full knowledge of the time of the sale, and all the acts done under the execution, and was given a chance to select her exemptions, and that she did not at any time disclose the fact that she claimed ownership of the goods taken, she is now estopped from claiming any ownership in the goods levied upon, and I charge you to render a verdict for the defendants.” This is said to be error. There was no notice given that defendants would seek to justify the taking of the property by virtue of any process of court. While some of the witnesses in their oral testimony spoke of a levy having been made, there is nothing in the record to show any judgment; of any court, nor any execution issued by reason of such a judgment, nor any levy by virtue of any execution. So far as the record discloses, the defendants took the property without any right whatever to do so, and there was no legal evidence upon which to base the request. The judge refused to give the following request: “ If you find from the evidence that the plaintiff’s husband conveyed the goods sought to be recovered in this case to the plaintiff in fraud of creditors, she has no such title as would enable her to bring this action, and you will render a verdict for the defendants.” His refusal is said to be error; counsel citing Stephenson v. Little, 10 Mich. 439; Parkhurst v. Jacobs, 17 Mich. 302; Pierce v. Hill, 35 Mich. 199 (24 Am. Rep. 541). We have already spoken of the condition of the pleadings and of the record. The cases cited by counsel are not in favor of their contention. In this case the plaintiff says the property belongs to her. Her husband is not contesting her right to it, but, on the contrary, says it is hers. So far as the case of Parkhurst v. Jacobs is applicable, it is in favor of the position of the plaintiff. In Pierce v. Hill a judgment creditor was seeking to question the transaction. He had shown a valid judgment, a valid execution, and a valid levy. In this case defendants had shown neither. The case of Fry v. Soper, 39 Mich. 727, is in point, and is against the contention of defendants. See, also, Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834). The judgment is affirmed. The other Justices concurred.	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Moore, J. The plaintiff sued the defendant to recover for injuries- received by him, caused by the explosion of the boiler upon a dredge owned by defendant. The cir. cuit judge directed a verdict for the defendant. The case is brought here by writ of error. The defendant owned a dredge with which he was performing a contract he had with the government to do dredging in Black river. The plaintiff was an inspector looking after the work on the part of the government. He had nothing to do with the management of the dredge. He went aboard the dredge on the morning of May 25th. After the dredge had been in operation for a little time, some of the machinery gave trouble, making it necessary to stop the work for a little time. It is the claim of the plaintiff that the work was heavy, requiring the operation of powerful machinery, and the use of a high pressure of steam in the boiler to operate the machinery. His claim is that, when the machinery was stopped, no steps were taken to check the fire under the boiler, but the fireman went to the forward part of the boat, 40 or 50 feet away from the place of his duties, and remained away 30 to 40 minutes, and that, as a result of the neglect of the persons in charge of the boiler, the steam was raised in the boiler beyond its capacity to resist the pressure, and that the boiler exploded, throwing the plaintiff 25 or 30 feet into the river, and injuring him severely. The plaintiff offered testimony tending to support his theory that the explosion was caused by the negligence of the persons in charge of the boiler. No proof was offered upon the part of the defendant. Plaintiff requested the court to charge the jury, in substance : “1. That, under the circumstances, the bursting of the boiler vras prima facie evidence of negligence. “2. That if you should find that the dredge was being operated under an ordinary working pressure of steam, and with an ordinary working fire in the furnace, and that the furnace doors were closed and the back damper or backboard closed, and that the machinery was thereupon stopped for repairs, and that the fireman in charge of the boiler thereupon went to the forward part of the dredge, and left the boiler without checking the draughts, whereby the steam pressure would be likely to dangerously increase, and if you find that he so remained away from his place Of duty for 15 or 20 minutes, and that, while he was so absent from Ms post, the steam pressure did so increase as to blow out the crown sheet of said boiler and injure the plaintiff, then such acts of the fireman would constitute, negligence, for which the defendant would be liable.” The court declined to give either of these requests, and stated to the jury that plaintiff had failed to establish by proof, with reasonable certainty, the negligence which was the proximate cause of the injury, and directed a verdict for the defendant. The counsel for the plaintiff do not insist in their brief that under the ruling in the case of Voight v. Car Co., 112 Mich. 504 (70 N. W. 1103), they were entitled to have the first request given, but they do say the testimony offered by them was of such a character that the jury might very properly draw from it that the negligence of the persons in charge of the boiler caused the injury, and whether such an inference should be drawn or not was a question for the jury. Notwithstanding the diligence and ability of the counsel employed in the case upon both sides, they have cited us to but few authorities that aid in the solution of the questions involved. The case most in point is the case of Davis v. Railway Co., 58 Wis. 646 (17 N. W. 406, 15 Am. & Eng. R. Cas. 424, 46 Am. Rep. 667). In that case it was claimed thé absence of the persons in charge of the boiler caused the explosion. The court, in disposing of the case, used the following language : “The evidence in the case at bar tends to prove that the persons in charge of the boiler and pile-driver were culpably negligent in leaving it unattended for more than half an hour in the condition the evidence tends to show it was. Hayward, the defendant’s witness, and who was competent to give an opinion on the subject, testified that, if the boiler was left with such a fire in the fire-box as the plaintiff claimed the evidence showed there was, an improper amount of steam would be generated in the boiler. He firrther said: ‘ It is not safe and proper to leave a boiler and engine unattended, with a large fire in the fire-box. It is very unsafe and improper to do it, with a large fire.’ It was certainly for the jury, and not for the court, to say, upon the whole evidence, whether this act of negligence was the cause of the explosion; and it was also for the jury to say whether it was a want of ordinary care on the part of those in charge to leave so dangerous an engine unattended in the immediate vicinity of a place where they knew people would be passing and repassing. This court cannot say, as a matter of law, that the explosion was the result of causes which' were unforeseen, and that such ex plosion would have occurred at the same time and in the same way, and produce the same injury, if the men in charge had remained there during the half hour they absented themselves. These are questions for the jury. We do not say that the plaintiff could recover in this action if the jury should find as a fact that the explosion of the boiler was the result of a defect in the iron of which it was originally made, or because of defects arising out of its use, and which were unknown to the persons in charge at the time of the accident, and were not discoverable by the ordinary inspection given to it. An explosion occurring from such causes might be said to be one of the risks incident to the business, and that all such risks the licensee assumes when he avails himself of the privilege granted by the company; but if they find that the explosion occurred by reason of the negligence of those in charge in permitting the steam to be raised to an unsafe pressure in the boiler, and that the explosion occurred from that cause, then we think the clear'weight of authority is in favor of the plaintiff’s right to recover. Upon the first theory the want of attendance at the time would not be the cause of the explosion, and on the second theory it would be, or might well be found to be. ” It has repeatedly been held by this court, in negligence cases, that it is not the province of the court to pass upon the weight of the evidence, and the effect to be given to it, but that those are questions for the jury; that it is only where there is not sufficient legal evidence, if it is believed, to establish a case for the plaintiff, that the court would be justified in directing a verdict for the defendant. See Carver v. Plank-Road Co., 61 Mich. 584 (28 N. W. 721), where there is a full collation of the authorities. We think, under the proofs, the plaintiff was entitled to have his case, under proper instructions, submitted to the jury. Judgment is reversed, and new trial ordered. The other Justices concurred.	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Moore, J. The respondent was convicted of the offense charged in an information reading, in the material part thereof, as follows: “That George Jones, late of the township of Portage, in the county of Houghton, heretofore, to wit, on the 29th day of May in the year 1899, at the township of Portage, in tho county of Houghton, aforesaid, did feloniously and knowingly have in his possession certain tools and implements, — that is to say, one skeleton key, one clipper, and one key adapted and designed for the forcing and breaking open of buildings, rooms, vaults, and safes, in order feloniously to steal, take, and carry away therefrom such money and other property capable of being stolen as might be found therein; he, the said George Jones, then and there feloniously knowing the such tools and implements to be adapted and designed for the purpose aforesaid, intending to use and employ them for the purpose aforesaid, contrary to the form of the statute,” etc. A good many errors are assigned. We shall discuss only such of them as we deem important. It is claimed the information did not charge an offense. It is said the information should charge, and the people should prove, “beyond a reasonable doubt, that the respondent had a fixed intention, at the time said implements were found in his possession, to use or employ said tools or implements for the purpose’ of forcing or breaking open a building, room, vault, safe, or other depository in Houghton county, in order to steal therefrom money or some other valuable thing; for, if his intention was merely a general one to employ said tools or implements some time, or in some other county, he would not be guilty. In other words, the intent must be to use the tools or implements, for some of the purposes mentioned in the statute, in the county where the prosecution is instituted.” The language of this information is substantially the same as that employed in Com. v. Day, 138 Mass. 186, where the conviction was affirmed. The statute under which this information was filed is section 11589, 3 Comp. Laws 1897. It was construed in the case of People v. Edwards, 93 Mich. 636 (53 N. W. 778). The same principle was contended for in that case as the one urged here. The opinion contains a full discussion of the question. It is so recent in date, we do not deem it necessary to do more, than refer to it. It decides this case against the contention of respondent. Just before his arrest, respondent was engaged in a fight at one of the docks; having a revolver, which he used by striking his antagonist on the head with the butt end of it. When arrested, the officer was unable to find the revolver upon the person of the respondent, but it was afterwards found. On the way to the jail the accused attempted to drop a skeleton key. At the jail there were found upon his person an ordinary key, a lock-pick, and a pair of nippers, such as are used by burglars for turning a key then in the lock, by inserting the nippers in the keyhole from the outside. These nippers, were concealed in respondent’s stocking. Upon the trial the people were allowed to show for what purpose these tools could be used. This is said to be error. Counsel says, “The implements were in court, and the proper course would have been to identify them as the implements found in the respondent’s possession, introduce them in evidence, and submit them to the jury, and let the jury draw their own inference from them.” This proposition does not call for much discussion. Suppose an innocent-looking stick of dynamite had been found upon the- person of the accused; could the position of counsel then be sustained? Jurors are not supposed to be familiar with the tools and methods employed by burglars. It was very proper they should be informed, by persons who had knowledge, for what purpose the implements were used. The other assignments of error do not call for discussion. Judgment is affirmed. The other Justices concurred.	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Christianoy J.: In reply to the first question propounded, we think it is well settled, both upon principle and authority, that one partner, after dissolution of the firm, can not, by his admission or contract, create a new partnership liability; nor, for a like reason, can he, by his admission, revive a claim against the firm which has been barred by the statute of limitations, since this is equivalent to a new contract. On the other hand, with the exception of claims barred by the statute of limitations, and others coming within a similar reason, we think it equally clear in principle, that the admission of one partner, made after such dissolution having reference to previous actual partnership dealings or transactions, stands upon the same ground, and is evidence against the firm in like manner, as if made before such dissolution. The dissolution can not destroy the joint liability of the partners, nor alter their relations to third persons in respect to contracts made or transactions which occurred before the dissolution. The dissolution operates upon future, not upon past transactions. As to persons whose claims have been contracted on the credit 'of the firm, the partnership, for all substantial purposes, continues till such claims have been satisfied. And persons who have had dealings with the firm during- its continu•ance, are, as to all matters touching .such dealings, entitled to the same benefit from the admissions of a single partner, whether made before or after the dissolution, unless •■shown to be false or. fraudulent in fact: — See Wood v. Braddick, 1 Taunt. 103; Lacy v. McNeale, 4 D. & R. 7; Cady v. Shepherd, 11 Pick. 400; Vinal v. Burrill, 16 Pick. 401; Col. on Part. (Perkins Ed. of 1848) § 546 and cases cited; Story on Part. § 328: see also Mann v. Locke, 11 N. H. 246, where the principles upon which such admissions are receivable are very clearly and ably presented. But it is objected that the power of a single partner, in such case, to make an admission of a ^previously existing liability, involves the power of creating a new liability where there had been no previous dealings with the firm, and no such prior liability existed in fact. It was doubtless this supposed difficulty which led the courts of New York, and a few others which have followed their authority, to take the broad ground excluding such admissions altogether. -But the rule which entirely excludes such •admissions, leads to another inconsistency, no less obvious than that which is sought to be avoided by it. Thus, the ■same courts which deny all power of one partner-, after dissolution, to bind his former partners by the admission •of a previous liability, yet hold that he may liquidate a previous account: — -(McPherson v. Rathbone, 11 Wend. 96, 99), and that “if there he no agreement to the contrary, it may be presumed that each partner still has authority to dispose of the partnership property, to collect, adjust and pay debts, and to give proper acquittances — (Per Bronson J. in Van Keuren v. Parmelee, 2 Comst. 525). Now the power to liquidate a previous account against the firm, to adjust and pay debts, and to give acquittances, would seem necessarily to involve, if not to rest upon, the power to make an admission of the correctness of the account liquidated, and the amount of the debt paid or adjusted. And where (as is generally the case), there are mutual accounts in favor of and against the firm, the power to adjust, and to give a valid acquittance, or receipt for the amount found due the firm, necessarily, we think, rests upon the power to state an account, and to admit the claims against the firm. If he has power to state an account, and to agree upon a balance when that balance is in favor of the firm, upon the same principle he must have the like power when the balance happens to be against it. Without the power to admit a prevk ous liability against the firm, we can see no principle on which a receipt or acquittance, in such case, could be admissible evidence against the firm. But the admission by a single partner, after dissolution, of a pre-existing partnership liability, must be confined to cases where there have been, in fact, previous partnership dealings with the plaintiff, or some transaction of the firm out of which a liability to the plaintiff might have originated; and the fact that there have been such dealings, or such transaction, must be shown by some general evidence at least, outside of the admission itself; otherwise the objection that the power to admit a previous liability involves the power to create a new one, would be insurmountable. But if such evidence be given, it lays a proper foundation for the admission, as it brings the subject matter within the power of the single partner to make an admission in respect to a liability which may have grown out of such ¡Previous dealings or transaction, and the balance that may have resulted .therefrom. The admission is thus shown to have reference to transactions which took place during the existence of the firm, and as to which the dissolution could not ■ alter the relations of the parties. We think this very clear in principle, though we have been referred to no authorities, and none have come under our observation, directly in point for a case like the present. See however, for an analogous rule, 3 Kent Com. (3d Ed.) 50, and oases there citedj especially Smith v. Ludlow, 6 Johns. 267, and Cady v. Shepherd, above cited. In the case before us, there does not appear to have been any evidence, aside from, the admission of one of the surviving partners, tending to show any partnership dealing or transaction with the plaintiff during the existence of the firm. The first question propounded must therefore, as it applies to the present case, be answered in the negative. This, in our view, disposes of the ease, and the second question propounded becomes abstract or hypothetical, and requires no answer. The other Justices concurred.	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Christiancy J.: The evidence offered by the plaintiff was improjjerly refused by the court. It appeared inferentially from the evidence which had already been given, that the defendant had accepted and recognized the power of attorney, and that he had, in effect, assumed to act as the agent of the plaintiff; and the plaintiff offered to show that he had fully and in fact recognized the agency, and induced the plaintiff to place confidence in him, as such. In that confidential relation he was bound to the utmost degree of good faith, - and had no right, while professing to act in that capacity, to make himself the agent of other parties for the purchase of the lands he was authorized by the plaintiff to sell; nor to take any advantage of the confidence his position inspired, to obtain the title himself. Nor could he make a valid purchase from his principal, while that confidential relation existed, without fully and fairly disclosing to his principal all the propositions he had received, and all the facts and circumstances within his knowledge, in any way calculated to enable his principal to judge of the propriety of such sale. By his agreement with Wilkins and others in London, which appears to have been read in evidence without objection, it clearly appears that the defendant violated his duty to the plaintiff, or that he would be compelled to prove recreant to them: he had undertaken to act in two inconsistent capacities. For, while recognizing and referring to the power of attorney, he assumes the position of a joint purchaser, to some extent, of the same lands, with the three London parties, and undertakes to act as their agent, in a manner wholly inconsistent with his duties to the plaintiff. Prima faeie, this agreement is indicative of an intent to defraud the plaintiff, his principal. There was but one way in which it could be reconciled with good faith and honesty of purpose, and that was by laying the whole transaction, every fact and inducement connected with, or bearing upon it, fully and frankly before his principal; and if he then chose to ratify it, or to continue further to avail himself of the defendant’s agency in the sale, the transaction would have been fair and honorable towards the plaintiff at least. Whether he did this or not, this court have no means of knowing except from the offer of the plaintiff to prove the contrary; and for the purpose of disposing of this case in this court, we are under the necessity of considering the evidence offered and rejected as true. The .further evidence offered by the plaintiff and rejected by the court, would, if it had fully met the offer as made^ have tended strongly to show, and would have authorized the court or a jury to find, substantially, that the defendant, on his return from London, in accordance with a previous understanding with his associates there, fraudulently concealed from the plaintiff all knowledge of the agreement in question, falsely representing to the plaintiff that he had sold the land to certain parties in London, not naming them, for only twenty-two thousand dollars, which he represented to be the highest sum he could ob tain for them; of which he had received two thousand dollars down, which he was ready to pay over: and by the fraudulent concealment of all the real facts of the case, as well as by various false and fraudulent repre sentations and pretences (particularly set forth in the bill of exceptions) induced the plaintiff to believe such sale had been made, and though the power of attorney had been exceeded, to consent to the sale thus fraudulently represented to have been made; and that the defendant, still professing to be acting as the agent and for the interest of the plaintiff, who still reposed confidence in him as such, induced the plaintiff to receive the two thousand dollars, as part of the supposed purchase price; and that by equally false and fraudulent representations, and, as he led the plaintiff to believe, for the purpose, and as a necessary or convenient means, of carrying into effect his agency in completing the sale to the London parties, he induced the plaintiff to execute to him a deed of the property, taking back a mortgage from the defendant without any personal liability on his part, for the supposed balance of twenty thousand dollars in six months; the defendant representing to the plaintiff that if this sum should not be paid by the purchasers within the time, he would reconvey to the plaintiff, and the two thousand dollars would be forfeited to him. In short, such evidence would have shown that the defendant ¡rurposely took advantage of the confidence which he knew the plaintiff reposed in him as his agent, and obtained the deed from him by a gross and deliberate fraud; a fraud not depending upon the subsequent non-performance of a parol promise, but an actually preconceived and deliberate intention to cheat and defraud the plaintiff, accompanying and forming part of the transaction itself. The deed being thus obtained, the land in equity and good conscience, as between the plaintiff and the defendant, still belonged to the plaintiff; or, to express the same idea in the more formal and technical language of a court of equity, the effect of the transaction was to place these lands in the hands of the defendant, subject to a trust in favor of the plaintiff, by operation of law; such being the legal effect which a court of equity would give to the whole transaction: — See Lloyd v. Spillet, 2 Atk. 250 ; Rutherford v. Ruff, 4 Desaus. 350; 1 Paige, 147; 2 Bouv. Inst. 327. This species of trust may always be proved by parol, notwithstanding the statute of frauds. Ii this could not be done, the statute, which was intended to prevent fraud, would itself become the most efficient protection to fraud ever contrived by human ingenuity: — See Hill on Trustees, 166; 1 Hovenden on Frauds, 471, and cases cited; Jenkins v. Eldredge, 3 Story, 181; Cox v. Cox, 5 Rich. Eq. R. 365. But the plaintiff is not here seeking strictly to enforce a trust, and I refer to this doctrine of trusts only for the purpose of showing that the land in equity and good conscience still belonged to the plaintiff, after the execution of the deed; and if so, the money which the defendant afterwards received on the sale of it must also belong to him ex equo et hono. But the plaintiff, to sustain his count for money had •and received, and to show that money had come to the hands of the defendant which, of right, belonged to the plaintiff, further offered to show that the London parties, having failed to carry out their written agreement with the defendant, he, the defendant, in August, 1853, with, out the knowledge or consent of the plaintiff, actually sold these lands to one Henry Weld Fuller, subject to the mortgage from defendant to plaintiff, for the sum of fifteen thousand dollars in cash, which was 'paid to the defendant; the purchaser undertaking to pay off the plaintiff’s mortgage of twenty thousand dollars; thus making the real purchase price thirty - five thousand dollars, of which, -putting the transaction upon the ground of an agency on the part of the defendant, the plaintiff had received two thousand, and a mortgage for twenty thousand, leaving a balance due him of thirteen thousand dollars. This deed to Fuller being properly recorded, the plaintiff was, of course, precluded from disaffirming the sale and recovering the lands, or from enforcing a trust against the grantee, without proving actual notice to the purchaser of defendant’s fraud in obtaining the deed. Such notice can not be presumed without proof, and, as there appears to-have been no pretence of any such notice, Fuller, so far as. the present case is concerned, must be considered a purchaser in good faith without notice. As the plaintiff, therefore, could not avoid the sale by a bill in chancery, and as his only remedy there, upon the facts offered to be shown, must be confined to the purchase money, he brings his action for money had and received for the balance of the purchase money, thirteen thousand dollars, in the hands of the defendant; thus affirming the deed to Fuller, the defendant’s agency in the sale, and- his own deed to the defendant. But this no more affirms or admits that the money received for the property belongs to the defendant, than a plaintiff admits the same thing in the ordinary case of waiving a tort and suing for the proceeds of the property wrongfully sold. The plaintiff, therefore, does not seek to show the fraud of the defendant for the purpose of avoiding any deed: and the cases cited from New York and some other states, to the effect that fraud of this kind can not be shoAvn at law to avoid a deed — a doctrine which I think may well be doubted under our statute (Comp. L. §4327; see 2 Pars. on Cont. 280) — have no application to the present case. The plaintiff does not sue upon any parol contract required by the statute to be in Avriting, nor upon any express contract whatever; but upon one which the law implies from the equities of the whole case; or rather, upon a duty on the part of the defendant, which the law recognizes as springing from the whole transaction. Nor is the action brought to recover back the consideration paid on a contract rescinded; and the plaintiff is no more bound to tender back what he had received upon his land, than the principal, in an ordinary action against his agent for money received in the course of his agency, would be bound to return to the agent the amount he had already received from him, before he could recover for the balance. The plaintiff sues for a part of the price of his land, fraudulently received by the defendant as his agent. Neither the provisions of the statute relied upon, nor any provision of the statute of frauds, any more conflict with such an action than if it had been brought for the price of goods wrongfully sold. The statute relied upon, and which requires certain estates and interests in lands, and express trusts relating thereto, to be created or declared by deed, was fully complied with in the present case: — Van Alstine v. Wimple, 5 Cow. 162. This statute has no reference to an action brought for the price of land, nor does it in any way operate to exclude parol evidence in support of such action, which may still be maintained by such evidence, though the deed acknowledge the receipt of the consideration : it is in this respect but a receipt, and only prima facie proof of payment of the consideration: — 1 Phil. Ev. by Cowen, Hill & Edwards, 477, n. 131, and cases cited. The legal effect of the deed as a conveyance, which is its real purpose, is not altered by parol proof in such cases; nor is it any more altered or- affected by the like proof in the case before us. We must consider this case, upon the evidence offered by the plaintiff, as falling substantially within the ordinary rules applicable to actions brought by a principal against his agent for money received by him on the sale of his principal’s property. To hold otherwise would be to sanction the doctrine that an agent may, at any time, get rid of his obligations to his principal by his own fraud, and that he may set up this fraud in bar of his principal’s right to the proceeds of his own property. Bat it is objected that the plaintiff’s remedy is in equity, and that this is an attempt to convert the action of assumpsit into a, bill in equity. We do not mean to say that the plaintiff could not have sustained a bill in equity upon the facts of this case. A court of equity might sustain such a bill for the purchase money, as founded upon the notion of a trust; and the plaintiff might be entitled to a discovery. In respect to the discovery, such a bill might, perhaps, hi some cases of the kind, be a more advantageous remedy. But if, for want of such discovery, this action is less advantageous to the plaintiff, that can be no ground of complaint on the part of the defendant. The plaintiff may waive his right to discovery, and take upon himself the risk of being able to prove his case without it. We understand the law to be well settled, that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties; and if it appear, from the whole case, that the defendant has in his hands money which, according to the rules of equity and good conscience, belongs, or ought to be paid, to the plaintiff, he is entitled to recover. And that, as a general rule, where money has been received by a defendant under any state of facts which would, in a 'court of equity, entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action. We do not mean to say there are no exceptions to this rule, standing upon some rule of policy or strict law, in peculiar cases; such as money wrongfully recovered upon a judgment which remains unreversed (as in the case of Moses v. Macpherlan, 2 Burr. 1005), or where there is a special agreement still open and unperformed. But we are aware of no such exception applicable to a case like the present: nor can we discover any plausible reason why it is not just as competent to inquire into such a fraud, in a case like the present, in a court of law as in a court of equity. The view we have taken of the nature of this action for money had and received has, we think, been the well settled legal view of the action, at least since the case of Scott v. Surman, Willes, 404, 405, (in the year 1742) long previous to the case of Moses v. Macpherlan. ‘The opinion of Lord Mansfield in the latter case, as to the general nature of the action, has not, that we are aware, ever been overruled by any respectable authority; though it has been overruled as applied to some of the facts of that case. That such is still held to bo the equitable nature of this action, might be shown by a very long list of authorities both in England and in this country; but we cite only the following as illustrating what may be considered an almost unbroken series of judicial decisions: — Abbotts v. Barry, 2 B. & B. 369; Hill v. Perrott, 3 Taunt. 274; Kelley v. Solari, 9 M. & W. 54; Wiseman v. Lyman, 7 Mass; 288, 289, (where the nature of the action is very fully explained) Hess v. Fox, 10 Wend. 436; Eddy v. Smith, 13 Wend. 488; Mowatt v. Wright, 1 Wend. 360 (which like Hess v. Fox, confirms Moses v. Macpherlan as to the equitable nature of the action); Weeks v. Hunt, 13 Vt. 144; Scott v. Williamson, 11 Shep. 343; Beardslee v. Horton, 3 Mich. 560. That this action lies, and all these equitable considerations apply, as well where the money has been obtained by fraud as by other means, see Litt v. Martindale, 36 E. L. & Eq. 424, and Abbotts v. Barry, above cited: and even where money has been received, as here, by the fraudulent procurement of a deed, which is affirmed by the action: — Bliss v. Thompson, 4 Mass. 488; and see Penemore v. United States, 3 Dall. 357. And the same equitable considerations apply to any defense set up in this action: — Eddy v. Smith, ut supra. In Wright v. Butler, 6 Wend. 284, it is expressly held that “actions of assumpsit on the money counts are resorted to as a substitute for bills in chancery, and are encouraged wherever the law affords no other remedy, and where a court of equity would compel a defendant to repay the plaintiff a sum of money which the latter had been compelled to pay for his benefit.’’ Substantially the same view as to the count for money had and received was held in Scott v. Surman, Willes, 404, and by the Supreme Court of Massachusetts in Peabody v. Tarbell, 2 Cush. 226; and see Gangwer v. Fry, 17 Pa. St. R. 491. We think all the evidence offered by the plaintiff was clearly admissible. The judgment of the Circuit Court must therefore be reversed, and a new trial granted. Martin Cii. J., and Manning J., concurred. Campbell J., did not sit, having been counsel for one of the parties.	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Long, J. William Jenkinson died in January, 1900, leaving a last will and testament, which has been duly admitted to probate. An appraisal of his estate showed about $14,000 in real estate and $15,000 in personalty. Commissioners on claims were appointed, and claims to the amount of $5,800 were presented. The deceased left surviving him a widow and several adult children of a former wife. The will contains the following clause: “I give and devise unto my wife, Patience Jenkinson, of the village of Vicksburg, for and during her natural life, all the real estate that I may own at the time of my death. The foregoing devise is in lieu of all other rights, claims, and demands which the said Patience Jenkinson may have in or against my estate.” On December 29, 1900, the widow filed with the probate court the following election: “In the matter of the estate of William Jenkinson, deceased: Now comes Patience Jenkinson, widow of said deceased, and elects to take under the provisions of the last will and testament of said deceased, said will having been executed on the 31st day of December, 1899, and duly admitted to probate in this court on the 24th day of April, 1900. [Signed] “ Patience Jenkinson.” On March 15, 1901, the widow filed a petition in the probate court, praying a weekly allowance to her out of the personal estate of said deceased for the support of herself and family during the progress of the administration and settlement of the estate, as provided by law, and alleged therein that her family consisted of herself only. She prayed an allowance of $25 per week, and sho was awarded by the court $15 per week, to date from the issuing of letters testamentary, and to continue for one year. An application was made to the circuit court of Kalamazoo county by the executor for a writ of mandamus to compel the judge of probate to vacate and set aside this order, on the ground that the probate court had no jurisdiction to make the order, as the widow, by accepting the conditions and provisions made for her in the will, had waived her right to such an allowance. The circuit court denied the writ, and the case comes into this court by writ of certiorari. Section 9289, 3 Comp. Laws, provides: “All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts and the expenses of administering his estate; and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.” We think there can be no question but that it was entirely within the discretion of the probate court to fix an allowance, under this statute, for the widow, which sum does not seem to be excessive, and this court has no power to disturb it. Bacon v. Kent Probate Judge, 100 Mich. 183 (58 N. W. 835); Pulling v. Wayne Probate Judge, 85 Mich. 34 (48 N. W. 48). The order below must be affirmed. The other Justices concurred.	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K. F. KELLY, J. Defendant appeals as of right an order denying her motion brought under the Revocation of Paternity Act (RPA), MCL 722.1431 et seq., wherein defendant requested that the trial court terminate plaintiffs legal and physical custody of the minor child, declare that the child was born out of wedlock, set aside a prior divorce judgment, and enter an order of filiation decreeing that her current husband, David Achinger, is the child’s father. Finding no errors requiring reversal, we affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Plaintiff and defendant were married on June 12, 2004; the minor child was born while the parties were still married. Plaintiff sought a divorce in March 2011. The parties eventually entered into a consent judgment of divorce on June 14, 2011, sharing joint legal and physical custody of the child. On April 8, 2013, defendant filed a motion requesting the court to terminate plaintiffs legal and physical custody of the child, make a determination that the child was born out of wedlock, and set aside the custody provision of the divorce judgment. Defendant privately obtained a paternity test, which revealed that Achinger, and not plaintiff, was the child’s biological father. Defendant alleged that she, plaintiff, and Achinger had at some point mutually and openly acknowledged the biological relationship between Achinger and the child. Except for the DNA test results, defendant attached no other exhibits or evidence to her motion. In response to defendant’s motion, plaintiff filed a motion for sole legal and physical custody of the child. Plaintiff denied that he ever acknowledged the biological relationship between Achinger and the child. In fact, plaintiff asserted that he had only recently discovered he was not the child’s biological father and that defendant never identified Achinger as the child’s father. Plaintiff attached to his motion an e-mail exchange between plaintiff and defendant dated March 13, 2013: in response to defendant’s statement that she did not expect further financial help from plaintiff given that he was no longer the child’s father, plaintiff replied, “I am [the minor child’s] father.” Plaintiff argued that defendant had failed to establish entitlement to relief under the RPA in the absence of a mutual and open acknowledgment of a biological relationship between Achinger and the child. Plaintiff also argued that setting aside the divorce judgment would not be in the child’s best interests. On May 6, 2013, the trial court held a hearing on plaintiffs motion, but did not receive testimony or evidence from either party. Defense counsel explained that defendant married Achinger in August 2012 and, as time passed, defendant noticed that the child increasingly resembled Achinger, leading her to obtain a DNA test in December 2012. Defense counsel argued that plaintiff openly acknowledged the biological relationship between the child and Achinger in three ways: (1) plaintiff spoke to his attorney about whether he was the child’s father, (2) plaintiff indicated to defendant’s sister that he had doubts about whether he was the child’s father, and (3) plaintiff told his parents that Achinger was the child’s father after learning of the paternity test. Plaintiffs counsel denied that plaintiff had mutually and openly acknowledged the biological relationship between the child and Achinger and asserted that, to the contrary, plaintiff had steadfastly held himself out as the child’s father. On July 31, 2013, the trial court issued a written opinion and order denying defendant’s motion, stating: The Court is satisfied that Defendant cannot prove entitlement to relief under ... MCL 722.1441(l)(a). In order to establish that she is entitled to relief, Defendant must show that she, the alleged father, and the presumed father [Plaintiff] “mutually and openly acknowledged a biological relationship between the alleged father and the child.” Defendant has failed to establish Plaintiff has openly acknowledged the alleged biological relationship. In fact, Plaintiff has asserted that the minor child is his son, thereby refuting the “mutual” and “open” “acknowledgement” requirement. [Alteration in original.] The court also held that, even if defendant could establish entitlement to relief under the RPA, setting aside the paternity determination would not be in the child’s best interests, citing the factors listed in MCL 722.1443(4). The trial court also denied plaintiffs motion for a change in custody, finding that defendant’s unilateral action in taking the child for genetic testing without plaintiffs knowledge did not constitute sufficient proper cause to request a change in the custody arrangement. Defendant now appeals as of right, arguing that the trial court erred by denying her motion under the RPA without first conducting an evidentiary hearing to determine whether plaintiff, defendant, and Achinger mutually and openly acknowledged the biological relationship between Achinger and the child and whether the equitable factors under the RPA weighed in favor of setting aside the parties’ divorce judgment. II. ANALYSIS A. STANDARDS OF REVIEW The Revocation of Paternity Act does not provide a standard by which this Court should review the trial court’s decision. Generally, this Court reviews for clear error the trial court’s factual findings in proceedings involving the rights of children, and reviews de novo issues of statutory interpretation and application. The trial court has committed clear error when this Court is definitely and firmly convinced that it made a mistake. [In re Moiles, 303 Mich App 59, 65-66; 840 NW2d 790 (2013) (citations omitted).] “We review de novo issues of statutory interpretation.” In re Townsend Conservatorship, 293 Mich App 182, 186; 809 NW2d 424 (2011). When interpreting a statute, a court must give effect the Legislature’s intent. Tellin v Forsyth Twp, 291 Mich App 692, 700; 806 NW2d 359 (2011). We first look to the language of the statute itself in determining the Legislature’s intent. Id. at 700-701. “This Court gives the words of the statutes their plain and ordinary meaning and will look outside the statutory language only if it is ambiguous.” Id. at 701. “ ‘[W]here 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.’ ” Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005) (citation omitted). B. THE REVOCATION OF PATERNITY ACT “The Revocation of Paternity Act was added by way of 2012 PA 159, and took effect on June 12, 2012. Among other things, the Revocation of Paternity Act ‘governs actions to determine that a presumed father is not a child’s father ....’” Grimes v Van Hook-Williams, 302 Mich App 521, 527; 839 NW2d 237 (2013), quoting In re Daniels Estate, 301 Mich App 450, 458-459; 837 NW2d 1 (2013). The RPA “allows the trial court to (1) revoke an acknowledgment of parentage, (2) set aside an order of filiation, (3) determine that a child was born out of wedlock, or (4) make a determination of paternity and enter an order of filiation.” Moiles, 303 Mich App at 66; see MCL 722.1443(2). Relevant to this case, MCL 722.1441 is the statute that “governs an action to determine that a presumed father is not a child’s father.” MCL 722.1435(3). MCL 722.1433(4) defines a “presumed father” as “a man who is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth.” MCL 722.1441(1) provides, in relevant part: (1) If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed hy the child’s mother and either of the following applies: (a) All of the following apply: (i) The mother identifies the alleged father hy name in the complaint or motion commencing the action. (ii) The presumed father, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child. (Hi) The action is filed within 3 years after the child’s birth. The requirement that an action be filed within 3 years after the child’s birth does not apply to an action filed on or before 1 year after the effective date of this act. [Emphasis added.] MCL 722.1441(l)(a)(ii) thus requires that the presumed father, the alleged father, and the child’s mother must at some time have mutually and openly acknowledged a biological relationship between the alleged father and the child. C. APPLICATION OF THE LAW TO THE FACTS Defendant argues that the trial court erred by failing to first conduct an evidentiary hearing to determine whether there was a mutual and open acknowledgment of the biological relationship between Achinger and the child. We disagree. The RPA does not indicate whether an evidentiary hearing is necessary in order to establish whether the child was born out of wedlock. In fact, the term “hearing” is not found in the RPA. We hold that an evidentiary hearing is not always required under MCL 722.1441(l)(a). Rather, a trial court may conduct such a hearing at its discretion when there are contested factual issues and a hearing would assist the trial court in making an informed decision on the issue. We consider MCR 3.210(C)(8) for comparison; it provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion. In the context of the Child Custody Act, MCL 722.21 et seq., a trial court is not required to conduct an evidentiary hearing when determining whether the moving party has proved that either proper cause or a change of circumstances exists absent a “threshold” showing. See Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003). Similarly, we conclude that a trial court is not obligated to hold an evidentiary hearing under MCL 722.1441(l)(a) absent a threshold showing that there are contested factual issues that must be resolved in order for the trial court to make an informed decision. Defendant has failed to meet that threshold requirement. As previously stated, MCL 722.1441(l)(a)(ii) requires that the presumed father (plaintiff), the alleged father (Achinger), and the child’s mother (defendant) must have, at some time, mutually and openly acknowledged the biological relationship between the alleged father and the child. Defendant’s motion was devoid of any indication of how she intended to prove that plaintiff acknowledged such a relationship. Rather, she only attached the DNA test as an exhibit. At the hearing on defendant’s motion, defense counsel argued: We believe that David Parks, the presumed father during the marriage, has acknowledged, has openly acknowledged that there is a relationship with the biological father. He had indicated previously that he had talked to his attorney previously, this is when my client told him that she had had a test done, that he had indicated previously that I had spoken to attorneys about whether I was the father - that he was the father. But, he had previously told my client’s sister he had doubts about whether he was the father. He certainly knew. In fact, the reason he filed for divorce, was because of the relationship between David Achinger during the marriage, and my client. That is why he filed for the divorce. So, we believe that based upon that, and he’s also indicated when my client had told him that she wants [the child] to be living with his father, David Achinger, he had told her at some point, that yes, I have told my parents about this. So, we believe that he has openly acknowledged, and again, openly acknowledged is not denied in the statute anywhere. Plaintiffs counsel denied that plaintiff mutually and openly acknowledged the biological relationship between the child and Achinger: None of these people [plaintiff, defendant, or Achinger] have ever had this mutual, open acknowledgment. [Plaintiff] finds out on March 3rd, [defendant] goes and does a test illegally back in December without even consulting the joint legal custodian that she is going to have a DNA test. She plots this whole thing out, she knew all along that there is a possibility of this whole thing, defrauds him. When she talked to him on March 3rd, his response was, I am [the child’s] father. End of story. He has never, ever even looked at the DNA test, because he says, a DNA test means nothing, it’s a piece of paper. This is my son. There is no open mutual acknowledgment. Plaintiff also attached an e-mail communication to his response to defendant’s motion, wherein he continued to maintain that he was the child’s father. Defendant’s allegations do not even come close to meeting the “mutual and open acknowledgment” requirement under the RPA. First, defendant fails to demonstrate how any of the alleged statements would be admissible, given that all three instances involve hearsay. Plaintiffs communications with his attorney are protected by the attorney-client privilege, and there is no indication that plaintiff has waived the privilege. See Augustine v Allstate Ins Co, 292 Mich App 408, 420; 807 NW2d 77 (2011). Defendant offers no explanation of how plaintiffs alleged statements to his sister-in-law or his parents are admissible. And although defendant argues that there is no temporal requirement under the RPA and that an acknowledgment may be made at any time, it would be preposterous to suggest that plaintiffs statement to his parents advising them of what was happening was somehow an acknowledgment of the relationship between Achinger and the child. Additionally, in none of plaintiffs alleged statements does plaintiff acknowledge Achinger as the child’s biological father. Instead it would seem that plaintiff simply questioned his own paternity. Questioning paternity does not equate with acknowledging Achinger as the child’s biological child. “Acknowledge” is defined as “1. to admit to be real or true; recognize the existence, truth, or fact of.... 2. to show or express recognition or realization of.... 3. to recognize the authority, validity, or claims of. .. .” The Random House Dictionary of the English Language, Second Edition Unabridged. At no time did plaintiff admit that Achinger was or recognize Achinger as the child’s biological father. Moreover, the record is silent regarding mutuality. “Mutual” is defined as “1. possessed, experienced, performed, etc., by each of two or more with respect to the other; reciprocal.... 2. having the same relation each toward the other .... 3. of or pertaining to each of two or more; held in common; shared....” Id. The RPA, therefore, requires that all three individuals — the al leged father, the presumed father, and the mother— mutually acknowledge that the alleged father is the child’s biological father. It was not enough that Achinger and the mother acknowledged the relationship. Plaintiff also had to acknowledge it, but refused to do so. Thus, it is clear to us, as it was to the trial court, that defendant’s allegations failed to meet the threshold requirement that would have potentially entitled her to an evidentiary hearing. There were no disputed facts before the court. Even if the trial court accepted as true all of plaintiffs alleged statements, the statements themselves failed to raise a question regarding whether there was a mutual acknowledgment of Achinger’s biological relationship to the child. Affirmed. JANSEN, PJ., and SERVITTO, J., concurred with K. F. Kelly, J. Because we conclude that defendant’s motion failed to meet the minimum requirements under the RPA, we decline to address the issue of whether the trial court erred by concluding that the child’s best interests were served by denying the motion. We also fail to see the need to address plaintiffs alternative arguments for affirmance.	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BOONSTRA, J. Intervenor-Appellant Arlie D. Murdock Revocable Living Trust (Murdock Trust) appeals as of right the July 29, 2013 order of the Michigan Public Service Commission (PSC) approving petitionerappellee International Transmission Company’s (ITC) proposed modification of an approved route over Murdock Trust’s land to accommodate a transmission line. We affirm. I. PERTINENT FACTS AND PROCEDURAL HISTORY This case arises from ITC’s proposed modification of an approved route obtained as part of the construction, operation, and maintenance of a 140-mile-long, double-circuit, 345,000-volt transmission line (the “Thumb Loop Project”). ITC’s project is subject to the Clean, Renewable, and Efficient Energy Act, MCL 460.1001 et seq., which 2008 PA 295 added to the Customer Choice and Electricity Reliability Act, MCL 460.10 et seq. MCL 460.1001(2) announces the legislative purpose of promoting “the development of clean energy, renewable energy, and energy optimization,” the diversification of the resources used to meet the state’s energy needs, the use of indigenous energy resources, private investment in renewable energy and energy efficiency, and improved air quality. MCL 460.1149(1) allows the PSC to issue an expedited siting certificate for a transmission line to an independent transmission company. MCL 460.1153(1) and (2) call for notice to affected landowners and for a contested case to be conducted on the application. MCL 460.1153(4) provides that the PSC’s decision on these applications overrides local codes and ordinances. MCL 460.1153(5) states that an expedited siting certificate is “conclusive and binding as to the public convenience and necessity for that transmission line and its compatibility with the public health and safety or any zoning or land use requirements in effect when the application was filed” for purposes of any attendant eminent domain proceedings. The Thumb Loop Project is being constructed to transmit energy generated from wind power. The transmission route that ITC initially proposed forms a loop that begins just north of Frankenmuth, runs northeast through Tuscola and Huron Counties, loops around the north side of Bad Axe, and runs south through Sanilac and St. Clair Counties. On February 25, 2011, over the objections of various intervenors, the PSC issued an order approving ITC’s proposed route for the Thumb Loop Project and granting an expedited siting certificate for it. That decision is not the subject of the instant appeal, inasmuch as it was affirmed in an earlier appeal to this Court. Sometime after that order was issued, a wind turbine was constructed on Murdock Trust’s property in the path of the approved route. ITC determined that the route would need to be modified to allow for the turbine. However, the parties were unable to agree on a modification of the route. On February 8, 2013, ITC brought a condemnation action against Murdock Trust in Sanilac County Circuit Court, seeking an easement across Murdock Trust’s property. Murdock Trust moved the circuit court for summary disposition; ITC moved for a stay of proceedings in the circuit court based on the primary jurisdiction of the PSC. The circuit court granted the motion to stay the proceedings, and the parties proceeded before the PSC. On April 23, 2013, ITC filed with the PSC a motion for clarification of the February 25, 2011 order and a request for ex parte relief, or, alternatively, immediate consideration of its motion. The basis for the motion was ITC’s decision to modify the route to allow for the turbine. Murdock Trust raised no objections to the route across its land as originally proposed, but the day after ITC moved for clarification and ex parte relief, Murdock Trust petitioned to intervene out of time in response to ITC’s plan to change the location of the route. According to the application to intervene, the original route for the transmission line “was to be placed on the far west side of Landowner’s primary parcel, such that the full 200 foot width of the easement would not be entirely placed on Landowner’s parcel,” and “ITC’s originally-proposed occupation of Landowner’s parcel in question was . . . expected to amount to approximately 9 acres,” but “[t]he materially-altered centerline route change just now requested by ITC would divide Landowner’s primary parcel in two, increase the distance traversed across the parcel, . . . cut the distance between the high voltage line and a house on the parcel by almost one-half, and ... increase the number of acres that would be taken to over 13 acres.” The PSC granted Murdock Trust’s motion to intervene. The PSC, in later approving the requested modification of the route, held as follows: ITC’s proposed adjustment to the route is no greater than 700 feet at its widest, results in a line that is considerably shorter than the approved line on the Trust’s property, and avoids the necessity of cutting a 200-foot swath through a large stand of trees on the Trust’s property.... The adjusted route remains on cropland, and remains on the parcel that would have hosted the approved route (but avoids the adjacent treed parcel that was affected by the approved route). Finally, the adjusted route does not cross the property of any landowner that did not receive notice of this proceeding. In sum, the adjustment facilitates the delivery of wind power and is relatively narrow; and the adjusted route remains with the same landowner, affects the same type of land, and runs over the same parcel as the approved route. Accordingly, the PSC concluded that “the route adjustment proposed by ITC is within the scope of minor adjustments contemplated by the February 25 order,” issued an order to that effect on July 29, 2013, and thus approved the modified route as proposed by ITC. This appeal followed. On September 27, 2013, this Court granted ITC’s motion to expedite this appeal. II. NOTICE Murdock Trust argues that the notice provided to it (in 2010) pursuant to MCL 460.1153(1) was constitutionally defective, because the notice did not provide a map of proposed or alternate routes or state that the route might subsequently be altered by ITC. Further, Murdock Trust argues that recipients of the notice were given only a week to sift through hundreds of pages of documents to ascertain whether their parcels would be affected, and to seek intervention. We disagree. Murdock Trust made only cursory reference to this issue in a footnote to its initial trial brief before the PSC. There is no indication that Murdock Trust actu ally made this argument to the PSC or that the PSC considered it in making its decision. The purposes of preservation requirements include encouraging parties to give the trial tribunal the opportunity to make the correct decision. See Napier v Jacobs, 429 Mich 222, 228-229; 414 NW2d 862 (1987). In this case, the footnote in Murdock Trust’s brief did not call for a decision or otherwise challenge the propriety of past or present proceedings, nor did it invoke constitutional due process. Therefore, we deem this issue to be unpreserved. Unpreserved claims of constitutional error are reviewed for plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000). MCL 460.1153(1) provides: Upon applying for a certificate, an electric utility, affiliated transmission company, or independent transmission company shall give public notice in the manner and form the commission prescribes of an opportunity to comment on and participate in a contested case with respect to the application. Notice shall be published in a newspaper of general circulation in the relevant wind energy resource zone within a reasonable time period after an application is provided to the commission and shall be sent to each affected municipality, electric utility, affiliated transmission company, and independent transmission company and each affected landowner on whose property a portion of the proposed transmission line will be constructed. The notice shall be written in plain, nontechnical, and easily understood terms and shall contain a title that includes the name of the electric utility, affiliated transmission company, or independent transmission company and the words “Notice of Intent to Construct a Transmission Line to Serve a Wind Energy Resource Zone.” Murdock Trust concedes that the notices provided to the affected landowners in this case “appear to comply with the legislative requirements of MCL 460.1153(1).” However, Murdock Trust now argues for the first time that the lack of additional information renders the notice constitutionally deficient and denies Murdock Trust due process of law. See US Const, Am XI\£ § 1; Const 1963, art 1, § 17. To satisfy the demands of due process, if notice is due, the “ ‘means employed must be such as one desirous of actually informing the [party in interest] might reasonably adopt to accomplish it[.]’ ” Jones v Flowers, 547 US 220, 229; 126 S Ct 1708; 164 L Ed 2d 415 (2006), quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 315; 70 S Ct 652; 94 L Ed 865 (1950). Actual notice need not necessarily be achieved, but due process requires notice “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Jones, 547 US at 226, quoting Mullane, 339 US at 314. In this case, Murdock Trust, while pointing out alleged deficiencies in the notice provided to affected landowners as this case originally got underway, does not suggest that its failure to intervene before ITC’s proposed modification was due to a lack of notice. Further, as discussed later in this opinion, it appears that Murdock Trust had sufficient actual notice of ITC’s intention to deviate 700 feet from the approved route over Murdock Trust’s land to participate in eminent domain proceedings in the circuit court, and to intervene in this case. Normally, if timely actual notice has been achieved, defects in how it was served are rendered harmless. See In re Forfeiture of $109,901, 210 Mich App 191, 198; 533 NW2d 328 (1995), and In re Lee, 282 Mich App 90, 99-100; 761 NW2d 432 (2009). Because Murdock Trust has not asserted, let alone proved, that some failure of notice put it at some unfair disad vantage, Murdock Trust is in no position to seek a judicial determination that minimal compliance with the notice requirements of the applicable statute has nonetheless failed to satisfy the demands of due process. See In re RFF, 242 Mich App 188, 205; 617 NW2d 745 (2000) (“Statutes are presumed to be constitutional and must be construed as such unless it is clearly apparent that the statute is unconstitutional.”), and Rinaldi v Civil Serv Comm, 69 Mich App 58, 69; 244 NW2d 609 (1976) (“We will not undertake a constitutional analysis when we can avoid it.”). III. JURISDICTIONAL CHALLENGES Murdock Trust next argues that the PSC lacked subject-matter jurisdiction over the matter in controversy and that the PSC acted unreasonably in exercising its jurisdiction. We disagree. 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, a party must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999). The existence of subject-matter jurisdiction is a question of law that this Court reviews de novo. Adams v Adams (On Reconsideration), 276 Mich App 704, 708-709; 742 NW2d 399 (2007). Likewise, the “applicability of a legal doctrine is a question of law,” calling for review de novo. James v Alberts, 464 Mich 12, 14; 626 NW2d 158 (2001). In the instant case, the Sanilac County Circuit Court issued an order staying the condemnation action before it because the PSC had primary jurisdiction over issues concerning the route of the transmission line. Murdock Trust argues that the PSC lacked the subject-matter jurisdiction to revisit its previous order approving ITC’s route and that the circuit court erred by deferring to the PSC under the doctrine of primary jurisdiction. A. SUBJECT-MATTER JURISDICTION The PSC possesses no authority beyond what the Legislature has granted it. Consumers Power Co v Pub Serv Comm, 460 Mich 148, 155; 596 NW2d 126 (1999). Authority must be granted by clear and unmistakable language. Id. at 155-156. The February 25, 2011 order, in which the PSC approved ITC’s proposed route and granted an expedited siting certificate for the Thumb Loop Project, included the statement, “The Commission reserves jurisdiction and may issue further orders as necessary.” Then, in its order granting Murdock Trust’s motion to intervene, and responding to the circuit court’s “remand” in deference to its primary jurisdiction, the PSC invited briefing, affidavits, and exhibits in order that it might “determine whether the proposed route deviation is within ITC’s authority under the February 25 order,” and again announced that it was reserving jurisdiction and might issue further orders. However, the PSC cannot expand its jurisdiction through its own orders. See York v Detroit (After Remand), 438 Mich 744, 767; 475 NW2d 346 (1991). Accordingly, although the PSC reserved jurisdiction in the two orders that preceded the one from which this appeal is taken, those reservations remain limited to the PSC’s statutorily granted powers. MCL 460.1149(2) states that “[a]n. .. independent transmission company may apply to the commission for an expedited siting certificate.” MCL 460.1153(2) di rects the PSC to “conduct a proceeding on the application for an expedited siting certificate as a contested case[.]” MCL 460.1153(3) sets forth criteria for granting an expedited siting certificate, and MCL 460.1153(6) allows the PSC “a maximum of 180 days to grant or deny an expedited siting certificate under this section.” MCL 460.1159(2) states that “[i]n administering this part, the commission has only those powers and duties granted to the commission under this part.” It is undisputed that the PSC was empowered to decide ITC’s application for an expedited siting certificate, including whether to approve a proposed route for the transmission line. Murdock Trust argued in its petition to intervene that the PSC had completed its statutory task when it issued the expedited siting certificate, and was thus “without jurisdiction to ‘clarify’ an Order where ITC’s Application never requested the authority to make post-Order changes in the centerline ....” The issue thus becomes whether — more than two years after issuing an order approving a transmission line route for the Thumb Loop Project that was subsequently affirmed in the appellate process — the PSC had jurisdiction to adjudicate as it did the disagreement that arose between Murdock Trust and ITC concerning the latter’s wish to deviate from the approved route by up to 700 feet in order to accommodate a wind turbine that had been placed in the path of the route as originally proposed and approved. This Court has distinguished the question of the existence of the PSC’s subject-matter jurisdiction over a controversy from the question whether the PSC properly exercised its subject-matter jurisdiction in a particular instance: Subject-matter jurisdiction concerns a body’s abstract power to hear a case of the kind or character of the one pending, and is not dependent on the particular facts of the case. Subject-matter jurisdiction is determined only by reference to the allegations listed in the complaint. If it is apparent from the allegations that the matter alleged is within the class of cases over which the body has power to act, then subject-matter jurisdiction exists. Any subsequent error in the proceedings amounts to error in the exercise of jurisdiction. The erroneous exercise of jurisdiction does not void a body’s jurisdiction, but may be challenged ... on direct appeal. [In re Complaint of Pelland against Ameritech Mich, 254 Mich App 675, 682-683; 658 NW2d 849 (2003) (citations omitted).] In this case, Murdock Trust’s challenge is not to the PSC’s abstract authority to decide the particulars involved with an application for an expedited siting certificate, including what route the transmission line might cover, but instead is to the PSC’s exercise of that jurisdiction by adjudicating a siting dispute between Murdock Trust and ITC by ostensibly clarifying its earlier final order in the matter after allowing Murdock Trust minimal procedural opportunities to make its case. We thus conclude that the PSC had subject-matter jurisdiction over the dispute and that Murdock Trust’s challenge relates to the proper exercise of that jurisdiction. B. PRIMARY JURISDICTION The doctrine of primary jurisdiction comes into play when a court and an administrative agency have concurrent original subject-matter jurisdiction regarding a disputed issue. Attorney General v Blue Cross Blue Shield of Mich, 291 Mich App 64, 85; 810 NW2d 603 (2010). Primary jurisdiction “does not involve jurisdiction in the technical sense, but it is a doctrine predicated on an attitude of judicial self-restraint and is applied when the court feels that the dispute should be handled by an administrative agency created by the legislature to deal with such problems.” Black’s Law Dictionary (6th ed), p 1191. There is no fixed formula, but there are several factors to consider in determining whether an administrative agency has primary jurisdiction over a dispute: (1) whether the matter falls within the agency’s specialized knowledge, (2) whether the court would interfere with the uniform resolution of similar issues, and (3) whether the court would upset the regulatory scheme of the agency. [City of Taylor v Detroit Edison Co, 475 Mich 109, 122; 715 NW2d 28 (2006).] Murdock Trust cites no authority for the proposition that, when a court invites an administrative agency to exercise primary jurisdiction over a matter, the agency is not entitled to rely on the court’s determination in that regard but must instead consider anew whether the doctrine applies. As appellees note, this appeal is not the proper avenue through which to attack the circuit court’s decision to defer to the PSC on the basis of primary jurisdiction. If Murdock Trust had wished for appellate vindication of such a challenge, it should have sought leave in this Court for an interlocutory appeal from the circuit court’s decision in that regard. See MCR 7.203(B)(1). Given the circuit court’s unchallenged determination that the PSC had primary jurisdiction in this case, at issue now is not that the PSC acted on that determination, but rather how it did so. Therefore, we decline to hold that the PSC lacked jurisdiction over the matter at issue, and proceed to Murdock Trust’s challenge to the exercise of that jurisdiction. IV THE PSC’S DECISION Murdock Trust argues that the PSC erred by failing to open a new contested case and to afford it “full contested case protections such as the right to conduct discovery,” and therefore erred by modifying the approved route upon ITC’s request for clarification of its previous order. Murdock Trust further argues that the PSC improperly delegated legislative siting authority to ITC by allowing ITC the power to deviate from the approved transmission line route. 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 party must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich at 427. This Court reviews a trial court’s interpretation of administrative rules de novo, as a question of law. Aaronson v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 270; 597 NW2d 227 (1999). It reviews the interpretation of court rules under the same stan dard. St George Greek Orthodox Church v Laupmanis Assoc, PC, 204 Mich App 278, 282; 514 NW2d 516 (1994). In arguing that the PSC decided this case in violation of applicable rules, Murdock Trust directs this Court to MCR 7.208(A) (staying trial proceedings while an appeal is pending), Mich Admin Code, R 460.17403 (authorizing motions for rehearing), and Mich Admin Code, R 460.17401 (authorizing motions to reopen proceedings for further evidence). We hold that none of these rules applies to invalidate the PSC’s July 29, 2013 order. Generally, the PSC “in any proceeding which may now be pending before it or which shall hereafter be brought before it, shall have full power and authority to grant rehearings and to alter, amend or modify its findings and orders.” MCL 460.351. As discussed earlier, the PSC did not err by acting on the circuit court’s request that it exercise its primary jurisdiction for purposes of clarifying whether the 700-foot deviation in the Thumb Loop Project’s transmission line route fell within the implied expectation in the order approving the route that minor adjustments would be required. Of course, in exercising its jurisdiction, the PSC was still obliged to do so in accord with pertinent statutes and other authority, including its own rules. See Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81, 82; 141 NW2d 722 (1966) (“[w]hen an administrative agency promulgates a rule for the benefit of litigants and then deprives a litigant of this right, it is a violation of. .. due process”), citing Const 1963, art 1, § 17. We accordingly address the rules that Murdock Trust argues are preclusive of the PSC’s July 29, 2013 order. MCR 7.208(A) states that after a claim of appeal has been filed or leave to appeal has been granted, the trial-level tribunal “may not set aside or amend the judgment or order appealed from” except by order of this Court, by stipulation of the parties, after the grant of a preliminary injunction, or as otherwise provided by law. Murdock Trust suggests that the beginning of the appeal process thus forever cuts off the original tribunal’s authority to take action in the case, except as noted. We disagree, because MCR 7.208 only applies during the pendency of an appeal and does not bar postappellate action. See Hill v City of Warren, 276 Mich App 299, 307; 740 NW2d 706 (2007) (“[FJiling a claim of appeal only prevents the trial court from amending its orders while the appeal is pending, not after remand.”), in turn citing Wilson v Gen Motors Corp, 183 Mich App 21, 41-42; 454 NW2d 405 (1990); see also Bass v Combs, 238 Mich App 16, 24-25; 604 NW2d 727 (1999), overruled in part on other grounds Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 628; 752 NW2d 37 (2008). We therefore hold that MCR 7.208 does not preclude the PSC from taking the actions set forth in its July 29, 2013 order. Next, Rule 460.17403 authorizes a petition for rehearing after a decision or order of the PSC, but only “within 30 days after service of the decision or order .. . unless otherwise specified by statute.” To the extent that this rule operates as a vehicle for the PSC to clarify one of its orders, it obviously could not do so here because the 30-day limitation was long expired before the instant controversy arose. However, the PSC did not rely on this rule in rendering its decision clarifying its original order. Moreover, the unavailability of this rule because of its time limitation does not itself deprive the PSC of authority where it otherwise may exist. Finally, Rule 460.17401(1) states that a “proceeding may be reopened for the purpose of receiving further evidence when a reopening is necessary for the development of a full and complete record or there has been a change in conditions of fact or law such that the public interest requires the reopening of the proceeding.” According to subrule (2), such action may be taken by “the presiding officer, upon his or her own motion or upon motion of any party,” but only “before the date for the filing of exceptions to a proposal for decision or, if provided for, replies to exceptions.” After that date, “the commission may reopen a proceeding upon its own motion or motion of any party,” but only “until the expiration of the statutory time period for filing a petition for rehearing[.]” Id. Thus, because the time for filing exceptions (or replies to exceptions) and petitioning for rehearing had passed, it appears that this rule was not available to permit the PSC to reopen the contested case. Indeed, no party invoked this rule or otherwise asked the PSC to reopen the previous proceeding concerning the siting certificate. ITC initially sought an ex parte clarification from the PSC of its February 25, 2011 order’s provision for minor deviation in the transmission line route. Murdock Trust disputed the PSC’s authority to address the issue short of opening a new contested case. Murdock Trust further contends that in the context of a new contested case it would have been subject to all the procedural protections, including discovery, applicable to an adversarial proceeding. Indeed, Murdock Trust served discovery demands on ITC in May 2013, to which ITC objected on the ground that the case remained closed. Murdock Trust then moved the PSC to suspend briefing to await discovery. The PSC in its July 29, 2013 order declared the motion to suspend briefing moot, thus signaling that it was satisfied to decide the controversy at hand without recourse to the additional procedure requested by Murdock Trust. Even assuming that a new contested case should have been opened, Murdock Trust has not specified to this Court how the lack of further discovery in this matter prejudiced its position before the PSC and constituted a denial of due process. We note that “[i]t is well settled that parties to judicial or quasi-judicial proceedings, including administrative proceedings, are not entitled to discovery as a matter of constitutional right.” In re Del Rio, 400 Mich 665, 687 n 7; 256 NW2d 727 (1977) (emphasis omitted). We further hold that the PSC was not obligated to open a new contested case. Rather, a contested case proceeding “shall be held when required by statute and may be held when the commission so directs.” Mich Admin Code, R 460.17301(1). The PSC “shall conduct a proceeding on the application for an expedited siting certificate as a contested case . . . .” MCL 460.1153(2) (emphasis added). Thus, the PSC was not statutorily obligated to open a new contested case in response to a motion made in relation to its order in a previous contested case concerning a previously approved expedited siting certificate. Giving due deference to the PSC, we therefore conclude that the PSC did not abuse its discretion in deciding the matter before it without opening a new contested case. In re MCI Telecom Complaint, 460 Mich at 427. The PSC allowed the parties to submit briefs, affidavits, and exhibits. The PSC also stated in an order that it would allow oral arguments if it determined that further development of the record was necessary. Within its discretion, it subsequently determined that oral arguments were unnecessary. The above-cited rules do not divest the PSC of the authority to interpret its February 25, 2011 order. See, e.g., Mich Admin Code, R 460.17103(1) (“In areas not addressed by these rules, the presiding officer may rely on appropriate provisions of the currently effective Michigan court rules.”); see also MCR 2.612(A)(1) (“Clerical mistakes in . . . orders . . . and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it.”). Further, the PSC, “in any proceeding which may now be pending before it or which shall hereafter be brought before it, shall have full power and authority to grant rehearings and to alter, amend or modify its findings and orders.” MCL 460.351. On the record before this Court, we also find no abuse of discretion in the PSC’s interpretation of its February 25, 2011 order, which noted the project manager’s caveat that “descriptions of the proposed and alternate routes are expected to be subject to minor revisions as engineering, design economist surveys, utility locates, and land owner negotiations proceed.” The PSC specifically ruled in its July 29, 2013 order that ITC’s proposed modification of the easement was “within the scope of minor adjustments allowed for in the February 25, 2011 order in this proceeding.” The PSC has thus determined that the adjustment is “minor” in the context of the overall 140-mile transmission route, within the meaning of the February 25, 2011 order. Murdock Trust does not contest the merits of the PSC’s holding. We accordingly find no error. Finally, we do not find persuasive Murdock Trust’s argument that the PSC has impermissibly delegated legislative authority to ITC. Specifically, Murdock Trust argues that whereas the PSC’s February 25, 2011 order “was not clear” about whether ITC could modify to the approved route, the PSC’s July 29, 2013 order “unequivocally determined” that ITC could make modifications if ITC deemed them “minor,” and thereby impermissibly delegated legislative authority to ITC. We conclude, to the contrary, that the PSC’s February 25, 2011 order approving the proposed route expressly contemplated that it would be subject to “minor revisions.” Moreover, the PSC’s July 29, 2013 order does not authorize ITC to deviate whenever and to whatever extent it wishes; it merely approves ITC’s proposed deviation in this instance. Nothing in the July 29, 2013 PSC order grants ITC authority beyond that which may be reflected in the PSC’s February 25, 2011 order, nor does its approval of the particular deviation at issue in this case constitute a determination regarding any other or future deviation, nor does it preclude such a deviation from becoming the subject of future proceedings before the PSC or the circuit court. V CONCLUSION We hold that Murdock Trust has failed to demonstrate that the notice provided to landowners (which Murdock Trust concedes satisfies the pertinent statutory requirements) denied it due process of law or otherwise caused it to suffer prejudice in the proceedings below. We further hold that the PSC had jurisdiction over the matter in controversy, and properly acted pursuant to the circuit court’s request to exercise primary jurisdiction in this case. Further, we hold that the PSC did not err in issuing its July 29, 2013 order, thereby modifying the previously approved transmission line route for the Thumb Loop Project as set forth therein. Finally, we hold that the PSC’s July 29, 2013 order was not an impermissible delegation of legislative authority. Affirmed. SERVITTO, PJ., and SAWYER, J., concurred with BOONSTRA, J. This Court affirmed the PSC’s approval, hut held that the PSC erred by deeming the siting certificate itself to also function as a construction permit. In re Application of Int’l Transmission Co for Expedited Siting Certificate, 298 Mich App 338, 343; 827 NW2d 385 (2012). Our Supreme Court, in lieu of granting leave to appeal, reversed this Court’s decision in part and declared that a siting certificate does indeed constitute a construction permit, but otherwise denied leave to appeal. In re Application of Int’l Transmission Co for Expedited Siting Certificate, 493 Mich 947 (2013). The latter order thus restored the PSC’s decision to full effect and closed the case. In re Application of Int’l Transmission Co for Expedited Siting Certificate, unpublished order of the Court of Appeals, entered September 27, 2013 (Docket No. 317798). Murdock Trust makes much ado about the statutory requirement to rule on a request for an expedited siting certificate within 180 days. This requirement reflects only the Legislature’s desire for expeditious action on such requests, not an intention to cut off all authority in the matter once that period has expired. It would be anomalous if the PSC required 179 days to reach a decision but was then deemed stripped of authority to entertain a meritorious postdecision motion, e.g., one for rehearing, raised a few days later, given that, in general, the authority to decide such postdecision motions inheres in the authority to make the initial decision. See Ewing v Bolden, 194 Mich App 95, 101; 486 NW2d 96 (1992) (“Any subsequent action based on the original judgment, even if brought pursuant to a new complaint, is deemed to be a continuation of the original action so that jurisdiction is proper in the court that rendered the original judgment.”). We note that the PSC has interpreted this rule as barring motions for reopening a contested proceeding pursuant to Rule 460.17401(1) if they are untimely under Rule 460.17401(2). See, e.g., In re Consumers Energy Co, unpublished order of the Michigan Public Service Commission, entered October 24, 2006 (Case No. U-14150); In re Application for a Certificate of Public Convenience and Necessity to Construct and Operate the DeWitt Tie-Line, unpublished order of the Michigan Public Service Commission, entered May 20, 2008 (Case No. U-14421). While not binding on this Court, an administrative agency’s interpretation of its own rule is entitled to deference. In re Complaint of Consumers Energy Co, 255 Mich App 496, 503-504; 660 NW2d 785 (2003).	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PER CURIAM. Plaintiff, Glenna Bryan, appeals as of right an order granting summary disposition in favor of defendant, JPMorgan Chase Bank, in this quiet title action. Finding no errors warranting reversal, we affirm. I. BASIC FACTS The trial court’s order granting summary disposition for defendant set forth the background facts of this case, none of which is in dispute: This lawsuit arises from the foreclosure of a house located in Bloomfield Hills. Plaintiff defaulted on her mortgage payments and Defendant foreclosed by advertisement. On January 26, 2010, the property was sold at a Sheriffs Sale. Defendant was the purchaser and the Sheriffs Deed was recorded on February 2, 2010. The redemption period expired on June 26, 2010. A Judgment of Possession was entered by the District Court on August 11, 2010. On August 31, 2010, Plaintiff filed a Claim of Appeal and a Chapter 7 Bankruptcy Petition. The Bankruptcy case was dismissed on November 29, 2010. On April 11, 2011, Plaintiff filed a second Chapter 7 Bankruptcy Petition. On August 23, 2011, the Bankruptcy Court entered an Order discharging Plaintiff. The Appeal case was reopened on February 7, 2012 and this Court granted the motion to allow immediate execution of the Order of Eviction. The District Court denied Plaintiffs motion to set aside the Judgment of Possession on February 14, 2012. A Delayed Application for Leave to Appeal was filed and dismissed by this Court on March 8, 2012. Plaintiff filed this lawsuit on January 31, 2012, seeking to quiet title and alleging unjust enrichment, deceptive/unfair practice and wrongful foreclosure. Plaintiffs complaint alleged, inter alia, that defendant was not the owner of the indebtedness secured by the mortgage nor the servicing agent of the mortgage as required in MCL 600.3204(l)(d). Specifically, plaintiff alleged that defendant acquired its interest in the property from the Federal Deposit Insurance Corporation (FDIC) as receiver when the original mortgagee, Washington Mutual Bank, was closed. However, defendant failed to record its interest in the property before the sheriffs sale. Plaintiff alleged that the sheriffs sale was, therefore, void ab initio. The parties filed competing motions for summary disposition. Plaintiff admitted that the redemption period had expired, but argued that she still had standing to sue because of “fraud or irregularity” in the foreclosure process, specifically defendant’s failure to record its mortgage interest before the sale, as required by MCL 600.3204(3) and Kim v JPMorgan Chase Bank, NA, 295 Mich App 200; 813 NW2d 778 (2012). Plaintiff did not believe that her claim was barred by res judicata or collateral estoppel because, although the district court had determined that defendant was entitled to possession, that decision was being appealed. Additionally, Kim was not decided until January 2012 and, therefore, the issue of whether the foreclosure was void ab initio was never fully addressed or resolved. Defendant argued that plaintiffs claim was barred by the doctrines of res judicata and collateral estoppel. Defendant further argued that, even if res judicata and collateral estoppel did not apply, plaintiff had no standing to challenge the foreclosure when the redemption period had expired and plaintiff had failed to redeem the property. The trial court issued a written order granting defendant’s motion for summary disposition and denying plaintiffs motion for summary disposition: The Court finds that Defendant is entitled to summary disposition. Res Judicata and collateral estoppel bar Plaintiff from challenging the foreclosure proceedings. There is no legal support for Plaintiffs argument that Kim v JP Morgan Chase, 295 Mich App 200 (2012) has retroactive effect that exempts Plaintiff from res judicata and collateral estoppel. Because the redemption period has expired, Plaintiff does not have standing to assert any interest in the subject property. The Court finds that Plaintiff has failed to state any claims upon which relief can be granted. Plaintiffs motion for reconsideration was denied on October 19, 2012. She now appeals as of right. II. ANALYSIS The trial court granted defendant summary disposition pursuant to MCR 2.116(C)(8). “MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. The motion must be granted if no factual development could justify the plaintiffs’ claim for relief.” Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). This Court reviews de novo a trial court’s decision on a motion for summary disposition. Coblentz v Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). “The applicability of res judicata is a question of law that is reviewed de novo on appeal.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 10; 672 NW2d 351 (2003). Defendant argues that plaintiff lacked standing to bring this action because the statutory period of redemption had expired and plaintiff made no effort to redeem the property. We agree. Pursuant to MCL 600.3240, after a sheriffs sale is completed, a mortgagor may redeem the property by paying the requisite amount within the prescribed time limit, which here was six months. “Unless the premises described in such deed shall be redeemed within the time limited for such redemption as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee therein named, his heirs or assigns, all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter. . . .” MCL 600.3236. If a mortgagor fails to avail him or herself of the right of redemption, all the mortgagor’s rights in and to the property are extinguished. Piotrowski v State Land Office Bd, 302 Mich 179, 187; 4 NW2d 514 (1942). We have reached this conclusion in a number of unpublished cases and, while unpublished cases are not precedentially binding, MCR 7.215(C)(1), we find the analysis and reasoning in each of the following cases to be compelling. Accordingly, we adopt their reasoning as our own. See Overton v Mtg Electronic Registration Sys, unpublished opinion per curiam of the Court of Appeals, issued May 28, 2009 (Docket No. 284950), p 2 (“The law in Michigan does not allow an equitable extension of the period to redeem from a statutory foreclosure sale in connection with a mortgage foreclosed by advertisement and posting of notice in the absence of a clear showing of fraud, or irregularity. Once the redemption period expired, all of plaintiffs rights in and title to the property were extinguished.”) (citation and quotation marks omitted); Hardwick v HSBC Bank USA, unpublished opinion per curiam of the Court of Appeals, issued July 23, 2013 (Docket No. 310191), p 2 (“Plaintiffs lost all interest in the subject property when the redemption period expired.... Moreover, it does not matter that plaintiffs actually filed this action one week before the redemption period ended. The filing of this action was insufficient to toll the redemption period. . . . Once the redemption period expired, all plaintiffs’ rights in the subject property were extinguished.”); BAC Home Loans Servicing, LP v Lundin, unpublished opinion per curiam of the Court of Appeals, issued May 23, 2013 (Docket No. 309048), p 4 (“[Ojnce the redemption period expired, [plaintiffs] rights in and to the property were extinguished. ... Because [plaintiff] had no interest in the subject matter of the controversy [by virtue of MCL 600.3236], he lacked standing to assert his claims challenging the foreclosure sale.”); Awad v Gen Motors Acceptance Corp, unpublished opinion per curiam of the Court of Appeals, issued April 24, 2012 (Docket No. 302692), pp 5-6 (“Although she filed suit before expiration of the redemption period, [plaintiff] made no attempt to stay or otherwise challenge the foreclosure and redemption sale. Upon the expiration of the redemption period, all of [plaintiffs] rights in and title to the property were extinguished, and she no longer had a legal cause of action to establish standing.”). We hold that by failing to redeem the property within the applicable time, plaintiff lost standing to bring her claim. Plaintiffs claims were also barred by the principles of res judicata and collateral estoppel. “The doctrine of res judicata is intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to foster the finality of litigation.” Begin v Mich Bell Tel Co, 284 Mich App 581, 599; 773 NW2d 271 (2009), overruled on other grounds by Admire v Auto-Owners Ins, Co, 494 Mich 10 (2013). Res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical. A second action is barred when (1) the first action was decided on the merits, (2) the matter contested in the second action was or could have been resolved in the first, and (3) both actions involve the same parties or their privies. Michigan courts have broadly applied the doctrine of res judicata. They have barred, not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. [Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999) (citations omitted).] Similarly, Collateral estoppel bars relitigation of an issue in a new action arising between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. The doctrine bars relitigation of issues when the parties had a full and fair opportunity to litigate those issues in an earlier action. A decision is final when all appeals have been exhausted or when the time available for an appeal has passed. [Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006) (citations omitted).] In this case, the prior eviction involved the same parties as the present case, the case was decided on its merits, and plaintiff raised the argument that the foreclosure was void ab initio-, therefore, res judicata and collateral estoppel precluded plaintiff from bringing this quiet title action. Moreover, even if plaintiff had standing to sue and even if the principles of res judicata and collateral estoppel did not prevent plaintiff from bringing her claim, defendant was nevertheless entitled to summary disposition because plaintiff failed to demonstrate prejudice as a result of the foreclosure irregularity. MCL 600.3204(3) provides that “[i]f the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale under [MCL 600.3216] evidencing the assignment of the mortgage to the party foreclosing the mortgage.” In Kim, 295 Mich App 200, the defendant was not the original mortgagee and, like defendant here, acquired its interest in the mortgage by assignment from the FDIC, who was the receiver for the failed bank. The defendant argued that it was relieved of recording its interest in the mortgage because it acquired that interest “by operation of law.” Id. at 202-203, 205. This Court disagreed and held: [P]ursuant to the plain language of MCL 600.3204(3), defendant was required to record its mortgage interest before the sheriffs sale. Because defendant failed to do so, it was not statutorily authorized to proceed with the sale. See MCL 600.3204(3) (“If the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale ....”[)] (emphasis added); see also Davenport v HSBC Bank USA, 275 Mich App 344, 347-348; 739 NW2d 383 (2007) (“Because defendant lacked the statutory authority to foreclose, the foreclosure proceedings were void ab initio.”). Accordingly, the trial court erred by granting summary disposition for defendant and denying summary disposition for plaintiffs when they were entitled to set aside the sheriffs deed. [Kim, 295 Mich App at 208.] In the trial court, plaintiffs counsel argued that “[t]he only issue that’s really before the Court is whether res judicata and collateral estoppel is a defense to the Kim case.” Counsel further argued: “So, if Kim says what happened in this case is void ab initio, then does that apply retroactively to res judicata and to collateral estoppel? And, we say of course it does, because... if it’s void ab initio, that means it didn’t happen. And if it didn’t happen, then you can’t say, well, res judicata applies.” Plaintiffs counsel went on to state: “The question is does it apply to the District Court. And, what I would state to the Court [is] that on January the 30th of this year in the District Court. .. we specifically raised Kim versus JP Morgan. So, without question it has been preserved, it should be given retroactive effect, and collateral estoppel and res judicata should not be a defense to the Kim case.” However, our Supreme Court subsequently reversed that portion of the Kim case that held an irregularity in recording a mortgage interest rendered a foreclosure void ab initio. In Kim v JPMorgan Chase Bank, NA, 493 Mich 98, 115-116; 825 NW 329 (2012), our Supreme Court explained: [W]e hold that defects or irregularities in a foreclosure proceeding result in a foreclosure that is voidable, not void ab initio. Because the Court of Appeals erred by holding to the contrary, we reverse that portion of its decision. We leave to the trial court the determination of whether, under the facts presented, the foreclosure sale of plaintiffs’ property is voidable. In this regard, to set aside the foreclosure sale, plaintiffs must show that they were prejudiced by defendant’s failure to comply with MCL 600.3204. To demonstrate such prejudice, they must show that they would have been in a better position to preserve their interest in the property absent defendant’s noncompliance with the statute. Plaintiff fails to acknowledge our Supreme Court’s decision and does not even cite it on appeal. Additionally, plaintiff makes no argument that she was prejudiced as a result of defendant’s failure to record its interest. As such, she is not entitled to relief. Plaintiffs remaining argument — that defendant’s conduct resulted in a “deceptive act and/or an unfair practice” — is deemed abandoned. Although plaintiff complains that there was robo-signing, she submits no evidence to support her claim. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) (stating that when a party fails to brief the merits of an issue or cite supporting authority, the issue is deemed abandoned). Affirmed. As the prevailing party, defendant may tax costs. MCR 7.219. BORRELLO, EJ., and WHITBECK and K. F. KELLY, JJ., concurred. As discussed later in this opinion, Kim was subsequently reversed in part.	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Per Curiam. Plaintiffs, Tim Nichols and his father, Donald Nichols, appeal as of right from an order of the circuit court granting defendants’ motion for summary judgment. Plaintiff Tim Nichols, had been a student in defendant Farmington Public Schools during all of his formal education. As a result of a severe hearing impairment, plaintiff is considered to be handicapped as that term applies to the Michigan Handicappers Civil Rights Act. MCL 37.1101 et seq.; MSA 3.550(101) et seq. Plaintiff was placed in special education classes until 1976, when he was "mainstreamed” into regular education classes as required by the civil rights act. When the mainstreaming took place, plaintiff was placed in a grade one level below that which his age would normally suggest. Plaintiff claims that this placement was never discussed with his parents and that the ramifications of this decision were not made clear. Problems with the placement did not arise until plaintiff’s senior year, when he was declared ineligible to compete in the varsity basketball program due to a rule of the Michigan High School Athletic Association (MHSAA), which excludes from participation in interscholastic athletics those students who have reached their 19th birthday before September 1 of the academic year in question. Plaintiff turned nineteen on August 16, 1984, thus rendering him ineligible for varsity basketball during his senior year. On July 25, 1984, plaintiffs filed a complaint alleging that the enforcement of the age rule in this case would violate plaintiff’s constitutional rights. They further sought to enjoin defendant Farmington Public Schools from enforcing the MHSAA’s age rule. Defendants filed a motion for summary judgment under GCR 1963, 117.2(1), contending that plaintiffs had failed to plead a constitutionally protected right and failed to plead facts which would support a claim that the age rule deprived plaintiff of equal protection or due process. In an opinion and order filed October 30, 1984, the trial court granted defendants’ motion. On appeal, plaintiffs present two issues. First, they claim that they were denied due process as a result of defendant school system’s failure to provide a hearing in regards to the initial placement decision. We find no merit to the argument. Under the Michigan Administrative Code, plaintiff’s parents had a right to request a hearing if they in fact objected to his placement one level below that suggested by his age. 1979 AC, R 340.1724. Since there is no indication that plaintiffs sought to exercise their right to a hearing, they cannot claim a denial of due process on this basis. Plaintiffs also claim a denial of due process as a result of the failure of defendant MHSAA to provide an exception to the age rule in the instant case. Again, we find that plaintiffs’ claim is without merit since they failed to follow the procedures available to them. According to defendant MHSAA, it will consider applications for exceptions to its rules when a school system formally presents a request for a waiver to its representation council. Plaintiffs do not contend that they ever requested that the school system file for such a waiver. Furthermore, plaintiffs have presented no argument which would support their contention that the age rule has a "discriminatory effect”. As noted in an affidavit submitted with defendants’ brief in support of the motion for summary judgment, the age rule serves the following purposes: "The 'age rule’ is one of the basic rules of eligibility of interscholastic athletics throughout the nation. It has many purposes, and among them are the following: "1. It treats all students equally regardless of race, creed, origin, sex, gifted, or handicapped. "2. It encourages athletes to complete four years of high school between the ages of 15 and 18. "3. It reduces the opportunity to hold students back (red shirt) for athletic purposes. "4. The rule is consistent with the philosophy of interscholastic athletics in that a student’s primary purpose in attending high school is to obtain an education, with participation in athletics secondary. "5. It tends to create equal competition with established age limitations. "6. It tends to decrease the opportunity for one team to have several 'older’ students competing against opponents with younger athletes. "7. There tends to be great maturity differences between students age 15 or 16 and those going on age 20. "8. It tends to reduce the opportunity for mismatches in competition. For example, a 15-year-old ninth or tenth grader could be competing against a student going on age 20, 21, etc. "9. It reduces the chances for litigation due to mismatches in competition. "10. It reduces the opportunity for a student who would normally be out of high school to take the position of a younger student who is progressing through high school at a normal rate. "11. A September 1, deadline, as indicated by the MHSAA HANDBOOK, could be considered arbitrary. However, if the date was changed to August 1, it would also be arbitrary and there would be students turning 19 years of age July 30, who would want the age limit changed to July 1.” We note that even plaintiffs agree that the age rule has a rational basis. Since plaintiffs have failed to present a basis for reversing the trial court’s order granting the motion for summary judgment, we must affirm that order. Affirmed.	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Per Curiam. Defendant was convicted by a jury of escaping from prison without lawful discharge, MCL 750.193; MSA 28.390. Thereafter he pled guilty to being a sixth-felony offender, MCL 769.13; MSA 28.1085, and was sentenced to from 15 to 50 years in prison. He appeals as of right. We reverse and remand for a new trial. Defendant entered the Bay City Corrections Center to serve the remainder of a 5- to 20-year sentence on a prior conviction. He was given a weekend furlough on June 10, 1983. There were two conditions to defendant’s furlough: (1) defendant was required to return to the corrections center by 5:30 p.m. on June 12, 1983, and (2) he was not to leave his placement at his mother’s home between 9:00 p.m. and 7:30 a.m. on June 10 and 11, 1983. On June 11, 1983, a corrections center employee made a spot check to determine whether defendant was complying with his weekend furlough and found that defendant was not at his mother’s home where he was supposed to be. Defendant failed to return on June 12, 1983, to the corrections center as required. Later, in October 1983, defendant was apprehended and returned to jail. Defendant has raised ten claims of error on appeal. We will first discuss the claim which requires reversal, then briefly dispose of the remaining issues. I Defendant claims that the trial judge abused his discretion in refusing to dismiss a juror for cause after the juror expressed a general bias against black people. During voir dire, the trial judge asked Juror Terry Powers if there was anything else he had to say and Powers replied, "Not really, just that I don’t care for colored people.” Then, the following exchange took place: "The Court: Okay. Does that mean that if a person is black that therefore you would not accept his testimony? "Juror Powers: Not really, no. ’’The Court: Would you take — Would it take more for a black person to convince you of the accuracy of his testimony than it would take someone else? On a one to one basis. I’m not talking about groups now, I’m talking about one person. Juror Powers: I guess not. "The Court: Do you believe that if you did serve, you could do so fairly and impartially to both sides? ’’Juror Powers: Yes. "The Court: Mr. Jacobs? "Mr. Jacobs: Yes, your Honor. "Mr. Powers, if a black woman is dating a white man and that black woman takes the stand and gives some sort of testimony, is the fact that she’s black and the fact that she’s dating a person who’s white, is that going to affect your decision? ’’Juror Powers: I don’t think so. "Mr. Jacobs: Are you going to have any problems with that? "Juror Powers: (no response) "Mr. Jacobs: You’re going to have to speak up now. ’’Juror Powers: No. "Mr. Jacobs: No? ’’Juror Powers: No. "Mr. Jacobs: No problems? That you could listen to the testimony and regardless of someone’s relationship render a fair and impartial decision? ’’Juror Powers: Yeah, I guess so. "Mr. Jacobs: Well T guess so’, that kind of scares me a little bit. Yes, you can? ’’Juror Powers: Well, I already said I didn’t care for them because I’ve had some dealings with them already and they’ve said some stuff to people and I don’t care for 'em, so — But not all people is like that.” As two of defendant’s witnesses were black, his girlfriend and her mother, defense counsel asked to excuse the juror for cause. The trial judge did not believe that it had been established that Powers’s opinions might influence his verdict, and refused to excuse him. This, defendant asserts, was an abuse of discretion requiring reversal. We agree. We will reverse the trial court’s finding that a juror has the ability to render an impartial verdict or that a juror is biased or prejudiced where we find a clear abuse of discretion. People v Johnson, 103 Mich App 825, 830; 303 NW2d 908 (1981), lv den 417 Mich 962 (1983). A juror who expresses an opinion referring to some circumstance of the case which is not positive in character, but swears he can render an impartial verdict, may not be challengéd for cause. People v Jenkins, 10 Mich App 257, 261; 159 NW2d 225 (1968), lv den 381 Mich 757 (1968), MCL 768.10; MSA 28.1033. The challenging party bears the burden of showing bias or prejudice. Rice v Winkleman Bros Apparel, Inc, 13 Mich App 281, 287; 164 NW2d 417 (1968), lv den 381 Mich 798 (1969). We are of the opinion that the burden has been met here, notwithstanding the trial judge’s superior ability to evaluate the demeanor and credibility of a juror who asserts he can render a fair and impartial verdict. Johnson, supra, p 830. The juror’s bias against black people was aptly demonstrated. Twice he stated he did not care for black people. We recognize that he answered in the affirmative to the court’s inquiries about whether he could serve fairly and impartially to both sides. However, he equivocated and gave qualified answers to other questions put to him by both the court and defense counsel about whether he would have problems believing the testimony of a black woman. It was only upon answering the trial court’s carefully framed questions that the juror conceded he would try to take each witness at face value. We cannot say with certainty that his plainly stated bias was not diluted by the court’s interrogation. As the indicia of the juror’s impartiality did not outweigh his stated bias, we find that the trial judge abused his discretion in declining to excuse the juror for cause. On this basis, we reverse and remand for a new trial. II Defendant also argues that the trial court erred by not allowing him 20 peremptory challenges at the time of jury selection on the principal offense of prison escape, which is punishable by a term of not more than five years, because defendant had also been charged as an habitual offender, which carries a possible sentence of life in prison. Based upon our review of the record, we do not perceive any such error. Prior to trial on the principal offense, the trial judge informed defendant that he could choose to be tried by a different jury on the habitual offender charge. After defendant was found guilty on the principal offense, but before the jury was dismissed, defendant was presented with the option of having a jury trial on the habitual offender charge, either with the same jury or a new one. Defendant instead pled guilty and waived his right to a jury trial. Had he exercised his option to be tried by a jury on the habitual offender charge, defendant would have been entitled to 20 peremptory challenges at that time. People v Van Auker, 111 Mich App 478, 487; 314 NW2d 657 (1981), rev’d on other grounds 419 Mich 918 (1984). As the trial judge complied with his duty to allow defendant, if he chose, to be tried by a new jury and given 20 peremptory challenges at that time, People v Helzer, 404 Mich 410, 427; 273 NW2d 44 (1978), we find no error. We also find no merit to defendant’s challenge of the sufficiency of the information, which he asserts did not adequately inform him that the people intended to claim that his violation of furlough was part of the charge against him. The information stated: "[Defendant,] being a person imprisoned in a prison of the State of Michigan at the above location, [did] escape or leave the prison without being discharged by due process of law; contrary to MCLA 760.193;” The language in the information tracked that contained in the prison escape statute, which is sufficient. People v Mast, 126 Mich App 658, 661-662; 337 NW2d 619 (1983), (On Rehearing) 128 Mich App 613; 341 NW2d 117 (1983). The information put defendant on notice that he was being charged with escape from prison without lawful discharge. It is not required that evidentiary facts in support of the charge be stated in the information. 42 CJS, Indictments and Informations, § 90, pp 957-960. Therefore, we affirm the trial judge’s finding that the information was sufficient to inform defendant of the offense charged. Defendant also claims that the trial judge erroneously allowed him to be prosecuted under the prison escape statute, when MCL 791.265a; MSA 28.2325(1) provides that the Department of Corrections can implement rules to deal with a prisoner’s failure to return to a facility. We think that a plain reading of MCL 791.265a(3); MSA 28.2325(1)(3) indicates that the Legislature intended to allow the Department of Corrections to promulgate rules to address prison escape situations and intended that the state prosecute individuals who fail to remain within the extended limits of their confinement under the prison escape statute. Cf., People v Bookmeyer, 127 Mich App 69; 338 NW2d 557 (1983), lv den 419 Mich 854 (1984). As we conclude that both the state and the Department of Corrections have joint authority to implement the prison escape statute, MCL 750.193; MSA 28.390, the trial court did not err in allowing the jury to hear testimony about defendant’s furlough violation. Next, we turn to defendant’s claim of error based on the trial court’s refusal to admit into evidence the testimony of Loretta Lowe that defendant told her on June 11, 1983, that he was "trying to find money”. We find no abuse of discretion in the trial judge’s ruling that the testimony was hearsay and that, even if it were not hearsay, it was irrelevant. The statement was offered to prove that defendant was trying to find money, i.e., "the truth of thie matter asserted” under MRE 801(c). It was offered to buttress defendant’s duress defense in which he wanted to show that he was so afraid another inmate might harm him that he did not want to return to the correction facility. Defense counsel admitted that he was trying to show that defendant was trying to find money. Further, the statement was not excepted by MRE 803(3), which allows a statement of a declarant’s state of mind to be admitted where state of mind is an issue in the case. People v White, 401 Mich 482, 503; 257 NW2d 912 (1977). In the general form this statement was offered, it had no probative value as to defendant’s state of mind and was properly excluded by the trial judge. Defendant also argues that the statement could have been introduced as evidence of a prior consistent statement to rebut a charge of recent fabrication. As this claim was not properly raised at trial, we need not entertain it. We also reject defendant’s claim that the trial judge abused his discretion by allowing the people to introduce evidence of his prior convictions in cross-examining a character witness who testified regarding defendant’s good character. Defendant placed his general reputation at issue when he introduced the testimony of Michael Jensen, Food Service Director for the Riverside Corrections Faciltiy. Defense counsel admitted that he wanted to introduce general good character and reputation testimony about defendant. The people’s subsequent cross-examination of this character witness about defendant’s prior convictions was done to test the credibility of the character witness by ascertaining his good faith, information or accuracy. People v Fields, 93 Mich App 702, 707-708; 287 NW2d 325 (1979), lv den 408 Mich 945 (1980). This is equally true where the witness has been questioned as to other offenses allegedly committed by defendant, as here. People v Rosa, 268 Mich 462, 464; 256 NW 483 (1934). Additionally, any prejudice resulting from the people’s questioning of the witness was cured by the trial judge’s instruction to the jury that they were not to use evidence of defendant’s prior convictions as substantive evidence, but rather should use it as evidence of his credibility as a witness. Defendant also urges that the trial judge breached his obligation to be impartial when he raised defendant’s furlough violation on June 10 to 11, 1983, as possible grounds for establishing a charge for prison escape, and by cautioning the jury with respect to the proper use of defendant’s prior convictions. We find no error requiring reversal in the complained-of comments. We do not think that the comments unduly influenced the jury or deprived defendant of a fair trial. People v Pawelczak, 125 Mich App 231, 237-238; 336 NW2d 453 (1983). We realize that a judge is not authorized to usurp the attorney’s role or to blatantly exhibit partiality. People v Frank, 31 Mich App 378, 380-381; 188 NW2d 95 (1971), lv den 386 Mich 755 (1971). But the court’s comments about the furlough violation were made to clarify the testimony about the furlough violation, or were made in response to defendant’s arguments that testimony about defendant’s furlough restrictions was irrelevant. The comments did not usurp the role of either attorney. Nor did the judge excessively caution the jury about use of defendant’s prior convictions. Therefore, we find that defendant was not prejudiced by these statements. Defendant next argues that the trial judge improperly instructed the jury with respect to the factors to be considered in establishing a duress defense and on the instructions regarding the proper allocation of the burden of proof. We have reviewed the instructions in their entirety. People v Seabrooks, 135 Mich App 442, 452; 354 NW2d 374 (1984). The trial judge satisfactorily informed the jury of the elements of a duress defense as set forth in People v Luther, 394 Mich 619, 623; 232 NW2d 184 (1975). Although he deviated somewhat from CJI 7:5:02(3), his expansion of the jury instruction was fully consistent with the requirement of Luther, supra. We also find no merit to defendant’s claim that the trial judge was required to follow the duress defense instruction immediately with the burden of proof instruction. The trial judge also complied with the requirement of People v Field, 28 Mich App 476, 478; 184 NW2d 551 (1970), and informed the jury that the people bore the burden to show that the elements of duress were not present. Therefore, reversal is not required. Defendant also contends that the jury verdict form was unduly suggestive because it failed to include a reference to defendant’s duress defense. This issue presents no grounds for reversal. The jury was adequately instructed that if the jury found that the duress defense had been established, it should find defendant not guilty. As the duress defense was properly given, we find no error. Finally, defendant claims his prison sentence of from 15 to 50 years imprisonment constitutes cruel and unusual punishment, or, alternatively, shocks the conscience of this Court. We think the sentence was not cruel and unusual punishment, as it was within the statutory limits of the habitual offender statute, MCL 769.12; MSA 28.1084. People v Banks, 116 Mich App 446, 451; 323 NW2d 436 (1982). Nor do we agree that his sentence is shocking to our conscience under People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The court articulated its reasons for sentencing defendant according to Coles, considering the protection of society and the disciplining of the wrongdoer. Given that defendant could have been sentenced to life in prison, the sentence does not shock our conscience. Reversed and remanded._ It was also appropriate for the verdict form to include the option of finding defendant guilty of prison escape due to failure to remain at his mother’s home according to the requirements of his furlough, since MCL 791.265a; MSA 28.2325(1) specifically states that such conduct shall be deemed to be an escape from custody as provided in MCL 750.193; MSA 28.390, the prison escape statute.	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M. J. Kelly, P.J. Plaintiff appeals by leave granted from a decision of the circuit court awarding defendants a new trial on the basis of juror misconduct. We reverse and remand for further proceedings consistent with this opinion. Plaintiff filed this action against the City of Detroit and Detroit Police Officer Carwell Williams on November 18, 1980, alleging police misconduct. According to plaintiff, he was attempting to break up a fight at Joe Louis Arena in the City of Detroit on August 2, 1980, when defendant Williams overreacted, struck him in the face and otherwise insulted him. Plaintiff alleged that the injuries suffered in this fracas resulted in residual permanent physical impairments, including temporal mandibular joint syndrome, left lower lip numbness, teeth insensitivity and denervation, scarring and headaches. Plaintiff further alleged that he suffered emotional damage, anxiety and trauma. Following a jury trial in July of 1984, a unanimous verdict was returned in favor of plaintiff in the amount of $350,000. Defendants subsequently moved for a new trial or, in the alternative, remittitur. One of the grounds asserted by defendants in support of their motion for a new trial was that one of the jurors failed to disclose his personal bias against the Detroit Police Department during jury voir dire. A hearing was conducted on the motion and an order was eventually entered granting defendants a new trial. The trial court then certified a concise statement of facts and proceedings and further certified its order granting a new trial as involving a controlling question of law of major significance to the jurisprudence of this state. This Court granted leave to appeal by order dated April 26, 1985. The issue presented is whether a motion for a new trial may be granted on the basis of affidavits asserting hearsay statements of a juror which indicate possible bias. We hold that a jury verdict may not be set aside on the basis of hearsay statements presented by way of affidavit, particularly where, as here, the juror unequivocally refutes the allegation of bias. Attached to defendants’ motion for a new trial were two affidavits submitted by defendant Car-well Williams and Wayne County Deputy Sheriff William Wensko. Both stated that after the conclusion of trial, defendants’ attorney spoke with juror Larry Bowlson and inquired about the factors he considered in arriving at the verdict. Bowlson allegedly responded that his cousin had been involved in a similar incident with members of the Detroit Police Department. Plaintiff, however, subsequently submitted juror Bowlson’s affidavit to the effect that while he did engage in conversation with defendants’ attorney after the trial, he recalled explaining that the city had failed to present sufficient evidence to convince him of the truth of defendant Williams’s position. Bowlson recalled being asked whether he "had anything against police officers”, to which he responded " 'No, even though my cousin had a little trouble with them’ ”. Bowlson further stated: "I never told anyone that my cousin or anyone else that I personally know was ever beaten by the Detroit police. I do remember my cousin telling me about six years ago that he was at Ted’s Restaurant on Woodward and got into an argument with two off duty officers. He was not hurt bad and nothing came of it. I don’t know if they were police officers or not. I don’t know if they worked for the City of Detroit. I consider myself as a fair juror and only made a decision based upon the evidence that I heard and saw. Nothing else influenced me.” GCR 1963, 527.1(2), now MCR 2.611(A)(1)(b), authorizes motions for new trial on the basis of jury bias or misconduct. Whether a new trial should be awarded on the ground that a juror was biased in favor of or against a particular party is discretionary with the trial court and this Court reviews such a decision only for an abuse of that very broad discretion. Gustafson v Morrison, 57 Mich App 655, 662; 226 NW2d 681 (1975), lv den 394 Mich 755 (1975). We conclude that this case is governed by the Supreme Court’s opinion in Mandjiak v Meijer’s Super Markets, Inc, 364 Mich 456, 459-461; 110 NW2d 802 (1961). There, the plaintiffs attorney filed an affidavit to the effect that he had overheard remarks made by the jury foreman which indicated bias in favor of the defendant. The defendant responded with an affidavit of the jury foreman in which the jury foreman "categorically denied” the assertions made in the attorney’s affidavit. The Supreme Court held that the trial court properly denied the plaintiffs motion for a new trial on the basis of jury misconduct: "It is well established that the affidavits of jurors regarding their own misconduct are not admissible for the purpose of impeaching their verdict. In re Merriman’s Appeal, 108 Mich 454; People v Nick, 360 Mich 219. This conclusion would appear to apply a fortiori where the information concerning the juror’s alleged misconduct is contained in an unsupported affidavit of the losing party or his attorney and the allegations of misconduct, such as they are, are categorically denied in an answering affidavit of a juror.” 364 Mich 460-461. The rationale for the general rule that a jury verdict may not be impeached even by a juror’s affidavit as to his or her own misconduct has more recently been explained by this Court in Brillhart v Mullins, 128 Mich App 140, 148-149; 339 NW2d 722 (1983): "The general rule is that jurors may not impeach their verdicts by oral testimony or affidavits. This rule serves the purpose of foreclosing jurors from impeach ing their findings by asserting their own misconduct. Other reasons for disallowing the impeachment of verdicts are: (1) to prevent tampering with the jury subsequent to the discharge of the jury, (2) to avoid undermining the finality and certainty attached to judgments, and (3) to discourage the invasion of mental processes used to arrive at verdicts. "It is a wise policy that seeks to insulate jurors from the troublesome and unhealthy pressures of litigants, lawyers, and the media.” (Footnotes omitted.) We are persuaded that the same rationale applies where the affidavit alleging juror bias is submitted by a nonjuror and is based on hearsay. See also 58 Am Jur 2d, New Trial, § 204, p 423 and 6 Callaghan’s Michigan Pleading and Practice, New Trials and Rehearing, § 41.28, p 397. We emphasize that we do not view this case as one involving a juror’s untruthful response to questions asked on voir dire. See Gustafson v Morrison, supra, and Grist v Upjohn Co, 16 Mich App 452, 471; 168 NW2d 389 (1969), lv den 382 Mich 768 (1969). In both Gustafson v Morrison and Grist v Upjohn, nonhearsay evidence was presented to prove the fact of untruthful responses. In Gustafson, the juror testified at a posttrial evidentiary hearing regarding his previous litigation experiences and regarding his prior conviction for speeding. In Grist, the affidavit of a former co-employee of the juror asserted that the juror had been terminated from his employment, contrary to the information provided by the juror on voir dire. In the instant case, all that is presented are the hearsay affidavits of the losing party and the court bailiff, which are "categorically denied” by the juror. We hold that it is an abuse of discretion for a trial court to grant a new jury trial on the basis of juror bias where the motion is supported solely on the basis of hearsay affidavits which are refuted by the juror involved. The trial court’s order granting a new trial in the instant case is reversed. The case is remanded for consideration of defendants’ alternative motion for remittitur and any other motions which were pending before the trial court and never decided in light of the court’s disposition of the motion for a new trial. Reversed and remanded. Jurisdiction is not retained.	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T. Roumell, J. The receiver of the F. Yeager Bridge and Culvert Company appeals as of right from the December 17, 1984, order of the St. Clair County Circuit Court in claims by Walter Toebe & Company against the assets of the insolvent corporation. Four issues are raised, three of which are without merit. We affirm the trial court’s award of damages for Projects #1 and #2. We reduce the trial court’s award of damages for Project #8, and vacate the award for Projects #3, #4 & 5, #6, and #9. The receiver did not challenge the award for Project #7, thus we do not review it. On July 17, 1974, F. Yeager Bridge and Culvert Company, a supplier of fabricated structural steel, filed a complaint in the circuit court for voluntary dissolution because of insolvency. Yeager asserted that the federal government’s removal of price controls on steel in 1974 caused a substantial price increase which Yeager was unable to pay, thus resulting in insolvency. On September 9, 1974, the circuit court ordered dissolution and appointed James Goerlich as receiver. Before the dissolution proceedings were initiated, Yeager had entered into contracts with Toebe and five other construction companies to supply fabricated structural steel. Each of these companies had contracted to construct various bridges and highways for the Michigan State Highway Commission. Each of the companies filed a claim against the Yeager assets. We note that proceedings on the claims of the remaining five claimants, each of which is similarly situated with respect to the material issues of this appeal, have been adjourned pending resolution of this appeal. On September 13, 1974, the six claimants filed suit in Ingham County Circuit Court against the State of Michigan and the Michigan Department of State Highways and Transportation. The complaint alleged that Yeager was a subcontractor of the claimants and had been prequalified by the state. It further alleged that Yeager’s inability to perform as a result of its insolvency caused their own performance to become impossible for practical reasons in light of the then current economic conditions. On October 22, 1974, the Ingham County Circuit Court ordered that the claimants’ prime contracts with the state and their subcontracts with other prime contractors be reformed by deleting all language concerning the furnishing of fabricated structural steel. The state undertook responsibility for providing the structural steel. In December, 1974, the six claimants filed claims with the receiver, totaling approximately $1,554,138, for damages due to delay and lost profits caused by Yeager’s breach of contract. The receiver counterclaimed against four of the claimants for approximately $431,396. The proof of claim filed by Toebe was in the amount of $857,255.07 and represented Toebe’s estimated damages for the period between January 1, 1974, and December 31, 1975. The receiver filed an objection dated July 10, 1975, alleging that Toebe sustained no damages. The receiver filed a counter claim dated July 12, 1976, seeking $20,199.75 for work completed by Yeager under three contracts with Toebe. In 1977, Toebe filed suit against the state in the court of claims for damages based on the same facts as those presented in this case. That lawsuit was still pending when trial on the merits of this case was held. On February 10, 1977, the receiver filed against each of the six claimants the following affirmative defenses: (1) that the damage claims were barred by the prior Ingham County Circuit Court judgment; (2) that the claims were barred by the doctrine of equitable estoppel; and (3) that the claims were barred by the doctrine of election of remedies. The receiver moved for summary judgment under GCR 1963, 117.3, and the motion was granted. Toebe appealed. This Court peremptorily reversed the order of summary judgment. Docket No. 77-02321, order of December 22, 1977. On December 8, 1980, the circuit court ordered that the receiver’s affirmative defenses be stricken because they had not been included in the receiver’s responsive pleadings as required by GCR 1963, 111.3. The circuit court further gave the receiver 30 days in which to file for leave to amend the pleadings. On April 20, 1982, the receiver’s motion for leave to amend was granted. The receiver subsequently moved for summary judgment against the six claimants, but that motion was denied. Following a bench trial in July, 1983, the circuit court rendered an opinion on August 3, 1984, awarding $90,292.75 to Toebe and $20,199.72 to the receiver. The award to Toebe was later modified in a judgment of December 17, 1984, resulting in a sum of $87,888.40. On appeal the receiver argues that Toebe is equitably estopped from seeking damages against Yeager for breach of contract. He claims that Toebe’s obligation under the prime contracts to furnish fabricated steel was excused by the reformation of the contracts between Toebe and the state as a result of the litigation in the Ingham County Circuit Court in 1974. In the 1974 lawsuit, Toebe argued that its obligation to supply fabricated structural steel to the state was excused due to commercial impossibility (i.e., its inability to perform resulted from Yeager’s insolvency). In the instant litigation, Toebe characterizes the 1974 litigation as an effort to mitigate damages. The receiver argues that Toebe’s claim in the instant litigation necessarily assumed that Toebe’s obligation to the state was valid. According to the receiver, the inconsistent positions advocated by Toebe in these lawsuits give rise to the application of the doctrine of equitable estoppel. He claims it was not necessary that Yeager show reliance upon Toebe’s position in the earlier litigation in order to invoke equitable estoppel, because estoppel rests upon broad principles of justice. Here justice demands that Toebe be estopped from asserting its claim against Yeager. Equitable estoppel rests upon broad principles of justice. Mertz v Mertz, 311 Mich 46; 18 NW2d 271 (1945). The doctrine of equitable estoppel has been refined to include the following elements: " '(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts.’ Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984).” Yahrling v Belle Lake Ass’n, Inc, 145 Mich App 620, 627; 378 NW2d 772 (1985). Equitable estoppel has been invoked to preclude a party who has successfully maintained one position in a lawsuit from taking an inconsistent position in a subsequent lawsuit on the same factual issues. Burgess v Holder, 362 Mich 53; 106 NW2d 379 (1960); Mertz v Mertz, supra. The assertion of inconsistent positions on factual issues in successive lawsuits may come within this doctrine, although in some circumstances collateral estoppel may be a more appropriate defense. See Stolaruk v Dep’t of Transportation, 114 Mich App 357, 361-363; 319 NW2d 581 (1982). We reject the receiver’s argument because the doctrine of equitable estoppel has no application to the facts presented. Although Toebe was excused from its obligation to furnish fabricated structural steel, its other contractual obligations remained. In this litigation, the trial court properly held that the consequences of the litigation between Toebe and the state are relevant only to the issue of damages, since Toebe had a duty to mitigate its damages. Lorenz Supply Co v American Standard, Inc, 100 Mich App 600, 610-611; 300 NW2d 335 (1980), aff'd 419 Mich 610; 358 NW2d 845 (1984). In this case, Toebe seeks damages due to delay and lost profits caused by Yeager’s breach of the subcontracts between Toebe and Yeager. The fact that Yeager’s performance is related to the contracts between Toebe and the state does not bring equitable estoppel into play, because Yeager’s own undisputed breach of contract caused Toebe to seek relief through reformation of its contracts with the state. Justice does not demand that the doctrine of equitable estoppel be applied to this case. The receiver next argues that Toebe is precluded from recovering damages for breach of contract after having prevailed in its litigation with the state and having successfully reformed the con tracts. According to the receiver, this constitutes an election of remedies. Toebe counters that the election-of-remedies doctrine is merely an extension of equitable estoppel and has no application to the facts of this case. The doctrine of election of remedies is a procedural rule which bars a party to whom there are available two inconsistent remedies from pursuing both. The doctrine’s purpose is to prevent double redress for a single injury. The essential elements are: (1) the existence of two or more remedies; (2) an inconsistency between the remedies; and (3) a choice of one of them. Riverview Cooperative, Inc v The First National Bank & Trust Co of Michigan, 417 Mich 307, 313; 337 NW2d 225 (1983). In our view the doctrine of election of remedies does not apply here. Toebe’s litigation with the state and Toebe’s litigation with Yeager involved separate contracts. The remedies sought by Toebe, while concurrent, are consistent. As noted above Toebe had a duty to mitigate damages and successfully discharged that duty through its litigation with the state. Its suit for damages for Yeager’s breach of contract raises no inconsistency. Instead, the appropriate question which we address infra is whether the damage award was correctly computed. The receiver next claims that the trial court improperly denied its motion to amend its claim of affirmative defenses. The receiver sought to amend its pleadings to include a claim of the affirmative defense of commercial impracticability. The receiver made the motion to amend three days after trial started and over eight years after the receiver had filed his objection to Toebe’s claim. The trial court denied the motion on the basis of laches. According to the receiver, he was entitled by leave of the circuit court to file his supplemental affirmative defense. GCR 1963, 118.1, now MCR 2.118(A), provides that a party may amend a pleading once as a matter of course within certain limits and, thereafter, may amend a pleading only by leave of the court or by written consent of the adverse party. It further provides that leave shall be freely given when justice requires. The decision to grant or to deny leave is within a trial court’s discretion. Welke v Kuzilla, 140 Mich App 658; 365 NW2d 205 (1985). This Court will not reverse that decision absent an abuse of discretion. Harvey v Security Services, Inc, 148 Mich App 260; 384 NW 2d 414 (1986). Ordinarily, such a motion should be granted and should be denied only for specific reasons such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party and the like. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973). In this case the trial court denied the receiver’s motion by applying the doctrine of laches. The trial court observed that the receiver’s initial position, reflected in his July 10, 1975, objection to Toebe’s claim, was that Toebe did not sustain any damages from the breach of contract. The trial court then observed that if the receiver felt that his defense to the claim rested upon commercial impracticability then he should have asserted that defense in the intervening eight years. In Rofe v Robinson (On Second Remand), 126 Mich App 151, 154; 336 NW2d 778 (1983), the principles related to laches were summarized: "In determining whether a party is guilty of laches, each case must be determined on its own particular facts. Edgewood Park Ass’n v Pernar, 350 Mich App 204, 209; 86 NW2d 269 (1957). The doctrine of laches was explained in In re Crawford Estate, 115 Mich App 19, 25-26; 320 NW2d 276 (1982), as follows: " 'Laches is an affirmative defense which depends not merely upon the lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to the dilatory plaintiff. * * * For one to successfully assert the defense of laches, it must be shown that there was a passage of time combined with some prejudice to the party asserting the defense of laches. * * * Laches is concerned mainly with the question of the inequity of permitting a claim to be enforced and depends on whether the plaintiff has been wanting in due diligence. * * *’ (Citations omitted.) ''See also Lothian v Detroit, 414 Mich 160, 168-169; 324 NW2d 9 (1982); City of Hancock v Hueter, 118 Mich App 811, 817-818; 325 NW2d 591 (1982).” The trial court could properly find that laches barred the motion. A substantial passage of time, specifically the intervening eight years, and the lack of diligence would result in prejudice to Toebe. Contrary to the receiver’s argument, the facts underlying the claimed defense of commercial impracticability are not the exact same facts as those underlying Toebe’s litigation with the state, i.e., the prohibitive cost of steel and Toebe’s inability to find a substitute subcontractor. In Toebe’s litigation with the state, Toebe’s claim of impossibility was ostensibly grounded upon common-law principles, under which mere changes in marketing conditions which render performance unprofitable do not justify releasing a party from its obligation to perform. Milligan v Haggerty, 296 Mich 62, 71; 295 NW 560 (1941). See also Cleveland-Cliffs Iron Co v Chicago & North Western Transportation Co, 581 F Supp 1144, 1151 (WD Mich, 1984). In contrast, Yeager’s defense of commercial impracticability is based upon a broader test found in MCL 440.2615; MSA 19.2615, in which a change in market conditions may excuse a party’s performance if the unforeseen market condition alters the essential nature of the performance. See UCC § 2-615, Official Comment No. 4. Moreover, MCL 440.2615(b); MSA 19.2615(b) requires a seller to allocate deliveries among customers in a fair and reasonable manner. In this case Yeager admittedly had already surpassed its steel quota when the subcontracts were negotiated. Yeager assumed a risk that steel would be available at the approximate price quoted to Toebe. Although a review of Toebe’s prime contracts with the state and Toebe’s subcontracts with Yeager suggests that they are comparable with respect to the required performance, the trial court would have had to resolve specific fact issues in the present litigation which had not been resolved in Toebe’s litigation with the state. The fact issues include a determination of the business risk assumed by Yeager, a determination of whether the nonoccurrence of the price increase was a basic assumption of the subcontract, and, potentially, a determination whether Yeager had fairly allocated its available structural steel supply amongst its customers. We conclude that the trial court properly found that the eight-year delay in the assertion of the affirmative defense would result in prejudice to Toebe. The delay would harm Toebe’s ability to present evidence on these fact issues. The trial court did not abuse its discretion by applying the doctrine of laches and properly denied leave to amend the receiver’s affirmative defenses. We reject the receiver’s argument that the trial court failed to act in an even-handed manner when it allowed Toebe to introduce evidence which went beyond the proof of claim which Toebe had filed. The proof of claim, dated December 5, 1974, contained estimated damages for the years 1974 and 1975, but did not expressly state that it was an estimate. At trial, the trial court admitted evidence of 1976 damages over the receiver’s objection. Although the trial court was critical of the introduction of these proofs, it permitted them because Toebe’s pleadings gave adequate notice of the intended proofs. An amendment to conform the pleadings to the evidence is permitted if it would not prejudice the objecting party. GCR 1963, 118.3, now MCR 2.118(C). Because the pleadings gave adequate notice of the nature of damages sought by Toebe, no prejudice accrued to the receiver by the admission of proofs of damages into 1976. Finally, the receiver claims that any recovery is barred by the doctrine of election of remedies and that if recovery is not completely barred then the trial court made clearly erroneous fact findings when calculating the amount of damages. Having rejected the election of remedies argument, we examine the findings on damages after a brief review of the relevant contract principles. Fact findings rendered by a trial court will not be set aside on appeal unless clearly erroneous. GCR 1963, 517.1, now MCR 2.613(C). When a party claims that the evidence does not support the trial court’s findings, an appellate court will not reverse unless, on the entire record, the appellate court is left with a firm and definite conviction that a mistake has been made. Sweetman v State Highway Dep’t, 137 Mich App 14, 20; 357 NW2d 783 (1984). The subcontracts between Toebe and Yeager concerned a sale of goods, i.e., the sale of structural steel at a certain quantity and price, and thus come under MCL 440.2105; MSA 19.2105, and MCL 440.2201; MSA 19.2201. The rules for incidental and consequential damages are contained in MCL 440.2715; MSA 19.2715. Those rules are supplemented by basic common-law principles described in Walter Toebe & Co v Dep’t of State Highways, 144 Mich App 21; 373 NW2d 233 (1985), an unrelated case. Because a reasonable delay is foreseeable, liability must be grounded upon an unreasonable delay. Walter Toebe, supra, pp 29-31. The specification of a completion date or an estimated completion date in a contract does not alone constitute an affirmative representation or warranty that the project will be completed on time. The surrounding circumstances and the realities and expectations of the parties must be considered. Walter Toebe, supra, pp 31-33, citing American Ship Building Co v United States, 228 Ct Cl 220; 654 F2d 75 (1981). A party to a contract who is injured by another’s breach may recover only those damages which are the direct, natural and proximate result of the breach. Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957). The party asserting a breach of contract has the burden to prove its damages with reasonable certainty. Walter Toebe, supra, p 38. Toebe demanded a total of $911,519.50 in damages, an amount which included lost profits and other items. The trial court generally disallowed the following for lack of adequate proof: (1) an 8% increase in labor costs; (2) a 10% increase in equipment costs; (3) overhead costs calculated at 11.9% of the labor, materials, and equipment cost increases; and (4) lost profits. The trial court awarded damages for cost increases of materials and several miscellaneous items. On November 8, 1984, Toebe moved for entry of judgment in an amount of $90,962.70, less two stipulated adjustments of $1,959.30 (Carlo Project #46) and $1,115 (Edison-Forsberg Project #47), leaving a revised award of $87,888.40. It is unclear why Toebe moved for judgment in an amount of $90,962.70, an increase of $669.95 from the damage award authorized in the trial court’s August 3, 1984, opinion of $90,292.75. We find no explanation for the $669.95 discrepancy. Thus, we reduce the actual judgment by that amount, leaving the sum of $87,218.45. The receiver challenges the fact' findings on all of the projects except Project #7 (6-8 Mile Road #46). We address each project seriatim. Project #1 (Thompson, McCulley #32, Belleville) The trial court awarded damages of $2,010.00 for costs incurred in correcting fabrication errors in the structural steel actually supplied by Yeager for this project. The trial court relied upon the testimony of Vasile Ciofu, Toebe’s accountant, and that of Richard Wells, Toebe’s president. We find no clear error, and affirm the award. Project #2 (Middlebelt #43, Livonia) The trial court awarded damages of $15,342.11 caused by errors in fabrication. Although conflicting testimony concerning the existence of fabrication errors was presented, the trial court weighed the credibility of the witnesses and decided that Yeager was responsible for the fabrication errors. We are not left with a definite and firm conviction that a mistake was made, and affirm the award of $15,342.11. Project #3 (Carlo #46, Livonia) The trial court awarded damages of $6,556.98 which represented the increased cost of concrete ($1,115.00) and the increased "resteel costs” ($5,441.98). "Resteel costs” refer to the cost of reinforcing steel bars. This award was reduced by $1,959.30 by stipulation of the parties to $4,597.68. The stipulated amount of reduction reflects an award to Toebe in an unrelated litigation which reflected the increased cost of concrete for this project. Because the trial court’s award for the increased cost of concrete ($1,115.00) was substantially less than the parties’ stipulated reduction ($1,959.30) for that cost, it is only the increased resteel costs which are at issue. The purchase order authorized a $1.32/cwt ($.0132/lb) price increase for reinforcing steel bars shipped six months after the date of the project proposal. 412,271 pounds were shipped between March 20, 1974, and August 13, 1974. The August 13, 1974, shipment of 225,352 pounds was the only one charged with the price increase. Therefore, the maximum increased resteel costs supported by record evidence is $2,974.65 ($.0132/lb X 225,352). Richard Wells, Toebe’s president, testified that the state’s substituted delivery of structural steel was not due until August, 1975. Yeager’s delivery under its subcontract and the critical path network (CPN) was not due until November, 1974. The CPN provided the earliest and the latest dates of performance deemed acceptable by the state in which to complete the project on time. All contracts provided that time was of the essence. When a contract contained a CPN, the CPN dates were expressly incorporated into the subcontract. Wells testified that Yeager’s actual delivery date, apparently established by oral agreement, was set for late July or August, 1974. The earlier delivery date was apparently established to accommodate Toebe’s interest in completing the project earlier than required in order to reap greater profits for Toebe. In contrast, Neil Davis, Yeager’s president, indicated that Yeager would not fabricate steel until October, 1974, for all its subcontracts. The vendor invoice for the August 13, 1974, resteel shipment indicates that the price increase took effect after July 18, 1974. Because the August 13, 1974, resteel shipment clearly preceded Yeager’s time for performance under the CPN and because the price increase preceded Yeager’s time for performance under the alleged oral agreement, the trial court clearly erred by awarding damages for delay to Toebe. Toebe’s proofs generally showed that resteel-related deliveries preceded structural steel deliveries. A significant causation question is presented by holding Yeager liable for increased resteel costs, especially when actual resteel deliveries preceded Yeager’s time for performance under the CPN, because Toebe exercised full control over the timing of the placement of resteel orders. The resteel orders apparently did not depend upon receipt of the structural steel. Although a subsequent delay in delivery of structural steel would reasonably be expected to result in additional costs, such as storage, the issue is whether increased resteel costs are causally connected with Yeager’s breach of contract. In contrast, delays in the delivery of concrete have a clearer causal connection, since concrete was not to be poured until after structural steel was erected. In short, we conclude that no award of damages should have been made to Toebe for this project. We are left with a firm and definite conviction that the trial court erred. Combined Projects #4 & #5 (Edison-Forsberg #47, Saginaw County) The trial court made an award of $17,761.64, $7,761.64 of which was awarded for the increased cost of materials, and $10,000.00 of which represented traffic-maintenance costs. The parties subsequently stipulated to a reduction of $1,1Í5. Toebe’s original claim for these combined projects was $168,904.78, which included $7,761.64 for the increased cost of materials. At trial, Toebe reduced its claim by $83,511.10, a figure which included elimination of the increased cost of materials. Toebe concedes this in its brief on appeal. Therefore, the trial court’s award of $7,761.64 for the increased cost of materials is clearly erroneous. Toebe’s original claim for traffic-maintenance costs was $62,635.70. We conclude that the award is clearly erroneous from the proofs presented, and vacate the $10,000 award in its entirety. These combined projects took place in the 1-75— Cass River area. Barricades and signs were erected to direct traffic around the construction area. In the Forsberg Project, the CPN showed that structural steel was to be delivered by September, 1974. It was actually delivered through a substitute supplier in October, 1975. Richard Wells stated that the project would have been completed in November, 1974, if the structural steel had been timely delivered in August, 1974. Delivery in September, 1974, would have resulted in completion by April, 1975, according to his testimony. It is a reasonable inference from this testimony that Wells foresaw a very short time interval before winter weather conditions would interfere and delay the project. Generally, seasonal suspensions of work were anticipated. The project was completed in June, 1976. The Edison Project showed a CPN delivery date scheduled for November, 1974, but structural steel was not delivered until Au gust, 1975, and the job was completed in June, 1976. Toebe’s claim of $62,635.70 for traffic-maintenance costs is apparently made up of the costs for the period from January 1, 1975, to June 1, 1976, for the Edison Project in an amount of $47,072.42, and the costs for the period from June 12, 1975, to November 20, 1975, for the Forsberg Project in an amount of $15,563.28. Richard Wells testified that the winter season caused damage and delay when motor vehicles struck and damaged many flashers. Toebe’s claim appears to be contradicted however by its 1976 published financial statement which showed $18,362 attributable to direct costs of traffic maintenance for the entire combined project, excluding labor. This amount included all invoiced expenses. Although the trial court noted that the proofs of traffic maintenance damages were unsatisfactory, it awarded $10,000 because some delay was evident and had occurred. In our view Toebe has not proved its damages with reasonable certainty because no invoices showing actual rental costs, the rental periods, or the actual traffic-maintenance costs compared with the expected costs are provided in the exhibits. Toebe’s accountant was unable to fully explain the discrepancy between Toebe’s published financial statements and the summary of extra traffic-maintenance costs contained in the Project #5 binder under the "damages” tab. In our view, Toebe failed to demonstrate that any portion of its traffic-maintenance costs was attributable to Yeager’s breach of contract. We conclude that the trial court’s finding was clearly erroneous. Project #6 (Schoolcraft #49, Livonia) The trial court awarded $18,450.08, representing the increased cost of materials. This award reflects increased costs for resteel ($12,083.83) and concrete ($6,366.25) and was made on Toebe’s claim of delay damages. After reviewing the record evidence, we conclude that the claim is without merit and that the trial court clearly erred by making an award on this claim. Twelve bridges were constructed. Delivery of structural steel was scheduled for May, 1975. Although a CPN computer printout is not included in the Project #6 binder, a flow chart shows how the project was scheduled to progress. It is unclear from the flow chart whether structural steel for all 12 bridges was deliverable in May, 1975. Actual delivery of the structural steel was made by a substitute supplier between May 13, 1975, and March 30, 1976. The increased cost of concrete was based upon an annual estimated price increase of $1.25/cwt. Vendor invoices show that concrete deliveries occurred between July 8, 1975, and November 24, 1975. Since concrete deliveries could not have become necessary until structural steel was erected and such was scheduled for May, 1975, the trial court clearly erred by holding Yeager accountable for the cement price increase for 1975. Resteel orders preceded structural steel deliveries. Vendor invoices show resteel shipment dates between July 18, 1974, and May 9, 1975. Since resteel delivery dates and price increases preceded Yeager’s scheduled time for performance in May, 1975, Toebe’s claim for delay damages is without merit. Project #8 (Michigan Avenue #50, Wayne County) The trial court awarded damages of $7,945.80 for this project, $4,646.25 of which represents the increased cost of concrete and $3,299.55 of which represents increased resteel costs. For reasons explained below, the trial court clearly erred by making an award for the increased cost of concrete, but did not clearly err by maing an award for increased resteel costs. Six bridges were constructed. Bridges designated as "B-01”, "B-05”, "S-05”, and "S-ll” required structural steel. The CPN scheduled delivery date for bridges "S-05”, and "S-ll” was December 9, 1974. This late delivery date created a risk of seasonal suspension of work. Bridges "B-01” and "B-05” had an August 30, 1974, delivery date. Deliveries of structural steel were actually made by a substitute supplier between October 17, 1975, and January 20, 1976. The project was completed on April 22, 1976. Vendor invoices show that concrete deliveries occurred in 1975. Bridge "B-01” was the only bridge which was scheduled for an early start date for deck work in April, 1974. Presumably, deck work refers to pouring cement after the erection of structural steel. The earliest "finish” scheduled date for bridge "B-01” was May 6, 1975. Bridges "S-05”, "S-ll”, and "B-05” had deck work scheduled entirely in 1975. Since 1975 was the year in which the cement would have become necessary in the normal course of the project, the trial court clearly erred in finding Yeager liable for price increases occurring between 1974 and 1975. Whether Toebe could have completed the project earlier, and thereby could have made additional profit through cost-savings, is too speculative to be attributable to Yeager’s breach of contract. Resteel shipments occurred in April and May, 1975, and were subject to the $1.25/cwt price increase which became effective January 1, 1975. Although Toebe’s need for the reinforcing steel bars apparently preceded its need for structural steel as we have noted in our discussion under the analysis of Project #3, we are not left with a firm and definite conviction that the trial court clearly erred by awarding damages for delays which resulted in increases in resteel costs. This is because resteel shipments were actually delayed until after Yeager’s scheduled time for performance in 1974. Project #9 (Sibley #51, Wayne County) The trial court awarded $18,962.70, representing the increased cost of materials. Specifically, the increased cost of concrete was $4,753.75 and the increased cost of resteel was $14,208.95. We find that the trial court clearly erred by making this award, because a substitution of another supplier, Apollo, for Yeager constituted a novation which released Yeager from liability. In April, 1974, Toebe asked Yeager if Yeager would agree to give the Sibley job to Apollo. Yeager consented to the substitution. Yeager’s performance under the CPN had been scheduled for December, 1974. Structural steel was delivered in March and April, 1975, primarily by Apollo. The project was completed in September, 1975, which was within the CPN. The trial court premised its damage award upon testimony that a June, 1975, completion date would have been possible if delivery had been timely. The trial court characterized the substitution of Apollo as an effort by Toebe to mitigate damages. The trial court’s characterization is clearly erroneous. The substitution of Apollo was agreed upon before Yeager declared in June, 1974, that it would be unable to fulfill the subcontracts. In April, 1974, there was no basis on which to justify Toebe’s insecurity concerning Yeager’s ability to perform. Toebe was merely trying to fix an acceptable delivery date for the structural steel. A novation requires: (1) parties Capable of contracting; (2) a valid obligation to be displaced; (3) consent of all parties to the substitution based upon sufficient consideration; and (4) the extinction of the old obligation and the creation of a valid new one. Macklin v Brown, 111 Mich App 110, 112; 314 NW2d 538 (1981). The parties’ consent does not have to be in writing, but may be implied from the facts and circumstances of the transaction. Keppen v Rice, 257 Mich 299; 241 NW 156 (1932). The elements of a novation are met by the facts and circumstances of this case. The record provides evidence that all parties consented to the substitution of Apollo for Yeager. Sufficient consideration was furnished by the parties’ mutual agreement to discharge Yeager from its obligation to perform and to substitute Apollo in order to provide Toebe with a fixed delivery date. Early delivery dates were critical to Toebe’s profit objectives, even though they were not essential to the completion of Toebe’s contract with the state. From these facts and circumstances, we may reasonably infer that Yeager’s obligation was extinguished and replaced by an obligation to perform owed by Apollo. Even if a novation was not effectuated, the trial court clearly erred by holding Yeager liable for the increased cost of concrete between 1974 and 1975. Cement deliveries took place between June 2, 1975, and November 21, 1975. Cement is poured after structural steel is erected. Because Toebe and Yeager never agreed upon a separate delivery date and the CPN did not require structural steel delivery until December, 1974, it is reasonable to conclude that no cement would have been required until 1975. The CPN indicated that all "deck” work was scheduled for 1975. In light of this time frame, we conclude that the award for the in creased cost of concrete between 1974 and 1975 was clearly erroneous. We would also find that the award of $14,208.95 for increased resteel costs was clearly erroneous. Resteel shipments occurred between July 24, 1974, and November 21, 1974, and again between January 10, 1975, and March 3, 1975. This preceded Apollo’s actual delivery of structural steel. At most, it would be appropriate to hold Yeager liable for the 1975 resteel price increase of $1.25/cwt effective with the January 1, 1975, shipments. According to the invoices, a total of 792,515 pounds of steel was shipped between January 15, 1975, and March 3, 1975. Accordingly, approximately $9,906 in damages for increased resteel costs would be appropriate if a novation had not been effectuated. However, we find that a novation occurred, and no damages are appropriate for this project. Summary of Damages The following table presents an overview of the damages awarded by the trial court and of the revisions described in this opinion. Project Binder No. Actual Project Title & Number Award Revised Award By Court of Appeals 1 Thompson, McCulley #32 (Belleville) $ 2,010.00 $ 2,010.00 2 Middlebelt #43 (Livonia) $15,342.11 $15,342.11 3 Carlo #46 (Livonia) $ 4,597.68(1) $ 0 4 & 5 Edison-Forsberg #47 (Saginaw) $16,646.64(1) $ 0 6 Schoolcraft #49 (Livonia) $18,450.08 $ 0 7 6-8 Mile Road #46 (Livonia) $ 3,263.44 $ 3,263.44 8 Michigan Avenue $ 7,945.80 #50 (Wayne County) $ 3,299.55 9 Sibley #51 (Huron and $18,962.70 Romulus Twps) - $ 0 TOTAL $87,218.45 $23,915.10 Unexplained Increase $ 669.95 Damage award per Order of 12/17/84 $87,888.40 (1) Includes the $1,959.30 stipulated reduction for Project 3 and the $1,115 stipulated reduction for combined Projects 4 & 5. The judgment of the trial court is affirmed in part and reversed in part. The damages provisions for Project Nos. 3, 4 & 5, 6, 8, and 9 are reduced in an amount described by this opinion. No costs allowed, neither side having prevailed in full.	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Per Curiam. Plaintiff appeals as of right from a November 4, 1984, order of accelerated judgment granted under GCR 1963, 116.1(5), now MCR 2.116(C)(7). The question presented on appeal is whether actions for tortious interference with a contract are governed by the three-year period of limitation as provided under MCL 600.5805(8); MSA 27A.5805(8) or by the six-year period of limitation as provided under MCL 600.5813; MSA 27A.5813. We hold that the applicable limitation period is three years and we affirm the order of accelerated judgment entered in this case. According to the complaint, plaintiff entered into a buy-sell agreement on May 8, 1977, whereby he agreed to buy a parcel of real property owned by Jean Cope and located in Kent County. On the previous day, Cope had listed the property for sale with defendants but the listing agreement included a reservation clause which relieved Cope of the obligation to pay a commission if the property were sold to plaintiff within one week of the listing agreement. According to plaintiff, when defendant Logee was informed of the purchase agreement, she convinced Cope that the purchase price of $65,000 was inadequate, tore up the original listing agreement and substituted it with a new agreement which did not include the reservation clause. Cope then attempted to rescind the buy-sell agreement with plaintiff but plaintiff filed a suit for specific performance and the dispute was ultimately settled. Plaintiff obtained the property in February of 1978. Plaintiff filed the instant action against defendants on July 8, 1980, alleging that defendants had knowingly and wilfully interfered with his contractual relationship with Cope: (1) by criticizing the terms of the buy-sell agreement, (2) by falsely representing the value of the property, (3) by convincing Cope to cancel the buy-sell agreement, and (4) by drawing up a new listing agreement. Defendants responded with a motion for accelerated judgment based on the three-year period of limitation and the motion was eventually decided in defendants’ favor. Prior to December 20, 1982, this Court held on at least two occasions that the three-year period of limitation provided under the forerunner of MCL 600.5805(8); MSA 27A.5805(8) applied to actions for tortious interference with advantageous business relationships. See Joba Construction Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 625-626; 329 NW2d 760 (1982), and Wilkerson v Carlo, 101 Mich App 629, 634; 300 NW2d 658 (1980), lv den 411 Mich 984 (1981). In those cases, the question was whether plaintiffs cause of action truly sounded in libel or slander and the competing periods of limitation were one year, as now provided under MCL 600.5805(7); MSA 27A.5805(7), and three years, as now provided under MCL 600.5805(8); MSA 27A.5805(8). On December 20, 1982, the Supreme Court decided Citizens for Pretrial Justice v Goldfarb, 415 Mich 255, 268-270; 327 NW2d 910 (1982), where it clearly and unequivocally held that § 5805(7), now § 5805(8), of the Revised Judicature Act "applies to traditional, primarily common-law torts”. Just as clearly, the complaint filed by plaintiff in this case describes the essential elements of tortious interference with a contract and specifically names that tort as the cause of action asserted. Interference with a contract is a traditional, common-law tort. See Trepel v Pontiac Osteopathic Hospital, 135 Mich App 361, 373-375; 354 NW2d 341 (1984), lv den 422 Mich 853 (1985), and cases cited therein. Plaintiffs arguments regarding the type of damages sought is irrelevant to our consideration of the applicable limitation period. Citizens v Goldfarb, supra, p 268. We hold that the applicable period of limitation for actions for tortious interference with a contract is that provided in MCL 600.5805(8); MSA 27A.5805(8). The trial court did not err in granting defendants’ motion for accelerated judgment on this basis, since the cause of action accrued in May of 1977 and plaintiff did not file his complaint until July of 1980. Plaintiff secondly argues that, even if the three-year period of limitation applies, that period was tolled during the pendency of the arbitration proceedings before the Grand Rapids Board of Realtors. We disagree. Jurisdiction over the defendants was not "otherwise acquired”, MCL 600.5856(2); MSA 27A.5856(2), through defendants’ participation in nonjudicial proceedings before the Board of Realtors. See Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 (1984); Ray v Organization of School Administrators & Supervisors, Local 28, AFL-CIO, 141 Mich App 708, 711; 367 NW2d 438 (1985), and Varga v Heritage Hospital, 139 Mich App 358, 360; 362 NW2d 282 (1984). Moreover, defendants’ participation in the arbitration proceedings could not reasonably have induced plaintiff to forego filing his action at law. See Lothian v Detroit, 414 Mich 160, 176-177; 324 NW2d 9 (1982). Affirmed.	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Per Curiam. On September 11, 1984, defendant was convicted by a jury of inciting another to commit arson, MCL 750.157b; MSA 28.354(2), and of burning insured property, MCL 750.75; MSA 28.270. She was sentenced to five years’ probation, with the first six months to be served in the county jail, and ordered to pay a $200 fine and $1,000 in court cost. She appeals from both convic tions. We reverse her conviction of inciting another to commit arson, and affirm her conviction of burning insured property. On April 25, 1983, defendant’s home, located on Melita Road in Arenac County, was burned. An investigation by authorities revealed that the fire originated from four separate points, leading to a conclusion that the fire was intentionally set. Defendant asserted an alibi defense and presented expert testimony that a defective electrical system caused the fire. Defendant raises twelve claims of error, only four of which merit discussion. First, we reverse defendant’s conviction for inciting her son, Patrick Shelson, to commit arson because there is insufficient evidence that her statements resulted in the commission of an offense by Patrick. MCL 750.157b; MSA 28.354(2) provides: "Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted.” An accused is not subject to criminal responsibility for exhortations or utterances which do not result in the commission of the offense sought to be committed. People v Rehkopf, 422 Mich 198, 205; 370 NW2d 296 (1985). A person who merely makes statements seeking the commission of an offense may be subject to liability only for the common-law offense of solicitation. Rehkopf, supra. This recent clarification of the statute by our Supreme Court adopts a view which is contrary to that held by panels of this Court in People v Salazar, 140 Mich App 137, 143; 362 NW2d 913 (1985), and in People v Dennis, 128 Mich App 235; 340 NW2d 81 (1983), rev’d 422 Mich 966; 374 NW2d 419 (1985). In this case, defendant was bound over to circuit court on a charge of inciting her son to commit arson based upon her son’s testimony and upon evidence that the fire had been intentionally set. Patrick testified that defendant has asked him to burn the house down for her "a couple hundred thousand time at least in the past five years”, making the request "at least three times a week”. According to Patrick, she was unhappy about the high electric bills which ran approximately $250-$300 per month, the breakdown of the furnace, and other system failures. Patrick heard defendant make the same request to his three other brothers and two sisters. No one took defendant’s statements seriously. They simply discounted her remarks, even though she had offered Patrick money to burn the house. According to Patrick, two weeks before the fire, defendant had stated that she would buy him and his sister a car if she received any money from the insurance company. Patrick testified that he absolutely refused to have anything to do with such a scheme because it was a stupid idea. At the time of the fire, Patrick was not living in the home. He had removed several household appliances at his mother’s request one week before the fire. There is no evidence that Patrick actually burned the home. It appears from the record that, after being questioned by authorities, he was not a suspect; At trial, Detective Draper testified that he believed Patrick had nothing to do with the burning. There is no evidence that defendant’s constant wish that the house would burn, a wish she communicated to all of her children, resulted in the commission of arson. Thus, under Rehkopf, supra, we reverse her conviction. Further, defendant’s remarks to her children did not urge the type of immediate or imminent action which is required to support a conviction. See, People v Chapman, 80 Mich App 583, 588; 264 NW2d 69 (1978). Defendant next contends that the trial court erred when it concluded, after a Walker hearing, that her post-polygraph confession was voluntary. Approximately a month or more before submitting to the polygraph test, defendant discussed the advisability of taking the test with Jack W. Scully, an attorney who had represented her in a divorce action. Defendant had stopped by Scully’s office to make a payment on her outstanding account, and brought the matter up. Scully was a prosecuting attorney, in addition to his private practice, a fact of which defendant was aware. At the Walker hearing, Scully testified that he had told defendant, "Mrs. Shelson, if you didn’t do this you probably have nothing to lose by taking it [the polygraph test]”. Scully testified that he did not represent her at the time this conversation occurred. In contrast, defendant testified that Scully "just indicated that if I didn’t do it to take the test”. A trial court’s ruling on the voluntariness of a confession or statement is reviewed by the standard described in People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972): "The determination of voluntariness is a matter of fact — the ruling of law on the authority of the cases cited is that voluntary statements etc. are admissible and involuntary statements etc. are not. "In any event the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. The role of reviewing court is accurately stated in People v Summers, 15 Mich App 346, 348 (1968): " 'On this appeal we are required to "examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v North Carolina (1966), 384 US 737, 741, 742 (86 S Ct 1761, 1764, 16 L Ed 2d 895, 898).’ ” We must affirm the trial court’s findings unless we are left with a firm and definite conviction that a mistake has been made. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). Defendant argues that her statements were involuntary, because they were induced by the misleading and ineffective advice of her attorney Scully. There was conflicting evidence at the Walker hearing as to whether Scully was acting as defendant’s attorney and whether he actually advised her to take the test. Where the evidence is conflicting, and the determination of voluntariness largely depends upon credibility, we defer to the findings of the lower court since it is in a better position to evaluate credibility. People v Smith, 124 Mich App 723, 725; 335 NW2d 137 (1983). The trial court gave greater weight to Scully’s testimony and concluded that he did not advise defendant to take the polygraph test. We are not left with a firm and definite conviction that a mistake has been made. Defendant next argues that her statements were involuntary because they were induced by a promise of leniency, i.e., probation, offered by Officer Draper. It is improper to induce a confession by a promise of leniency. People v Conte, 421 Mich 704; 365 NW2d 648 (1984). At trial, defendant testified that Officer Draper had promised her probation if she would confess, but that point was not pursued by her attorney or rebutted by the prosecution, and no such evidence was presented at the Walker hearing. Thus we find no error in the trial court’s finding of voluntariness. Defendant also contends that her statements were involuntary because they were induced by Detective Lowthian’s statement that she could not give money and keys to her son Patrick, who was meeting with other detectives. At the Walker hearing, defendant testified that the statement caused her to worry about Patrick. Defendant apparently inferred from the statement that Patrick was detained for the purpose of arrest. After reviewing the relevant factors used to determine voluntariness, such as the duration and conditions of detention, the attitude of the police towards the accused, the physical and mental state of the accused, and the diverse pressures which sapped or sustained the accused’s powers of resistance or self-control, we conclude that defendant’s statements were voluntary. See People v Allen, 8 Mich App 408, 412; 154 NW2d 570 (1967). She was not questioned for an inordinately long period of time and she felt that the officers treated her courteously. At the Walker hearing, she testified that her Miranda rights were read to her, that she had waived them, and had voluntarily given a statement. We find no error. In her third claim of error, defendant argues that it was against public policy, as embodied in MCL 776.14; MSA 28.1271, for Scully to advise her to take the polygraph test and then to prosecute her. We are not persuaded by the claim. As noted earlier, the trial court properly concluded that Scully did not act as her attorney and did not advise her to take the test. Defendant delayed more than a month before taking the test and had an opportunity to consult other counsel but did not do so. As a fourth claim of error, defendant argues that the eight-month delay between the fire and her arrest deprived her of an opportunity to establish an adequate defense because her alibi witness, a boyfriend named Orville, died in that intervening period. She further argues that an investigation of the fire scene for defense purposes was impaired by the delay. In People v Bisard, 114 Mich App 784, 791; 319 NW2d 670 (1982), this Court reevaluated the prevailing test of prejudicial delay described by People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968), in light of subsequent federal decisions, and adopted a balancing test: "Accordingly, we hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end.” See, also, People v Vargo, 139 Mich App 573, 579; 362 NW2d 840 (1984). Defendant made a pretrial motion to dismiss, raising these grounds. After a hearing, the trial court denied the motion, finding an absence of negligence or intentional delay on the part of the police. We find no prejudice resulting from the unavailability of her alibi witness Orville, since her whereabouts at the time of the fire was not material. The people’s theory of the case was not that defendant had burned her home, but that she had incited another to burn it for her. Moreover, several witnesses, including her son, daughter and brother, were able to testify about the sentimental attachment defendant had to the personal and household items destroyed by the fire. Orville’s testimony would only have been cumulative on this point. Defendant may have shown prejudice by the effect the delay had on her efforts to investigate the fire scene. Defendant’s investigator inspected the site on March 10, 1984, almost one year after the fire, but only four months after defendant had been charged in December of 1984. At trial, the fire investigator for defendant’s insurance company testified that he did not take any samples from the site because tests performed on those samples would not be accurate in light of their exposure to the elements. Assuming arguendo that defendant has shown prejudice, the people have satisfied the burden of persuasion that the delay was not deliberately intended to prejudice her. We affirm the trial court’s denial of the motion to dismiss. We have reviewed the remaining allegations of error and find them to be without merit. Affirmed in part and reversed in part. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).	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Per Curiam. Does § 1612 of 1982 PA 333, MCL 380.1612; MSA 15.41612, empower a township, by adopting a resolution prior to January 1, 1983, to establish itself as the exclusive collection agent for a school district’s summer taxes? The trial court answered this question "No”. Defendants claim the answer should be "Yes” and appeal as of right. What constitutes "negotiate” as that term is used in § 1613 of the same statute? The trial court held that plaintiffs had negotiated in good faith with defendant township as required by § 1613(1). Defendants claim the negotiations were insufficient and appeal as of right. The above questions come to us on plaintiffs’ complaint filed June 28, 1984. Plaintiffs allege that in 1983, each of the three plaintiff school districts resolved separately to impose a summer property tax levy in Raisin Township in 1984 and subsequent years. Prior to January 1, 1984, each plaintiff requested Raisin Township to collect their 1984 summer taxes. Plaintiffs further allege:_ "30. Pursuant to the provisions of MCLA 380.1613(1); MSA 15.41613(1), Plaintiffs proceeded to negotiate with Raisin Township with respect to the reasonable expenses for collection of the Plaintiffs’ 1984 summer property tax levy that the Township might bill under MCLA 380.1612; MSA 15.41612. "31. Despite continued negotiations with Raisin Township, no agreement was reached with respect to the reasonable expenses for collection of Plaintiffs’ 1984 summer, property tax levy that Raisin Township could bill under MCLA 380.1612; MSA 15.41612 for the reason that the Township demanded in excess of $3.76 per parcel for the service.” According to plaintiffs, they next proceeded under § 1613(2) to negotiate with the Lenawee County Treasurer. Plaintiffs alleged that the county treasurer agreed to collect their summer taxes for $2.45 per parcel. It appears that, in reality, the county treasurer agreed to collect the taxes for a flat fee, each school district agreeing, to pay part of the total fee. Plaintiffs alleged that on April 5, 1984, they notified Raisin Township of this agreement, giving Raisin Township its statutory right to agree to collect the summer taxes for reasonable expenses not to exceed the amount agreed upon with the county treasurer. Defendant Louis Rebottaro (Supervisor and Assessing Officer of Raisin Township) advised plaintiffs that Raisin Township regarded itself as the only entity entitled to collect the summer taxes, based on a resolution passed by the township board on December 30, 1982, in conformity with § 1612, and advised plaintiffs that legal action would be taken if the county treasurer attempted to collect the taxes. Rebottaro estimated the collection cost would be approximately $3.17 per parcel, having reduced his initial estimate. Plaintiffs further alleged that defendants re fused to give them certified copies of the township assessment rolls despite proper requests under § 1613. As a result, plaintiffs alleged that the county equalization director would not prepare summer tax bills and the county treasurer was unable to collect summer taxes in Raisin Township. Plaintiffs’ complaint had four counts. Count I sought mandamus to compel Rebottaro to deliver a certified copy of the assessment roll to plaintiffs. Count II sought the assessment roll under the Freedom of Information Act. Count III sought a return of funds paid to the county for improvement of the county’s computer system to permit collection of summer taxes, on the theory that the computer was not then being used for that purpose. Count IV sought to enjoin Rebottaro from sending summer tax bills, allowing Raisin Township to collect the taxes. Following the grant of plaintiffs’ motion to show cause, the trial court heard arguments on July 2, 1984. Upon realizing that the summer tax billings were already more than a week late and that the summer docket was overcrowded, the trial court and all counsel agreed to permit the county to collect the 1984 summer taxes pending the trial court’s decision, at which time damages to any party flowing from the agreement with the county could be determined. The township’s agreement was described as reluctant. Arguments were again heard on October 1, 1984. At that time, counsel for the township asserted that the county treasurer’s bid was inadequate, failing to take into account overhead and the cost of sending deferred statements in the fall. As a result, these indirect costs were borne by taxpayers throughout the county rather than just those within the school district. Defendants also alluded to the existence of a contract between Lenawee County and Raisin Township in which the county agreed not to collect local taxes. If the trial court found that Raisin Township was not the exclusive collection agent by virtue of its December 20, 1982, resolution, defendants asked to amend their pleadings to set forth these claims and an additional claim alleging negotiations in bad faith by plaintiffs. The trial court issued an opinion on November 28, 1984. After analyzing the legislative history of §§ 1612 and 1613, the court found that the Legislature intended (1) to remedy serious cash flow problems of school districts operating by law on a fiscal year basis not corresponding with usual tax collection times, (2) to provide an orderly, cost-effective method of collecting summer property taxes, and (3) to protect small cities and townships from an undue burden for the cost of collecting taxes at times other than the normal tax collection dates. The trial court found that the Legislature did not intend to secure for townships the absolute right to collect summer taxes but, rather intended that townships not be compelled to collect school taxes but be allowed to do so if the costs were not a burden. To ensure that the costs of collection were not an undue burden upon the school districts, the Legislature gave the districts the opportunity to find other sources of collection at more advantageous rates. The trial court entered an order on February 19, 1985, approving collection of plaintiffs’ summer taxes by the Lenawee County Treasurer. Judgment was entered on March 14, 1985, providing that Raisin Township was not the sole collection agent for summer property taxes, despite its December 30, 1982, resolution; approving plaintiffs’ contract with the Lenawee County Treasurer, find ing that the negotiations between plaintiffs and defendants complied with §§ 1612 and 1613; and dismissing the suit as to the county equalization director, county treasurer, and Count II of plaintiffs’ complaint, without prejudice. Defendants appeal from this judgment as of right. The central issue raised on appeal is whether a township may establish itself as the exclusive summer tax collection agent of school taxes by the simple device of adopting a township board resolution prior to January 1, 1983, approving summer tax collection of school taxes. The Raisin Township Board adopted such a resolution on December 30, 1982. Relying mainly on the following emphasized language at the beginning of § 1612, and the legislative history of §§ 1612 and 1613, defendants argue that two mechanisms are available to permit summer tax collection by a township. The first is formal approval of summer tax collection adopted by a township board before January 1, 1983. Adoption of such a resolution, as was enacted in the instant case, preserves a township’s status as exclusive tax collecting agent. The second alternative (not in issue here) is with regard to townships which did not give approval before January 1, 1983, but which elect to collect summer taxes. "(1) Upon the approval of a township board before January 1, 1983, the board of a school district or intermediate school district may certify either the total or Vi of the levy of school property taxes on the township portion of the school district or intermediate school district. If certiñed, or if approval of the township board is not given before January 1, 1983 and pursuant to section 1613 a township elects or agrees to collect either the total or Vi of the total school taxes of a school district or intermediate school district located in the township, the township supervisor before June 30 of each year shall prepare the assessment and tax rolls and furnish these rolls to each affected township treasurer with the supervisor’s collection warrant attached thereto.” (Emphasis added.) MCL 380.1612(1); MSA 15.41612(1). Plaintiffs rely on the legislative history of §§ 1612 and 1613 for a contrary interpretation. According to plaintiffs, the Legislature went to considerable lengths to establish a negotiated summer tax collection so that school districts might have not only the benefit of summer collections but also have the benefit of more efficient collection methods from the county. Under plaintiffs’ interpretation, school districts should not be required to pay a township’s actual collection expenses if summer tax collections can be more economically done by the county treasurer or by the school district itself. In Harper Creek School Dist v LeRoy Twp, 146 Mich App 515; 382 NW2d 172 (1985), an opinion released after briefs were filed in the instant case, this Court was presented with an issue identical to that raised here. Addressing whether townships could become the exclusive summer tax collection agents by adopting a resolution approving summer tax collection prior to January 1, 1983, this Court found that they could not. Three reasons were offered. First, the primary purpose of the amendment was to eliminate the veto which townships had on summer tax collection: "If, a rural township, by so simple a device as the adoption of a resolution in the two week period between the adoption of the act and January 1, 1983, could remain the exclusive tax collection agency, the main purpose for the bill’s enactment would be thwarted. Certainly, that was not what the Legislature intended. "Second, there is no language in the statute which states that the township or city would retain its status as exclusive agent for tax collection. Surely, if that were the legislative intention, language to such effect would be included. However, no language either directly or indirectly, so states. "Third, neither the House nor Senate bill analysis interpret the statute as finally enacted as granting a township or city exclusive tax collection status. In our opinion § 1612 and § 1613 should be read together. Section 1613 provides for delineated procedures for the summer tax collection by the school board. Sections 1612 and 1611 provide for summer school tax collection by a school district if approved by the city or township before January 1, 1983, and also provide for tax collection if approval is not given prior to January 1, 1983, and, if pursuant to § 1613, a city or township agrees to collect the summer taxes. Accordingly, we find that the trial court did not err on this issue.” Harper Creek, supra, pp 549-550. We agree with Harper Creek. Standing alone, § 1612, particularly its emphasized language above, is confusing. Where an ambiguity exists, legislative intent must be looked to. Treasury Dep’t v Campbell, 107 Mich App 561, 568; 309 NW2d 668 (1981), lv den 413 Mich 935 (1982). The history of the bill, particularly in the Senate, where major modifications were adopted and eventually approved by the House, clearly evidences a legislative intent to ensure cost-effective summer tax collection. For this reason, negotiation requirements were added and the townships were given reconsideration rights limited by the costs school districts negotiated with others. It makes no sense for the Legislature to enact a scheme whereby school districts can negotiate for the best possible price, if that scheme can be circumvented by a one sentence resolution passed before January 1, 1983. While the townships can only bill "reasonable” collection costs, that will not always be the same as the best available price, as for example where a county treasurer is geared to do a more efficient job during the summer. A reasonable construction must be given to statutory language of doubtful meaning, looking to the purpose served. Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948). Construction of the statute to allow yearly negotiations of collection expenses (conduct prohibited under defendant’s interpretation) best effectuates the legislative intent as reflected by the Senate amendments. As summarized by the trial court: "As can be seen, the amendments did not compel the township to collect taxes at a price they could not afford. Neither did the amendment require the school district to pay a higher price for the collection of its taxes than could be obtained elsewhere.” For the foregoing reasons we conclude that the proper answer to the first question raised in the opening sentence of this opinion is "No”. The second question raised is one of first impression and concerns the meaning of the word "negotiate” as it twice appears in the following emphasized language of § 1613(1) and 1613(2). "Sec 1613(1) By adoption of a resolution of its board before February 1, 1983, or before January 1 in any year thereafter, a school district or intermediate school district may determine to impose a summer property tax levy, which resolution by its terms may be applicable until revoked by the board of the school district or intermediate school district or for levies in any year specified therein. For each year such a resolution applies the school district or intermediate school district that has adopted the resolution shall request, before February 1, 1983 or before January 1 in any year thereafter, each city and township in which it is located to agree to collect the summer levy in that year of either the total or V2, as specified in the resolution of the school property taxes. * * * Upon receipt of the request, the governing body of the city or township shall negotiate the reasonable expenses for collection of the school district’s or intermediate school district’s summer property tax levy that the city or township may bill under section 1611 or 1612. If a city or township and the school district or intermediate school district reach an agreement within 30 days of the receipt of the district’s request for the collection of the district’s summer property tax levy, including an agreement to the amount of reasonable expenses that the city or township may bill under section 1611 or 1612, section 1611 shall govern the other terms of a city’s agreement and section 1612 shall govern the other terms of a township’s agreement. "(2) If a city or township and the school district or intermediate school district fail to reach an agreement pursuant to subsection (1) for the collection of the summer property tax levy of a school district or intermediate school district subject to subsection (3), the school district or intermediate school district then may negotiate, until April 1, a proposed agreement with the county treasurer to collect its summer property tax levy as against property located in that city or township. If a proposed agreement with the county treasurer has not been reached by April 1, the school district or intermediate school district may determine to serve as the property tax collecting unit and collect its own property tax levy against property in that city or township.” (Emphasis added.) Defendants contend that plaintiff school districts did no more than obtain a quick quote following "a one-shop meeting with the township presenting its estimated actual costs” of $3.76 per parcel. Having obtained this figure plaintiffs conducted no further negotiations with the township. According to defendants this was not the "continued negotiations” which defendants claim is required under the statute. Defendants further contend that plaintiffs’ alleged negotiations were in bad faith. In rebuttal, plaintiffs argue that the issue was not properly preserved since defendants’ answer to plaintiffs’ complaint admitted "negotiations” took place. As noted earlier, the trial court held that plaintiffs had negotiated in good faith. The issue of good faith and the extent of bargaining mandated by the term "negotiate” as it twice appears in § 1613 was not raised until well after the 1984 summer school taxes were collected. Thus, the issue is tardily raised. Further, assuming, arguendo, that error occurred, no evidence of how defendant township may have been damaged was presented. Consequently, remand for a hearing on how defendant township was damaged is denied. Further, we are unable to find evidence that plaintiffs acted in bad faith. After being informed by township representatives that the cost of collection was $3.76 per parcel, plaintiffs consulted with the treasurer of Lenawee County who stated collection could be made by the county for $2.45 per parcel. Plaintiffs then went back to Raisin Township, informing it of this fact, whereupon the township, instead of continuing the dialogue, responded that the issue was closed because the township by its resolution on December 30, 1982, had established itself as the exclusive collection agent for summer taxes. Given these circumstances, we are not persuaded that the trial court erred in ruling that plaintiffs had negotiated in good faith. Nevertheless, we believe that there is merit in defendant’s claim that "negotiate” requires more than the abbreviated exchange of collection costs per parcel, that occurred here. Section 1613(1) states that a township and school district "shall negotiate” without specifying how extensive nego tiations should be, except that 30 days are allowed after the school district’s request to collect taxes, which must be made before January 1 of any year. Section 1613(2) suggests that negotiations with the county treasurer should not be undertaken until the township and school district fail to agree. These negotiations are not to continue after April 1, at which point the school district can decide to collect on its own and the township may exercise its option to collect on those terms. The negotiations here seem to fall short of these standards. It appears that plaintiffs took a quote from defendants, and then went directly from that to negotiating with the county treasurer. We opine that something more than this is required if the purpose of the amendments made by the Senate and accepted by the House is to be fulfilled. While we find the omission not fatal or requiring reversal in the instant case, we strongly suggest that, in future proceedings under the statute, more extended and serious negotiations should take place. Affirmed. No costs, a question of public importance being involved.	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Per Curiam. In this no-fault action the trial court granted summary judgment in defendants’ favor, GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10), having concluded that plaintiff Roy Clark did not suffer a serious impairment of a body function and that plaintiff could not recover for loss of earning capacity without meeting that no-fault threshold, MCL 500.3135; MSA 24.13135. Plaintiffs appeal as of right and we affirm. The trial court also permitted plaintiff to amend the complaint to seek excess work loss, MCL 500.3135(2)(c); MSA 24.13135(2)(c), concluding that such damages may be recovered without meeting the no-fault threshold. Defendants cross-appeal from that determination and we affirm. Plaintiff was injured when his automobile was struck from the rear by a pickup truck owned by defendant Carol Brewer and driven by defendant Karl Brewer. Plaintiff claimed that the impact propelled him into the ceiling of his car, knocked his front seat into a reclining position and forced his car halfway down the next block. Defendant Karl Brewer described a much different accident; one so trifling that plaintiffs car was moved barely two feet and no one was thrown about in the car. Following the accident, plaintiff drove home and was driven to his family doctor by his wife. The doctor prescribed a muscle relaxant in response to plaintiffs complaints of head pain. Four days later, plaintiff consulted Dr. McCanse, a chiropractor. Dr. McCanse found a misalignment of the spine which he opined could have been caused or aggravated by the accident. (Plaintiff had suffered a back injury in 1959 for which he received chiropractic treatment.) Plaintiff continued treating with Dr. McCanse until just prior to trial in November, 1984. In June, 1982, Dr. Harshard Doshi, M.D., examined the plaintiff at the request of plaintiffs first-party insurer. The doctor found no muscle spasm and X-rays were normal. The plaintiff could perform all flexibility tests. Dr. Doshi concluded that plaintiff suffered from a stiff neck but could do any type of work. In July, 1982, Dr. Edward Westerbeke, M.D., examined the plaintiff. He found lower spine movement or flexibility at 50% of normal and opined that plaintiff probably suffered from a pinched nerve causing a sensory deficit in his ankle. Dr. Westerbeke also found some muscle spasm in the lower spine. These conditions were also diagnosed as being temporary and as disabling plaintiff from working in a body shop as he had done up to three months prior to the accident. In November, 1982, plaintiff was examined by Dr. Earl Heller, M.D., again at the request of plaintiffs first-party insurer. Dr. Heller found no spasm, tenderness or wasting of the muscles. Leg-raising tests were negative and X-rays were normal. Plaintiff had no difficulty walking or lifting himself onto the examining table. Dr. Heller concluded that plaintiff was suffering from a strain of his neck, cervical spine or lower back. The prognosis was that the condition would improve with time and the doctor believed that plaintiff could work. In April, 1983, plaintiff was seen by Dr. K. S. J. Murkowski, a chiropractor, who conducted a thermographic evaluation revealing dermatomal problems in plaintiff’s spine. Palpation resulted in reports of tenderness in the back and neck. The doctor concluded that plaintiff suffered from spinal rotation, vertebral rotation and disc wedging. In May, 1984, another thermogram was taken; this one by Dr. Richard Huff, D.O. The thermogram revealed no dermatomal problem in the upper body but did disclose some muscle irritation. Although dermatomal involvement was found in the lower spine, the doctor did not believe that this would impair plaintiffs ability to function in any significant manner. In October, 1984, Dr. Westerbeke found arthritis in plaintiffs neck. Prior to trial, defendants moved for summary judgment under GCR 1963, 117.2(3) now MCR 2.116(C)(10), contending that plaintiff had not suffered the serious impairment of body function which would serve as the threshold requirement for suing in tort under MCL 500.3135(1); MSA 24.13135(1). The trial court granted partial summary judgment on plaintiffs noneconomic claim, finding no dispute as to the nature and extent of the injury and that, as a matter of law, it failed to meet the threshold requirement. Later, defendants’ further motion for summary judgment based on GCR 1963, 117.2(1), now MCR 2.116(C)(8), was heard. Defendants claimed that plaintiff had failed to state a claim upon which relief could be granted because he sought damages for a loss of future earning capacity instead of the work-loss damages allowed by MCL 500.3135; MSA 24.13135. The trial court ruled that lost earning capacity may not be recovered in the tort action unless the plaintiff first meets the threshold requirement and, therefore, granted defendants’ motion. The trial court, however, allowed plaintiff to amend the complaint to allege damages for work loss instead of lost future earning capacity. Trial was then adjourned pending resolution of this appeal and cross-appeal. I The first issue is whether the trial court erred in granting partial summary judgment in favor of defendants on the ground that plaintiff’s injuries did not constitute a serious impairment of body function. Since the Michigan Supreme Court’s decision in Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), this Court and trial courts throughout the state have repeatedly grappled with the task of applying Cassidy’s general legal precepts to those specific and endlessly varied factual settings in which actual cases arise. In Cassidy v McGovern, supra, the Supreme Court held that, where there is no material factual dispute regarding the nature and extent of the plaintiff’s injuries, the existence of a serious impairment of a body function is a question of law to be decided by the court. In Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984), this Court suggested a three-step analysis to assist trial judges in making the legal determination of whether injuries constitute a serious impairment of a body function: "First, 'impairment of body function’ actually means 'impairment of important body functions’. Cassidy v McGovern, 415 Mich 504. Second, by its own terms, the statute requires that any impairment be 'serious’. MCL 500.3135(1); MSA 24.13135(1); McKendrick v Petrucci, 71 Mich App 200, 210; 247 NW2d 349 (1976). Third, the section applies only to 'objectively manifested injuries’. Cassidy v McGovern, 415 Mich 505.” (Emphasis omitted.) We agree with the trial court’s finding in this case that there is no material dispute as to the nature and extent of plaintiffs injuries. Although the parties of course disagree about the plaintiffs injuries and their effect upon him, the resolution of that disagreement would not be material in deciding the threshold question. In short, looking at the evidence in the light most favorable to the nonmoving parties, the moving parties are entitled to the legal finding they seek. See Franz v Woods, 145 Mich App 169, 172-173; 377 NW2d 373 (1985). In the present case, consideration of the second Williams factor is dispositive on the threshold question, i.e., the trial court correctly concluded that the injury was not "serious”. Whether an injury is serious must be considered in light of the other two alternative thresholds established in the no-fault act, i.e., death and permanent serious disfigurement. Cassidy v McGovern, supra, p 503. The plaintiff here complained of pain in his neck and lower back, which made doing household chores such as raking leaves difficult. He was able to walk, drive a car, visit friends and take care of himself while his wife was at work. Drs. Heller, Doshi and Westerbeke found that the plaintiff was able to work. Dr. Huff testified that plaintiff’s injuries were not impairing his ability to function in any significant manner. Plaintiff’s injuries consisted of soreness, stiffness, tenderness in the muscles, and pain in his back and leg. Flexibility in the spine area was only 50% at one time, however, plaintiff was able to perform leg raising and other flexibility tests. We have previously held that muscle spasms, tenderness and limited flexibility do not rise to the level of a "serious” impairment of a body function. Flemings v Jenkins, 138 Mich App 788; 360 NW2d 298 (1984). Our review of the lower court record satisfies us that the trial judge did not err in concluding that plaintiff did not suffer a serious impairment of a body function. II The second issue is whether the trial court erred in granting summary judgment in favor of defendants on the ground that loss of earning capacity is a noneconomic loss recoverable only if the tort threshold is met. In Ouellette v Kenealy, 424 Mich 83; 378 NW2d 470 (1985), the Supreme Court held that damages for loss of earning capacity are not recoverable at all under the no-fault act. Accordingly, the trial court, without the benefit of Ouellette, reached the correct result. III The third issue is whether plaintiff may recover economic loss damages for a period in excess of the three-year limitation contained in MCL 500.3107(b);. MSA 24.13107(b) even though plaintiff has not suffered a serious impairment of a body function. The trial court ruled that plaintiff may seek such excess economic loss damages without meeting the tort threshold. Most importantly, this ruling permits recovery of work-loss benefits for a period beyond three years. By way of cross-appeal, defendants argue that only excess economic loss accruing within three years of the accident is recoverable in this action. In Cochran v Myers, 146 Mich App 729; 381 NW2d 800 (1985), this Court rejected defendant’s assertion and held: (1) that work-loss benefits were recoverable for a period beyond three years, and (2) that such recovery does not require proof of death, serious impairment of a body function or serious permanent disfigurement. Recognizing that the Supreme Court in Ouellette, supra, p 88, declined to address "the applicable limitations period for recovery of excess work loss”, we elect to follow Cochran, supra. The trial court’s decision was therefore proper. Affirmed. No costs, neither party having prevailed in full.	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Per Curiam:. Following a bench trial in Detroit Recorder’s Court on October 31, 1984, defendant was convicted of breaking and entering an occupied dwelling with intent to commit unarmed robbery and criminal sexual conduct, MCL 750.110; MSA 28.305, unarmed robbery, MCL 750.530; MSA 28.798, and first-degree criminal sexual conduct, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). Defendant was sentenced on November 13, 1984, to a term of from 10 to 15 years for breaking and entering, from 10 to 15 years for unarmed robbery, and from 66 to 99 years for first-degree criminal sexual conduct. He now appeals. A recitation of the facts adduced at trial is instructive: Mary Dzik, a seventy-four-year-old single woman, testified that she was living alone in her home in Detroit on the evening of March 26, 1984. At about 11:00 p.m. that evening, she was awakened by the the barking of her dog. A man, the defendant, was standing on her front porch. He demanded to be let into the house. She refused to let him in, saying that she would call her husband if he did not leave. He replied that he knew she lived alone. She then went to her telephone to call the police, but the telephone was dead. It was later discovered that the telephone lines to her house had been cut. While Ms. Dzik went to her telephone, defendant began breaking the glass on her front door. He eventually broke through the first door and crawled between security bars to get to a second door. As Ms. Dzik attempted to hold the second door, defendant kicked at it until the door frame gave way. When defendant entered the victim’s home, he hit her on both sides of her face, knocking her to the floor. He then demanded all of her money. When she gave him her money, he began ripping at her underclothing. Defendant then took off his clothes, shoved Ms. Dzik onto a bed and pushed his penis into her vagina. The police arrived on the scene at about the same time. When the police entered the home, they found the front door kicked in and clothes lying about the floor. Defendant was found hiding under a bed, wearing only a pair of blue undershorts. Defendant testified that he did not commit any of the crimes of which he was convicted. Instead, defendant claimed that he had been minding his own business that evening, drinking wine and sharing some heroin with his friends. He further testified that he went to a store later in the evening to get another bottle of wine. There, according to defendant, he was seized by the police, taken to Ms. Dzik’s home and forced to lie on the kitchen floor, where the police then beat him into unconsciousness with their flashlights. Defendant raises two issues: (1) whether the trial court violated the state and federal constitutional prohibitions against double jeopardy by convicting and sentencing him on both the compound crime of first-degree criminal sexual conduct and the predicate crimes of breaking and entering an occupied dwelling and unarmed robbery; and (2) whether the trial court abused its discretion in sentencing defendant to a term of from 66 to 99 years for first-degree criminal sexual conduct when the guidelines specified from 10 to 20 years for the offense. Addressing defendant’s first issue, the court based the criminal sexual conduct conviction on the compound provisions of MCL 750.520b(1)(c); MSA 28.788(2)(1)(c) and the predicate crimes of unarmed robbery and breaking and entering. Defendant argues that the constitutional prohibition against double jeopardy precludes his conviction on both the compound crime of first-degree criminal sexual conduct and the predicate crimes of unarmed robbery or breaking and entering. This very issue has recently been determined by the Michigan Supreme Court against defendant’s position. People v Robideau, 419 Mich 458, 485, 487-489; 355 NW2d 592 (1984). We find no error as to this issue. We also note that, in this case, an independent ground exists for finding defendant guilty of first-degree criminal sexual conduct, which is causing personal injury to the victim and use of force or coercion to accomplish sexual penetration. MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). Turning to defendant’s second issue, we note first that it is within a sentencing court’s discretion to go outside the guidelines where (1) due to special circumstances or characteristics of a defendant, justice requires a sentence different than the one provided, or (2) regardless of special characteristics, the court feels that the sentencing range is inappropriate. People v McLeod, 143 Mich App 262; 372 NW2d 526 (1985). The discretionary power of a trial court is a necessary corollary to the principle that sentencing must be individualized and tailored to the particular circumstances of the case and the offender at the time of sentencing. People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980). Here, defendant diliberately chose an elderly, single woman as his victim, then cut the telephone wires of her home. He then proceeded to kick at her door until it ultimately gave way, even as she struggled to hold the door against him. When he gained entry, defendant struck the victim, knocking her to the floor, even before he demanded her money. He then took all of her money and proceeded to rape her. Defendant’s crimes were only interrupted by the arrival of the police on the scene. The record reflects that the judge’s sentencing decision was also based on the defendant’s unrepentant arrogance and lying in court. When the crime itself is this shocking, it is difficult to imagine a sentence which would shock the conscience of this court. People v Coles, 417 Mich 523, 550-551; 339 NW2d 440 (1983). This sentence certainly does not. Affirmed.	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Per Curiam. Ford Motor Credit Company sued the defendant, Traffic Transport Engineering, Inc., after a deficiency resulted from the sale of collateral that secured several loans which the defendant had contractually guaranteed. The collateral was sold pursuant to an order of the United States Bankruptcy Court after the original debtor’s bankruptcy. Following a jury trial in Wayne County Circuit Court, a verdict was returned in favor of Ford Credit for $152,929.26, representing the amount of the unpaid balance due on the loans guaranteed by defendant. The jury rejected Ford Credit’s claim for earned but unpaid finance charges that had accrued on the unpaid balance from the time of the default by the original debtor to the commencement of the suit seeking to collect the deficiency. Defendant now appeals as of right, challenging a ruling by the trial court which prevented it from inquiring into the commercial reasonableness of the sales of the collateral and challenging the trial court’s exclusion of evidence of Ford Credit’s failure to seek relief from the automatic stay in a timely manner in order to comply with the tender requirements of the repurchase agreements, which formed the basis of defendant’s guarantee obliga tions. Ford Credit has filed a cross-appeal claiming that the trial court erred in failing to direct a verdict in its favor concerning its claim for earned but unpaid finance charges. Defendant first asserts that the trial court erred in ruling that under MCL 440.9507(2); MSA 19.9507(2) the defendant could not collaterally attack in state court the commercial reasonableness of the sales of the trailers that were made under the authority of the United States Bankruptcy Court. At trial, when defendant attempted to inquire into the method used by the trustee and Ford Credit to sell the trailers, the court ruled, based on §9507(2), that such inquiries were improper because all sales had been made pursuant to the authority of the United States Bankruptcy Court and were thereby conclusively presumed to be commercially reasonable and free from collateral attack. Further, the trial court instructed the jury that the sales of the trailers was not a subject for their consideration and that they were only to determine the amount of any deficiency to which Ford Credit was entitled if they found that defendant had breached its contractual obligations. Both parties to this appeal believe that the resolution of this issue turns on the proper application of § 9507(2). Section 9507(2) provides in part: "A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.” Initially we note that it could be argued that the provisions of the Uniform Commercial Code do not apply to the facts of this case. Section 9507 specifically refers to the sale of repossessed collateral by the secured party. See 7 ALR4th 308. The sales in the present case were not made by the secured party, Ford Credit, but by the trustee in bankruptcy, with Ford Credit acting as the trustee’s agent. Since the sales that the defendant complains of were made by the trustee, the defendant’s real dispute is with the trustee and not Ford Credit. Thus, the defense that the sales were not commercially reasonable was not properly asserted against Ford Credit. However, even if not directly applicable, we find that the conclusive presumption contained in 9507(2) is instructive to the resolution of this case. The conclusive presumption of reasonableness which attaches to judicially-approved sales was intended to further the general intent behind Article 9 of the Uniform Commerical Code, which attempts to impede the dishonest disposition of collateral without overly restricting honest transactions with unnecessarily cumbersome procedures. Bryant v American National Bank & Trust Co of Chicago, 407 F Supp 360 (ND Ill, 1976). If the judicial approval of a sale emanates from a full and fair hearing, the court which collaterally reviews the dispositions’ reasonableness should not attempt to further investigate the individual aspects of the sale. Section 9507(2) assumes that when there has been such a hearing all interests have had an opportunity to comment upon the arrangement for disposition of the collateral and that it is therefore reasonable to give such a sale a conclusive presumption of commercial reasonableness. In the present case, the subject trailers were sold pursuant to a plan developed by Ford Credit, agreed to and supervised by the bankruptcy trustee and authorized by the United States Bankruptcy Court. Notwithstanding Ford Credit’s power to negotiate sales for the trustee, all the sales were subject to the guidelines and procedural rules laid down by the trustee. Defendant was a party to the bankruptcy proceedings and should have challenged the sales during those proceedings if it felt that they were irregular. Therefore, we hold that the trial court was correct in ruling that the defendant could not collaterally attack the commercial reasonableness of the sales. The defendant next claims that the trial court erred by excluding evidence that Ford Credit did not comply with the terms of the repurchase agreements by failing to make a timely tender of the trailers. We do not agree. Under the terms of the repurchase agreements entered into by the parties, the defendant’s obligation to repurchase the trailers, in the event of default by the original debtor, was subject to Ford Credit’s tendering: (1) good title, (2) the trailer, and (3) the contract covering the trailer. At trial, when defendant initially attempted to inquire into why Ford Credit had not attempted to obtain an order modifying the automatic stay in bankruptcy to tender the trailers earlier than it did, the court ruled that such questions were irrelevant. Defendant argues that such evidence was relevant and should have been admitted. The problem with the defendant’s argument is that it is not fully supported by the record. The ruling which defendant refers to was made early in the proceedings. However, later in the trial, the court did not prevent the defendant from arguing to the jury that there had not been a proper tender under the repurchase agreements sufficient to give rise to the defendant’s obligation to repur chase. In addition, defendant was permitted to make an unlimited closing argument that Ford Credit had not made a proper tender under the repurchase agreements. The jury was properly instructed that they had to find that Ford Credit complied with the terms of the repurchase agreements in order to be entitled to a deficiency judgment. Therefore, we hold that the trial court did not effectively prevent the defendant from arguing that there had not been a proper tender. The issue was properly left to the jury to decide. Finally, Ford Credit asserts on cross-appeal that the trial court erred in refusing to grant it a directed verdict on its claim for earned but unpaid interest. Our review of the evidence leads us to the conclusion that no error occurred. Under the terms of the repurchase agreements, the defendant’s obligation to repurchase did not arise until Ford Credit made a tender of the trailers. The repurchase agreements do not state when Ford Credit was required to tender and whether interest was to continue to accrue in the event of bankruptcy proceedings involving the principal debtor. When a contract is open to construction as to a critical aspect, it is the duty of the trier of fact to determine, if possible, the true intent of the parties. Stroud v Glover, 120 Mich App 258; 327 NW2d 462 (1982). A review of the evidence in a light most favorable to the defendant, Holmes v Allstate Ins Co, 119 Mich App 710; 326 NW2d 616 (1982), lv den 417 Mich 1018 (1983), indicates that reasonable minds could differ on the issue of Ford Credit’s entitlement to earned but unpaid interest charges during the period prior to tender. Thus, the issue was for the jury to decide. Affirmed.	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Per Curiam. Yalda Acho appeals as of right from a Wayne County Circuit Court order which reversed a decision of the Michigan Liquor Control Commission granting him a specially designated distributor’s (SDD) liquor license. This case is before this Court for the second time. In Kassab v Acho, 125 Mich App 442; 336 NW2d 816 (1983), we reversed the circuit court’s decision affirming the commission’s grant of the SDD license, and remanded to the commission for further fact-finding and reconsideration. Khalid and Issam Kassab own a party store located on East Seven Mile Road in Detroit and hold an SDD liquor license. Acho also owns a party store on East Seven Mile Road, directly across the street from the Kassab’s store. On November 23, 1977, Acho applied for an SDD license, arguing that, because his store is separated from the Kassab’s store by East Seven Mile Road, he was eligible for a waiver of the rule requiring that SDD outlets be at least one-half mile apart. 1979 AC, R 436.1133(c). On October 15, 1979, the commission denied Acho a license, concluding that he was not eligible for a waiver of the one-half mile rule because East Seven Mile Road could not be considered a "major thoroughfare of not less than four lanes of traffic”, since it was a four-lane road consisting of two moving lanes and two parking lanes. Acho requested and received an appeal hearing pursuant to 1979 AC, R 436.1925(2). Since the Kassabs owned the nearest SDD outlet, they were sent a notice of hearing which offered them an opportunity to be heard. The evidence at the hearing held on December 20, 1979, established that the portion of East Seven Mile Road in question was a four-lane road, however, two of the four lanes were designated as 24-hour parking lanes. After the hearing, Detroit Police Chief William Hart wrote two letters to the commission advising it that the road was a major four-lane thoroughfare with all four lanes used for traffic and that 24-hour parking would be banned effective February 25, 1980. Relying on the letter submitted by Chief Hart, the commission granted defendant an SDD license on March 10, 1980. The Kassabs appealed to circuit court and petitioned the commission for reconsideration. The commission reinvestigated the matter and found that the parking ban was temporary and that parking on the two outside lanes had been restored. Evidence to this effect was presented at the May 14, 1981, circuit court hearing. Nevertheless, the circuit court af firmed the commission’s grant of the license, finding no abuse of discretion. We reversed and remanded the case to the commission for further fact-finding and reconsideration. Kassab v Acho, supra, p 448. On remand, the commission affirmed its prior decision granting defendant an SDD license. Acho appeals from the circuit court’s reversal of the commission’s decision. We must first determine the proper standard of review of a grant of a liquor license. In the prior appeal of this case, Kassab, supra, pp 449-453, this Court held that § 106 of the Administrative Procedures Act governed, since the licensing matter was a "contested case”, defined by MCL 24.203; MSA 3.560(103)(3) as: " '[A] proceeding, including but not limited to rate-making, price-fixing, and licensing, in which determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.’ ” The scope of review in the earlier opinion, how ever, conflicts with this Court’s decision in TDN Enterprises, Inc v Liquor Control Comm, 90 Mich App 437; 280 NW2d 622 (1979), lv den 407 Mich 907 (1979), where it was held that the APA provisions dealing with contested cases do not apply to licensing matters because the statute governing the issuance of SDD licenses, MCL 436.17; MSA 18.988, does not require that the selection of a licensee be preceded by notice and the opportunity for a hearing. See also Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 546-548; 231 NW2d 443 (1975). We agree with the panel in TDN Enterprises that the definition of "contested case” as applied to the initial grant of a liquor license renders the judicial review provisions of the APA inapplicable. Although commission rules provide for an appeal hearing after the initial decision by the commission, 1979 AC, R 436.1925, the procedure does not bring this matter within the statutory definition of a contested case. Inasmuch as the provisions of the APA are inapplicable and the Liquor Control Act only provides for judicial review of violations of the act, the scope of review provided by Const 1963, art 6, § 28 and the Revised Judicature Act, MCL 600.631; MSA 27A.631, applies when this Court reviews a decision of the commission granting a liquor license. Under that standard, this Court reviews the decision of the commission to determine whether it is authorized by law and supported by competent, material and substantial evidence. In the instant case, however, we are bound by the law of the case doctrine, CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981); Cicelski v Sears, Roebuck & Co, 132 Mich App 298; 348 NW2d 685 (1984), and must apply the standard of review relied on in the first appeal. Nevertheless, under either standard of review, the commission’s decision to grant the liquor license must be reversed. In the prior appeal, this Court concluded that the Kassabs were materially prejudiced when Chief Hart’s letters were received and considered by the commission without affording them notice and the opportunity to respond to the letters before the commission rendered its decision. Kassab, 125 Mich App 458. The letters addressed the main issue in the case, whether the exception to the one-half mile rule applied. On remand, the commission stated: "While it is now known that the commission’s approval of Acho’s SDD license was based upon incomplete facts, and while it is now known that the change in the parking on East Seven Mile Road was not done in a procedurally correct manner, and while it is now known that the parking ban was temporary, none of this information was available at the time the license was approved and it seems to the commission that this is the crucial point. If any of these matters had been known to the commission at the time, the commission would not have approved the license. "As to the question of whether Acho’s license should now be cancelled, the commission concludes that it should not. It has now been in excess of three and one-half years since Acho’s license was granted, and the commission is convinced that the matter of equity must also be addressed. While it is true that Kassab’s liquor purchases have declined somewhat since Acho’s license was issued, based upon the amount of liquor purchased from the commission, Kassab continues to make a gross profit in excess of $48,000 per year from the sale of spirits. At the same time Acho has apparently made a substantial investment in his business, in order to modernize the store and provide additional parking for his customers, based in part at least on the increased business generated by the availability of package liquor. To now remove the license because of the circumstances of its issuance, over which it is significant to note, Acho had no control would seem to the commission to be unfair.” (Emphasis supplied.) On appeal, the circuit court reversed, holding that this Court’s remand order required the commission to reconsider Acho’s application based on the facts which actually existed in March, 1980, not simply on the facts which were known in March, 1980. The circuit court concluded that, since East Seven Mile Road did not become a permanent four-lane major thoroughfare, the exception to the one-half mile rule did not apply and the commission lacked the authority to issue a SDD license to Acho. We agree with the circuit court’s reasoning. In our prior opinion, we reversed the commission because its decision was based on incomplete or inadequate facts. The commission was required to conduct further fact-finding and reconsider its decision. That fact-finding revealed that the exception to the one-half mile rule was inapplicable. The commission conceded that the evidence did not support its conclusion. Nevertheless, it refused to cancel or revoke Acho’s license. Its decision to continue Acho’s license is neither authorized by law nor supported by competent, material and substantial evidence. While it is true that the commission has complete control of liquor traffic, Const 1963, art 4, § 40; Mallchok v Liquor Control Comm, 72 Mich App 341, 343-345; 249 NW2d 415 (1976), its power is subject to statutory limitations. Mallchok, supra, p 344. The commission does not have the discretion to waive the rule unless one of the exceptions applies. Thus, applying the facts to the law, we conclude that the commission improperly issued the license since East Seven Mile Road is not a "major thoroughfare” and no other exception to the one-half mile rule applies. Acho argues that the commission has the authority to continue the license on the ground of manifest injustice. We disagree. As an agency, the commission has no inherent powers and, therefore, any authority must come from the Legislature. Blue Cross & Blue Shield of Michigan v Insurance Commr’s, 403 Mich 399, 424; 270 NW2d 845 (1978), reh den 405 Mich 1001 (1979); Pharris v Secretary of State, 117 Mich App 202; 323 NW2d 652 (1982). The commission’s plenary power to regulate liquor traffic is subject to statutory restraints. Mallchok, 72 Mich App 344. The commission’s rules and regulations, promulgated pursuant to the Liquor Control Act, MCL 436.7; MSA 18.977, prohibit the commission from issuing an SDD license in violation of the one-half mile rule. 1979 AC, R 436.1133. None of the exceptions to the rule applied and, thus, the commission had no discretion to waive the rule. Where a liquor license is issued in violation of a statute, it must be revoked. Gamble v Liquor Control Comm, 323 Mich 576, 578, 580; 36 NW2d 297 (1949); Elliott v Liquor Control Comm, 339 Mich 78; 62 NW2d 594 (1954). Manifest injustice is not a means by which the commission may avoid legislative mandate as well as its own regulations. We have reviewed Acho’s remaining arguments and find them without merit. Aifirmed. 1979 AC, R 436.1133 provides in part: "An application for a new specially designated distributor license or for the transfer of location of an existing specially designated distributor license shall not be approved by the commission if there is an existing specially designated distributor license located within 2,640 feet of the proposed site. * * * This rule may be waived by the commission for 1 of the following reasons: "(c) If the proposed location and the existing specially designated distributor’s licensed establishment are separated by a major thoroughfare of not less than 4 lanes of traffic.” MCL 24.306; MSA 3.560(206) provides: "(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following: "(a) In violation of the constitution or a statute. "(b) In excess of the statutory authority or jurisdiction of the agency. "(c) Made upon unlawful procedure resulting in material prejudice to a party. "(d) Not supported by competent, material and substantial evidence on the whole record. "(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. "(f) Affected by other substantial and material error of law. "(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.” But see Semaan v Liquor Control Comm, 136 Mich App 243; 355 NW2d 643 (1984), where this Court, without citing the APA, reviewed the commission’s decision for an abuse of discretion; and Allos v Liquor Control Comm, 97 Mich App 44; 294 NW2d 241 (1980), where the commission’s decision was reviewed under § 106 of the APA for an abuse of discretion. In Ron’s Last Chance, Inc v Liquor Control Comm, 124 Mich App 179; 333 NW2d 502 (1983), the APA’s scope of review was applicable because this Court was reviewing a commission decision to revoke a license, a contested case since due process requires a hearing before a decision is made. In the prior appeal, this Court held that the commission properly interpreted the term "major thoroughfare” as four traffic lanes excluding lanes for parking. Kassab, 125 Mich App 457. Thus, Acho’s arguments to the contrary are without merit, based on the law of the case doctrine. CAF Investment Co, supra; Cicelski, supra. The commission has formally adopted its definition of "major thoroughfare”. 1979 AC, R 436.1001.	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Per Curiam:. Defendants, Clarence Humphrey and Rosie E. Freeman, were arrested by officers of the Wayne County Sheriffs Department on October 12, 1984, during the course of the execution of a search warrant issued on October 11, 1984. After the arrests, defendant Humphrey was charged with possession of cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), possession with intent to deliver heroin, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), possesion of heroin, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), and felony-firearm, MCL 750.227b; MSA 28.424(2). Both defendants were charged with conspiracy to vio late the gambling laws, MCL 750.301 and 750.157a; MSA 28.533 and 28.354(1), and possession of gambling paraphernalia, MCL 750.306; MSA 28.538. After a preliminary examination was held, the defendants were bound over for trial on all counts. Defendants subsequently brought a motion to quash the search warrant and suppress the evidence. Through an opinion and order dated June 18, 1985, the trial court granted the motion after concluding that the affidavit was insufficient to establish the reliability of the information. The prosecutor brought the instant appeal of the lower court’s order as of right. The Michigan Supreme Court recently clarified the requirements which must be met before a search warrant based upon an affidavit may be issued in this state. In People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984), the Court construed MCL 780.653; MSA 28.1259(3) as setting forth three requirements, stated as follows: "The first is that the affidavit, when based on informant-supplied information, must contain affirmative allegations that the informant spoke with personal knowledge. The second is that the affidavit must set forth facts from which one may conclude that the informant is 'credible.’ * * * The third is that the information must be shown to be reliable. The Legislature has determined that probable cause is not established until all three requirements have been satisfied.” 421 Mich 509-510. As stated earlier, the trial court found the third requirement lacking in the affidavit here at issue. The relevant portions of that affidavit provided: "The affiant is a member of the Wayne County Federal Task Force and is working in conjunction with S/A Paul Lindsey of the F.B.I. relative to the trafficking of heroin and cocaine by a black male, who is known to a reliable informant of the F.B.I. as 'Big Daddy’ and also as 'Track’. The affiant and S/A Lindsey have worked with this informant in the past and information from this informant has resulted in the arrest of more than five persons for violations of the Michigan Controlled Substance Act. Cocaine, heroin, firearms and narcotic proceeds have been confiscated as a result of the same information. "This informant provided information to S/A Paul Lindsey which states that within the past 72 hours of the date of this search warrant this informant did observed [sic] controlled substances inside of the named location. The informant states that the informant knows the powder to be heroin and that the informant has observed the transfer of heroin and cocaine by 'Big Daddy’. That 'Big Daddy’ did obtain these controlled substances from inside the named location which is the home of 'Big Daddy’. The informant further states that 'Big Daddy’ has stated to the informant that he is never out of dope. The informant states that 'Big Daddy’ is a big numbers man and that proceeds from the numbers operation are stored at the named location. "An investigation conducted by the affiant shows that a vehicle parked within the curtilage of the location to have Michigan plate 765-KPX, to: Rosie E. Freeman at 12703 Broadstreet, Detroit 48238. "Based upon the information received by the affiant from S/A Paul Lindsey, it is believed that the information received from the informant is reliable and that the items named to be searched for are being stored inside of the named location, in violation of the Michigan Controlled Substance Act (Public Health Code).” In finding the affidavit insufficient to fulfill the "information reliability” requirement of MCL 780.653; MSA 28.1259(3), the trial court relied upon the absence of certain factors. For example, while the affidavit indicated that a vehicle belonging to defendant Freeman was parked on the premises, the court characterized this information as irrelevant since it was not accompanied by an allegation that Freeman was an occupant or frequenter of the house. Next, the court complained of the absence of a physical description of "Big Daddy” or "Track” because this prevented the affiant from verifying the suspect’s presence at the house. Finally, the court condemned the failure to note the observation of traffic to and from the house. We do not agree that the deficiencies noted by the trial court compel the conclusion that the information was not reliable. As noted by the prosecutor, the most obvious flaw in the trial court’s reasoning is that the affidavit refers to the "transfer”, rather than sales, of narcotics, indicating that the house was not a street distribution point but a packaging and cutting center. Assuming this to be the case, there would not have been any foot traffic to and from the house for the affiant to observe. Further, the affiant could not be faulted for failing to conduct a controlled "buy” since the operators of a packaging and cutting center would not likely assume the obvious risks of engaging in street sales and offering individual purchases from the home. Regarding the failure to include a reference to Freeman’s presence in the home, we consider such a detail to be so innocuous as to be of little help in assessing the reliability of the information. While we do agree that a physical description of "Track” would have been of assistance, its absence is not determinative. Rather, the reliability of the information is sufficiently established by other factors, including the detail of the information supplied and the fact that the informant’s knowledge that narcotics were on the premises and that the house was used for the transfer of narcotics was based upon the informant’s personal observa tions. Another factor pointing to the likely reliability of the information is that this particular informant has provided information in the past which has been of assistance to the affiant in enforcing the Michigan controlled substance act. MCL 333.7101 et seq.; MSA 14.15(7101) et seq. We conclude that the trial court erred in finding that the "reliable information” requirement of the statute governing the contents of affidavits was not satisfied. Although neither has filed a cross-appeal, defendants now argue that the trial court erred in finding the first two requirements under the statute satisfied. These arguments are patently merit-less. Since the affidavit contains allegations that the informant observed both the presence of narcotics inside the place to be searched and the transfer of such narcotics, the affidavit clearly contains sufficient information to allow the conclusion that the informant’s statements were based upon personal knowledge. The affidavit also contains facts from which one may conclude that the informant was credible. As noted by the trial court, the affidavit states that the informant previously worked with the affiant and the F.B.I., supplying information which resulted in the arrest of more than five persons and that various narcotics and firearms were confiscated. This was sufficient to find the second requirement satisfied. Sherbine, supra, p 510, fn 13. Contrary to the claims of defendants, the information need not have resulted in convictions to justify the conclusion that it was reliable. Obviously, many factors other than the reliability of informant-supplied information can result in the acquittal of a defendant on charges which have stemmed from such information. The defendants also argue that the information contained in the affidavit was stale since the observations occurred "in the past 72 hours”, thus offering no justification for concluding that the controlled substances were present at the time the warrant was issued. However, as noted in People v Osborn, 122 Mich App 63, 66; 329 NW2d 533 (1982): "A search warrant must be supported on probable cause existing at the time the warrant is issued. People v Chippewa Circuit Judge, 226 Mich 326; 197 NW 539 (1924); People v Gillam, 93 Mich App 548; 286 NW2d 890 (1979). Nevertheless, a lapse of time between the occurrence of the underlying facts and the issuance of the warrant does not automatically render the warrant stale. People v Gillam, supra, p 552. As a panel of this Court said in People v Gillam, supra, p 553: 'the measure of a search warrant’s staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises’.” We believe the informant’s observation of controlled substances and the transfer thereof within 72 hours before the issuance of the search warrant, when coupled with the statement of "Track” or "Big Daddy” to the informant that he was "never out of dope”, provided probable cause to believe that controlled substances remained on the premises. Finally, defendants argue that the search warrant was unlawfully executed because the officers did not provide the occupants with a reasonable time in which to respond to their demand for admittance, citing People v Harvey, 38 Mich App 39; 195 NW2d 773 (1972). The Harvey Court was asked to construe MCL 780.656; MSA 28.1259(6), which authorizes an officer executing a warrant to break the doors or windows of a house "if, after notice of his authority and purpose, he is refused admittance”. In Harvey, the Court stated that "[i]n a hard drug case, where the officer has knocked on the door leading to the living quarters, loudly announced the presence of a law enforcement agency with a search warrant, announced the purpose, a raid, waited long enough for the inhabitants to reach the door from the room farthest away, and then began to kick in the door, the statute is complied with”. 38 Mich App 43. We believe the requirements of the statute were satisfied here since, after announcing their presence and purpose, the officers executing the warrant waited 20 to 30 seconds before breaking down the door to the house and entering. See also United States v Gorman, 208 F Supp 747 (ED Mich, 1962), where a federal agent waited 25 to 30 seconds after knocking and announcing his purpose and identity before breaking in the door. The Court found a properly executed warrant. 208 F Supp 750. The final issue to be addressed is raised by the prosecutor and concerns that portion of the June 18, 1985, order of the Recorder’s Court directing the return of noncontraband items seized at the time of the execution of the search warrant. The prosecutor argues that the Recorder’s Court was without jurisdiction to issue such an order, and we agree. On October 29, 1984, the people filed a petition for forfeiture of the property seized during the execution of the warrant in the Wayne County Circuit Court. Therefore, pursuant to MCL 333.7523(2); MSA 14.15(7523X2), only the Wayne County Circuit Court had jurisdiction to enter an order regarding the property. Section 7523(2) provides, in pertinent part: "Property taken or detained under this article shall not be subject to an action to recover personal property, but is deemed to be in the custody of the seizing agency subject only to this section or an order and judgment of the court having jurisdiction over the forfeiture proceedings.” Therefore, the property at issue could only have been returned to defendant Humphrey by order of the Wayne County Circuit Court. The Detroit Recorder’s Court was without jurisdiction to do so. Reversed and remanded for trial.	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Per Curiam. Following a joint bench trial in the Wayne County Circuit Court, defendants Clark, Martin and King were convicted on three counts of armed robbery. MCL 750.529; MSA 28.797. Defendant Clark was convicted as an aider and abettor. MCL 767.39; MSA 28.279. Each defendant was sentenced to three concurrent 10 to 20 year prison terms for their convictions. Defendants Martin and King were also found guilty of criminal sexual conduct in the first degree, MCL 750.5206; MSA 28.788(2), and felony-firearm, MCL 750.227b; MSA 28.424(2), arising out of the same incident. Martin and King were each sentenced to 20 to 40 years in prison for their CSC-1 convictions and 2 additional years in prison for their felony-firearm convictions. All defendants now appeal as of right and the cases have been consolidated. Initially, defendant Clark asserts that there was insufficient evidence produced at his preliminary examination to bind him over on multiple counts of aiding and abetting armed robbery. We disagree. At the preliminary examination, the examining magistrate must determine whether a crime has been committed and whether there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931. The prosecutor, at the preliminary examination, must offer evidence as to each element of the charged offense, but is not required to prove the elements of the crime beyond a reasonable doubt. People v McManus, 121 Mich App 380, 385; 328 NW2d 636 (1982), lv den 417 Mich 1100.4 (1983). This Court will not disturb a magistrate’s determination at the preliminary examination unless a clear abuse of discretion is established. People v Shipp, 141 Mich App 610; 367 NW2d 430 (1985), lv den 422 Mich 932 (1985). There was certainly sufficient evidence offered at the preliminary examination to establish that several armed robberies were committed. The only question for the magistrate was whether defendant Clark was an aider and abettor to those crimes. To establish that one participated as an aider and abettor to armed robbery, the prosecutor must show that the defendant encouraged, counseled, or assisted another in the commission of an armed robbery with the intent of rendering such help and with knowledge that a criminal act was contemplated. People v Turner, 120 Mich App 23, 27; 328 NW2d 5 (1982). After reviewing the evidence offered at the preliminary examination we find no abuse of discre tion in the magistrate’s decision to bind the defendant over for trial. From the evidence offered it could be reasonably inferred that defendant Clark knowingly acted as the driver of the "get-away car”. Dennis Green testified that after he was robbed at gunpoint by defendants Martin and King, they ran to a nearby parked car that had its engine running. Green proceeded to chase the car in his truck, and when the car was eventually stopped by the police, defendant Clark was identified as the driver. When Clark was removed from the car he attempted to hide his face from Green, who testified that he had known Clark all of his life. On these facts, we find no error in the magistrate’s decision. Similarly, we find defendant Clark’s argument that there was insufficient evidence produced at trial to support his convictions also to be without merit. In addition to testimony similar to that offered at the preliminary examination, a letter allegedly written by defendant Clark to Green, asking him to drop the charges, was also offered into evidence. In the letter, defendant Clark essentially admits his participation in the robbery. Reviewing the evidence offered at trial in a light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). Therefore, the trial court did not err in refusing to grant defendant Clark a directed verdict of not guilty as to the armed robbery charges. Next, defendant Clark argues that the trial court abused its discretion in refusing to suppress evidence of all but one of his prior convictions. The record indicates that defendant Clark had been previously convicted of the following offenses: at tempted larceny by false pretenses, attempted carrying of a concealed weapon, possession of heroin, attempted larceny from an automobile, and armed robbery. The lower court suppressed evidence of the armed robbery conviction but ruled that defendant’s other convictions could be used if he decided to testify. Defendant Clark did not testify at trial. According to the defendant, because the court was informed that an adverse ruling on the admissibility of his prior convictions would keep him from testifying, the admission of evidence of the prior convictions constituted an abuse of discretion. The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v Wakeford, 418 Mich 95, 114; 341 NW2d 68 (1983). In People v Carpenter, 120 Mich App 574, 580-581; 327 NW2d 523 (1982), we stated: "Review of a trial court’s determination to admit evidence of prior convictions for impeachment purposes involves two considerations: (1) whether the trial judge recognized his discretion to decline to admit evidence of the convictions, and (2) whether the trial judge’s decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion. People v Worden, 91 Mich App 666, 674-676; 284 NW2d 159 (1979). The factors which the court must weigh in reaching a conclusion include: (1) the nature of the prior offense, (2) whether it was for substantially the same conduct for which defendant is on trial, and (3) the effect on the decisional process if the accused does not testify. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).” The record in the present case reveals that the trial judge recognized his discretion to admit or exclude evidence of defendant Clark’s prior convictions, and in fact found evidence of one such conviction inadmissible. However, the court determined that evidence of the defendant’s other prior convictions was more probative than prejudicial. We agree. Had the defendant chosen to testify the case would have turned on the defendant’s credibility. Thus, evidence of the prior convictions would have been very probative for impeachment purposes. Carpenter, supra, p 581. Further, since there is little indication in the record as to what the defendant’s testimony would have been, we are left to speculate as to how the decisional process may have been affected had defendant Clark testified. Having reviewed the record, we cannot conclude that the lower court’s decision to admit the evidence in the event defendant testified was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion and require reversal. The final argument raised by defendant Clark is that the trial court improperly admitted into evidence a letter purportedly written by him, because the letter was not properly authenticated and had no probative value. The letter at issue was written by a "Bass Clark” and sent to the complainant, Dennis Green, and indicates Clark’s involvement in the robbery and asks that Green consider dropping the charges. The decision whether a letter has been properly authenticated for admission into evidence is a matter within the sound discretion of the trial court. Champion v Champion, 368 Mich 84; 117 NW2d 107 (1962). MRE 901 requires identification or authentication of items by introduction of evidence "sufficient to support a finding that the matter in question is what its proponent claims”. The requirement of identification can be satisfied by a comparison by the trier of fact with handwriting specimens which have been authenticated, or by the distinctive characteristics contained in the letter itself, taken in conjunction with other circumstances. MRE 901(b)(3) and (4). In the present case, the court was able to compare the handwriting in the Clark letter with the handwriting on a statement given by defendant Clark to the police. The court noted that the writing in the letter and on the statement bore certain resemblances. Further, Dennis Green testified that Bass Clark was defendant Clark’s street name and that the "agent on Vinewood” mentioned in the letter referred to Pamela Morrison, defendant Clark’s girlfriend and Green’s cousin. The letter was also written during the time when Clark was incarcerated in the Wayne County Jail and the return address on the letter was the address of the jail. On this testimony, the lower court determined that the contents and distinctive characteristics of the letter provided the proper identification. We find no abuse of discretion in the court’s ruling. We also hold that the letter was relevant because it tended to establish the defendant’s active participation in and knowledge of the crimes committed. Therefore, the letter was properly admitted against defendant Clark. MRE 402. We now consider the arguments raised by the remaining defendants. Both defendants King and Martin assert that their convictions should be reversed because their waiver of their right to a jury trial was not knowing, intelligent and voluntary, in view of the admission of the "Bass Clark” letter at trial. Prior to trial, the admissibility of the "Bass Clark” letter was discussed. The trial judge refused to grant defendants’ motion to exclude the letter, but indicated that severance of the defendants’ trials might be required if the letter were admitted. The ruling that severance might be required was based on the understanding that each defendant desired a jury trial. The prosecutor indicated that he would probably not use the letter, and on that basis the court ruled severance was not required. However, just prior to trial each defendant waived his right to a jury trial and the cases proceeded as bench trials. The waivers had not been expected by the trial judge. Contrary to his statement prior to trial, during the trial the prosecutor did seek to introduce the "Bass Clark” letter into evidence against defendant Clark. The prosecutor argued that severance was no longer an issue since the defendants had unexpectedly agreed to bench trials. Defendants Martin and King objected to the admission of the letter stating that it created a potential Bruton [Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1967)] problem. The trial judge indicated that he would only consider the letter as evidence against Clark and thus saw no need for severance. Having thoroughly reviewed the record we find no support for the defendants’ argument that they waived their right to a jury trial based on the understanding that the Clark letter would not be admitted. The trial judge fully discussed the waiver on the record with each defendant. There is no indication that the waivers were anything but knowingly and voluntarily made or that they were conditioned on the fact that the "Bass Clark” letter would not be admitted. See People v Margoes, 141 Mich App 220; 366 NW2d 254 (1985). Further, The court was already aware of the contents of the letter from the defendants’ pretrial motions and stated that it would in no way consider the letter as evidence against Martin and King. The admission of the letter certainly did not prejudice either defendant King or Martin because it made no reference to them. On these facts, we find no reversible error. Even if the introduction of the letter would have been error in a jury trial, it certainly was not in a bench trial. People v McShan, 120 Mich App 496; 327 NW2d 509 (1982). Finally, we reject defendant King’s argument that the trial court committed reversible error by not informing him that he had a constitutional right not to testify before he voluntarily took the stand to testify on his own behalf. Defendant King does not maintain that he was in any manner compelled to testify. As we noted in People v Simmons, 140 Mich App 681, 684; 364 NW2d 783 (1985), lv den 422 Mich 961 (1985), an accused’s decision to testify or not to testify is a strategic decision best left to an accused and his counsel. The convictions of all three defendants are therefore affirmed.	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Per Curiam. In this action, plaintiffs sought to recover damages for breach of an employment contract, age and sex discrimination, and loss of consortium. The circuit court granted defendants’ motions for summary judgment pursuant to GCR 1963, 117.2(3), holding that there was no genuine dispute as to any material fact and that defendants were entitled to prevail as a matter of law. Plaintiffs appeal as of right. In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980), the Court said: "We hold that "1) a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term — the term is 'indefinite,’ and "2) such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s policy statements.” Here, Albert W. Eliel (hereinafter referred to singularly as plaintiff) acknowledges having signed a written application for employment with defendant Sears, Roebuck and Company. The application contained the following provision: "In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck, and Co., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no store manager or representative of Sears, Roebuck and Co., other than the President or Vice President of the Company, has any authority to enter into any agreement for employment for any specified period of time, or make any agreement contrary to the foregoing.” Plaintiff attempts to avoid the effect of this provision by contending that he signed the job application as a ruse in connection with his employment as an undercover agent for Pinkerton, Inc. Later, according to plaintiff, he was hired by defendant Sears by an oral agreement with a Sears store superintendent named Yates. However, plaintiff’s deposition testimony demonstrates that, whatever the circumstances under which he filled out the application, plaintiff knew that at the time he was hired by Sears his employment with Sears was governed by the terms of the application: "Q. So Yates comes to you and says, 'How would you like to work for Sears,’ right? "A. Yes. ”Q. And this is while you are already working undercover at Sears. « "A. Being paid by Pinkerton and Sears at the same time. Q. Okay. So then Yates says, what, 'Fill out an application’? "A. No. I had already filled out an application when I come in. "Q. [By defense counsel, continuing.] Did you fill this out before you met Yates or after you met Yates? "A. Before. That was the first day I walked into that store. ”Q. Then Yates told you to apply for a job, didn’t he? "A. He didn’t say 'apply for a job.’ He asked me if I would like to go to work for Sears. I said, 'Yes,’ and he said, 'You’re hired.’ He said, 'You made out an application already,’ blah, blah, blah, and so forth, and I said, 'Yes.’ ” Plaintiff claims that subsequent statements by representatives of Sears established a contract that plaintiff could not be discharged except for just cause. Plaintiff does not contend that any such statements were made by the president or vice-president of Sears. The express terms of the application show that plaintiffs contract of employment with Sears was terminable at will. See, for example, Summers v Sears, Roebuck & Co, 459 F Supp 1157, 1161 (ED Mich, 1982). Michigan courts have held that essential elements of a claim that a plaintiff was discharged due to age discrimination include: (1) that the plaintiff had skills, experience, background or qualifications comparable to other employees who were not discharged; and (2) that age was a determining factor in the discharge. See, for example, Bouwman v Chrysler Corp, 114 Mich App 670, 680; 319 NW2d 621 (1982). Plaintiff relies on his deposition testimony to show the existence of a genuine issue of material fact as to age discrimination. Plaintiff first points to testimony that a younger employee was not discharged even though plaintiff claims that he averaged more sales per hour than the younger employee. Because the younger employee worked only part-time, however, he was not a comparable employee to plaintiff. It is not disputed that plaintiff’s sales record was worse than that of any other full-time employee in his department. Plaintiff also relies on his testimony that Sears hired more young people than old people. As the court explained in Laugesen v Anaconda Co, 510 F2d 307, 313, fn 4 (CA 6, 1975), such a circumstance, without more, will not support a claim of age discrimination. A natural consequence of the aging process is that younger employees are constantly replacing older employees as younger persons enter the job market and older persons leave. The allegations of sex discrimination in plaintiff’s complaint were based on his transfer from the men’s shoe department to the carpet department. Plaintiff alleged that the transfer required him to compete with female coworkers in a department where, according to plaintiff, the customers were mostly women. In his deposition, however, plaintiff conceded that he had been transferred to the carpet department at his own request. Plaintiff subsequently relied on an assertion that he was given inadequate training for selling carpets. This assertion will not support a claim of sex discrimination, because plaintiff concedes that he had no evidence that his female coworkers received any more training than he received. See Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 376; 263 NW2d 376 (1977). Plaintiff also asserts that women are more likely to buy carpets from women than from men, but plaintiff produced no evidence to support this assertion, and we cannot see how this assertion, even if true, could support a claim against Sears for sex discrimination. The claim of Mrs. Eliel for loss of consortium is contingent upon her husband’s recovery. Jones v Slaughter, 54 Mich App 120; 220 NW2d 63 (1974). On this record, the circuit court did not err by granting summary judgment for defendants on all of plaintiffs’ claims. Affirmed.	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Per Curiam. Plaintiff appeals as of right from an order entered on October 4, 1984, in the Oakland County Circuit Court which granted defendant 12% interest on an overdue amount of money in the parties’ divorce judgment reserved for defendant by a lien. The parties’ judgment of divorce was entered on January 16, 1980, made nunc pro tunc to August 20, 1979. The order provided in pertinent part: "IT IS FURTHER ORDERED the defendant shall execute a quit claim deed conveying his interest in and to the above described property, but reserving unto himself a lien in the amount of Twenty-two Thousand Four Hundred Fifty ($22,450.00) Dollars, which lien shall be paid to him upon the first occurrence of the following: when the house is sold, when the house is vacated as the minor child’s full time residence, the remarriage of the plaintiff, or the plaintiffs cohabitation with a person of the opposite sex, or four (4) years from and after the date of the entry of the judgment of divorce. "IT IS FURTHER ORDERED AND ADJUDGED that the following property shall be awarded to the defendant free and clear of any right, claim or interest of the plaintiff except as noted herein: "1. A lien in the amount of Twenty-two Thousand Four Hundred Fifty ($22,450.00) Dollars on marital premises occupied by the plaintiff.” (Emphasis supplied.)_ Plaintiff failed to pay the lien to defendant by August 20, 1983, four years after entry of the judgment nunc pro tunc. Therefore, defendant moved for entry of a judgment against plaintiff for $22,450 plus 12% interest. In lieu of granting the requested relief and on stipulation of the parties, the circuit court entered an order on March 21, 1984, which gave plaintiff three months to sell the marital home before a receiver would be appointed to assume such duties and reserved the question of whether interest would be applied on the overdue amount. On June 14, 1984, the court granted plaintiff a 90-day extension to complete the sale of the marital home. Plaintiff apparently consummated the sale on August 28, 1984. Plaintiff filed a motion and affidavit on August 29, 1984, stating that defendant failed to pay her certain monies in accordance with the property settlement and seeking an order which would allow a deduction of $2,900 from the money owed to defendant pursuant to the lien. Defendant also filed a motion on August 29, 1984, seeking 12% interest on the $22,450 from August 20, 1979,. to August 28, 1984, pursuant to MCL 600.6013; MSA 27A.6013. At a hearing on September 12, 1984, plaintiff postponed argument on her motion. However, the court partially granted defendant’s motion at the hearing, awarding interest at the rate of 12% on the $22,450 from August 20, 1983, to August 29, 1984. It is from this order, entered on October 4, 1984, that plaintiff appeals as of right. Defendant requested interest for the period düring which payment of the lien was suspended (August 20, 1979, to August 20, 1983) and the period for which payment of the lien was overdue (August 20, 1983, to August 29, 1984). Defendant represented that the court could award interest pursuant to MCL 600.6013; MSA 27A.6013, which is the judgment interest statute. The court granted interest only for the period that payment was overdue, but did not specify whether the award was based on MCL 600.6013; MSA 27A.6013 or his power as chancellor in equity. We find that interest could not have been based upon the judgment interest statute but could properly be based on the court’s equitable powers. Accordingly, we affirm the lower court order. This Court recently held in Saber v Saber, 146 Mich App 108; 379 NW2d 478 (1985), that a sum of money awarded as part of the property distribution in a divorce action is not a "money judgment recovered in a civil action” for purposes of applying prejudgment interest under MCL 600.6013; MSA 27A.6013. In Saber, the plaintiff in a divorce action claimed that she was entitled to interest on a sum of money awarded to her in the divorce judgment, dating from the filing of the complaint to the date of satisfaction. This Court determined that the plaintiff was not entitled to prejudgment interest under the prejudgment interest statute cited above, but that the trial judge had the discretion to allow or withhold interest. We agree with the holding in Saber and believe that a judgment entered in a divorce action in order to effectuate a property division is. not a "money judgment recovered in a civil action” as contemplated by MCL 600.6013; MSA 27A.6013. Thus, in the instant case, the court could not have properly granted interest pursuant to the statute. This position may also be supported to some extent by Youmans v Youmans, 108 Mich App 597; 310 NW2d 809 (1981). In that case, the parties’ property settlement was similar to that in the judgment herein, in that the defendant was granted a lien on the marital home payable on the happening of various contingencies. The defendant argued that he was entitled to payment of interest pursuant to MCL 600.6013; MSA 27A.6013 for the period that payment of the lien was suspended, i.e., prior to the occurrence of one of the contingencies. This Court rejected the argument, stating: "MCL 600.6013; MSA 27A.6013 provides for interest on any money judgment recovered in a civil action. This Court finds that an equitable real estate lien pursuant to a judgment of divorce is not a money judgment as contemplated by MCL 600.6013; MSA 27A.6013. Therefore, the statute has no application to an equitable suspension of a domestic partner’s share, unless the chancellor so orders.” (Emphasis added.) 108 Mich App 599. To some extent, the Youmans Court may have focused solely on the fact that a "lien” was involved. However, we view the existence of a lien as being irrelevant. When a circuit court provides a lien on a marital home or other property, it impliedly grants money to one of the parties. A lien is a security interest and, unless some money or property is owed by one party to the other, the lien secures payment of nothing. It is only when the amount which is owed becomes due and is not paid that the lien may be enforced. We interpret the circuit court’s grant of a lien as implying that the court wished also to provide for money to be paid by one party to the other as a method of dividing the property. A divorce judgment which provides for money payments is subject to execution without bringing an independent action for a money judgment. Cf. Landy v Landy, 131 Mich App 519; 345 NW2d 720 (1984), lv den 419 Mich 937 (1984). A lien simply gives some additional assurance to the party that he or she will be paid. A lien or a provision calling for the payment of money in no way alters the nature of the judgment to something other than a divorce judgment. A divorce judgment providing for property distribution is not a money judgment in a civil action as contemplated by MCL 600.6013; MSA 27A.6013. In Youmans, this Court went on to indicate that, although interest was not statutorily required, the trial court in its discretion could award interest. The Youmans Court, however, found no abuse of discretion by the lower court in denying interest where it appeared that the denial was made in consideration of the welfare of the parties’ child. We do not reverse the order granted here because we find that the court could have properly exercised its equitable powers in granting the interest on the amounts granted in the divorce judgment. The power of the court to award interest on amounts granted in divorce judgments was recognized in Youmans, supra. Also, in McClure v McClure, 75 Mich App 715, 717; 255 NW2d 743 (1977), this Court stated that, "the awarding of interest on arrearage in a divorce action must be left to the sound discretion of the trial judge”. (Emphasis added.) This discretion also applies to awards of interest on amounts to be paid pursuant to a property division when such amounts are overdue. See Saber v Saber, supra, p 112. The court in the present case awarded interest dating from the due date until the date of satisfaction. There was no abuse of discretion. Affirmed. As noted in Saber, supra, in a divorce action the court does not compensate a party for loss, but rather seeks an equitable distribution of property. While a judgment is entered which may require one party to transfer money to the other, the money transfer is done only to effectuate the property division. Neither party "wins” or "loses”. See and compare Farley v Fischer, 137 Mich App 668; 358 NW2d 34 (1984), with Saber, supra. In Farley, the plaintiff husband brought a separate action on an amount overdue pursuant to a prior divorce judgment and obtained a money judgment from the court. This Court held that MCL 600.6013; MSA 27A.6013 was applicable to the money judgment. We express no comment on the validity of the separate action in Farley.	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Per Curiam. Plaintiffs appeal as of right from an order entered on February 28, 1985, granting defendants’ motion for summary judgment pursuant to GCR 1963, 117.2(3). Plaintiff Richard A. White was injured in an accident which occurred on June 8, 1982, while he was driving a tractor-trailer rig owned by defendant Central Transport. At the time of the accident, plaintiff was employed by L.R.P.D., Inc., which leased the services of White to Central Transport. Central Transport and L.R.P.D. entered into a written agreement whereby L.R.P.D. provided Central with temporary truck drivers, who were considered to be employees of L.R.P.D. and independent contractors with respect to Central Transport. Despite that arrangement, the trial court concluded that Central Transport was to be regarded as plaintiffs employer for purposes of the Worker’s Disability Compensation Act under the "economic realities” test. Lombard v Saga Food Service, Inc, 127 Mich App 262; 338 NW2d 207 (1983). The court then held that plaintiffs claim was barred by the exclusive remedy provision of the WDCA, MCL 418.131; MSA 17.237(131). Plaintiffs appeal as of right. Since the Supreme Court decision in Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959), the existence of an employer-employee relationship for purposes of the Worker’s Disability Compensation Act has been determined by examining the economic realities of the situation. Nichol v Billot, 406 Mich 284, 293-294; 279 NW2d 761 (1979); Lombard, supra, p 269. Four factors have been recognized as relevant in analyzing the nature of the relationship: (1) control of the worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976). According to the testimony of George Chambers, the president and sole stockholder of L.R.P.D., persons employed at Central Transport contacted him regarding the establishment of a company to lease drivers to their company. A business relationship evolved whereby L.R.P.D. recruited, tested, hired and certified licensed truck drivers to operate equipment at the pleasure and dispatch of Central Transport, which was the only customer of L.R.P.D. Central Transport was in control of the drivers’ daily assignments, routes, and scheduling through its dispatch office in Morenci, Michigan. Plaintiff also testified that Central Transport’s dispatchers were in control of his day-to-day activities and his immediate boss was Central Transport’s terminal manager. Based upon this evidence, the first "economic realities” factor, i.e., control, clearly supports the finding of an employer-employee relationship. The same conclusion must be drawn as to the second factor. For instance, plaintiff and the other truck drivers turned their log books over to Central Transport for accounting and payroll calculations. Although L.R.P.D. actually paid the truck drivers, it was reimbursed by Central Transport for the payroll cost, including withholding taxes and health and pension fund contributions. L.R.P.D. maintained workers’ compensation insurance, but was also reimbursed for this cost, as well as for the cost of pre-employment physical examinations for the truck drivers. L.R.P.D. received a percentage of the gross payroll as its compensation for providing the truck drivers. Regarding the third factor, ability to hire, fire and discipline employees, we believe that Central Transport’s retention of the power to designate any driver as unacceptable was tantamount to total control over this aspect of employment since L.R.P.D. had no other customers. The final factor also strongly supports the conclusion of the trial court. Since L.R.P.D.’s entire existence is dependent upon the needs of Central Transport, we must conclude that the two companies were "so integrally related that their common objectives [were] only realized by a combined business effort”. Farrell v Dearborn Manufacturing Co, 416 Mich 267, 277; 330 NW2d 397 (1982). In fact, L.R.P.D.’s relationship to Central Transport was so entirely parasitic that it is unlikely any distinct goals or objectives could be identified. We conclude that the evidence overwhelmingly supports the conclusion that Central Transport was the employer of this plaintiff, under the economic realities test. By application of the exclusive remedy provision of the WDCA, defendants’ motion for summary judgment was properly granted by the trial court. Affirmed.	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Per Curiam. Respondent, Penny O’Keefe, appeals as of right from the order of the probate court judge terminating her parental rights in her minor daughter, Kathy Pasco. Thomas Raymond Myers, the natural father, does not appeal the order terminating his parental rights. Respondent first alleges that the probate court erred by terminating her parental rights pursuant to MCL 712 A. 19a, subds (e) and (f); MSA 27.3178(598.19a), subds (e) and (f). That statute provides in relevant part: "Sec. 19a. Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following: "(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect. "(f) The child has been in foster care in the tempo-' rary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.” (Footnote omitted.) Parental rights may not be terminated unless it is established by clear and convincing evidence that termination is warranted. In the Matter of Harmon, 140 Mich App 479; 364 NW2d 354 (1985); In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). To justify termination of parental rights based on neglect, "real evidence of long-time neglect, or serious threats to the future welfare of the child” must be shown. Fritts v Krugh, 354 Mich 97, 116; 92 NW2d 604 (1958). We will affirm the probate court’s findings unless they are clearly erroneous. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985). Our review of the record reveals that there was clear and convincing evidence to support the order of termination. Kathy Pasco first came under the jurisdiction of the probate court after she was brought by respondent to Bixby Hospital. Kathy was diagnosed as having a fractured skull, anemia and failure to thrive. She was wearing a sleeper which was stained with day-old feces and mud-like marks. There was dirt in her ears and between her toes. Although Kathy was three and one-half months old, she weighed only eight pounds and twelve ounces. Shortly after Kathy’s admission to the hospital, respondent disappeared and her whereabouts remained unknown until just prior to the adjudication hearing in June, 1982. Kathy remained a temporary ward of the court until the termination hearing in July, 1985. At the hearing, evidence was presented that respondent had failed to complete the court-ordered counseling program or continue her education. Although respondent had been ordered to remain in regular contact with caseworkers in both Nebraska and Michigan, she had failed to do so. In fact, respondent’s last contact with her Nebraska caseworker was in October, 1984, when respondent indicated that she wished to relinquish her rights to her daughter. In addition, respondent had failed to visit Kathy since June, 1984, even though Kathy had been transferred to a foster home in Nebraska in order to facilitate visitation. The Nebraska caseworker further testified that respondent had not cooperated with efforts to improve herself as a mother or to prepare an environment for her child. She noted that respondent had had at least 15 addresses since her return to Nebraska. The worker expressed the opinion that there was no bonding between the mother and child and doubted that Kathy even knew respondent was her mother. Both caseworkers opined that the respondent’s parental rights should be terminated. Furthermore, respondent’s own attorney indicated on the record that respondent had not answered his requests for assistance in preparing for the termination hearing. We conclude that the above evidence amply supported the court’s finding of neglect. The quantum of neglect necessary to support termination of parental rights pursuant to MCL 712A.19a(e) is not capable of precise definition. In the Matter of Kantola, 139 Mich App 23, 27; 361 NW2d 20 (1984). While we recognize that respondent’s failure to comply with the court-ordered treatment plan does not, standing alone, justify termination, see, e.g., In the Matter of Mason, 140 Mich App 734; 364 NW2d 301 (1985); In the Matter of Moore, 134 Mich App 586; 351 NW2d 615 (1984), we believe that this factor in conjunction with the other evidence presented constitutes clear and convincing evidence of neglect. Here, in addition to respondent’s failure to comply with almost every element of the treatment plan, evidence was presented that the minor child entered the hospital in a physically neglected condition, that there was a total lack of bonding between mother and child, that respondent had expressed an interest in relinquishing her rights to her daughter and that respondent had not visited her daughter for the entire year preceding the termination hearing. When these factors are viewed together, we do not believe the court’s finding of neglect was clearly erroneous. Respondent places considerable reliance on her contention that the probate court failed to indicate that her failure to comply with the court-ordered treatment plan could result in termination of parental rights. However, at the July 1, 1982, hearing, respondent testified that she had been informed by the DSS caseworker that her child "might be taken away”. This indicates that respondent was informed of the seriousness of the hearings and the gravity of the consequences. Further, even if respondent was never specifically informed by the court that failure to comply with the plan might result in termination, this would not alter our decision. The focus of our inquiry remains whether the state presented clear and convincing evidence to justify termination. We are at a loss to see how the court’s failure to give this warning at the adjudication hearing could have affected either the sufficiency of the evidence presented or our resolution of the ultimate issue. Moreover, even if the evidence was insufficient to justify a finding of neglect, there was clear and convincing evidence to support the termination of parental rights pursuant to MCL 712A.19a(f); MSA 27.3178(598.19a)(f). Subsection (f) provides for termination if a parent fails to establish a reasonable probability that he or she will be able to establish a proper home for the child within the next 12 months. The burden of going forward with this evidence rests with the parent. In the Matter of LaFlure, supra. Respondent failed to present any evidence to meet this burden. Rather, evidence was presented that respondent had moved repeatedly, had made little attempt to improve her parenting skills and was unlikely to do so in the future. The trial court did not err in terminating respondent’s parental rights pursuant to subsection (f). Respondent next argues that the prosecutor’s failure to appear at the termination hearing constituted reversible error. She suggests that the guardian ad litem’s role as attorney for the child made it improper for him to act as prosecutor at the hearing. There is no support in case law for the proposition that a prosecutor must be present at the hearing and respondent has failed to demonstrate that any prejudice actually occurred as a result of his absence. In the absence of an affirmative showing of prejudice, we do not believe that the prosecutor’s failure to appear constituted reversible error. Respondent also claims that the probate court’s jurisdiction was improperly invoked because respondent had made arrangements to have Kathy placed with respondent’s mother at the time of the July 1, 1982, adjudicative hearing. The probate court must establish its jurisdiction before it may consider termination of parental rights. In the Matter of Taurus F, 415 Mich 512, 516-517; 330 . NW2d 33 (1982), reh den 417 Mich 1104 (1983), app dis 464 US 923 (1983). Jurisdiction is determined at the adjudicative hearing and is based upon the following provisions of MCL 712A.2(b); MSA 27.3178(598.2)(b): "(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county: "(1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical, or other care necessary for his or her health or morals, or who is deprived of emotional well-being, or who is abandoned by his or her parents, guardian, or other custodian, or who is otherwise without proper custody or guardianship. "(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in.” Respondent cites In the Matter of Taurus F, supra, for the proposition that a mother may properly give custody of her child to a relative without court intervention. However, the facts in the instant case are readily distinguishable from those in Taurus F. Here, respondent abandoned her seriously ill infant daughter in a hospital in Adrian, Michigan, following which respondent’s whereabouts remained unknown for several months. It was not until three months after respondent had left her daughter that she first suggested that her mother might care for Kathy. Moreover, our review of the record indicates that, unlike the permanent custody considered in Taurus F, respondent’s mother had only agreed to care for Kathy during the daytime while respondent attended school. Apparently, respondent would still remain the custodial parent and retain primary responsibility for the care of the child. In light of these facts, we do not believe the probate court erred in invoking jurisdiction. Respondent next argues that the probate court erred in denying her motion for change of venue. At the final review hearing on April 29, 1985, and following the guardian ad litem’s request that a termination hearing be set, respondent’s attorney-requested that the case be transferred to Nebraska, where respondent and her daughter were residing. The court denied the motion. Change of venue may- be granted "for the convenience of the parties and witnesses, for convenience of counsel, or if an impartial trial cannot be had in the county where the action is pending”. PCR 401; MCL 600.856(1); MSA 27A.856(1). The grant or denial of a motion for change of venue is discretionary and this Court will not reverse absent an abuse of discretion. Brown v Hillsdale County Road Comm, 126 Mich App 72, 78; 337 NW2d 318 (1983), lv den 418 Mich 898 (1983); Duyck v International Playtex, Inc, 144 Mich App 595; 375 NW2d 769 (1985) (change of venue in civil actions pursuant to GCR 1963, 403). We find no abuse of discretion in the court’s denial of the motion. The motion came over three years after the court assumed jurisdiction. The court was familiar with the case and the surrounding circumstances. Moreover, no evidence was presented that denial of the motion would prevent respondent from attending the terminaiton hearing or prevent an impartial trial. The probate court did not abuse its discretion in denying respondent’s motion for change of venue. Respondent’s final argument is that she was denied effective assistance of counsel during the probate proceedings. Although respondent acknowledges that on an individual basis each of her three appointed attorneys has effectively represented her interests, she contends that the frequent change in counsel combined with their inability to communicate with respondent resulted in overall ineffective assistance. The appropriate standard of representation which a parent is entitled to in a parental rights termination case has not been clearly delineated. Respondent suggests that the appropriate standard is that found in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977): counsel must perform at least as well as a lawyer with ordinary skill and training, unaffected by any conflict of interest. Even if we apply this standard, we do not believe that respondent was denied effective assistance of counsel. While it is true that respondent was represented by three different attorneys during the probate court proceedings, she is unable to point to a specific instance in which any of her appointed attorneys failed to protect her interests or acted with less than the ordinary level of skill and training. While she suggests that her first appointed counsel was provided little time for preparation and did not inform her that termination of parental rights could ultimately result, she does not demonstrate how either factor affected his representation of her interests. Neither has she demonstrated that the change in counsel in and of itself adversely affected the quality of representation she received. Finally, we note that the lack of communication and consultation between respondent and her attorneys can be attributed to respondent’s own unwillingness to cooperate with counsel. Her attorney at the termination hearing stated that, although he had repeatedly requested respondent’s assistance in preparation for the hearing, she had consistently failed to respond. It was respondent’s own unwillingness to cooperate with her appointed counsel which led to a lack of a persuasive presentation on her behalf and not the actions of her attorney. Respondent was not denied effective assistance of counsel. Affirmed.	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Per Curiam. Plaintiff appeals as of right from a December 5, 1984, order of the Saginaw County Circuit Court which denied plaintiff’s request for declaratory relief from MCL 435.251; MSA 9.2701, which prohibits the sale of automobiles on Sunday. Plaintiff is an automobile dealership, selling new and used automobiles, located on M-58 in Saginaw Township. Plaintiff has been operating this business since September 25, 1980, and employs over 125 people. Plaintiff claimed that other merchants located near plaintiff’s business, including motor home and motorcycle dealers, are allowed to sell their products on Sunday, while he was prohibited by statute._ On March 14, 1983, plaintiff filed a complaint seeking a judgment declaring MCL 435.251; MSA 9.2701 unconstitutional. The trial court determined that the statute was constitutional and refused to strike it down. On appeal, plaintiff challenges the court’s ruling. The defendant does not address the constitutional issue. Rather, defendant, as the prosecutor, asserts that the law must be enforced as it now stands. Preserving the separate functions of the executive, Legislature, and judiciary is fundamental to our system of government, and is embodied in the Michigan Constitution at Const 1963, art 3, § 2. It is a well established rule of law that, absent an infringement of a constitutional right, the judiciary may not inquire into the reasonableness of the policy the Legislature pursues in enacting a statute. Albert v Gibson, 141 Mich 698; 105 NW 19 (1905). Nor may the courts inquire into the knowledge, motives, or methods of the Legislature in passing legislation. C F Smith Co v Fitzgerald, 270 Mich 659; 259 NW 352 (1935), app dis 296 US 659 (1935). Therefore, if plaintiff uses "reasonableness” to connote the wisdom or propriety of a statute, the trial court was correct in refusing to consider the reasonableness of the statute. The courts may determine the "reasonableness” of legislative action only when it impinges upon a constitutional right. In that case, the courts have a duty to determine whether a statute is valid or void as unconstitutional by analyzing whether the legislative act bears a reasonable relationship to a legitimate legislative purpose. Carolene Products Co v Thomson, 276 Mich 172; 267 NW 608 (1936). Count I of plaintiff’s complaint alleges unconstitutionality by stating: "6. That there is no reasonable relationship between the remedy of prohibiting the sale of automobiles on Sunday and any alleged public purpose to be served by said Statute. "7. That said Statute is an invalid use of police power, for the reason that said Statue does not promote the public health, safety or welfare.” This requested the trial court to delve into the propriety of the Sunday closing law, which the court correctly refused to do. Count II of plaintiffs complaint alleged a violation of equal protection and due process, and the trial court addressed the issue of whether classifying auto dealers separately from other merchants bore a reasonable relationship to the underlying purpose of the Sunday closing law. It found the classification not wholly arbitrary or unreasonable and, therefore, valid. In summary, courts may determine the reasonableness of the relationship between a statute and the legislative purpose behind it when its constitutionality is challenged, but may not determine the reasonableness of the Legislature’s purpose. Plaintiff asserts that MCL 435.251; MSA 9.2701 is an invalid exercise of police power because it is not rationally related to any purpose. Plaintiff also contends that it is a violation of equal protection and unconstitutionally vague. Since this legislation affects only plaintiffs economic interest, a mere rational relationship to a legitimate legislative purpose is required to find the statute constitutional. See Michigan State Employees Ass’n v MESC, 94 Mich App 677; 290 NW2d 729 (1980). It is undisputed that the state has the power to regulate for the health, safety, and welfare of the public. Const 1963, art 4, § 51. The statute, along with its preamble, states: "CAR SALES "P.A. 1953, No. 66, Imd. Eff. May 12 "AN ACT to prohibit the opening of any retail or wholesale new and used car business on the first day of the week, commonly called Sunday, for the purpose of carrying on or engaging in the business of offering to buy, sell, exchange, trade or participate in the negotiation thereof of any type or kind of automobile, on the first day of the week, commonly called Sunday. "435.251 Motor vehicles; sale on Sunday unlawful; exception "Sec. 1. It shall be unlawful for any person, firm or corporation to engage in the business of buying, selling, trading or exchanging new, used or second-hand motor vehicles or offering to buy, sell, trade or exchange, or participate in the negotiation thereof, or attempt to buy, sell, trade or exchange any motor vehicle or interest therein, or of any written instrument pertaining thereto, on the first day of the week, commonly called Sunday.” The goal of the Legislature in enacting MCL 435.251; MSA 9.2701 is not revealed in the statute’s preamble. Plaintiff alleges that the purpose could not be to set aside Sunday as a day of rest because the Legislature has repealed other Sunday statutes. However, the Legislature may have intended that goal, and to inquire as to why it has not repealed MCL 435.251; MSA 9.2701, when it has repealed other Sunday statutes, is to improperly inquire into the Legislature’s motives. Further purposes of MCL 435.251; MSA 9.2701 were suggested by the trial court in its opinion: difficulty of ascertaining title and existence of liens, inability to obtain insurance and financing or secure mechanical services (with a greater possibility of driving defective automobiles), and the greater burden on police agencies due to potential auto theft. All of these may constitute purposes of the statute to which being closed on Sunday reasonably relates. The appropriate Michigan law for review of this matter is as follows: "Legislation challenged on a constitutional basis is 'clothed in a presumption of constitutionality.’ ” Johnson v Harnischfeger Corp, 414 Mich 102, 112; 323 NW2d 912 (1982); Shavers v Attorney General, 402 Mich 554, 612; 267 NW2d 72 (1978). "[E]very reasonable presumption * * * must be indulged in favor of [a statute’s] constitutionality.” Rohan v Detroit Racing Ass’n, 314 Mich 326, 342; 22 NW2d 433 (1946). It is a court’s duty to construe a statute as constitutional unless the contrary clearly appears. People v McLeod, 407 Mich 632, 657; 288 NW2d 909 (1980); Rohan, supra. The burden is on the individual challenging the statutory classification to show that the classification is without reasonable justification or basis. Eastway v Eisenga, 420 Mich 410, 420; 362 NW2d 684 (1984), reh den 421 Mich 1202 (1985); Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). The objector must show that the classification is arbitrary. Johnson v Harnischfeger Corp, supra, p 113. "The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective.” Shavers, supra, p 612. The test for an equal protection determination is "essentially the same”. Shavers, supra, pp 612-613. If "neither a suspect class nor a fundamental right is involved in the [legislative] classification, it will be upheld in the face of an equal protection challenge * * * if it rationally furthers the object of the legislation”. People v McLeod, 407 Mich 632, 663; 288 NW2d 909 (1980). In dealing with socioe conomic legislation, if there is no discernable fundamental right at stake or if a particular protected class is not affected by the classification, the test is whether the challenged legislative classification is rationally related to a legitimate state interest. Michigan State Employees Ass’n v MESC, 94 Mich App 677; 290 NW2d 729 (1980). Under the traditional equal protection analysis, if the classification is rationally related to a legitimate governmental interest, the legislative classification must be sustained. Shavers, supra, p 613. "A party attacking a statutory classification on equal protection grounds has the heavy burden of demonstrating that the classification lacks a reasonable basis.” Forest v Parmalee, 402 Mich 348, 356; 262 NW2d 653 (1978); Manistee Bank & Trust Co, supra, p 668. "[I]n the face of a due process or equal protection challenge 'where legislative judgment is drawn in question’, a court’s inquiry must be restricted to the issue whether any state of facts either known or which can reasonably be assumed affords support for it’.” Shavers, supra, pp 613-614. See also Eastway v Eisenga, supra, p 420; Manistee Bank, supra, p 668; McAvoy v HB Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977). We point out that: " '[T]he Equal Protection Clause does not require that a state must choose between attacking every aspect of a problem or not attacking the problem at all.’ ” Manistee Bank, supra, p 672. The appellate courts "do not sit 'as a superlegislature to judge the wisdom or desirablity of legislative policy determinations. We sit as a court to determine whether there is a rational basis for the Legislature’s judgment. If there is, then that judgment must be sustained.’ ” O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 543; 273 NW2d 829 (1979), app dis 444 US 803 (1979). Although the Legislature has repealed most other "Sunday” laws, the Legislature is not required "to deal with every aspect of a problem at the same time”. O’Donnell, supra, p 543. Under the constitutional tests as outlined above, we find that the classification in question violates neither due process nor equal protection guarantees. The classification, while it may appear harsh to automobile dealers, affects all members of that class equally and is not arbitrary as it stands. We cannot say that the government’s interest in regulating automobile sales on Sundays has no rational basis and we are not going to be tempted to open the floodgates to declare all regulatory legislation of Sunday sales unconstitutional. We, as did the court below, find no constitutional impediment to the effects of the statute, nor do we find it unreasonable or arbitrary. Affirmed.	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Per Curiam. Defendant appeals as of right from a permanent injunction in favor of plaintiff enjoining defendant from using its property for the disposal of solid waste from any county other than Saginaw County. We affirm. Defendant John Sexton Corporation of Michigan is engaged in the business of solid waste disposal and is the owner of a parcel of property located in James Township, Saginaw County. In late 1980 and early 1981, defendant developed this property as a landfill site for nonhazardous solid waste. The controversy presented in the instant case is whether Saginaw County’s solid waste management plan prohibits defendant from using the site for the disposal of solid waste generated in neighboring Bay County. An understanding of the facts and issues involved is facilitated by a review of the Solid Waste Management Act (Act 641), MCL 299.401 et seq.; MSA 13.29(1) et seq. Act 641 was enacted in 1978, effective January 11, 1979, and repealed the garbage and refuse disposal act, MCL 325.291 et seq.; MSA 14.435(1) et seq., which provided for the licensing and regulation of refuse disposal facilities but did not require local planning or long-term solid waste management. Delta County v Dep’t of Natural Resources, 118 Mich App 458, 463; 325 NW2d 455 (1982), lv den 414 Mich 954 (1982). The new act provided a comprehensive regulatory scheme imposing uniform, state-wide standards and procedures for solid waste disposal, transportation and planning and effectively preempted local control in this area, although significant opportunity for local involvement is built into the act. Southeastern Oakland County Incinerator Authority v Avon Twp, 144 Mich App 39, 45-46; 372 NW2d 678 (1985); House Legislative Analysis, HB 6314, January 11, 1979. Under the act, every Michigan county is required to prepare a 20-year solid waste management plan projecting the amount of solid waste that will be generated within that county and providing for its disposal at facilities in compliance with Act' 641 and with the administrative rules promulgated thereunder. MCL 299.425; MSA 13.29(25); South Haven Twp v Dep’t of Natural Resources, 132 Mich App 222, 227; 346 NW2d 923 (1984); Delta County v Dep’t of Natural Resources, supra, p 462. Each county’s solid waste management plan must be submitted to the director of the Department of Natural Resources for approval and, if approved, the local plan is incorporated as part of the state solid waste management plan. MCL 299.432(1); MSA 13.29(32)(1). The state di rectly regulates both the construction and operation of disposal sites and facilities in Michigan through the issuance of construction permits under MCL 299.410; MSA 13.29(10) and operator licenses under MCL 299.413; MSA 13.29(13). Pursuant to MCL 299.425(3); MSA 13.29(25)(3), plaintiff filed a notice of intent with the DNR in 1979, stating that it would prepare a county-wide solid waste management plan through its board of public works. Early in the planning stages, plaintiff contacted officials of both Bay and Midland counties in an effort to determine whether there was interest in joint solid waste management planning. Neither county responded. Plaintiff proceeded to develop a plan which was eventually approved by the specially appointed 13-member planning committee required under MCL 299.426; MSA 13.29(26), the Saginaw County Board of Commissioners and the individual municipalities located within Saginaw County. MCL 299.428; MSA 13.29(28). Plaintiff’s plan projected nine years of available landfill capacity in Saginaw County as of September 1982. One of the landfill sites reported in the plan was defendant’s James Township landfill, identified as a disposal site for Saginaw County waste only. This plan was approved by the DNR on June 26, 1984, following the requisite notices and hearings. MCL 299.427; MSA 13.29(27). In July of 1984, defendant commenced operating a facility which it had constructed in Bay County to collect solid waste material generated in that county for transfer to the James Township landfill. Defendant had obtained a permit from the DNR on June 30, 1983, to construct its Bay County facility but was denied a license to operate under MCL 299.413; MSA 13.29(13) because the DNR had not yet approved Bay County’s solid waste management plan. The Bay County plan identified defendant’s James Township landfill as a disposal site for Bay County waste, in direct conflict with plaintiffs solid waste management plan, already approved by the DNR and part of the state plan. Plaintiff formally objected to the Bay County plan and the DNR withheld its approval, in part because of the conflict over the use of defendant’s James Township landfill. Defendant, however, obtained a license to operate its transfer facility from Bay City and, in July of 1984, began transferring 70 to 75 tons of solid waste per day to its landfill in James Township. Plaintiff promptly filed this lawsuit for injunctive relief. After a hearing conducted on August 3, 1984, the circuit court issued a preliminary injunction limiting the amount of solid waste materials transferred from the Bay County facility to the James Township landfill to three trailer-loads per day. A bench trial was conducted on September 11, 1984. The director of public works for Saginaw County testified that the disposal of an additional 75 tons of solid waste per day in Saginaw County would reduce the county’s available landfill capacity from a nine-year to a five-year level. The director further pointed out that if the Bay County facility was allowed to operate at its maximum transfer capacity, plaintiff’s overall landfill space would be reduced by as much as 40%. The trial court rendered a decision in favor of plaintiff, holding that, although plaintiff’s solid waste management plan did not expressly prohibit the disposal in Saginaw County of solid waste from Bay County or any other county, the plan did identify defendant’s landfill for a specific and exclusive purpose and that defendant’s activities significantly interfered with the plan adopted by the county and approved by the state. The court concluded that defendant could not continue transferring solid waste materials from Bay County and issued its permanent injunction on September 24, 1984. Defendant’s principal arguments both at trial and on appeal are that Act 641 does not authorize a county to prohibit the intercounty flow of solid waste and that a county’s solid waste management plan need not identify a disposal area as serving another county before the private owner of that area is permitted to use the property for that purpose. We consider defendant’s second argument regarding the necessity of identifying an inter-county disposal site as such in both counties’ solid waste management plans. Act 641 specifically authorizes and requires the director of the Department of Natural Resources to promulgate administrative rules governing the content, form and submission of waste management plans. MCL 299.430(1); MSA 13.29(30)(1). Pursuant to this statutory mandate, 1982 AACS, R 299.4711 was promulgated, setting forth detailed and specific requirements governing the development of an acceptable waste management plan. A county is required to realistically evaluate its access to disposal areas for 5- and 20-year periods. 1982 AACS, R 299.4711(e)(i)(C). Moreover, the county must "identify specific sites for solid waste disposal areas for the 5-year period subsequent to plan approval or update”. 1982 AACS, R 299.4711(e)(iii)(A). The administrative rules specifically provide that intercounty transfers of solid waste materials must be identified in the plans of each county involved: "A site for a solid waste disposal area that is located in one county, but serves another county, shall be identified in both county solid waste management plans.” 1982 AACS, R 299.4711(e)(iii)(C). Defendant argues that this rule merely instructs county planning agencies to ensure that solid waste generated within its boundaries is delivered only to facilities in compliance with state law, even where that facility is outside the planning county. We disagree and instead interpret 1982 AACS, R 299.471l(e)(iii)(C) as requiring inter-county planning and cooperation where there is an intercounty flow of solid waste. In interpreting administrative rules and regulations, this Court assigns great deference to the interpretation provided by the administrative agency responsible for implementing them. Knauss v State Employees’ Retirement System, 143 Mich App 644, 648; 372 NW2d 643 (1985). It is clear that the DNR, the agency responsible for implementing the solid waste management rules and regulations, interprets 1982 AACS, R 299.4711(e)(iii)(C) as a requirement that intercounty waste disposal sites shall be designated as such in the involved counties’ solid waste management plans. The DNR refused to approve Bay County’s plan in part because defendant’s landfill designated as a disposal area for Bay County waste was not similarly designated in Saginaw County’s plan. We agree with the interpretation provided by the DNR and view it as the only reasonable interpretation consistent with the general purposes of Act 641. Southeastern Oakland County Incinerator Authority, supra. Defendant alternatively argues that the DNR acted beyond the scope of its authority in promulgating 1982 AACS, R 299.4711(e)(iii)(C) because Act 641 does not authorize county control of the intercounty flow of waste. This argument ignores the fact that a county solid waste management plan is not effective until approved by the state, at which time it becomes a part of the state solid waste management plan. Although the county plan originates with the county, the blueprints for that plan are provided by a host of statutory and administrative regulations. The real issue here is whether Act 641 authorizes the state to control the intercounty flow of solid waste material. An important goal of Act 641 is to provide for long-term planning in the area of solid waste management. To effectuate this goal, the Legislature required counties to adopt management plans which: "[S]hall include an enforceable program and process to assure that the nonhazardous solid waste generated or to be generated in the planning area for a 20-year period is collected and recovered, processed, or disposed of at facilities which comply with state law and rules promulgated by the department * * MCL 299.425(1); MSA 13.29(25)(1). While the specific requirements governing waste management plans were to be developed by the director of the DNR, the Legislature did instruct that the administrative rules include a provision directing counties to evaluate whether "the plan area has, and will have during the plan period, access to a sufficient amount of available and suitable land * * * to accommodate the development and operation of solid waste disposal areas”. MCL 299.430(l)(h); MSA 13.29(30)(l)(h). The Legislature has thus clearly indicated that a county’s reliance on a specific landfill site is to be identified in its waste management plan. If the state is to implement a workable solid waste management plan, then the individual county plans on which it is based must be reliable. A county plan which identifies a privately owned facility for the disposal of solid waste only from that county must be enforceable. Were we to construe Act 641 and the administrative rules promulgated thereunder to allow private businesses to operate their facilities in a manner inconsistent with a county waste management plan, we would frustrate the intent of the Legislature in enacting Act 641. While defendant correctly asserts that private sector involvement in the business of solid waste disposal is expressly encouraged by the Legislature, we emphasize that the Legislature conditioned its encouragement on compliance with county plans, MCL 299.430(l)(f); MSA 13.29(30)(l)(f), and on compliance with the minimum requirements of Act 641. MCL 299.435; MSA 13.29(35). Defendant is a business engaged in a highly regulated field. It is charged with constructive knowledge of the regulatory scheme governing its operations. Under that scheme, defendant had opportunity to review the Saginaw County solid waste management plan prior to its adoption and approval and register any dissatisfaction at a public hearing or with any of the various governmental bodies required to approve the plan. MCL 299.427(e), (f); MSA 13.29(27)(e), (f). We hold that because defendant’s James Township landfill is not identified in Saginaw County’s solid waste management plan as a disposal area for solid waste generated in Bay County, the trial court did not err in issuing a permanent injunction prohibiting defendant’s operation of the land fill site in a manner inconsistent with the Saginaw County plan. The remaining issues raised by defendant on appeal are without merit. Plaintiffs petition for a permanent injunction is not barred by the principles of estoppel or laches. Defendant’s decision to construct and operate a transfer facility in Bay County was independent of any actions on the part of Saginaw County and was governed by state regulation. Defendant was well aware of the legislative mándate requiring county-wide solid waste management plans and knew that the department had rejected the plan submitted by Bay County which identified its landfill as a disposal area. There is no act or omission on plaintiffs part which could reasonably have induced defendant to believe that the James Township landfill could be used for disposal of waste from Bay County. See Lumber Village, Inc v Siegler, 135 Mich App 685, 697; 355 NW2d 654 (1984). Moreover, plaintiff instituted this suit against defendant less than one month after defendant began transporting solid waste material from Bay County for disposal in Saginaw County. The affirmative defense of laches is therefore inapplicable. In re Crawford Estate, 115 Mich App 19, 25-26; 320 NW2d 276 (1982). The trial court did not abuse its discretion in excluding any evidence of the intent of the Saginaw County planning commission to omit general reference to the intercounty transfer of waste. The plan itself provided that some undetermined amount of solid waste was to be transferred from Saginaw County to other counties and that some undetermined amount of waste was to be transferred from other counties to Saginaw County. The evidence excluded was neither relevant nor material to the issue of whether Bay County waste could be deposited at the James Township landfill consistent with the Saginaw County solid waste management plan. Finally, we find that the Saginaw County Board of Commissioners properly authorized the commencement of this suit by resolution of August 14, 1984. The board’s decision to institute suit was based on a report prepared by a committee and that committee’s report constitutes the resolution. We see nothing improper in this procedure. Afiirmed. If a county refuses or declines to prepare its own solid waste management plan, Act 641 authorizes the director of the Department of Natural Resources to do so in its stead. MCL 299.425(6); MSA 13.29(25)(6). We do not know whether defendant objected to the designation given the James Township landfill in the Saginaw County plan prior to its approval. The license to operate issued by Bay City was in direct conflict with the provision of Act 641 which vests the DNR with the exclusive authority to issue operator licenses, MCL 299.413; MSA 13.29(13).	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Per Curiam. Defendant was convicted of violating the Precious Metal and Gem Dealer Act, MCL 445.484; MSA 19.720(4) and MCL 445.489; MSA 19.720(9). The conviction stems from defendant’s failure to record on a "record of transaction” form the details of his purchase of a ring from a Mr. Kopel. On October 26, 1983, Dennis Farmer, an off-duty Livonia police officer working as a security guard at the Livonia Mall, noticed several teenagers congregating in front of the defendant’s place of business. Three of the boys went inside and were seen talking with the defendant. Two of the boys rejoined the others and proceeded toward an exit, whereupon they were stopped by Officer Farmer and questioned. The fifth boy, Michael Andrews, was seen approaching the group, but he continued on past toward the exit. He was stopped and questioned by Officer Farmer, whereupon he informed the officer that he had sold a diamond ring to the defendant for $3. After radioing for assistance, Farmer was joined by Livonia Police Officer Sherman, and they proceeded to defendant’s shop with the Andrews boy to investigate the matter. Before arriving at defendant’s shop, Andrews changed his story and admitted that defendant declined to buy the ring, directing the boy to Michel’s Jewelry Store. Upon investigating the situation at Michel’s, it was learned that a Mr. Kopel gave the boy $10 for the ring, removed the diamond, and took the setting to defendant. Defendant allegedly paid Mr. Kopel $10. The officers then proceeded to the defendant’s shop and indicated to him that Mr. Kopel had informed them that he sold a ring to defendant for $10. Defendant admitted buying the ring, but claimed to have paid only three or four dollars, and stated "anything under five, I don’t have to record”. The officers had not asked to see his transaction records at that point. Defendant then turned the ring over to Officer Sherman pursuant to the officer’s request. On appeal, defendant first argues that his statements to Officer Sherman should have been suppressed by the trial court since defendant was not advised of his Miranda rights pior to questioning. We disagree. Although the officers were aware that Mr. Kopel sold defendant a gold ring for $10, no crime occurred unless defendant failed to record the transaction on a record of transaction form as required by MCL 445.484; MSA 19.720(4) and MCL 445.489; MSA 19.720(9). The questioning of the defendant was therefore intended to uncover whether in fact a crime had been committed. Even under the "focus” test for determining the applicability of Miranda, People v Wallach, 110 Mich App 37; 312 NW2d 387 (1981), we do not believe the defendant’s statements were inadmissible. Until it has been determined that a crime has actually occurred, a criminal investigation cannot truly focus upon any person for Miranda purposes. We find no error. People v Lobaito, 133 Mich App 547, 553-554; 351 NW2d 233 (1984). Defendant next argues that the gold ring should have been held inadmissible as evidence since it was seized without a warrant. We disagree, since we believe the seizure was proper under the "pervasively regulated industry” doctrine. People v Barnes, 146 Mich App 37; 379 NW2d 464 (1985). Under this doctrine, warrantless searches and seizures are not unreasonable per se in pervasively regulated industries if certain conditions are met. The application of this doctrine was described in Tallman v Dep’t of Natural Resources, 421 Mich 585, 617-618; 365 NW2d 724 (1984), as follows: "We conclude that conflicts arising under art 1, § 11 of the Michigan Constitution between the enforcement needs of governmental agencies and the privacy interests of régulated commercial actors should be resolved by balancing the following factors:_ "(1) the existence of express statutory authorization for search or seizure; "(2) the importance of the governmental interest at stake; "(3) the pervasiveness and longevity of industry regulation; "(4) the inclusion of reasonable limitations on searches in statutes and regulations; "(5) the government’s need for flexibility in the time, scope and frequency of inspections in order to achieve reasonable levels of compliance; "(6) the degree of intrusion occasioned by a particular regulatory search; and "(7) the degree to which a business person may be said to have impliedly consented to warrantless searches as a condition of doing business, so that the search does not infringe upon reasonable expectations of privacy.” (Footnotes omitted.) Applying these factors to the case at hand, we find the seizure of the ring to have been proper. Although the Precious Metal and Gem Dealer Act provides only for inspection, "any inspection implies a search and, by reasonable interpretation of legislative intent, a seizure”. Barnes, p 42. Further, the importance of the governmental interest is high. The purpose of the statute is to prevent the theft of precious jewelry for cash resale. Although the statute has only been in existence for a few years, the legislation is quite detailed and is designed to deal with a problem of a longstanding nature. Further, reasonable limitations are placed on the inspections: only police and court prosecutors may perform such searches and inspections must be conducted only during business hours. These warrantless inspections are necessary to fulfill the purpose of the regulations. Otherwise, as in Barnes, the dealer might not keep sufficient records and might be careless in his purchasing practices. Also, since the inspections are conducted during business hours, there is little intrusion. Finally, the statute provides that a dealer impliedly consents to the inspections as a condition of doing business. Therefore, in balancing each of the Tallman factors, we find that the seizure of the ring was valid and proper. Defendant next complains of the trial court’s instructions to the jury regarding certain exceptions to the class of "precious items” which are subject to the act, to wit: items purchased directly from a manufacturer, and items which do not have a jeweler’s identifying mark and which a dealer purchases for less than $5. MCL 445.482(h)(iii) and (vii); MSA 19.720(2)(h)(iii) and (vii). Although the trial court did indeed give confusing instructions on the second exception, as evidenced by the jury’s request for reinstruction on the subject, we find that the reinstruction was sufficient to clear up any confusion or misunderstanding. Reviewing the instructions as a whole, then, we conclude that they adequately informed the jury as to all the essential elements of the charged offense. People v Stewart, 126 Mich App 374, 377; 337 NW2d 68 (1983). Defendant also argues that the jury should only have been instructed regarding the manufacturer’s exception, without including the jeweler’s mark exception. Defendant contends that, since the ring did in fact have a Meyer Treasure Chest mark on it, the exception contained in § 482(h)(vii) was irrelevant. However, defendant fails to indicate any prejudice which may have resulted from the court’s inclusion of this exception in its instructions and we can find none. Since the exception which was in fact relevant in this case was properly presented to the jury, we find no error. Next, defendant points to the fact that one of the defense exhibits, an advertisement for Michel’s Jewelry Store, had not been given to the jury to use during their deliberations. Defense counsel moved for a judgment notwithstanding the verdict on this ground, which was denied without comment by the trial court. We are aware of no case which holds that every exhibit introduced at trial must be sent to the jury room, even where the jury does not request the exhibit, for a conviction to be upheld. We can see no reason for such a rule since the jury was exposed to and became aware of the exhibit when it was introduced by the defendant during trial. The issue is without merit. As his final claim of error on appeal, defendant points to several technical defects in the information. We find the issue waived on appeal due to defendant’s failure to raise a timely objection. Further, the defects were not of such magnitude as to mislead the jury or otherwise prejudice the defendant, and thus we find no error. People v Brady Smith, 108 Mich App 338, 345; 310 NW2d 235 (1981). Further, the lack of evidence regarding the atomic weight of the gold is not fatal since the testimony of Mr. Kopel indicated that the ring was in fact gold. The jury was entitled to presume from this evidence that the ring was gold within the meaning of the statute. Affirmed. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).	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Per Curiam. On December 21, 1984, following a remand from this Court, defendant was resentenced to a term of from 35 to 70 years. The present trial judge imposing the sentence is the successor in office to the trial judge who imposed the original sentence of from 35 to 70 years. Defendant appeals as of right. On April 7, 1981, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. In addition to defendant, two other persons were involved in a holdup of a drugstore. Defendant entered into a plea bargain providing that, in exchange for his plea of guilty to armed robbery and felony-firearm and for his providing the police with information regarding the theft of a police officer’s gun, he would not be prosecuted for theft of the gun and he would not be charged as an habitual offender provided he testified against one of the other persons involved in the armed robbery. A presentence report was submitted to the court with a sentence recommendation by the probation officer of from 10 to 25 years in prison. According to the presentence report, the police recommended a minimum sentence of from 8 years to a maximum of life. On May 29, 1981, defendant was sentenced to a term of from 35 to 70 years in prison. Defendant’s appeal of his conviction and sentence was as of right. On August 19, 1983, the Court of Appeals affirmed defendant’s conviction and also ruled that based on People v Burton, 396 Mich 238, 243; 240 NW2d 239 (1976), it was without authority to review the sentence. Leave to appeal was sought but the Supreme Court, in lieu of granting leave, remanded the case to the Court of Appeals on June 29, 1984, for the limited purpose of reconsideration in light of People v Coles, 417 Mich 523; 339 NW2d 440 (1983). On October 16, 1984, the Court of Appeals remanded the case to the trial court for reconsideration in light of People v Coles, supra. On December 21, 1984, the defendant appeared for resentencing before the trial judge who is the successor to the trial judge who initially imposed sentence but who has since retired. An updated presentence report was prepared and submitted by the probation department. The updated presentence report did not have an updated sentence recommendation. In addition to the probation officer’s recommendation of from 10 to 25 years, and the police officer’s recommendation of from 8 years to a maximum of life, the minimum sentence guideline range as filled out by the probation officer indicated the minimum sentence range of from 72 months to 120 months (from 6 to 10 years). The trial judge sentenced defendant to from 35 to 70 years. Although defendant raises a number of issues, consideration of one issue is sufficient for disposition of this appeal. Defendant contends that he is entitled to be resentenced because he was not afforded an opportunity to exercise his right of allocution before the sentence was determined by the trial judge. It is not disputed that a conference in chambers including the defendant, defense counsel, and the prosecutor took place. The trial judge is said to have stated that, irrespective of the range reflected by the sentencing guidelines, he intended to impose the same 35- to 70-year term originally imposed by the trial court. Following the conference, but prior to sentencing, defendant and defense counsel were offered the right of allocution. Defense counsel questioned the value of the opportunity to speak as the court had already determined the sentence before allocution. The trial judge responded by stating: "The Court: Well, I think if you want to, you should —I’m giving you that opportunity, to put on the record whatever you think is relevant as far as a resentence is concerned. I’m here to resentence him. I have told you in chambers that I do not have any intention of changing the sentence, and I expect to sometime this morning put on the record why I do not intend to do that, but you certainly have the opportunity to give me any reasons that you want as to why I should change the sentence.” Both the defendant and defense counsel, nevertheless, expressed their view of factors that weighed in their favor. In Michigan, the right of allocution is explicitly embodied in the General Court Rules, specifically GCR 1963, 785.8: . ".8 Sentencing. Before sentence is imposed the court shall: "(2) give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence * * *.” (Emphasis added.) The court rules admit no contrary argument. A defendant must be given the right of allocution. Michigan appellate courts have strictly enforced the right of allocution embodied in GCR 1963, 785.8 by remanding for resentencing in numerous cases. People v Dozier, 411 Mich 888 (1981); People v Mersino, 413 Mich 925 (1982); People v Berry, 409 Mich 774; 298 NW2d 434 (1980); People v Elijah Smith, 397 Mich 864; 245 NW2d 544 (1976); People v Morgan, 112 Mich App 90; 314 NW2d 806 (1981); People v Clements, 72 Mich App 500; 250 NW2d 100 (1976); People v Jack Crawford, 66 Mich App 738; 239 NW2d 734 (1976); People v Brewer, 60 Mich App 517, 522-523; 231 NW2d 375 (1975); People v Gonzales, 60 Mich App 450, 454; 231 NW2d 393 (1975). It is clear that a defendant must be allowed to exercise his right of allocution before sentence is imposed. In People v Brooks, 122 Mich App 39, 42-43; 329 NW2d 524 (1982), this Court ordered resentencing where allocution was offered to the defendant after sentence was announced: "Finally, we agree with defendant that he was denied his right of allocution even though the judge asked defendant if he had anything to say after sentence was imposed. We are compelled by the Supreme Court’s authority to hold that failure to comply with GCR 1963, 785.8(2), requires resentence. People v Berry, 409 Mich 774, 781; 298 NW2d 434 (1980). In Berry, the Supreme Court stated: " 'The rule requires strict compliance and should be understood in all cases to require the trial court to inquire specifically of the defendant separately whether he or she wishes to address the court before the sentence is imposed. Ordinarily the inquiry should come immediately before the sentence is pronounced and after the trial court has made such remarks as it deems appropriate concerning the offense involved, the presentence report, the defendant’s personal history, the needs of the community, and any other subject. " 'In the cases before us, it is evident from the records that the defendants were not separately and individually given a reasonable opportunity to address the court. Thus the defendants must be resentenced.’ ” The defendant in this case was denied his right of allocution. To afford the defendant an opportunity to speak after the court, in effect, announces it has no intention of changing the sentence renders the allocution meaningless. Accordingly, re-sentencing is required. This matter is hereby remanded for resentencing to be imposed by another judge to be assigned to this case. The presentence report is to be brought up to date and shall include a recommendation of the probation department on the sentence. We make it clear that we have not decided whether, in this case, a 35-year minimum sentence shocks our judicial conscience. In returning this case for resentencing by another judge, we anticipate the judge will exercise independent discretion, giving consideration to all of the factors properly involved in the imposition of a sentence. Specifically, we do not intend that the sentencing judge will be controlled by the previous sentence. We do not retain jurisdiction. Reversed and remanded.	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Per Curiam. Defendant was convicted following a jury trial of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). He was sentenced to prison for a term of incarceration of not less than 10 nor more than 15 years. Defendant appeals as of right. The victim of the sexual abuse was defendant’s wife’s eight-year-old daughter from a previous marriage. Defendant’s wife testified that she confronted the defendant after her daughter told her about the incident which gave rise to the instant charges. Defendant replied that he had made sexual advances towards the girl because she was willing to cuddle with him at a time when the mother refused to do so. This testimony was repeated. Defendant’s wife also testified that she told defendant’s sister that he admitted the act. On appeal, defendant claims that this testimony concerned marital communications and that it should have been excluded at trial pursuant to MCL 600.2162; MSA 27A.2162. We disagree. In Michigan, the two common-law husband-wife privileges are codified in MCL 600.2162; MSA 27A.2162, which provides in pertinent part: "A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except * * * in cases of prosecution for a crime committed against the child of either or both * * ; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage * MCL 600.2162; MSA 27A.2162. This statutory language codifies the common-law "spousal privilege” and the "confidential communication privilege”. The "spousal privilege” applies to any testimony of a spouse without the consent of the other so long as the parties continue to be legally married at the time of the suit. It is, however, subject to those exceptions enumerated in the statute. On the other hand, the confidential communication privilege applies to confidential communications made within the marital relationship irrespective of the marital status of the parties at the time of the trial. People v Wadkins, 101 Mich App 272, 282; 300 NW2d 542 (1980). The trial court admitted defendant’s wife’s testimony concerning defendant’s communications to her based upon the exception in the statute for criminal prosecutions for crimes committed against the children of either spouse. The trial court’s decision was based upon People v Clarke, 366 Mich 209, 214; 114 NW2d 338 (1962), wherein the Supreme Court stated: "As a matter of public policy, it is clear the statute was designed to protect communications between husband and wife during marriage. The exception was designed to permit prosecution for crimes committed within the family unit. Such crimes normally would have no other witnesses and would go unpunished in the event the exception in the statute were not permitted to operate.” We note that the language relied upon by the trial court is dicta and we question whether this exception is applicable to the marital communications privilege. Nevertheless, we hold that the testimony was properly admitted. In People v Salisbury, 218 Mich 529, 532-533; 188 NW 340 (1922), our Supreme Court explained the purpose of this privilege: "The exclusion of such communications when made in confidence between persons occupying the intimate relation of husband and wife is predicated on the necessity of fostering such relation and the greater injury likely to result from permitting their disclosure than the benefit to be gained thereby. Confidence and secrecy are presumed to have been intended in such marital communications and the statute absolutely prohibits their divulgence by either of the parties as witnesses 'without the consent of both.’ ” At common law, "[t]he rule of necessity * * * created exceptions to the general rule making husband and wife incompetent witnesses in cases involving the other, such exceptions being partly for the protection of the wife in her life and liberty, and partly for the sake of public justice”. People v Zabijak, 285 Mich 164, 176; 280 NW2d 149 (1938). The Supreme Court also recognized that: "The privilege is in derogation of the general rule that all persons may be compelled to testify concerning facts inquired about in courts of justice. It should be made effective, but ought not to be extended by the courts to cases where there has been no injury to the relation of the parties by the betrayal of the confidence reposed.” People v Zabijak, supra, p 177. We note that in People v Salisbury, supra, the prosecutor sought to introduce on cross-examina tion of the defendant evidence of a statement that the defendant made to his wife wherein he admitted the act of sexual indecency upon his daughter. In that case, the Supreme Court found the admission of the statement to be in contravention of the husband-wife communication privilege as it was codified then and reversed the defendant’s conviction. We find the case herein distinguishable on two bases. First, unlike the statute controlling the case at bar, the privilege as codified in Salisbury did not provide for an exception to the spousal privilege for prosecutions concerning crimes against either spouse’s children, this exception not being added until 1939. The dicta in People v Clark, supra, relied upon by the instant trial court, is persuasive of the Legislature’s intent to make the exception applicable to the communications privilege. However, the dicta is not precedent, and we do not base our decision solely upon this distinction. The second basis for distinguishing Salisbury is that, in the instant case, defendant and his wife were in the process of divorce at the time of trial. Thus, strict adherence to the rule would not further its purpose of fostering the marital relationship. Further, necessity requires relaxation of the rule where no injury would result to the marital relationship and strict adherence to the rule would promote neither protection of the family members nor public justice. Based upon this latter distinction, we conclude that the testimony was properly admitted. Defendant next claims that his 10- to 15-year prison sentence exceeded that recommended by the sentencing guidelines and shocks the conscience of this Court. This claim is without merit. The trial court explained that it departed from the guidelines because of the high degree of callousness demonstrated by the defendant and the psychological harm that would inevitably be suffered by the child because of defendant’s misconduct. This was not an abuse of discretion nor is the sentence shocking. See People v Frank Johnson, 146 Mich App 429; 381 NW2d 740 (1985); People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Affirmed. D. E. Holbrook, Jr., P.J., concurs in the result only.	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Per Curiam. Following a jury trial in Bay County Circuit Court defendant was convicted of first-degree criminal sexual conduct, MCL 750.520(b)(1)(a); MSA 28.788(2)(1)(a). The victim in this case is defendant’s stepdaughter, Heidi, who was three years old at the time the charged oifense occurred. Defendant was sentenced to from 20 to 50 years and now appeals as of right. The trial court determined that Heidi was competent to testify. Anatomically correct dolls were used during the direct examination of Heidi. The prosecutor asked Heidi if defendant had hurt her and directed the child to point to the area on the doll. Heidi responded "yes” and pointed to the vaginal area. Defense counsel argued that the prosecutor had helped Heidi point to that area. The prosecutor denied that she helped the child. Heidi was then asked where defendant had hurt her and Heidi touched the penis and finger of the male doll. Heidi testified that defendant hurt her, she cried and said, "I bleeded”. On cross-examination Heidi stated that she had informed her mother and grandmother about defendant’s behavior. She also stated that her "pee-pee” itched sometimes and she scratched it. A rocking horse was shown to Heidi. She indicated that she had never had an accident on the rocking horse. Ms. Jalovaara, a master level psychologist, testified that she examined Heidi on September 29, 1983. She said that several tests were used in evaluating Heidi: (1) McCarthy Scales of Children’s Abilities, (2) Vineland Social Maturity Scales, (3) Extended Action Agent Vocabulary Tests, (4) Peabody Picture Vocabulary Test, and (5) Diagnostic Play Session. Jalovaara explained that these tests were generally recognized in the field of psychology as being methods of evaluating children in Heidi’s age range. According to Jalovaara, indicators of sexual abuse of children among Heidi’s age range were the ideation of the child’s play, masturbation, and fear of sexual matters. She testified that she observed Heidi spontaneously roll Play-doh into long cylindrical pieces and say "that’s my daddy’s pee-pee”. Heidi then used the Play-doh to imitate a sexual act. Jalovaara felt Heidi was overly preoccupied with sexual matters for a child of her age. She stated that Heidi told her, "He put his pee-pee in my pee-pee. That wasn’t nice.” Jalovaara opined that Heidi’s behavior was consistent with behavior of a child who had been sexually abused. After evaluating Heidi, Jalovaara concluded that Heidi believed that she had been sexually abused. Dr. Knobloch, Heidi’s pediatrician, testified that he examined the child on September 16, 1983. During the examination he found a quarter of an inch tear in Heidi’s hymen. He stated that this tear probably occurred approximately one week before the examination. Heidi was examined on August 25, 1983, for a urinary tract infection and Dr. Knobloch had not observed the tear at that time. The doctor stated that Heidi’s behavior during the September 16, 1983, examination was different from previous examinations in that she seemed fearful. Heidi was normally outgoing. The doctor opined that the tear in Heidi’s hymen was not self-induced and that the tear could have been caused by penetration with a finger. He further opined that it was not possible for an adult penis to penetrate the vagina of a child Heidi’s age. The doctor also thought that it was unlikely that the tear had resulted from some type of accident, such as a fall from a rocking horse, because accidents normally caused a tear in the labia rather than in the hymen. Janice Kiersey, age 16, lived with and babysat for defendant and his wife, Heidi’s mother. Kiersey testified on behalf of defendant and stated that in the summer of 1983 she saw Heidi fall on her rocking horse. When she subsequently gave Heidi a bath, she did not notice any bleeding. Approximately one month later she observed Heidi placing the tip of a pencil eraser in her vagina. Defendant testified that he never sexually abused Heidi. In rebuttal, the prosecution recalled Dr. Knob-loch. The doctor testified that it was not possible that a fall on the rocking horse caused Heidi’s injury. However, he stated that the hymen could have been torn by a child inserting a pencil in the vagina. Defendant raises six issues on appeal, none of which require reversal. First, defendant argues that the trial court erred in admitting evidence of statements made by Heidi to her physician on the basis that the evidence constituted hearsay. Heidi’s foster mother, Linda Fisher, testified concerning statements made by Heidi during a medical examination. She explained that as Dr. Knobloch proceeded to examine Heidi to determine the cause of redness and swelling around her vaginal area, Heidi screamed, "Don’t hurt me, don’t hurt me, Tim don’t hurt me; Daddy, don’t hurt me.” She further testified that when Dr. Knobloch examined Heidi’s rectum, he put cream on his glove and Heidi started to scream, "Daddy, don’t make me bleed.” Over defendant’s objection, the trial court ruled that the statements were not inadmissible hearsay because they came under the "excited utterance” and the medical treatment exceptions to the hearsay rule, MRE 803(2) and MRE 803(4). We believe that the trial court did not abuse its discretion in admitting these statements into evidence on the basis that under MRE 803(2) the statements fall within the excited utterance exception to the hearsay rule. Reversal is therefore not required on this point. See People v Petrella, 124 Mich App 745, 758; 336 NW2d 761 (1983). In People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979), our Supreme Court set forth the following criteria for the excited utterance exception to the hearsay rule: "To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion.” (Footnote omitted; citations omitted.) Defendant argues that the above-cited criteria were not met in this case. We disagree. The statements made and the actions taken by the three-year-old victim of the sex crime in this case were clearly the product of a startling event, the sexual abuse of the child by her stepfather. The statements were spontaneous, i.e., not prompted by any questioning. We believe that the event was sufficiently startling to have created excitement lasting for one week, the time which lapsed between the event and the medical examination of the child. The statements were therefore properly admitted under the excited utterance exception to the hearsay rule. People v Lovett, 85 Mich App 534; 272 NW2d 126 (1978); People v Cobb, 108 Mich App 573; 310 NW2d 798 (1981). Defendant argues that the trial court abused its discretion in admitting expert testimony. Jalovaara and Linda Butterfield, both psychologists, testified in this case. Prior to their testifying, the witnesses were questioned about their training and expertise. Each witness was qualified by the court as an expert witness and was permitted to testify about the characteristics that indicate that a child has been sexually abused. Defendant contends that the trial court abused its discretion in allowing the experts to testify on the indicators of a sexually abused child. Defendant asserts that under MRE 702 an insufficient foundation was laid concerning the recognized specialized knowledge in the diagnosis of a sexually abused child. MRE 702 provides: "If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The decision to allow expert testimony on a given issue is left to the trial court’s discretion and will not be reversed on appeal absent a clear abuse of discretion. Independence Twp v Skibowski, 136 Mich App 178; 355 NW2d 903 (1984), lv den 422 Mich 853 (1985); Strzelecki v Blaser’s Lakeside Industries of Rice Lake, Inc, 133 Mich App 191; 348 NW2d 311 (1984). Our review of the record in this case convinces us that the trial court did not abuse its discretion in admitting expert testimony on the matter of what indicators are used in the field of psychology to determine whether a child has been sexually abused. Both witnesses were questioned extensively about their training and experience, which was adequate to qualify them as experts in the field of psychology. Their testimony concerning the characteristics normally found in sexually abused children assisted the jury in understanding the evidence. Also, the practice of psychology is a field where knowledge belongs more to experts than to the common man. The challenged expert witness testimony was therefore properly admitted under MRE 702. Cook v City of Detroit, 125 Mich App 724, 735; 337 NW2d 277 (1983). Defendant argues that the trial court erred in finding that the three-year-old victim was competent to testify. Generally, every person is competent to be a witness in this state unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably. MRE 601. A trial court’s decision that a person is competent to testify is reviewable only to determine whether there was an abuse of discretion. Cobb, supra, p 575. The record in this case supports the trial court’s conclusion that the three-year-old victim was competent to testify. Hence, the trial court did not abuse its discretion. Defendant’s next argument involves the trial court’s refusal to instruct the jury on the cognate lesser-included offense of assault with intent to commit criminal sexual conduct, MCL 750.520g(1); MSA 28.788(7)(1). The defendant was entitled to a jury instruction on assault with intent to commit CSC only if the evidence introduced at trial would justify the jury in concluding that the lesser of fense, and not the greater charged offense, was committed. People v Adams, 416 Mich 53; 330 NW2d 634 (1982); People v Gregory Thomas, 38 Mich App 777, 779; 197 NW2d 97 (1972). Defendant requested a jury instruction on the lesser-included offense of assault with intent to commit CSC. Relying on Adams, supra, the trial court refused to give the requested jury instruction. Our review of the record convinces us that the trial judge acted properly. Defendant did not argue that he had attempted, but not completed, the criminal sexual conduct. Instead, defendant argued that he never engaged in any sexual conduct with Heidi. Defendant also argued that Heidi had been injured as a result of an accident where she fell off a rocking horse. The testimony of Dr. Knobloch, who examined Heidi after the alleged event, indicates that due to the child’s age the tear in her hymen probably did not occur as a result of defendant inserting his penis into the child. The doctor, however, also testified that the tear in Heidi’s hymen was not self-induced and probably resulted from the insertion of some object, such as a finger, into the child’s vagina. Defendant argues that the trial court improperly considered defendant’s refusal to admit guilt in imposing sentence in this case. It is well settled in Michigan that the defendant’s refusal to admit guilt of the crime charged, either before or after conviction, is not a proper factor in setting sentence. People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972). The proper criteria for determining an appropriate sentence were set forth by our Supreme Court in People v Snow, 386 Mich 586; 194 NW2d 314 (1972). The trial court in this case discussed each of the Snow-criteria before imposing sentence. The court concluded that, because defendant posed a threat to society, the need to protect society was great. The court also concluded that defendant should be sentenced to a long prison term so that others would know that similar criminal behavior would not be tolerated. Hence, the trial court imposed the sentence to deter others from committing like offenses. The court noted that the sexual crime perpetrated by defendant had a serious and longlasting effect on Heidi. Hence, it is apparent that the trial court imposed sentence to punish defendant for his wrongdoing. The trial court also concluded that the potential for reformation or rehabilitation of defendant was doubtful. The court’s conclusion was based on the fact that defendant failed to accept responsibility for his criminal conduct. Relying on the court’s statements concerning accepting responsibility, defendant contends that the trial court essentially considered his refusal to admit guilt as a factor in imposing sentence. The trial court never stated that defendant would get a lighter sentence if he admitted that he was guilty. The trial court stated on the record that it recognized defendant’s right to maintain his innocence throughout the trial and "forever”. We conclude that the trial court did not consider defendant’s failure to admit guilt in imposing sentence in this case. Defendant contends that resentencing is required in this case because the trial court departed from the sentencing guidelines and failed to give substantial reasons for the departure. The sentence imposed in this case will not be reversed absent an abuse of discretion to the extent that the sentence shocks the judicial conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The trial court’s stated reasons for imposing sentence in this case, discussed above, were adequate and the sentence does not shock the judicial conscience. Defendant is therefore not entitled to resentencing. Affirmed.	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Hooker, J. The defendant has appealed from a verdict and judgment for $320 in an action for slander and malicious prosecution. The three counts for slander are substantially alike, and the following-quotation from the first will serve to make plain the rulings and points raised thereon: “ * * * say of and concerning this plaintiff, in the presence and hearing of this plaintiff, Charles S. Fuller, and other divers good and worthy citizens of the State of Michigan, did speak, publish, and declare of and concerning said plaintiff the following false, malicious, and defamatory words, to wit: ‘McLeod stole it;’ meaning and referring fo this plaintiff, and meaning and intending to charge this plaintiff with having stolen certain property belonging to George Collin Company, a corporation organized under the laws of this State, of which the said James S. Crosby was president, and meaning and intending to charge, and give the persons who heard him to understand, that the said plaintiff had been guilty of the crime of larceny, and was a thief; that, at the time the said defendant uttered the aforesaid false, slanderous, malicious, and defamatory words, he had been claiming and stating that the said George Collin Company had lost and been deprived of certain personal property, and at the close of his said statement he said of and concerning the said plaintiff, in the presence of the said Charles S. Fuller and the other persons aforesaid, the said false, slanderous, malicious, and defamatory words, ‘McLeod stole it.”’ The count for malicious prosecution related to a prosecution of plaintiff on a charge of larceny, upon which the plaintiff was acquitted in the circuit court, where the judge directed a verdict of not guilty. The charge seems to have related to some logs belonging to the George Collin Company, of which company the defendant was president, which logs it was claimed had been sold, and the proceeds appropriated by the plaintiff. Defendant accompanied his plea with a notice that, if he uttered the words “McLeod stole it,” they were uttered concerning certain property belonging to said company, and that plaintiff had previous to February 10, 1898, and during 1895 and 1896, been in charge of a large amount of personal property of said company, consisting of teams, tools, implements, and machinery for cutting, skidding, hauling, banking, floating, and manufacturing timber into logs, lumber, lath, and shingles, and that plaintiff, well knowing said property to belong to said company, fraudulently, and without the knowledge of said company or its president (the defendant), sold and converted a large portion of said property to his own. use, and caused or permitted other portions of said property to be taken away from the premises of said company and used and appropriated by others, and particularly by the relatives and friends of the plaintiff, “without leave or license so to do, and, without any right whatever to dispose of, use, and appropriate, sold and conveyed and appropriated the funds and proceeds thereof to his own use. And in this sense the defendant will prove the statement that ‘ McLeod stole it, ’ referring to the property of the said George Collin Company, to be true.” Also that, in relation to the malicious prosecution count, defendant would prove that he fully and fairly stated the facts to the prosecuting attorney, and was advised by him that plaintiff was guilty of larceny; and that he was not guilty of any malice, and that he did not cause such arrest without reasonable and probable cause. Also that he would prove in his defense that in October, 3897, plaintiff sold 50,000 feet of the shingle logs of the company, then stored in lakes adjacent to its mills, without authority or right, and appropriated the proceeds to his own use, and thereby became guilty of the crime of larceny or embezzlement, and was chargeable with both offenses, and that the defendant left the cause of action to the prosecuting officer, without malice. The first point discussed relates to the counts for slander. Counsel for the defendant raised the point that they did not state a cause of action, inasmuch as they failed to state what property was referred to by defendant in his statement, “ McLeod stole it. ” The question is not raised by demurrer, and it is therefore improper to apply the test of technical pleading. The declaration shows that the remark applied to personal property of the George Collin Company. It does not specifically describe the articles taken, or mention shingle timber, but it was sufficiently specific to show that the plaintiff was charged-with stealing, as much as though the statement had been, “McLeod is a thief,” “McLeod steals,!’ or “McLeod has'committed larceny.” See Fowler v. Gilbert, 38 Mich. 292. If there is any force in the claim that the words “McLeod stole it ” do not charge a crime, for the reason that the use of the pronoun “it” made the charge indefinite and uncertain, because it may have referred to something not the subject of larceny, its force is lost when taken in connection with .a statement showing that it referred to personal property belonging to the George Collin Company, even if the use of the verb “stole” does not itself imply a larcenous taking of property which is the subject of larceny. The sufficiency of the declaration does not depend upon the statement of plaintiff’s counsel, made on the trial, that he claimed that reference was made to shingle timber merely. One Smith, a lawyer, was called, and produced certain papers, purporting to be the files in a larceny case which had heen pending in the circuit court of .Mecosta county. He stated that they came from the office of the clerk of that county, as the criminal files in that case, and were obtained by the witness from said clerk as such. They were duly indorsed as filed, over a signature purporting to be that of said clerk. He also testified that they were the same papers which were used on the trial of the case. Upon such papers being offered in evidence, defendant’s counsel objected upon the ground that they were incompetent, for the reason that it is improper to prove public papers and records by a borrower of them, and that it did not appear that they were the original files. In the same connection, objection was made to the introduction of a certified copy of some of the orders made in said criminal case, for the reasons — First, there was no verdict of the jury or judgment shown; and, second, that the certificate was defective because it did not show that it was a copy of all of the journal entries. This testimony related to the count for malicious prosecution, and the testimony of Smith was competent to prove the identity of the original files. The certificate to the records was in proper form, and showed the copy to be a copy of the whole of the entries that it purported to certify. There was no attempt to certify all of the orders, nor was it necessary. The entries offered included the record of the rendition of a verdict of not guilty by direction of the court, and there was no occasion to strike out this proof because the excerpt did not include formal judgment of not guilty and discharge of the prisoner. The defendant called the prosecuting attorney who prosecuted said criminal case, and sought to show by him that such prosecution was commenced by his advice and direction. It appeared that he went to the locality of the alleged crime with the defendant to investigate the matter, and talked with Mr. and Mrs. McQueen and others about it. He was asked by defendant: “Q. Did he tell you anything about what the plaintiff in this case had said to him about these logs ? ' “Mr. V. H. Smith: I object to that as immaterial, irrelevant, and incompetent. “ The Court: The objection is sustained. “ Mr. Griswold: I take an exception, if you please. • “A. I did have something to do with the taking out of the warrant for the arrest of' McLeod on the charge of stealing the shingle logs. I directed the issuing of that warrant. I did not order the issuing of the warrant, the filing of the complaint, and the issuing of that warrant' upon the statements made to me by Crosby alone. “ Q. Upon whose statements, and upon what investigation, did you make that order ? “Mr. Smith: I object to that as immaterial. There is nothing material in this case but the question as. to Whether the advice is a shield and a protection. “The Court: It is not a question, at all, of the good faith and diligence of the prosecuting attorney. '“Mr. Griswold: No; surely not. “The Court: The answer as given was proper, as the court understands it, whether or not it was done entirely on information furnished by Mr. Crosby, or from additional investigation made by himself. But I do not know that it is competent or material in this case to have the witness go on and state just what investigation he made. Is tha.t your offer ? “Mr. Griswold: I offered to ask him the question on that very line. I thought it was material, and think so still, to show what information he had about it, and from what source, he obtained it. “ The Court: I think witness may state in a general way what effort he made himself, independently of Mr. Crosby, in investigating it.” The importance of this testimony .related to the information upon which the prosecuting attorney acted. We suppose the position taken to have been that, even if Crosby did not fully state the facts to him, it was immaterial, provided he ascertained them from other sources, and acted upon them in advising defendant to make the complaint. ' The court, on reflection, allowed an investigation of that subject. In his charge, as upon the trial, the court limited counsel for the plaintiff to the claim that the words referred to logs. He instructed the jury that the notice in the plea was not sufficient to warrant proof that the statement was true. Counsel complain of this, and say, “The only reason conceived why the notice under the plea was not sufficient to warrant a finding that the words were true must be found in the fact that the plea does not mention the logs.” It seems obvious that the court was of the opinion that the notice was, at most, a qualified allegation of the truth of the charge, and did not offer a justification as broad as the charge. The charge was a simple charge of larceny. The first notice was that the defendant would prove that the plaintiff was guilty of larceny in a sense therein stated. If it be conceded, as claimed, that it was enough to prove the plaintiff to have embezzled the logs, still the learned circuit judge was correct in saying that this first notice was insufficient. It did not charge broadly that defendant would prove the plaintiff guilty of larceny; nor did it state that he would prove facts which, if proved, would have constituted embezzlement, for there is no allegation that it would be shown that he was an officer, clerk, agent, or servant of the Collin Company; nor did it state broadly that it would be shown that he embezzled the property of the Collin Company. The third notice, however, which we presume the learned circuit judge treated as applicable only to the count for malicious prosecution, was equally defective in an attempt to state facts constituting embezzlement, but it contained a further allegation that, by selling and appropriating the proceeds of the property, he became guilty of the crime of larceny or embezzlement. This notice was broad enough to apply to all of the counts. Embezzlement is made larceny by statute (3 Comp. Laws, § 11565), and it is not unreasonable to say that an embezzler is a thief, or that embezzling is stealing, because larceny is stealing, and embezzling is larceny. Not all larceny is embezzling, but all embezzling is larceny. It may reasonably be claimed, therefore, that, when one says of another, “He stole from A. B.,” he may justify by showing an embezzlement from A. B. Under most, if not all, authorities, the notice must be as broad as the charge, in its offer to prove truth. See 18 Am. & Eng. Enc. Law (2d Ed.), p. 1070. It may be doubtful if a general notice that one will prove another a thief, or that he stole or embezzled, will be a sufficient answer to a general charge that “ he is a thief.” It would certainly afford an opportunity for a wide range in the proof, and would not give much information to the plaintiff of the proof that he should be expected to meet. See Torrey v. Field, 10 Vt. 353. But the charge in this case was not general, but specific, referring to property of the Collin Company. The notice was of necessity limited to it by the declaration itself. Furthermore, it purports to limit the proof to such property, and it states facts conveying information regarding the nature of the alleged theft. Again, the first notice contains the further information that the plaintiff was in charge of the property, which was implied by the statement in the third notice, by the allegation that he embezzled the property. Michigan has not adhered to the rule followed in some States; i. e., that a notice must be as certain and definite as a plea, and that “the true way to test the sufficiency of a notice is to inquire whether the matters contained in it, if pleaded specially, would be good on general demurrer.” See Shepard v. Merrill, 13 Johns. 475. While, in common with other States, its courts have held that the justification must be as broad as the charge (see 18 Am. & Eng. Enc. Law [2d Ed.], p. 1070, note), it has been said many times that a notice which fairly apprises the other party of the nature of the proposed defense is sufficient; and liberality of construction has been indulged where greater particularity in the notice might have been obtained by a motion to make it more specific, or demand for a bill of particulars in a proper case. We are of the opinion that the notice was a sufficient notice that defendant relied upon proving an embezzle ment of the property, and that such proof would establish the truth of the charge; and it only remains to inquire whether proof of embezzlement of property can constitute a justification of a charge that the plaintiff stole it. We have not been cited to any case throwing light upon this question by the defendant’s counsel, but we see no reason for holding that a man may not justify the calling a man a thief by showing that he has done a thing which the statute explicitly says shall constitute larceny. The fact that an indictment for larceny, in the ordinary form, will not cover the case (Bishop, Stat. Crimes, § 418) should make no difference, for it does not make the culprit any the less a thief. While we have not found an authoritative decision upon the point, the question is not altogether new. The charge of the learned circuit judge in the case of Youngs v. Adams, 113 Mich. 200 (71 N. W. 585), gave the defendant the benefit of such a rule; and we were careful to avoid a dictum upon the point in reviewing the case, which could bo affirmed without passing upon it. The case of Shepard v. Merrill, supra, cited by plaintiff’s counsel upon another point, seems to us to have also saved this or a similar question. The notice in the present case alleges the embezzlement of the property. The language is general, but embezzlement includes the elements of a statutory larceny, and, in conjunction with the other things mentioned, was a sufficient statement of a defense which we have already indicated to be, in our opinion, a proper one. This conclusion requires a reversal of the judgment and the direction of a new trial, which is hereby ordered. The other Justices concurred.

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Hooker, J. The Bice Manufacturing Company is an existing corporation, which formerly carried on a manufacturing business at Marquette. Its plant has been shut down for some years. Among other structures, it owned a small pump-house, located upon ground owned by a railroad company, under an arrangement between them. In the house was a small overshot water-wheel. The plaintiff, a girl between 12 and 13 years of age, was in the habit of passing this pump-house on the way to school, with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident through which plaintiff received her injury, a hole ekisted in the stone wall of the house inclosing the wheel, through which children went to play on the wheel. What evidence there is on the subject justifies the inference that it was made by children, and from time to time enlarged, by tearing out the stone of which the wall was built, for the purpose of entry to the wheel. On the day in question, the brothers of plaintiff, on their way from school, crawled through this hole, and, mounting the wheel, were able by their weight to turn the wheel part way round and back. A younger sister, aged 8 years, got caught between the wheel and the wheel-pit. The plaintiff heard her screams, and went through the hole to her succor, and aided in rescuing her, and was herself injured. Suit was brought against the corporation and two of its directors, and the negligence alleged was in permitting the wheel to remain there, accessible to children. The court directed a verdict in favor of the directors, and allowed the jury to determine the liability of the corporation, against which they rendered a verdict for $5,000. From a judgment in favor of the directors, the plaintiff has appealed. The only error assigned is the direction to return a verdict in favor of the -directors. The testimony shows that the buildings of the Bice Manufacturing Company were upon land owned by the railroad company, and that such land, together with the railroad, consisting of several tracks, was fenced. The plaintiff was not shown to have been invited upon the premises, but there is testimony from which the jury might reasonably conclude that children were in the habit of crossing the land of the defendant company and the" railroad, and that neither company took steps to prevent it, further than to keep up the fences. It is contended that this amounted to an invitation or license, but we think not. Mere toleration of a trespass does not alone constitute a license even, certainly not an invitation. 1 Thomp. Neg. (2d Ed.) § 1050, and note. The pedestrians who insist upon risking their lives by making a footpath of a railroad track, and others who habitually shorten distances by making footpaths across the corners of village lots, are none the less trespassers because the owners do not choose to resent such intrusion, and be to the expense and trouble of taking effective measures to prevent it. /There is no more lawless class than children, and none more annoyingly resent an attempt to prevent their trespasses. The average citizen has learned that the surest way to be overrun by children is to give them to understand that their presence is distasteful. The consequence is that they roam at will over private premises, and,, as a rule, this is tolerated so long as no damage is done. The remedy which the law affords for the trifling trespasses of children is inadequate. No one ever thinks of suing them, and to attempt to remove a crowd of boys from private premises by gently laying on of hands, and using no more force than necessary to put them off, would be a roaring farce, with all honors to the juveniles. For a corporation with an empty treasury, and overwhelmed with debt,, to be required to be to the expense of preventing children from- going across its lots to school, lest it be said that it invited and licensed them to do so, is to our minds an unreasonable proposition. . As to this question of license or invitation, there is no difference between children and adults. In the case of Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914), Mr. Justice Campbell said: “It is impracticable to keep off trespassers from an open track, and all who go upon it do so on their own risk of such dangers as are incident directly to such use.” See, also, O’Neil v. Railway Co., 101 Mich. 437 (59 N. W. 836). In Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442), it was contended that a common practice of crossing a railway, of 20 years’ duration, established an easement or a license or invitation, which made it incumbent upon the company to keep the premises free from obstructions, such as a semaphore wire along and a few inches above the surface of the ground. It was held that it proved neither, and that those who crossed were technical trespassers. Numerous authorities were cited, and the question cannot be considered an open one in this State. It is a general and nearly uniform rule that there¡ is no duty imposed upon the owner of premises to keep them in a suitable condition for those who come there for their own convenience merely, without the invitation of the owner. The origin of the alleged modern doctrine may be said to practically rest upon what are called the “ Turntable Cases,” the first of which was the case of Railroad Co. v. Stout, 17 Wall. 657. The opinion was written by Mr. Justice Hunt in the year 1873. A child of 6 years of age was hurt while playing with others upon a turntable, by getting its foot caught between the ends of the rails. The turntable was in a remote place, not far from a public highway, on ground belonging to the company. The trial court charged the jury— “ That, to maintain the action, it must appear * * * that it was a dangerous machine, — one which, if unguarded or unlocked, would be likely to cause injury to children; * * * that the jury were to consider whether, ■situated as it was, as the defendant’s property, in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.” The only question in the case was whether the child was a trespasser, and for that reason could not recover. This case practically laid down the rule “ that a railroad ■company might be liable to trespassers for injuries resulting from its failure to construct, locate, manage, and maintain its turntable with that care and attention to prevent accidents which prudent and careful men ordinarily bestow;” and it held that while “the evidence was not strong, and the negligence was slight,” the court was “not able to say that there was not evidence sufficient to justify the verdict,” and that the charge was sound. Four cases are cited as precedents for the proposition that a trespasser is entitled to demand from a landowner ordinary care in the use, condition, and maintenance of structures upon his premises. The first was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. In that case it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured, could maintain an action against the owner. The case seems to have-gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but-later English cases are in conflict with that case, if it necessarily involved it. In Mangan v. Atterton, L. R. 1 Exch. 239, the defendant exposed for sale a machine in a public place, which might be set in motion by a passerby. A boy 4 years old, by direction of his brother, 7 years old, placed his fingers in the machine while another boy was turning the handle which moved it, and his fingers were crushed. Bramwell, J., said the action could not be maintained, and added: ‘ ‘ Suppose the machine was. of delicate construction, and was injured by the boy; would' he not be a trespasser ? If so, it is impossible to hold the-defendant.” In Hughes v. Macfie, 2 Hurl. & C. 744, a cellar grating was left standing against a wall in a street. A child playing with it was injured by its falling upon him. The court said that he could not recover, “because he was voluntarily meddling, for no lawful purpose, with that which, if left alone, would not have hurt him. His being of tender years makes no difference.” It is noticeable that even the Lynch Case did not involve a trespass upon defendant’s close, though it did perhaps involve a trespass to personal property. The next case cited as authority in Railroad Co. v. Stout is Birge v. Gardiner, 19 Conn. 507 (50 Am. Dec. 261). There a child was injured by the fall of a gate on the land of the defendant on or near the'line of a private alley leading 'from a public highway back to several ■dwellings, in one of which the plaintiff lived, and in which alley it had a right to be. The court refused to •consider the question, and intimated that it made no difference because the plaintiff was not faultless; citing Lynch v. Nurdin. In Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), a heavy train of cars coming around a ■curve killed a child less than 3 years old, playing on the track. The court followed the case of Birge v. Car diner. The last case cited was Bird v. Holbrook, 4 Bing. 628. This was an action brought by a trespasser who was shot by a spring gun set for the purpose, and is clearly not in point. There was a wanton, intentional act, intended to punish trespassing with death, meriting punishment as an .attempt at homicide. It is chiefly valuable in this connection as showing the difficulty found in the attempt to •support Railroad Co. v. Stout by precedents. The enunciation by the highest tribunal in the country •of the rule that a landowner owes a duty of care towards .a trespasser was sure to be followed by other courts. Among the earliest of these is Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393). This was a turntable case, ■and the trespassing child 7 years of age. The court there discovers a distinction between a voluntary trespass and one by a person without judgment, who is allured upon premises by his natural inclination, and meddles with things whose uses and dangers he is unable to comprehend. It says, “What an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years.” Therefore this was an invitation, and the child licensed. Having by this reasoning found the child lawfully on the premises, it proceeds to treat the turntable as a trap, and compares it with a case when one sets traps baited with tainted meat, to allure his neighbors’ dogs, which he intends to catch, or sets a spring .gun, with the formed design of taking a trespasser’s life. This case was followed by another case in the same court. O'Malley v. Railway Co., 43 Minn. 289 (45 N. W. 440). This was also a turntable case, and the child 6 years of age. In 1881 the supreme court of Nebraska approved the case of Railroad Co. v. Stout, although it reversed the-case before it, and, as was done in the Stout Case, recognized the fact that the cases were not harmonious. Atchison, etc., R. Co. v. Bailey, 11 Neb. 332 (9 N. W. 50). In Kansas the doctrine was applied in a case of a turntable located in the midst of an open prairie, and a boy 12 years of age. In discussing the tendencies of boys* the court said: “Everybody knows that, by nature and by instinct,, boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of staircases, pull sleds up hill in order to ride down, etc. * * * Now, everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery, calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger■; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. * * * It is true that the boys-in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, as numerous-cases which we might cite would show. But see, particularly-, the cases of Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railway Co., 21 Minn. 207 (18 Am. Rep. 393).” Kansas Central R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. Rep. 203). Here we have the doctrine of the Turntable Cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a lawnmower, or a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the ground or leaning against a fence; a bed of mortar prepared, for use in his new house; a wagon in his barn-yard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with calf, — does so at the risk of having the question of his negligence left to a sympathetic jury. How. far does the rule go ? Must his barn door, and the usual apertures through which the accumulations of the stable are thrown, be kept locked and fastened, lest 12-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams ? May a man keep a ladder, or a grindstone, or a scythe, or a plow, or a reaper, without danger of being called upon to reward trespassing children, whose parents owe and- may be presumed to perform the duty of restraint ? Does the new rule go still further, and make it necessary for a man to fence his gravel-pit or quarry ? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish-pond ? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than 30 years after the decision of Railroad Co. v. Stout, when, with due deference, we think some of the courts left the solid ground of the rule that trespassers cannot recover for injuries received, and due merely to negligence of the persons trespassed upon. Well might the court of appeals of New York say in McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555): “We are not now called upon to express an opinion as to the soundness of these decisions in such a case, and, while we are not prepared to uphold them, it is enough to say that the facts are by no means analogous.” In addition to the cases discussed, the following recognize the rule laid down in Railroad Co. v. Stout, attempting to justify their adherence to it in the particular cases by one or another reason, which we think it unnecessary to further allude to: Nagel v. Railway Co., (1882) 75 Mo. 653 (42 Am. Rep. 418); Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. 666, 25 Am. St. Rep. 186) [this case cites Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), as supporting its doctrine; but in that case the child was not a trespasser on the land, whatever may be said of his meddling with the explosives; of this we will have more to say]; Harriman v. Railway Co., 45 Ohio St. 11 (12 N. E. 451, 4 Am. St. Rep. 507); Westerfield v. Levis, 43 La. Ann. 63 (9 South. 52); Fort Worth, etc., R. Co. v. Robertson, (Tex. Sup.) 16 S. W. 1093, 14 L. R. A. 781; Ilwaco R. Co. v. Hedrick, 1 Wash. 446 (25 Pac. 335, 22 Am. St. Rep. 169). It is a significant fact that these are all, -with possibly one or two exceptions, railway cases; and it has been suggested by a text writer (2 Wood, Ry. Law, p. 1292), as a reason why railway companies should be held liable in these cases, that they do not hold their property by precisely the same tenure as an individual does, that they are quasi public corporations, and that such trespasses are common and frequent upon railroads. But this is a suggestion rather than an authority, and does not purport to be more. Certainly the cases of Railroad Co. v. Stout and Birge v. Gardiner, which are the leading cases, do not rest upon or recognize any such distinction Or reason. These two cases, to which can be traced the origin of this doctrine, have not gone unchallenged. In Kansas it was held that the attempt to give a trespasser such a right upon the land of another which could affect the lattei in the management of his property would be unconstitutional, as tending to disturb vested rights. Caulkins v. Mathews, 5 Kan. 191. In Deane v. Clayton, 7 Taunt. 529, Gibbs, C. J., said: “ I know it is a rule of law that I must occupy my own so as to do no harm to others; but it is their legal rights only that I am bound not to disturb. Subject to this qualification, I may occupy or use my own as I please. It is the rights of others, and not their security against the consequences of [their] wrongs, that I am bound to regard.” A fine discussion of this subject will be found in the opinion of Hall, J., in the case of Keffe v. Railway Co., 2 Cent. Law J. 172, where numerous authorities are cited. The doctrine of the cases under discussion was denied in a terse opinion in the case of Lake Shore, etc., R. Co. v. Clark, 41 Ill. App. 343. It was said: “The youth of the deceased might be a matter for consideration upon the question of whether he was negligent, but it adds nothing to the duty of the appellant. It is not under greater obligation to anticipate the presence of children upon its tracks than of adults;” citing Chicago, etc., R. Co. v. Roath, 35 Ill. App. 349. The case of Frost v. Eastern Railroad, 64 N. H. 220 (9 Atl. 790, 10 Am. St. Rep. 396), lays down the general rule thus: (37 Am. Rep. 99); Wood v. School District, 44 Iowa, 27; Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. Rep. 684); Cauley v. Railway Co., 95 Pa. St. 398 (40 Am. Rep. 664); Gillespie v. McGowan, 100 Pa. St. 144 (45 Am. Rep. 365); Mangan v. Atterton, L. R. 1 Exch. 239. The maxim that a man must use his property so as not to incommode his neighbor only applies to neighbors who do not interfere with it or enter upon it. Knight v. Abert, 6 Pa. St. 472 (47 Am. Dec. 478). To hold the owner liable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of his enjoyment of it.” “At the time of his injury, the plaintiff was using the defendant’s premises as a play-ground, without right. The turntable was required in operating the defendant’s railroad. ' It was located on its own land, so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich v. Wright, 53 N. H. 404 (16 Am. Rep. 339). Under these circumstances, the defendant owed no duty to the plaintiff, and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfill. A landowner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises, and, to recover for an injury happening to him, he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark v. City of Manchester, 62 N. H. 577; State v. Railroad, 52 N. H. 528; Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Morgan v. City of Hallowell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 127 (21 Am. Rep. 120); McAlpin v. Powell, 70 N. Y. 126 (26 Am. Rep. 555); St. Louis, etc., R. Co. v. Bell, 81 Ill. 76 (25 Am. Rep. 269); Gavin v. City of Chicago, 97 Ill. 66 The following is the criticism indulged in of the case of Railroad Co. v. Stout: “We are not prepared to adopt the doctrine of Railroad Co. v. Stout, 17 Wall. 657, and cases following it, —that the owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises. The owner is not an insurer of the safety of infant trespassers. One having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling; nor is the owner of a fruit tree bound to cut it down or inclose it, or to exercise care in securing the staple and lock with which his ladder is fastened, for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner or occupant of premises upon which there is a natural or artificial pond, or a blueberry pasture, legally required to exercise care in securing his gates and bars to guard against accidents to straying and trespassing children. The owner is under no duty to a mere trespasser to keep his premises 'safe; and the fact that the trespasser is an infant cannot have the effect to raise a duty where none otherwise exists. ‘The supposed duty has regard to the public at large, and cannot well exist as to one portion of the public, and not to another, under the same circumstances. In this respect children, women, and men are upon the same footing. •In cases where certain duties exist, infants may require greater care than adults, or a different kind of care; but precautionary measures having for their object the protection of the public must, as a rule, have reference to all classes alike.’ Nolan v. Railroad Co., 53 Conn. 461 (4 Atl. 106).” The Massachusetts court has been no less emphatic in its condemnation of the case of Railroad Co. v. Stout. In Daniels v. Railroad Co., 154 Mass. 349 (28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253), a turntable accident was involved; also a child of 10 years. The roadbed was a common thoroughfare. The court discusses all the early cases favorable to plaintiff’s contention, and says that, with the one exception of Daley v. Railroad Co., 26 Conn. 591 (68 Am. Dec. 413), “all come within other rules, or within well-defined exceptions to the general rule that a landowner owes no duty to a trespasser, except that he must not toantonly or intentionally injure him or expose him to injury.” It cites with approval McAlpin v. Powell, supra, and the New Hampshire case of Frost v. Eastern Railroad and to the general proposition which it asserts, viz., that, subject to some exceptions, an owner of land may use it as he sees fit, and, if a trespasser or mere licensee is injured, he cannot complain that, if the owner had used it in a more careful manner, no injury,would have resulted, it calls attention to the following cases: Hounsell v. Smyth, 7 C. B. (N. S.) 731, and cases cited; Clark v. City of Manchester, 62 N. H. 577; Klix v. Nieman, 68 Wis. 271 (32 N. W. 223, 60 Am. Rep. 854); Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. Rep. 684); Cauley v. Railway Co., 95 Pa. St. 398 (40 Am. Rep. 664); Gillespie v. McGowan, 100 Pa. St. 144 (45 Am. Rep. 365); Hargreaves v. Deacon, 25 Mich. 1. Also Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644); Metcalfe v. Steamship Co., 147 Mass. 66 (16 N. E. 701), and cases cited; Barstow v. Railroad Co., 143 Mass. 535 (10 N. E. 255); Johnson v. Railroad, 125 Mass. 75; Wright v. Railroad, 129 Mass. 440; Morrissey v. Railroad Co., 126 Mass. 377 (30 Am. Rep. 686); Wright v. Railroad Co., 142 Mass. 296 (7 N. E. 866); McEachern v. Railroad Co., 150 Mass. 515 (23 N. E. 231); McCarty v. Railroad Co., 154 Mass. 17 (27 N. E. 773). Most of the cases last cited involved injuries to young children. The case of Walsh v. Railroad Co., 145 N. Y. 301 (39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615), in an opinion by Peckham, J., unqualifiedly condemns the rule of Railroad Co. v. Stout. This also was a turntable case, and the child was 5 years old. It not only shows the inaccuracy of the rule there asserted, but'questions some of the reasons set up by the various courts for following Railroad Co. v. Stout, and shows the misapplication of authorities relied upon to support the doctrine that landowners must guard trespassers with reasonable care and diligence. It is unnecessary to quote from it, for it can as well be read. See, also, Charlebois v. Railroad Co., 91 Mich. 59 (51 N. W. 812); Hargreaves v. Deacon, 25 Mich. 1; Moran v. Car Co., 134 Mo. 641 (36 S. W. 659, 33 L. R. A. 755); s. c. 56 Am. St. Rep. 543, and note; Dobbins v. Railway Co., 91 Tex. 60 (41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856). In addition, there are many cases that disregard the rule. Thus it has been held that cars are not dangerous machines, attractive to children, within the rule of the Turntable Cases, and that a railroad company owes no duty to a child trespassing in its yard, to see that he does not jump on its cars, or to fence its yard (Barney v. Railroad Co., 126 Mo. 372 [28 S. W. 1069, 26 L. R. A. 847]; Rushenberg v. Railway Co., 109 Mo. 112 [19 S. W. 216]; Catlett v. Railway Co., 57 Ark. 461 [21 S. W. 1062, 38 Am. St. Rep. 254]; Louisville, etc., R. Co. v. Hurt, [Ky.] 13 S. W. 275; Chicago, etc., R. Co. v. Stumps, 69 Ill. 409); nor to keep its cars in good repair, or the doors shut (McEachern v. Railroad Co., 150 Mass. 515 [23 N. E. 231]; Curley v. Railway Co., 98 Mo. 13 [10 S. W. 593]); nor to guard them so that such a child cannot be injured by loosening the brakes (Central Branch, etc., R. Co. v. Henigh, 23 Kan. 347 [33 Am. Rep. 167]; Haesley v. Railroad Co., 46 Minn. 233 [48 N. W. 1023, 24 Am. St. Rep. 220]; Gay v. Railway Co., 159 Mass. 238 [34 N. E. 186, 21 L. R. A. 448, 38 Am. St. Rep. 415]; Jakoboski v. Railroad Co., 106 Mich. 440 [64 N. W. 461]; O'Connor v. Railroad Co., 44 La. Ann. 339 [10 South. 678]); nor in leaving a hand car near the track (Robinson v. Railway Co., 7 Utah, 493 [27 Pac. 689, 13 L. R. A. 765]); nor to keep a lookout for trespassing children (Morrissey v. Railroad Co., 126 Mass. 377 [30 Am. Rep. 686]; Wright v. Railroad Co., 142 Mass. 296 [7 N. E. 866]; Cleveland, etc., R. Co. v. Adair, 12 Ind. App. 569 [39 N. E. 672, 40 N. E. 822]; Woodruff v. Railroad Co., 47 Fed. 689; Chrystal v. Railroad Co., 105 N. Y. 164 [11 N. E. 380]; Masser v. Railway Co., 68 Iowa, 602 [27 N. W. 776]; Central R. Co. y. Rylee, 87 Ga. 491 [13 S. E. 584, 13 L. R. A. 634]; Mitchell v. Railroad Co., 132 Pa. St. 226 [19 Atl. 28]; McMullen v. Railroad Co., 132 Pa. St. 107 [19 Atl. 27, 19 Am. St. Rep. 591]; McDermott v. Railroad Co., 93 Ky. 408 [20 S. W. 380]; Louisville, etc., R. Co. v. Williams, 69 Miss. 631 [12 South. 957]; Williams v. Railroad Co., 96 Mo. 275 [9 S. W. 573]). It remains to discuss our own cases cited in support of plaintiff’s contention. The case of Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), was a case where a young person exploded a dynamite cap which he found on defendant’s premises, under a shed. In discussing the case the court alluded to Hargreaves v. Deacon, 25 Mich. 1, where it was unqualifiedly held that “owners of private property are not responsible for injuries caused by leaving a dangerous place thereon, but not immediately adjoining the highway, unguarded, where the person injured was not on the premises by permission, or on business dr other lawful occasion, and had no right to be there,” and said: “The children, it is said, were tres- passers ; and, even if it can be said that they were licensed to go where they did, the result must be the same,” etc. “This is the point on which the case must turn.” The court then proceeded to show that the children were rightfully there by invitation, and that some caution was required in such a case. Clearly, this does not adopt the rule of Railroad Co. v. Stout. In the case of Baker v. Railroad Co., 68 Mich. 90 (35 N. W. 836), the boy was hurt on a public highway crossing by a train. There was no claim that he was a trespasser, or that he was not rightfully there. McCahill v. Railway Co., 96 Mich. 156 (55 N. W. 668), was a street7car case, where a trespassing boy was driven from a car in motion, and it was clearly a wanton act. That a landowner is under no obligation to use care to protect a trespasser is a broad, and, until recently, undisputed, rule, without exception; liability for injuries sustained by such being limited to cases of intentional or wanton injuries. The rule, with this limitation, is sustained today by the great weight of authority. It is'contended by some law writers, and has been held in some cases, that an exception exists in favor of children of tender years. The varying reasons given should lead us do doubt the solidity of the foundations upon which these cases rest, especially when none of the reasons are of recognized authority. The law has never before denied the liability of children for trespass because of tender years. On the contrary, it was intimated in Mangan v. Atterton, L. R. 1 Exch. 239, that a 4-year-old boy was a trespasser, under the circumstances of that case; and there are numerous cases cited in this opinion where liability is denied upon that, and no other, ground. The assertion that the weight of authority supports the plaintiff’s contention in this case seems to us incorrect. It may be true that, in cases involving turntables, a majority of 'the cases, which are necessarily few, have followed the case of Railroad Co. v. Stout, supraj but there should be a legal principle underlying the rule laid down in that case, and that principle has been - assiduously sought for by some of the courts, without success, as we have seen. Others have asserted different reasons for following it. One gives us to understand that a child is licensed to go wherever he can find that which attracts him; a Texas court has held that children of tender years cannot be trespassers; while other authorities are content to rest their approbation of and adherence to the alleged rule upon the inhumanity of the doctrine that a landowner must not be held responsible for injuries suffered by trespassing children, when by ordinary thoughtfulness and care he could have anticipated and prevented it, and the generic term “attractive nuisances ” is applied to the great variety of things which may naturally be expected to allure young children upon private premises. The term “attractive nuisance,” as applied, is a new one in the books, and the plausible application of the well-known principle that one must so occupy his own as not to do harm to the rights of others should not be construed to so restrict the use of private lands as to make it necessary to guard and protect trespassers. A man’s home has always been considered his 'castle, — a domain where, secure from intrusion, he might lawfully do as he would, so long as he did not interfere with the legal rights of others. It has been his duty to guard those licensed to enter, but beyond that he has not been required to go. In our anxiety to prevent personal injuries, we should not go so far as to overturn private rights. Admittedly, the duty of incessant watchfulness and care of one’s own premises is limited to young children. It dc/es not extend to an adult. Why should it extend to children, upon whose parents both nature and ti^e law impose the duty of care and watchfulness ? When, by reason of aj. parental neglect of duty, a trespassing child is injured, it might be treated as a casualty, or the neglectful guardjarl might be liable; but there is much reason, if not wisdom, in the common-law rule that the person trespassed upon should not be liable to respond in damages, instead o:¡:, as in other cases, having a right of action against the tr espasser. But, however Draconic the common-law rule maybe considered, it is the province of the courts to enforce it until changed by the legislature. No one questions the power or the propriety of the regulation of the u,‘se of railway turntables and other appliances of a dang erous nature. The legislature can do this, and leave un touched the common rights of the ordinary landed proprietor. The courts cannot. The rule laid down in Railroad Co. v. Stout must be a general one, applicable to every one; and, aside from the impropriety of judicial legislation, a wise public policy should forbid such a sweeping innovation by judicial main strength. In innumerable cases the courts have applied and continue to apply the general rule that a landowner need not protect a trespasser, every case being an assertion of the principle which is disregarded in the cases relied upon by ■the plaintiff. We have cited a few of them, — enough, we think, to show that the great weight of authority does not sustain the principle of the Turntable Cases. While some of the courts have followed the rule of Railroad Co. v. Stout, both the courts and profession have evinced a tendency to allow this innovation to go no further, and refuse to consider it applicable to other cases every way analogous. They speak of the cases generically, as the “ Turntable Cases” and treat such cases as exceptional. We are of the opinion that they are exceptional, and that they are not based upon principle, but contravene one of the old and well-established rules of the law; and we-therefore decline to recognize them as authority, preferring to adhere to the better doctrine of the other teases cited. The defendant owed no duty to these children, who were trespassers. Counsel invoke a further rule, or alleged rule, viz., that the plaintiff went into a place of danger lawfully to rescue her sister, and therefore was rightfully there and entitled to protection. The defendant had a right to rely upon his right to privacy, and to believe that his premises would only be invaded by those whom he should choose to invite and warn against the dangers of the place. Was he, then, bound to suppose that somebody might trespass, and to have some one on hand to wai’n and protect somj.e possible rescuer of an imaginary trespasser? not. We think The question discussed disposes of the case, and other points need not be alluded to. The judgment is affirmed. Long and Grant, JJ., concurred with Hooker, J.

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Long, J. The complainant company was organized under the union-depot act of 1881 (2 Comp. Laws, § 6356 et seq.). Its station grounds bordered on the Detroit river, and extended from Twelfth street westerly nearly to Eighteenth street, and were bounded on the northerly side by River street (sometimes called Woodbridge street). October 20, 1881, complainant made a lease to the Wabash, St. Louis & Pacific Railway Company of a portion of its station grounds lying next to the river, describing the portion leased by metós and bounds, and reserving to itself out of the description within said metes and bounds grounds for the erection of an elevator, and for a wharf on the river, and for tracks leading to the elevator and to the wharf, which tracks were to be used in common by said lessee and other railroad companies. It also leased to said railway company the right to use in common with other railroad companies the right of way from Eighteenth street to Delray. The lease provided for the construction by complainant of a passenger depot at Twelfth street, with tracks leading thereto, to be used in common by said lessee with other railroad companies. A small passenger depot was built, as provided in the lease, at Twelfth street, and from 1881 to 1889 no other railroad company leased or used the complainant’s grounds. In 1887, and prior thereto, the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & Northern Railroad Company, by arrangement with the Michigan Central Railroad Company, made use of the depot facilities of the latter company at its Third-street depot, both for freight and passenger service. At that time also the Mint & Pere Marquette Railroad Company was seeking to secure an independent terminal in Detroit. In this state of affairs, the complainant, through James F. Joy, who was its president, sought to induce the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & •Northern Railroad Company to lease from complainant the portion of its depot premises that had not been leased to the Wabash, St. Louis & Pacific Railway Company, together with the right to use in common with other companies the tracks leading to the elevator and to the wharf, and the unleased portion of the right of way running to Delray. Considerable correspondence was had between Mr. Joy, for and on behalf of complainant, and Mr. Mulliken, who was the general manager of the Detroit, Lansing & Northern Railroad Company, and Mr. Crapo, president of the Flint & Pere Marquette Railroad Company, in relation to the matter, and also concerning the construction of a union depot to be built at the corner of Third and Fort streets. This correspondence finally culminated in a contract drawn by Mr. Joy, and executed by the complainant and the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & Northern Railroad Company January 3, 1889. An arrangement was also made for the incorporation of what is called the “Fort Street Union Depot Company,” and for the erection of a depot. This bill is filed to obtain a construction of the third clause of this agreement of January 3, 1889. This clause reads as follows: “ It is understood and agreed by the parties hereto that this lease, as to the property described in the last preceding clause, is and shall be subject to a right of way across and over the same for a railroad, to be constructed in the most convenient form for a double track, and to be built so as to enable all parties lessees of said station grounds to reach any passenger station which may be built for use of said lessees; such right of way to commence at the westerly end of said grounds, and to curve northerly and easterly as soon as may be after the tracks enter the said grounds from the west, and running thence to Twelfth street, which said track shall be upon a line which may be designated by the engineers of the Flint & Pere Marquette Railroad Company and of the successors of the Wabash, St. Louis & Pacific Railway Company, consulting with and acting with the engineers of the Detroit, Lansing & Northern Railroad Company: Provided, that said double-track railroad, so far as it is constructed with embankment, shall be of the requisite width for a double-track road, and shall have perpendicular banks supported by walls; and, so far as the same is constructed as an elevated railroad, the ground under the same may be used by said parties of the second part and third part hereto for such use as may not interfere with the use of said track and right of way by all the parties interested therein.” The complainant’s contention is that by this clause of the lease there was reserved to the complainant from the premises leased the right of way described therein, and that the complainant has a right to compensation for the use made of such right of way by defendants. The contention of defendants is that no right of way was reserved to complainant at all by said clause, but that said clause is a covenant between the lessor and the lessees to subject the premises leased to the use by railroad companies who should be lessees of the premises owned by complainant of a right of way by which such companies might reach the passenger depot contemplated to be built at Third street; and that complainant has no other right or interest under said clause than to enforce the observance of such covenant by the lessees and those claiming under such lessees. The Fort Street Union Depot Company was organized on August 24th following the execution of the above contract. It filed its articles of incorporation, and during the years 1890, 1891, and 1892 acquired title to its station grounds, built a passenger station, and put down a double-track railway on the grounds so acquired by it. It also acquired a right of way to connect with the station grounds of the complainant. In addition to this, it ex tended said double-track railway over the station grounds of complainant on the right of way described in the clause above set forth of the contract of January 3, 1889; and on December 10, 1889, entered into a contract of leasing with the four railroad companies, to wit, the Wabash, Detroit, Lansing & Northern (called in the bill the Detroit, Grand Rapids & Western), Canadian Pacific, and the Flint & Pere Marquette, for the period of 990 years, granting to said four companies the right to use the said station and grounds and right of way to connect with complainant’s grounds mentioned in the contract of January 3, 1889. The fifth clause of the agreement between the Fort Street Union Depot Company and the four railroads provides: “If application be made by other railroads for accommodations in said station, the lessor will promptly notify each of the lessees thereof, and enable them to be heard on such application, and it will not make any arrangements for such accommodations with other railroads without the assent of all the lessees, as at present it seems that the lessees herein named will occupy said station to its full limit.” At the time of the execution of this contract, Mr. Joy was the treasurer of the Fort Street Union Depot Company. The whole scheme for the organization of the company originated with him, and was carried forward by him. He arranged all details, made all the plans, and drafted all contracts in relation to the matter. At the same time he was president of the complainant company, and the largest stockholder therein, owning $500,000 of its capital stock. The correspondence above referred to . commenced in 1887, and finally culminated in the two contracts above mentioned. There is not a suggestion in this entire correspondence, down to the execution of the lease of January 3, 1889, indicating any purpose of reserving to the complainant any right of way or control over any right of way. It is evident that the lease of January 3d would not have been made without acquiring the passenger station, nor the passenger station have been arranged for without the making of the lease. The passenger station was to be erected for the use of the four railroads, the title thereto to be placed in a corporation to be formed by the parties to the preliminary agreement, consisting of the four railroad companies and Mr. Joy and his friends; the four companies representing four-fifths of the interest, and Mr. 4 Joy and his associates representing the other fifth. The companies were to pay for the use on the basis of their respective wheelage. It was finally arranged that the two companies, the Flint & Pere Marquette and the Detroit, Lansing & Northern, should pay for such rental as their proportion the sum of $30,000 per annum. In order to raise the money necessary to construct the depot building, a mortgage was given by the Fort Street Union Depot Company on its property. After describing the property by lots and blocks, the mortgage recites: “Also all its yards, tracks, structures, passenger and freight stations, railroads, and especially its railroad leaving station grounds at Sixth street, and thence southwesterly to River street, near Eighth, and thence along said River street to near Twelfth street, and thence southwesterly, across the lands of the Detroit Union Railroad Depot & Station Company, to the connection with the railroad owned by said Depot & Station Company, extending through,the suburbs of Detroit to and across railroads extending from Detroit to Toledo,” etc. This is a distinct statement in the mortgage that the Fort Street Union Depot Company owned the railroad on that date, January 1, 1891, including the right of way in question. Mr. Crapo was called as a witness, and testified that the third clause of the lease was not a matter of discussion between himself and Mr. Joy; that, when they got to the matter of fixing the lease, “Mr. Joy suggested that the Flint & Pere Marquette and Detroit, Lansing & Northern roads, unless there was some clause, might interfere with the getting of the Wabash up to Third street.” We think the whole correspondence, supported by the evidence in the case, shows clearly that the provision in the lease for right of way was intended to provide means by which the defendant railroad companies should have access to the Fort Street Union Depot passenger station without other charge than the consideration stated in the lease, and that the Fort Street Union Depot Company was created to enable the railroad companies to have the depot facilities which they would acquire and enjoy by means of this right of way. We think counsel for "defendants are justified in claiming that it was intended that the lessees should have the right to provide and construct a railroad over such right of way, and that they could permit any other railroad companies, and the Fort Street Union Depot Company, to use such right of way, so long as the parties described in the lease as lessees of the complainant’s station grounds were undisturbed in their use of it. It is evident that the terms used in this clause do not import a right of way to the complainant to be used by it, or controlled by it, or to be in any way enjoyed by it by use by itself, or by charging for its use by others. The terms do import that the bomplainant has such an interest in the use of it by its own tenants that it may compel the execution of the agreement which subjects the right of way to their use. Provisions of like character, relating to the use which shall be made of premises conveyed by deed or lease, are common, and are usually made by a condition or covenant inserted in the deed or lease. The provision of the lease in question is not a reservation, but a covenant. The language of the lease is: ‘ ‘ It is understood and agreed by the parties hereto that this lease, as to the property described in the last preceding clause, is and shall be subject to a right of way across and over the same for a railroad, to be constructed in the most convenient form for a double track, and to be built' so as to enable all parties lessees of said station grounds to reach any passenger station which may be built for use of said lessees.” The contention of counsel for complainant is that the provision is a reservation, and that a reservation cannot be made in favor of third parties. The proposition that a reservation cannot be made in favor of a third party may be true, but we need not enter upon a discussion of that •question here, as we are satisfied that the clause in controversy is not a reservation, but must be treated as a covenant. By covenant the same provision may be made for the use of property as may be provided for by a condition subsequent; but, if the provision is by covenant, the remedy of the grantor or lessor for breach of covenant is by an action at law for damages, or by suit in equity to compel the observance of the covenant. It is well stated by counsel that in each case it is for the court to determine from the terms of the instrument, and from the circumstances under which the instrument was made, and by the acts and conduct of the parties, what was the intent of the provision, what it was designed to provide for, and whether the provision is a condition subsequent or a covenant. The courts will favor the construction of the provision as a covenant, rather than as a condition, in order that the consequences of a forfeiture of the estate granted may be avoided. It is said in 6 Am. & Eng. Enc. Law (2d Ed.), pp. 500-503: “As comprehended by this treatise, a condition is a qualification or restriction annexed to a deed or devise, by virtue of which an estate is made to vest, to be enlarged or defeated upon the happening or not happening of a particular event, or the performance or nonperformance of a particular act. * * * Words declaratory of the consideration for and the purpose of the conveyance, and the limitation of the use of the property, or which direct or prohibit the performance of a particular act, do not, of themselves, render an estate conditional. * * * In the construction of a particular provision, the intention of the grantor or devisor governs. * * * The same words may be employed to create a covenant as to create a condition, and, if there is any doubt regarding .the intention of the grantor or devisor, courts will incline towards the former construction, for conditions which tend to destroy estates are not favored, and are strictly construed. ‡ * Moreover, a condition is always the creation of a grantor or devisor; a covenant may be made by either a grantor or a grantee.” In Smith v. Barrie, 56 Mich. 314 (22 N. W. 816, 56 Am. Rep. 391), it appears that a deed was made of lands' subject to a condition that, if the parties of the second part, their heirs or assigns, sold or kept for sale intoxicating liquors upon the premises, the estate granted should cease. It was said by this court: “ It is perfectly lawful for parties to contract to abstain from the performance of acts proper and legal in themselves, when others with whom they contract may have an interest in their doing so, and in proper cases the contract may be made to assume the form of a condition. * * * Many cases of similar conditions are found in the books, and in none of them has enforcement, either by forfeiture of the estate or by injunction, been refused. The enforcement is subject to the rule that the law favors covenants, rather than conditions; and it inclines to construe the undertakings of parties strictly as against forfeiture.” In Oampau v. Chene, 1 Mich. 400, a deed was made by John Baptiste Campau of land in which a provision was made to pay a debt, and to board, lodge, and clothe the grantor during his lifetime. Also in the deed the grantee promised and obligated himself to keep, board, and clothe decently, until she had reached the age of 18 years, Archange Campau. The suit was in equity, based upon these provisions. It was said by the court: “The views we have expressed in regard to the covenants in the deed are illustrated and fully supported by the case of Pownal v. Taylor (decided in the Virginia court of appeals), 10 Leigh, 179 (34 Am. Dec. 725). The owner of a tract of land conveyed it to his nephew in fee, subject to the maintenance and support of the grantor and his sister. The deed contained a covenant by the grantee for such maintenance and support, and declared that the land was to be held therefor, into whose hands soever it might come. But the deed did not state that it was upon condition that such maintenance and sup port should be furnished, nor was there any clause providing for a re-entry by the grantor. Held, the provision for maintenance and support constituted merely a charge upon the estate, which might be enforced in equity; not a-condition, for breach of which the grantor could re-enter as of his former legal estate. In that as well as in this case there was a provision for a third person, and it was held that the third person (the sister) instantly acquired a beneficial interest, which she might have enforced by bill in equity. But, if the provision was a condition, then for ’ the breach the grantor might re-enter, defeat the estate, reinvest himself with his original title, and annihilate the vested interest which he had by his own solemn act conferred upon his sister. This cannot be, unless the grantor had expressly reserved the right to re-enter upon failure of the grantee to fulfill the purposes of the grant. These last remarks apply with full force to the provision for Archange in this deed.” See, also, Martin v. Cook, 102 Mich. 267 (60 N. W. 679); Avery v. Railroad Co., 106 N. Y. 142 (12 N. E. 619)) Trustees of Columbia College v. Lynch, 70 N. Y. 440 (26 Am. Rep. 615); Parker v. Nightingale, 6 Allen, 341 (83 Am. Dec. 632); Schwoerer v. Market Ass’n, 99 Mass. 285. We think the court below very properly dismissed complainant’s bill. That decree will be affirmed, with costs. Montgomery, C. J., Moore and Grant, J'J., concurred. Hooker, J., did not sit.

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Montgomery, C. J. Assumpsit for balance due on an account for repairs done upon an engine in August, 1889, and some smaller items for work done at an earlier date. The sole defense was that the debt was outlawed. Defendant testified that he always denied liability upon the account, claiming that it was for one Glover to pay. Plaintiff’s witness who had charge of the account does not dispute this, but corroborates defendant. In October, 1895, plaintiff gave the defendant credit for $15 upon the account in question, for the use, in October, 1894, of two engines, one of which belonged to defendant and one to his son. Defendant testified that this transaction was between his son and the plaintiff, and that defendant was not notified that the credit was given to him until a few days before the bringing of the present action. Plaintiff’s witness testified that the transaction was with the defendant, and that it was understood that he was to have the pay for the work, and that statements were sent to him with the credit indorsed. The court charged the jury as follows: “Now, if you find there was no understanding or agreement between them in regard to the credit of the $15, then it does not avail as a payment to take this claim out of the statute of limitations, or to prevent its being barred, because the parties must agree upon the payment. The plaintiff cannot, by giving credit upon an account, — upon an outlawed bill, or a bill that may be outlawed, — for the purpose of preventing the running of the statute, make a credit, at his own volition, on that account, and save the running of the statute. He cannot do it unless it is agreed between the parties that there is to be an application upon the account; and that is a question for you to determine, whether or not it was understood between the parties that such a credit was to be made to Mr. Emery, and that it was to be credited upon that account, and properly applied upon it. If it was so understood between them, then it would be a proper application, and the plaintiff might maintain this action; otherwise it cannot, — and that is the question for you to determine.” This instruction was sufficiently favorable, and covered all the material questions in the case. While it may be sufficient, to constitute a mutual account, that credit is furnished by one party to the other, in reliance that upon settlement the accounts shall be allowed the one to offset the other, as was said in Re Hiscock's Estate, 79 Mich. 536 (44 N. W. 947), it cannot be held that there are mutual accounts when one party denies liability upon the claim of the other, and credit is given to such party with full knowledge of the fact that it is clearly against his intention that the account shall be so applied. See Kimball v. Kimball, 16 Mich. 217; Lester v. Thompson, 91 Mich. 250 (51 N. W. 893). The plaintiff also complains of a charge that, unless a payment had been made on the account within six years before suit, the debt was outlawed, upon the theory that the jury might have understood it to mean a payment of money. We think that, on the whole charge, it would have been impossible for the jury to draw this inference. Another assignment of error is based upon allusions in the charge to the fact that defendant claimed to have always denied the account, and to the grounds upon which he based such denial. Plaintiff’s counsel state in their brief that the question of whether these items were properly chargeable to the defendant or to some third person was submitted to the jury. We think, however, that this is not the case, and, further, that a reference to these alleged facts was necessary in order to place fairly before the jury the question of whether the account was denied by the defendant at the date of the credit. The court might properly have said to the jury that, under the undisputed testimony, the defendant did deny liability and refuse payment upon plaintiff’s account. No error was committed to the prejudice of plaintiff, and the judgment will be affirmed. Hooker, Moore, and Long, JJ., concurred. Grant, > J., did not sit.

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Hooker, J. The city of Detroit took bids upon a projected repavement of a street, and the award was made to-one of the bidders. Another bidder, who was also a taxpayer, filed a bill in chancery, alleging that the award should have been made to him as the lowest bidder whose-bid was alleged to have conformed to the specifications as- published, while that of the successful bidder did not. The bill prayed that it be so decreed, and for other relief. A preliminary injunction was granted, and,, on the filing of an answer denying the merits of the bill, a motion to dissolve the injunction was made, and, upon its denial, the city filed the application in this proceeding for a mandamus to compel such dissolution. It seems to be conceded that the validity of the tax in this case is not questioned. The bill did not state a case requiring relief against a threatened sale of land for an invalid tax. The relator’s counsel assert that the amount of tax involved is 40 cents, and it is not claimed that it exceeds $100,— the amount necessary to confer jurisdiction in chancery cases. We need not consider the question of the right of a taxpayer to file such a bill in other cases. In George v. Electric-Light Co., 105 Mich. 1 (62 N. W. 985), there were 21 complainants; in Black v. Common Council of Detroit, 119 Mich. 571 (78 N. W. 660), there were 14; while in Robinson v. City of Detroit, 107 Mich. 168 (65 N. W. 10), and in Holmes v. Common Council of Detroit, 120 Mich. 226 (79 N. W. 200, 45 L. R. A. 121, 77 Am. St. Rep. 587), there were several, the number not being stated. From this fact, and the fact that the jurisdiction was not discussed, we may infer that complainants’ interests aggregated more than $100, or that they had property liable to be subjected to a lien worth more than that sum. As a biddex1, the complainant has no standing. See Talbot Pav. Co. v. City of Detroit, 109 Mich. 657 (67 N. W. 979, 63 Am. St. Rep. 604); Anderson v. Board of Public Schools, 26 L. R. A. 707, 711, note l (s. c. 122 Mo. 61, 27 S. W. 610); Colorado Pav. Co. v. Murphy, 49 U. S. App. 17 (23 C. C. A. 631, 78 Fed. 28, 37 L. R. A. 630).’ We do not discover in the brief of respondent any claim that he has, as a bidder, a right to relief. The writ will issue, as prayed. The other Justices concurred.

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Per Curiam. Five.separate suits were brought against John Scott and others, based upon negligence in constructing a certain building in Detroit, which collapsed. S. E. Engle was attorney for the plaintiffs in the five suits. The defendants interposed demurrers in each case. One case was heard in the court below, and the demurrer sustained. That decision was reversed in this court, and the case remanded. McBride v. Scott, 125 Mich. 517 (84 N. W. 1079). Pending the decision of that case in this court, the other cases remained in statu quo. After the decision was rendered in this court, and a motion for rehearing denied, the relator here and plaintiff in one of the other suits made a motion for judgment upon demurrer. Meanwhile, and before that motion and similar motions in the other cases were heard, the defendants interposed pleas in bar. ' The attorney for relator insists that he is entitled to. judgment overrifling the demurrers in the other cases, and to costs incident thereto. By interposing the pleas, the defendants waived the demurrers. Cicotte v. County of Wayne, 44 Mich. 173 (6 N. W. 336); 6 Enc. Pl. & Prac. 380, and authorities there cited. While the defendants could not withdraw their demurrer and plead over without leave of the court, the refusal of the court to hear the demurrer upon the ground that a plea had been filed and the demurrer thereby withdrawn was tantamount to the granting of such leave nunc pro tunc; and as it appears that no costs were awarded, and the respondent has returned that in his discretion no costs should be allowed, and would not have been allowed had they been asked, we think the mandamus should be denied, without costs.

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Hooker, J. The defendant appeals from a conviction upon a charge of-keeping his saloon open on a Sunday. Many of the questions raised are to remarks of the court in the course of the trial. As the case can be disposed of upon another point, it is unnecessary to discuss them. Ford Barnett was a witness called upon behalf of the people. The prosecutor sought to refresh his recollection by reading to him his testimony taken upon the preliminary examination. He was then asked: “Q. Now, is that affidavit the truth? “A. My signature is to it. “Q. I ask you if it is true, — the whole of it. “A. I swore to it.” The testimony was then offered in evidence and admitted. He afterwards testified that he could not swear that the occurrence was upon Sunday, or that he swore that it was upon Sunday, and that any testimony that he gave on the last trial was from the knowledge obtained from reading the depositiqn. After being out for a time, the jury returned, and the following occurred: “ The Court: Gentlemen, is there some question that bothers you, — a question of fact or a question of law, was it? “ A Juror: The main question was whether that affidavit that was read here, whether that stood all right the way it was sworn to, — if that was satisfactory testimony. “ The Court: Whether it was evidence or not? “The Juror: Yes, sir. “The Court: Yes, sir; I so instructed you. “ The Juror: That is what I thought. “ The Court: Was that all, gentlemen ? “ The Juror: That is all.” Counsel for the prosecution relies upon the cases of People v. Butler, 55 Mich. 409 (21 N. W. 385); Lightfoot v. People, 16 Mich. 507; People v. Kennedy, 105 Mich. 436 (63 N. W. 405). In each of these cases the deposition of the witness was admitted by way of contradiction. The witness was contradicted by his own statements, which were not received as proof of or against the substance of the charge, but merely as evidence bearing upon the credibility of the witness, just as any contrary statement out of court may be used by way of impeachment. In the case before us the jury were given to understand that this deposition was competent evidence of the charge, and that they might find the accusation established by it. This was in contravention of the rule enunciated in Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Robinson v. Mulder, 81 Mich. 75 (45 N. W. 505). We are constrained to reverse the judgment and direct a new trial. The other Justices concurred.

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Christiancy, J. Plaintiff in error brought his action against the insurance company in the circuit court for the county of St. Joseph upon a policy of insurance issued to him January 3d, 1870, insuring him against loss by fire to the amount of four thousand dollars upon his wooden hotel building, known as “The Western Hotel,” in the village of Mendon, in said county, and to the amount of one thousand dollars on the furniture therein. ■The company was a mutual insurance company, authorized to insure property only of its members, and this only when-situate in the county of St. Joseph. The facts admitted in the case on the trial are these: The building and furniture were lost by fire, and proof of loss made in due form. The one thousand dollars insurance on the furniture was paid under a stipulation that it should in no way affect this suit, as to insurance on the building, and it is the latter only which is in controversy. The policy was issued upon a written application, signed by plaintiff, containing the charter and by-laws of the company, which were also contained in the policy. The policy commences: “Be it hereby known that George W. Van Burén, resident of the village of Mendon, St. Joseph county, state of Michigan, has, this 3d day of January, A. D. 1870, become a member of the St. Joseph County Village Fire Insurance Company, according to the provisions of its charter and by-laws, and insured in said company against loss by fire on the following described village property, situate” (describing its locality): “On wood hotel building known as Western Hotel..$4,000 On furniture therein.............................1,000 “Four thousand dollars of the above insurance is for the benefit of A. Wakeman, as security for payment of a certain mortgage held by him on said building for said amount.” Then, after describing situation of the building with reference to others, it proceeds: “And the said company hereby agrees that it shall be held responsible to make good to the insured, his heirs, etc., all such loss or damage by fire, from the date hereof, as specified in the charter and by-laws herein given; provided that the said party herein insured shall pay his or her proportion of all assessments to which this company are liable.” Then, after a clause against liability for loss by riot, insurrection, or war, the policy is signed by the president and secretary, with a memorandum at the foot referring to the application on file. The charter and by-laws, so far as material to be noticed here, are as follows: Charter: By section S the officers are required to be a president, secretary, treasurer, and six directors, who should be resident citizens of the county. Section 4 prescribes certain duties of the officers, among which, it is provided: “The secretary shall keep all the books and accounts of said company, and issue all policies of insurance, and act as general agent during his term of office. He may appoint sub-agents, being himself responsible for their fidelity.” Section 5 gives the directors full power to make bylaws, to make all assessments in case of fire or other indebtedness, etc., and the president, secretary, and treasurer, to be ex officio members of the board. Section IS: “All members shall enter into a written agreement, as prescribed by law, and subscribe their names to a copy of this charter, and comply with and observe the by-laws, rules, and regulations. Any member may withdraw at any time by giving the secretary notice in writing of his or her intention, and paying him fifty cents; also paying him his or her proportion of all assessments to which this company shall be liable at the time of his or her withdrawal. No policy shall be written on property outside of the county of St. Joseph.” Section 17 provides that the company will pay three- fourths of the value of the property insured at the time of the burning, if insured to that amount, but not more than such three-fourths of the value,- though insured for more; the value to be determined by the board of directors. Section 27: “The insurance of any member shall cease upon the sale of his or her property insured; but they 6hall be holden for all assessments, until his or her policy shall have been withdrawn.” Section 29: “This charter may be amended or altered at any meeting of the members by a two-thirds vote of all members present, filing such amendment or alteration in the office of the secretary of state, and obtaining the approval of the attorney general.” By-laws : — No. 12: “ The application for insurance shall be signed by the applicant, which shall make a part of the contract of insurance, and is a warranty of the truth of all facts stated therein, and shall be filed in the office of the secretary.” Wo. IS relates to making statement and proof of loss. Wo. 16: “Property mortgaged to an amount equal to, or exceeding one-half its cash value, will not be insured; and any policy issued or existing on property thus mortgaged shall be null and void; and property mortgaged at all, will not be insured to an amount so that the amount of the insurance and the amount of the mortgage together shall exceed three-fourths of its cash value.” The application in this case is declared upon its face to be made “according to the terms of the charter and bylaws of said company;” and these being contained in the application, it is admitted the signature to the application was a subscription to the charter and to the agreement required by the 12th section of the charter. This application, after describing the property to be insured, consists of answers to printed questions, and so far as it relates to the question of incumbrances, is as follows: “First. Are you the owner of the buildings tq be insured, and of the land upon which they are situated? Answer: Yes, §4,000 to be held by A. Wakeman as collateral security for payment of a certain mortgage. “Second. Do you own the personal property to be insured ? Answer: Yes. “Third. What incumbrance is there on the property to be insured? Answer: Four thousand dollars.” The application closes with the following declaration: “I hereby declare that the above questions are correctly answered, and that I have not withheld any circumstance, or information or rumor in any manner concerning the above enumerated property affecting the risk on the same.” In fact, the real estate, including the building, was at the time incumbered by two mortgages executed by the plaintiff and his wife to said Wakeman in the aggregate sum of six thousand fifty-three dollars and ninety-seven cents, with interest, and at the time of the loss amounted to six thousand eight hundred and sixty-two dollars. The value of the real estate mortgaged, it is admitted, did not, at the time of the insurance, exceed nine thousand four hundred dollars. The property was therefore mortgaged in excess of half its value by one thousand three hundred and fifty-three dollars and ninety-seven cents; and as the sum insured, four thousand dollars, together with .the mortgages, which were six thousand fifty-three dollars and ninety-seven cents, amounted together to more than the whole value of the property, when by the by-law it could not exceed three-fourths the value, the company insist that there was a clear violation by the plaintiff of both branches of the by-law, and that the insurance was utterly void. It is admitted that none of the directors had any actual knowledge of the amount of the incumbrances except what appears upon the application; but the plaintiff had paid two assessments for losses, and he claims that Reed, who is admitted to have been “ an agent of the secretary of said company,” and who made out and forwarded the applica tion to the secretary, and is claimed to have been an agent of the company, had notice of the amount of the incumbrances. The evidence upon this point, which was the only matter of fact not agreed upon, will be noticed in its proper place. But in answer to the objection that the insurance is void by reason of its violating the by-law, the plaintiff’s counsel insisted in the court below (as he insists here), and ashed the court to charge, that as the insurance was for the benefit of Wakeman, the mortgagee, and so mentioned in the application and policy, by-law number 16 had no application to it, and the suit being brought for the benefit of Wakeman, there was no violation of this by-law, and that the plaintiff is entitled to recover. This request was refused, the court holding the policy void. Now, if this policy constituted a contract between the mortgagee and the insurance company, and the insurance was of his interest as mortgagee, and not that of the plaintiff as owner, there might be good ground for holding that it did not come within the mischief intended to be guarded against by the by-law in question. At least there might be good ground for contending in such a case that no benefit could legally have accrued to the plaintiff from any payment to be made for any loss which might accrue, unless there was some agreement between the plaintiff and his mortgagee that such payment should operate in reduction of his mortgage. — See Ellis on Ins., 162, and cases cited; White v. Brown, 2 Cush., 412; King v. State Mutual Ins. Co., 7 Cush., 1. But this policy creates no contract relation between the insurance company and the mortgagee. It is a contract only between the company and the plaintiff himself. It is the plaintiff’s interest, and not that of the mortgagee, which is insured. It was his loss or damage, and not that of the mortgagee, which the company agreed to pay. And though the insurance is declared to be for the benefit of the mortgagee “as security for his mortgages,” the mortgages were executed by the plaintiff, and he owed the mortgage debt the insurance was to secure. The payment, therefore, for any loss, when made, though paid to the mortgagee, would inure directly to the benefit of the plaintiff, and in legal effect would just as clearly constitute a payment to the plaintiff, as if made directly to himself; the mortgagee was but the appointee to receive the payment for him; and though it should be applied in reduction of the mortgages it would still have been as the plaintiff’s money and applied to his use. This provision of the policy amounts only to a request or assent to the company to pay it for him and to his use, to the mortgagee. The right of action is vested in him, and he brings it, and whatever will defeat his right of recovery must of necessity defeat any right of the mortgagee, which, in this case can only be derived through him. — Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391 ; Bidwell v. N. W. Ins. Co., 19 N. Y., 179; Macomber v. Cambridge Mutual Fire Ins. Co., 8 Cush., 133; Carpenter v. Providence Washington Ins. Co., 16 Pet., 495; Foster v. Equitable Fire Ins. Co., 2 Gray, 216; Bowditch Mutual Fire Ins. Co. v. Winslow, 3 Gray, 415; Hale v. Mechanics’ Mutual Fire Ins. Co., 6 Gray, 169. The plaintiff therefore had not only the same legal, but the same real and beneficial interest in the insurance, and the amount to be recovered for a loss, as if the mortgagee had not been named in the policy. And if, as urged by the plaintiff’s counsel, and as we think correctly, the main, if not the only object of the by-law, was to avoid the temptation to the insured to burn the building which might be furnished by allowing a party to insure property thus mortgaged, when the loss is payable directly to himself, we are unable to see why the same reason does not apply with equal force, and equally affect the risk, in a case like this, where it is to be paid to another for his benefit. Upon every view we have been able to take of this question we think the court was right in refusing the charge requested, and that the property being mortgaged to more- than balf its value, etc., the insurance comes directly within the very reason and purpose of the prohibition of the bylaw, and directly violates its letter and spirit; and unless the by-law can be held to have been waived, or defendant is estopped from setting it up, on the ground claimed by the plaintiff, the insurance must be held void. Do the facts of the case constitute such a waiver or estoppel, or rather was the' evidence such, including the admitted facts, that the jury under proper instructions, would have been authorized thus to find? The only evidence not consisting of fucts admitted and above stated, is the testimony of George B. Beed, who says, “I took the application for Mr. Van Burén, the plaintiff. He came to my office and said he wanted to make application for insurance in the village company. He said he wanted five thousand dollars, or more if he could get it. I told him five thousand dollars was all he could get in the company. He said he wanted four thousand dollars to be held as collateral security for Mr. Wakeman. I don’t know whether he said ‘for,’ or ‘by,’ Mr. Wakeman; but he wanted to secure Mr. Wakeman four thousand dollars, for a mortgage he held against the property. I don’t remember whether he told me the amount of the mortgage or not, Mr. Wakeman held against him, but I think he told me it was more than the amount of four thousand dollars. I took the application for the company and took my fees, and sent the application to the office at Centreville, and they issued the policies. I did not issue the policies. I was told to do this kind of business by Mr. Mason, who was then the secretary of the company.” Being asked what knowledge he had at the date of the application, of the amount of the mortgage upon the property, he answers: “I don’t know that I had any knowledge of the amount; but I have stated that Mr. Van Burén told me the amount was more than four thousand dollars.” If there was any conversation about the insurable condition of the properly, he does not recollect it. On cross-examination, being asked if he put to Yan Bnren this question contained in the application, “What incumbrance is there on the property to be insured?” he answers, “I don’t remember, but presume I did.” Question. — “Did you write the answer to it as he stated it?” Ans. — “I presume I did; I usually asked that question of applicants, and wrote down the answer as they gave it. I don’t remember in this case, but presume I wrote Mr. Yan Buren’s answer as he stated it.” Question. — “What was said between you and Mr. Yan Burén as to what you were to do with the application ?” Ans. — “I don’t remember what was said about it, but I took the application to be forwarded for a policy. He said he wanted to be insured one thousand dollars on the furniture and four thousand dollars on the building.” Question. — “Did he state any definite amount that the premises were mortgaged for above the four thousand dollars?” Ans. — “I don’t think he did.” Now, so far as Deed’s knowledge or notice of the amount of the incumbrances was material, if at all, it rested upon the plaintiff affirmatively to prove it; and whatever else may be said of this testimony, we think it stops short of any fair tendency to show that Deed at the time had knowledge or notice of the actual amount of the mortgages. But we shall not discuss this particular question, as we do not think it material. Nor do we deem it necessary to decide in the present case, whether Deed was properly an agent of the company, or only an agent of the secretary. There are many cases in which insurance companies are very properly held bound by the knowledge, acts, assurances and representations of their agents, beyond and even contrary to some of the particular provisions of their policies; and this court has .upon several occasions so held. The extent to which, and the instances in which, they should be so held may depend somewhat upon the character of the company itself, whether a stock company insuring parties who are not members, or a mutual company insuring members only, and much upon the nature of the charter and by-laws, and how far the latter are made parts of the contract of insurance, as well as -upon the general plan or principles upon which the business is conducted, the nature of the applications made for insurance, and how far these are made a part of the policy, or agreed to be treated as warranties, or only as representations; and perhaps still more upon the nature of the subject matter or particular features of the contract to which the question relates. And in what pertains to the matter of routine, the mode of filling up papers, the meaning the company attaches to certain special questions, or special and peculiar provisions, or the proper form of answers to the questions in an application, and other matters not obvious to the generality of men, and only supposed to be fully or fairly understood by insurers, or their agents, or those familiar with that kind of business, in short, by experts, it is right, and has been found necessary, in order to prevent fraud and imposition, to hold the insurers to a pretty strict liability for the acts, knowledge and representations of their agents. But on the other hand, insurance, being indispensable to the business interests of the country, and beneficial to all classes, is to be properly protected; and this can only be done by applying principles which shall be just and safe for the insurers as well as the insured. And for this purpose the person applying for insurance, and entering into a contract with that view, must be presumed to know something, to be competent to contract, and therefore to understand the general nature and fundamental principles of the contract into which he enters, especially when these are expressed in unambiguous terms, and unless some imposition or deception has been practiced to prevent it; and if it is not shown that he is incapable of reading, he must be presumed to to have read the paper he has signed. We do not propose to discuss these matters in detail or in their application to any other case than that before us. This case stands upon its own peculiar grounds, and does not, as we conceive, present the question in any of its forms, of the liability of the company for the acts, representations or assurances of its agent. Admitting Eeed to have been an agent of the company, instead of the agent merely of the secretary, we do not think his actual knowledge ^of tbe exact amount of the incumbrances would have operated in this case as a waiver by the company of the by-law, or in any manner have ' affected them; nor would they be affected by the fact that plaintiff had, before his loss occurred, paid assessments to the company on account of other losses. There is certainly no evidence in the case tending to • .show that either Eeed or the company," or any officer of the company, ever, prior to this loss, had any knowledge ■or notice of the value of the property, or of the fact that-the mortgages upon it exceeded half its value, or that the ■amount of the mortgages, when added to the sum insured, ■exceeded three-fourths of its value. There is no evidence that Eeed had seen or knew the property, or that a word was said about its value. The application, which consists mainly of printed questions and written answers, neither asks nor answers any question upon the point. And under the charter and by-laws of this company, of which the plaintiff, with all others insuring in it, became a member, and to which he and they assented as the law of their association and a fundamental principle of the contract of insurance, it was unnecessary for the company to enter upon this inquiry. Every one applying for and receiving insur•ance was himself, by this fundamental article of his own agreement, bound to know whether the property he was getting insured was mortgaged to more than half its value, etc., and that if so mortgaged he had no right to have it insured in the company, and solemnly pledged himself that it should not be, and that the insurance would be void, and could not be held valid, without allowing him, in violation of his agreement with them, to commit a legal fraud upon his associates, by compelling them to assume a risk in-his behalf which he, as a condition of membership, and. by the act of becoming a member, had agreed they should not assume. He was bound to know that the obligation of ascertaining whether the property was thus mortgaged did not rest upon the company, but that he must decide it for himself at his own peril' (at least unless he informed them of the exact amount of the incumbrances, and of his own estimate of the value, and asked them to determine it's value, and they should do so for themselves.) ’ The mere fact of his signing the application under this by-law gave the company the right to assume that the property was worth twice the amount of all mortgages upon it. But there is still a further, but analogous ground upon which the plaintiff must fail. The presentation of the application, and the acceptance of the insurance by him, in view of the charter and by-laws, amounted at least to a warranty that it was not mortgaged to half its value, etc. And further still, in agreeing to the charter and this bylaw, he had also agreed that this fact was material to the risk. By by-law No. 12, in connection with the policy, the" application became a part of the contract of insurance, and a warranty of the truth of the facts stated in it; and in his application he declares that he has withheld no circumstance affecting the risk on the property, while it is not pretended that by that application or otherwise he had informed the company, or even its agent, of the value of the property, or its comparative value in reference to the mortgages upon it, or that he was applying for insurance in direct violation of the by-law. The charge of the court, holding the insurance void, was correct, and the judgment must be affirmed, with costs. The other Justices concurred.

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Cooley, J. The most important questions in this case relate to the title to the lands on section one, in township fourteen north, of range three east, and on section seventeen, in township fourteen north, of range four- east. Should our conclusions be with the plaintiff on this branch of the case, the further questions may become unimportant, but if we disagree with his views regarding the title, it may become necessary, at least so far as the logs cut on section seventeen are concerned, to consider the further grounds on which he bases his claim. It is conceded that the title to the lands was in the United States in 1856. On the third day of June of that year an act of congress was passed which provided that “there be and hereby is granted to the state of Michigan, to aid in the construction of railroads” from and to certain points therein specified, and among others from Amboy by Hillsdale and Lansing to some point on or near Traverse Bay, “every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads,” with the exception of lands previously sold or pre-empted, in place of which others might be selected and located to make up the proper quantity: “Provided, That the lands to be so located shall in no case be further than fifteen miles from the lines of said roads, and s'elected for and on account of each of said roads.” The third section declared: “that the said lands hereby granted to the said state shall be subject to the disposal of the legislature thereof for the purposes aforesaid, and no other.” And the fourth: “that the lands hereby granted to said state shall be disposed of by said state only in manner following, that is to say: that a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not exceeding one hundred and twenty sections of each of said roads having twenty continuous miles completed as aforesaid, and included within-a continuous length of twenty miles of each of such roads may be sold; and so from time to time, until said roads are completed; and if any of said roads is not completed within ten years, no further sales shall be made; and the lands unsold shall revert to the United States.” — 11 U. S. Stat. at large, Little and Brown’s ed., 21. It becomes of importance to tbe parties to determine whether this act of congress constituted a present grant of the lands included within its terms, to take effect on their selection when earned, or whether on the other hand it conferred upon the state of Michigan merely a power, which, when it came to be exercised in behalf of the intended beneficiaries, would require further action, either by way of the issue of a patent or of some equivalent act, to perfect in the beneficiary a title to the land earned. The plaintiff insists that the title passed to the state, while the defendant disputes this, and claims that the title never passed from the United States, until the lands earned were patented to the Jackson, Lansing & Saginaw Railroad company, as hereinafter stated. It will be observed that the phraseology of the act of 1856 imports a conveyance to the state, and not the creation of a power merely. The words are “that there be and is hereby granted,” etc. And further on the lands granted are repeatedly spoken of, and it is provided when and on what contingency they shall revert to the United States. While this phraseology would not be conclusive if from other portions of the act it plainly appeared that the purpose was only to confer a power; yet it must be confessed that one who insists that an act of the government which employs the operative words of present conveyance, with provision of forfeiture on breach of condition, was intended to confer an authority only, is called upon to point out where and in what words the intent he insists upon is found expressed. The defendant relies upon the manifest purpose of the act to give to the state a power in trust only; a purpose which he thinks is apparent in all its provisions, and which was found in a similar act by the federal supreme court in Rice v. Railroad Co., 1 Black, 377. The case in Black differs from the one before the court, in the important particular that the act there under discussion expressly provided that no title should vest in the ter .ritory of Minnesota, the grantee therein named, until the condition of the act had been complied with. That explicit declaration would seem to remove from the case all ambiguity and all question; and though it is true the learned judge who delivered the opinion in that ease employs in some parts of it language sufficiently general, if considered by itself and without the context, to support the views of the defense, yet we cannot discover that the negative declaration we have referred to was at any time absent from his mind as a controlling feature of the case, nor can we satisfy ourselves that the conclusion would have been the same if that declaration had been wanting. On the other hand, the opinion in the office of the attorney general has been uniform that an act of the nature of the one under consideration is a grant in presentí. This was the advice of attorney general Cushing to the secretary of the interior under an act almost precisely identical with this (8 Op. of Att'y Gen’l, 244), and this advice was afterward reiterated by his successor, Judge Black (11 Ibid, 49). — See also 8 Op. of Att’y Gen'l, 247, 255 ; 9 Ibid, 41. Also Kissell v. St. Louis Public Schools, 18 How., 19; Railroad Co. v. Fremont Co., 9 Wad, 94. These opinions of very eminent lawyers are worthy of high consideration, especially as when giving them they were the official advisers of the government, and their advice was accepted and acted upon by the department of the interior. The government has thus given a practical construction to its own grants, which the state authorities should accept and follow, unless it is found that the proper judicial authority of the federal government has reviewed and found it erroneous; which it is not pretended is the case, unless by the decision in 1 Blade above referred to. And we have already said we find that case to furnish no distinct support to defendant’s position. No court is at liberty to subject these sovereign legislative grants, which more partake of the nature of treaty cessions by the Union to one of its members than of individual bargaining, to the definitions and refinements which the rules of municipal law apply to the grants and conveyances from man to man. When the government conveys by act of congress, that which constitutes its deed at the same time constitutes the law which defines the right or estate, and stamps it with whatever character it possesses. And so long as the government is only dealing with its own, the right or estate granted, whether anomalous or unprecedented, or otherwise, will be entitled to recognition and effect for just what it appears and was intended to be.— Ballou v. O’Brien, 20 Mich., 304. It is unnecessary .that the grant should be capable of being brought within any of the definitions given to estates by the common law. The one here examined seems to have been intended as a present conditional bounty to the state to encourage the building of railroads, and to become absolute and to attach to specific lands when the terms of the donation should be complied with. To devote the lands to this specific purpose, and work a transfer of the title, no further conveyance by the federal government was contemplated; it is assumed that a transfer of title was absolutely involved in the act itself and what should be done under it, and moreover that precautionary provisions were needed to meet the contingency of non-performance of the condition, and bring back the title to the federal government. • The state, then, had the title, though of course it was a floating title, not attaching to any particular parcels until the proper action should be had under the congressional grant to entitle some intended beneficiary to select and convey them. — Rutherford v. Greene’s heirs, 2 Wheaton, 196. On the 14th day of February, 1857, the legislature passed an act which, referring to the grant by congress, declared that so much of the lands, franchises, rights, powers and privileges as were or may be granted and conferred in pursuance thereof to aid in the construction of a railroad from Amboy, by way of Lansing, to some point on or near Traverse Bay, “are hereby disposed of, granted to, con ferred upon and vested in the Amboy, Lansing & Traverse Bay Railroad Company.” The act went on to provide for a formal acceptance of the grant by the company, and that it should be the duty of the company on or before the first day of December then next to locate the line of its railroad and to make complete maps of the line and file copies in the offices of the governor and secretary of state,- and the governor was required to transmit a duplicate to the land office at Washington. The seventh section of the act provided that the company, after the completion of twenty continuous miles of its road, and after the governor should have certified to the secretary of the interior that such twenty continuous miles of its road were completed, then, and not before, might sell sixty sections of land included within any continuous twenty miles of its line of road, and in like manner upon the completion of each other twenty continuous miles it might sell other sixty sections, and so on from time to time until the whole of its road was completed. The company was required to complete the road between Hillsdale and the point of intersection with the Detroit & Milwaukee Railroad on or before the first day of November, 1859, and at least twenty continuous miles of the road every year thereafter until the entire road was completed, the whole to be finished by the first day of November, 1865. — Sess. L. 1857, p. 346. It is presumed that the company filed a formal acceptance of this grant, as there are several acts of the legislature recognizing its rights under it, of which such as are material will be alluded to further on. The company filed the map of location of its line in the office of the secretary of state in August, 1858, and though this was not in time, the laches was waived by subsequent legislation. By act of February 14th, 1859 (Sess. L. 1859, p. 442), the quantity of land that might be sold on the completion of twenty continuous miles of road was increased to one hundred' and twenty sections. An act of February 12, 1861, required twenty continuous miles of road to be completed and in good running order by the first day of January then next (Sess. L. 1861, p. 82); and a later act of the same session provided that the company should not be entitled to the second one hundred and twenty sections until it should have constructed the road and opened it for use from Owosso to Michigan avenue in Lansing. — Sess. L. 1861, p. 150. Previous to the legislation of 1861 the company are shown to have completed twenty continuous miles of its road from the intersection with the Detroit and Milwaukee railroad in the city of Owosso in the direction of Lansing, and had obtained the governor’s certificate to the secretary of the interior to that effect. This would entitle the company under the acts of 1861 to make sale of one hundred and twenty sections of land on any continuous twenty miles of its road. On the 19th day of March, 1863, another act of the legislature was passed which waived all forfeitures, but required the company within six months from the passage thereof to finish and open their road for use to Michigan avenue, in the city of Lansing, and also by the first day of June then next to commence work in good faith on the road from Owosso to Saginaw City, and by the first day of January, I860, to complete that portion thereof. And the act contained a proviso that the company should not “be entitled to that portion of the second one hundred and twenty sections of said land not already conveyed by them” until the road should be completed and opened for use to Michigan avenue, in the city of Lansing. — Sess. L. 1863, p. 284. We are -.not advised except by the inference from this act that the company had previously assumed to make sales from the second one hundred and twenty sections, nor do we perceive that it becomes material. On the 17th day of September, 1863, the governor cértified to the secretary of the interior that the road was constructed and opened for use to , Michigan avenue, in the city of Lansing, stating therein that he did so “in order that it may appear that the said railway company now has title to the second one hundred- and twenty sections of land so granted by said :act of congress, and referred to in said act of the legislature of the state of Michigan, approved March 19, 1863.” This certificate would seem to entitle the company to make sale of the second one hundred and twenty sections of land, unless some action was required of the public authorities in order to determine what lands should be sold, or of the company in selecting them. The defendant insists that there must have been a designation by or under the authority of the state before the floating right could attach to specific descriptions'. That might be true if the right of selection was in the state; but such does not seem to be the case. The company having become entitled to two hundred and forty sections of land, might take one hundred and twenty sections thereof within any continuous length of twenty miles of their road, and the other one hundred and twenty sections within any other continuous length of twenty miles thereof, and the state could not force selections upon it. And as no legislation required any particular form- or method of selection, when the proper quantity of public land was found within the requisite distance of the road, we are unable to perceive why a sale by the company of specific parcels of land, not exceeding the quantity earned, and lying within the limits specified in the grant, would not to that extent have been an effectual selection. We come now to the legislation of 1865: on the 18th day of March of that year an act of legislature was passed which provided that it should be lawful for: the Jackson, Lansing & Saginaw Railroad Company, or any other railroad company, to enter into an arrangement with the Amboy,' Lansing & Traverse Bay Railroad Company, for the location of its line of railroad from Lansing by way of Owosso to Saginaw, upon the line of said Amboy, Lansing & Traverse Bay Railroad, and for the construction of the same on such line, and in case of such arrangement and location, then, upon filing in the office of the secretary of state a copy of the agreement between the companies duly certified as in the act provided, said Jackson, Lansing & Saginaw Railroad company, or other railroad company, shall become entitled, in accordance with said arrangement, to receive, take, hold, sell and dispose of the lands granted by congress to aid in. the construction of said line of road, as the said Amboy, Lansing & Traverse Bay Railroad company might have done under existing laws if such road from Owosso to Saginaw had been constructed by it, and the right of said Amboy, Lansing & Traverse Bay Railroad company to such lands, so far as the portion of its road from Owosso to Saginaw is concerned, shall cease upon the filing of said copy of agreement in the office of the secretary of state. And under the second section full authority was conferred upon the Jackson, Lansing & Saginaw company to purchase at private, public or judicial sale, the railroad and property of the Amboy, Lansing & Traverse Bay company. It is reasonable to infer that this legislation was adopted at the instance of the two companies mentioned therein by name, and in contemplation of an arrangement between them. Such an arrangement however does not seem to have been formally entered into between the parties until the 26th day of October, 1866, when a contract was executed as hereinafter stated. Meantime, on the 28th day of November, 1865, the Amboy, Lansing, & Traverse Bay Railroad company executed a deed purporting to convey to Andrew C. Maxwell and others a considerable quantity of lands, embracing the lot on section seventeen now in controversy. This deed recited the legislation already referred to including that of 1863, the construction of the road from Owosso to Lansing, and the giving of the two certificates by the governor, and it then contains a further recital that “ Whereas the board of control of railroads of the state of Michigan, at a meeting held on or about the third and fourth days of September, 1861, did select one hundred and twenty sections of land which said Amboy, Lansing & Traverse Bay Railroad company were then entitled to sell, being all the lands granted by the United States as aforesaid, lying on both sides of the line of said road extending from the south line of township six north, to the north line of township eighteen north, including all the railroad lands granted by the United States aforesaid in ‘the odd sections’ within the limits on each side of the route of said road, excepting such portions of said sections as have been previously sold by the United States, and excepting also such parts thereof as have been previously secured to actual settlers and occupants, under the provisions of the laws of the United States in regard to the pre-emption of the public lands; and whereas the said board of control at the meeting aforesaid did further resolve that the said Amboy, Lansing & Traverse Bay Railroad company should be entitled to sell a second one hundred and twenty sections of said lands, whenever the governor of said state should certify that the said road was completed from Owosso aforesaid to Michigan avenue in the city of Lansing aforesaid; and whereas the said road has long since been completed from Owosso to Michigan avenue aforesaid, and the lands hereafter described are a portion of those included in the grant aforesaid, and selected between said township six north and said township eighteen north; and whereas the said board of control of railroads did further resolve that said lands should first be taken from the south towards the north, taking all of said lands in that manner, as they might happen to be situated, on the route of said road, and the lands heretofore mentioned are included in said resolution;” therefore the deed proceeded to convey to the grantees named a number of parcels of }and situated in four adjoining townships, and none of which, if the townships were of the usual size, could have been situated a distance of more than twenty miles from any other. The quantity covered by this conveyance was about seven thousand acres, equivalent to about eleven sections, and there was no evidence in the case that further conveyances had been made by the company. Unless, therefore, there was necessity for the action of the board of control which is recited in this deed, so that it became important that plaintiff should prove such action to have been taken, it would seem that the action of the Amboy, Lansing & Traverse Bay Railroad company in making this conveyance was strictly within the limits of its legal right, and that it transferred the title to the grantees named. No provision of law has been pointed out to us on the argument which would qualify this right, or subject it to any conditions not performed or waived. The act of 1857 before referred to, which created the board of control, does not appear to have vested them with any power over the lands conveyed by the grant except in two contingencies.: First. Where the conditions of the grant were not complied with by any company, they might declare a forfeiture and select a new beneficiary; and second, when rights conflicted by reason of railroad lines crossing or approaching each other, they were to adjust any controversy. — Sections 11 and 15. And in this view of the case it would seem unnecessary to consider the subsequent arrangement between the Amboy, Lansing & Traverse Bay company and the Jackson, Lansing & Saginaw company, and the legislation following -the same, by which it is agreed on both sides that the beneficial interest in the land grant was transferred to the last named company. This transfer could not affect rights previously acquired by third parties, and we have consequently no occasion to examine the contract .between the two companies to- determine whether or not there was a reservation by it of the lands already-earned, or on the other hand, a restriction of the agreement to such as might be earned by the construction of the road north of Owosso, and whether in either case the act of the legislature of February 7, 1867, could operate by way of a. declaration of forfeiture to vest in the Jackson, Lansing, & Saginaw company greater rights than were intended to be given it by the contract between tbe two companies. And it may be remarked of this branch of the case, that' the position of the defendant rests not on equities, but on technicalities, and all reasonable inferences of construction should be against it. Beyond dispute the Amboy, Lansing & Traverse Bay Railroad company became entitled to two hundred and forty sections of land, and it wronged nobody by taking the lands here in question as part of them, but on the contrary, that company had an unquestionable legal right to take them, unless the legislation under which they were acting required some formality to be observed by the state authorities in’ advance. Any such formality in the case could have been of no service to any other party; the authorities could not rightfully have withheld it, and it could have had no beneficial object in view. We ought not, therefore, to conclude it to be necessary, unless we find it plainly required, especially in behalf of a party which claims the land b’y virtue of what it insists is a technical forfeiture under the act of February 7, 1867. — Sess. L., p. 11. We have not, for reasons before given, examined that act in this opinion to determine whether it can be treated as a forfeiture, but we are clear there was no right to forfeit what was already earned, and that the conveyance made to Maxwell and others was not open to objection either by the state or by the general government. As the plaintiff claims under the deed to Maxwell and his associates, we think he has established his right to the logs cut on section seventeen. The government afterwards patented this land to the Jackson, Lansing & Saginaw Railroad company, but that patent was unimportant, as the government at the time had no title.. The other branch of the case relates to the logs cut on section one, township fourteen north, of range three east. The plaintiff claims the logs under Daniel Burns, who cut them in the winter of 1868-9, having first applied at the land office for the purchase of the land in the usual way, but never having actually made the purchase. The logs, when cut, were seized by the federal officers, but released by the receiver of the land office in consideration of a small payment, and a bill of sale was given by him as United States timber agent therefor. On the other hand, the-defendant shows that this land was within the congressional land grant before mentioned; and that it was patented to the Jackson, Lansing & Saginaw Railroad company in March, 1871, having been actually earned previous to the time when Burns applied to purchase it, by the construction of their line of road from Owosso to Wenona. We think the plaintiff had no title whatever to these logs. The effect of the land grant to the state, and the subsequent location of the line of the road, was to place the sections which were covered by the floating grant out of the body of lands subject to sale by the federal government. Burns, consequently, could acquire no right to cut timber on the land, or even to go upon the land, by virtue of any application to purchase, if such right could be acquired by an applicant under any circumstances. And we are of opinion that no right was acquired by the compromise with the receiver, for reasons which we shall proceed to give. There is no claim, as we understand it, that there had' been any forfeiture of the land grant, or any portion thereof, after the Jackson, Lansing & Saginaw company had become the beneficiary. The grant originally was to be forfeited,' and the land to revert, unless the road was constructed within ten years from its passage. Extensions were made by act of July 3, 1866 (Laws 1865-6, Little and Brown’s ed., p. 78), and again by act of March 2, 1867 (Laws 1866-7, Little and Brown’s ed., p. Ifi5), and these, with the patent which was given, would waive any forfeiture that might affect this land if any such had occurred. And it must be taken as an unquestionable fact that the Jackson, Lansing & Saginaw company became entitled to the land on this section one, by reason of its original appropriation to the purposes of the construction of their road, and of their having complied with such conditions as entitled them to.a patent. And that company might have made sale of the lands without waiting the issue of any patent, but for the provisions of the act of July 3, 1866, one of which contemplates that titles shall pass by patent only. It is unnecessary for the purposes of this case to consider whether the patent was or was not in fact made necessary by this act. It is clear that after the patent issued the Jackson, Lansing & Saginaw company had undoubted title to this land. The question that concerns these parties is as to the title, the right of control, and the duty to protect the lands, previous to the perfecting of the title in the Jackson, Lansing & Saginaw company. And this must depend either upon the construction of the original grant, or upon the force of the patent. The grant was made to the state in presentí, but in the nature of a float, of the sections designated by odd numbers for six sections in width on each side of the road when located, and in a certain contingency, of others to be selected. It could not pass particular sections immediately, because the location of the road was essential to determine what sections would be brought within the limits of the grant; and even when the line was located, it would be highly probable that those limits would either embrace more land falling within the terms of the grant than could be conveyed in pursuance thereof, or that it would fall short of that precise quantity. It might under such circumstances be a question of considerable interest and importance whether the duty of protecting the land grant against trespassers was devolved upon the state by the grant, when the grant itself as yet attached to no definite •parcels of land, and while it waá uncertain whether all the odd-numbered sections along any particular portion of the line of the road might or might not be eventually taken by the railroad company, or whether some portion of the grant might not be located elsewhere in consequence of the.. previous sales and pre-emption selections within the limits, of six sections in width on each side of the road, leaving less than the requisite quantity to fulfill the terms of the grant. But this question we shall not discuss, because it-seems to us that the subsequent action renders it immaterial to the question at issue between these parties. Assuming that the land officers of the United States were still charged with the duty of protecting these lands, against trespassers, and that they might and should take all proper legal proceedings to punish them, it is certain that they had no authority by virtue of their office, or under any regulation or practice of the land office to which we have been referred, to sell off the timber from these lands-to any person whomsoever, and thereby deprive the railroad company of a portion at least of the benefit intended by the grant. The grant was of the lands in their existing condition; the government reserving to itself no right to sell timber or to derive any benefit therefrom; and any sale of timber, to the extent of its value, or to the extent . that it depreciated the value of the land, would defeat the purpose had in view by the government in making the-grant. If it be said, however, that in case of the cutting of timber by trespassers before the grant has attached to particular parcels, there must be authority somewhere to seize the timber and make sale of it, holding the proceeds in trust for the benefit of tbe person eventually entitled,, or otherwise the timber cut must be left to the disposition of the trespasser, himself or suffered to go to decay, — we may concede this without a modification of any thing we have already stated. The right to do what may be necessary to protect the land against trespassers is one thing;, the right to sell off the timber as against the party entitled to the benefit of the grant is quite another and a different thing. It has already been seen that the lands on section one, among others, were earned by the Jackson, Lansing & Saginaw Railroad company, according to the terms of the grant, and- the recitals in the patent, which are good evidence on this point, show this to have been as early, at least, as January 7, 1868. The logs in question were cut by Burns in the following winter, and they have been taken under the authority of the Jackson, Lansing & Saginaw Railroad company as having become their property. The patent was issued to that company in March, 1871. And the question on this branch of the case would seem to be this: At what time is the title of the railroad company to be deemed in law to have accrued? There are three periods, any one of which, according to different views, might be taken as that from which the title of the railroad company was to date; that is to say, the time of the original grant to the state, the time the lands were earned and the governor’s certificate of that fact-filed, and the time of the issue of the patent. And- the last must undoubtedly be the time, unless, under a well known and very beneficial fiction of law, the patent when given was to relate back to one or the other of the two periods first mentioned. And if it relates back to either of these, as both were before the logs were cut, them in law the land would be deemed the land of the company at the time the logs were cut, and they had a right to follow and seize the logs as their property. In Viner’s Abridgement, Tit., Relation, E, it is stated that “where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other acts shall have relation.” In Cruise the doctrine is stated in words somewhat different. “All the several parts and ceremonies,” that author says, “necessary to complete a conveyance shall be taken together as one act, and operate from the substantial part by relation.” — Cruise Dig., Vol. 5, 510-11. — See also 4 Kent, 337, 451; Wash Real Prop., Book 4, ch. 4, § 2; Jackson v. Ramsay, 3 Cow., 75; Clark v. Hall, 19 Mich., 354; Ciarle v. West, 23 Mich., 242. This doctrine has been so often applied by the federal courts to grants or donations by (die general government that it seems unnecessary here to do more than to refer to a few of the cases. Those of Ashton v. Hammond, 3 McLean, 107; Ross v. Barland, 1 Pet., 655; U. S. v. Fitzgerald, 15 Pet., 407 ; Landes v. Brant, 10 How., 348; Lessieur v. Price, 12 How., 76; French’s Lessee v. Spencer, 21 How., 239; Witherspoon v. Duncan, 4 Wall., 210; Stark v. Starrs, 6 Wall., 4022, are directly in point. The following cases in the state courts are like them in principle: Johnson v. Stagg, 2 Johns., 520; Jackson v. Dickenson, 15 Johns., 309; Fuller v. Van Geesen, 4 Hill, 171; McLaren v. Insurance Co., 5 N. Y., 151; Richardson v. Cleaveland, 5 Port., 251; Jones v. Inge., Ibid., 327; Smith v. Allen, 1 Blackf., 22; Heywood v. Hildreth, 9 Mass., 393; Taylor v. Robinson, 2 Allen, 564; Stout v. Keyes, 2 Doug., Mich., 184; Crowley v. Wallace, 12 Me., 143; Papin v. Massey, 27 Mo., 445; Magwire v. Tyler, 40 Mo., 406; Hayward v. Ormsbee, 11 Wis., 3; Cavender v. Smith, 3 Greene, Iowa, 349, S. C., 5 Iowa, 157; Rogers v. Brent, 5 Gilm., 573; Dequindre v. Williams, 81 Ind., 444. These cases apply the doctrine under a great variety of circumstances, and they show, what is expressly declared in some of them, that while it is never to be applied to the injury of innocent parties, it is exceedingly effectual to the attainment of justice as against trespassers. And Burns in this case can only stand in that light. . . . As already said, whether the relation of the patent is to be to the original grant, or to the time when the land was earned, — that is to say, whether the one or the other is to be deemed, in the words of Mr. Cruise, “the substantial part” of the necessary steps in perfecting title, is in this case immaterial. To one or the other the patent clearly relates. We may say of the case, in words slightly changed from those employed by the federal supreme court in Lessieur v. Price, 12 How., 76, that the land was granted by the act of 1856; it was a present grant, wanting identity to make it perfect; and the railroad company was vested with full power to select and locate the lands; and the selection. when made pursuant to the act of congress gave precision, to' the title, and attached it to the land selected. And from the time, at least, when there was a right to select and locate that which was afterwards selected and patented, the railroad company must be deemed owner of the land. Upon this branch of the case, therefore, we find no error in this record. For the error on the other branch the judgment must bo reversed. We cannot, as the plaintiff insists, enter a final judgment on his behalf in this court. True, the jury found specially the value of the logs on section seventeen, but we have no means of knowing how the jury made up the amount of the verdict returned by them, — what they included or what they rejected. It will he necessary, therefore, to order a new trial. Graves, Ch. J., and Christiancy, J., concurred. Campbell, J., did not sit in this case.

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Campbell, J. The bill in this case is for a specific performance of a parol contract claimed to have been made good by possession and payment in full. A decree was taken for com- • plainant by default at the hearing in April, 1870. This decree was afterwards opened and new testimony taken, and the bill was finally dismissed. The complainant claims that the decree was unlawfully opened, and could not be disturbed, and also that the last ■ decree is not in accordance with the merits. If we could look into the merits, we should take time for a full and careful examination of the facts, which are voluminous and conflicting. But we do not perceive that this is possible upon the record. Assuming that the complainant was in a position to consider himself aggrieved by having the first decree disturbed (which we do not think it necessary to discuss at' length),. he cannot complain here of that action if it was not against his rights. Whether it would be a void and incompetent proceeding to open a decree and grant a rehearing, in the proper sense of the term, at the time when this decree was opened, so as to make it the duty of an appellate court to restore the first decree, we need not now consider. The application which the court below granted was not made on any such ground. It was nothing more than opening a’ decree by default, — which may always be done within a reasonable time on showing 'an adequate excuse; and this must generally be within the sound discretion of the court. The facts showed beyond question that the decree had been in fact waived, and opened by agreement, within a few days after its date, and that arrangements had been made for a further hearing. If there had not been misconduct on the part of complainant’s solicitor, the decree would have been vacated by matters appearing on the record. It was a fraud to set it up as an existing decree, and the court could not have allowed it to stand without violating every principle of justice. It appears from complainant’s own showing that in June, 1870, he conveyed the premises in dispute to one Charles E. Ritson. Ritson never made himself a party to the suit. By that conveyance complainant ceased to have any further interest in the controversy; • If any one was injuriously affected by any subsequent proceedings, it was Ritson, and not complainant. It was ño concern of his after he had sold out all his interest. A court of equity must have the real parties before it, and will not permit a pai’ty who ha's voluntarily divested himself of any claim on his own behalf, to continue litigating. As soon as a complainant assigns liis rights, the suit, as to him, ceases, and becomes as defective for want of a complainant as if it had abated by his death. It, can only be restored to activity by bringing the rights of the assignee before the court.— Webster v. Hitchcock, 11 Mich. R., 56 ; Perkins v. Perkins, 16 Mich., 162. The complainant, therefore, was a mere interloper, after the date of his deed, and has no right to complain that his bill was dismissed. He had put himself out of court so far as any rights were concerned. The controversy was no longer his controversy, and the right to pursue it had been terminated as to him, by his own act. He could not proceed alone except for his sole grievances. Whether the decree would have been right or wrong if he had retained his interest, it was unquestionably right to dismiss the bill when the complainant had no interest. He was in the same position then as if his bill had shown on its face that the interest had been parted with before the commencement of suit. This state of things renders it necessary for us to affirm the decree, without inquiring further into the facts. No state of facts could warrant any decree in favor of a complainant having no right to relief. As he did not see fit to withdraw, he subjected himself to the consequences of prosecuting a claim that did not belong to him. The decree must be affirmed, with costs. The other Justices concurred.

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Cavanagh, J. In this case, we are called on to decide whether a defendant against whom a land contract forfeiture judgment has been obtained must pay an amount, representing the monthly payments under the contract, in excess of the judgment to preclude entry of a writ of restitution. For the reasons detailed below, we reverse the decision of the Court of Appeals and conclude that the writ of restitution in this case was issued improperly. i Defendants in this case are husband and wife. They entered into a land contract for a two-unit residential property with Lynette Marie Luft in August 1989. In January 1992, Luft assigned her interest in that contract to the plaintiffs, two attorneys. In April 1992, plaintiffs commenced a forfeiture action in the 12th District Court. Plaintiffs voluntarily dismissed that action, and then filed a second forfeiture notice in August 1992. It is this action from which the present appeal arises. On October 27, 1992, the defendants, who were not represented by counsel, consented to entry of judgment in favor of the plaintiffs for $2,000. In a brief hearing, both defendants acknowledged that $2,000 was “due and owing.” Ms. Taylor also replied affirmatively when the court inquired if she was familiar with the terms outlined in the judgment. The defendants agreed with the court that, because less than half the total contract had been paid, the redemption period would be ninety days. Finally, plaintiff Rappleye also agreed with the court that $2,000 was the redemption amount. The plaintiffs drafted the judgment on a standard State Court Administrative Office approved form. Included in this judgment, in paragraph 6, “Further Orders,” was a provision that “all monies paid during redemption period shall first be applied to keep payments current and then to the outstanding judgment amount.” This provision was not specifically mentioned on the record by the parties or the court, nor did the parties sign this judgment in the space provided for approval of content and form. Between October 27, 1992, and the end of January 1993, the defendants paid the plaintiffs a total of $1,800. On February 5, 1993, after the redemption period had expired, but before any further action in this matter, the defendants paid an additional $350 to the plaintiffs, bringing the total amount paid to $2,150. Nonetheless, the plaintiffs moved for issuance of a writ on the ground that, following the “further orders” language, and applying the bulk of the monies paid to the $1,600 that had become due under the contract, the defendants remained significantly in arrears. The district court held a hearing on the motion on February 9, 1993. At that hearing, the plaintiffs presented a stipulation, signed by the defendants, that the “outstanding balance which was due and owing has not been paid in full,” and agreeing that the defendants would have until February 18, 1993, to pay the $1,450 still owing, or a writ of restitution would be entered at any time thereafter. The stipulation was presented to the court at the hearing on the motion, and the court entered an order in accordance with it. The defendants again were unrepresented by counsel. The transcript of this hearing reveals that the court was aware of the “further orders” language, but at no time does it appear that the court was made aware of the fact that, at the time of the hearing, $2,150 had been paid to the plaintiffs. The defendants did not make any further payments before February 18, 1993, and, on that day, the plaintiffs applied for and received a writ of restitution ex parte. The application for the writ indicated the “No payment has been made on the judgment and/or no rent has been received since the date of judgment, except the sum of $1,400.00 received under the following conditions: per the judgment.” While plaintiffs undertook actions to evict the defendants, while simultaneously offering them the option of renting the premises, the defendants, for the first time, obtained counsel to represent them in this matter. Counsel immediately moved for a stay of and relief from the judgment. Following a hearing, the district court denied the motion. Defendants appealed in the Jackson Circuit Court, which affirmed. In the course of this appeal, an appeal bond and escrow order was entered, requiring the defendants to continue their $400 land contract payments each month. The circuit court continued the appeal bond and escrow order to allow the defendants to proceed in the Court of Appeals. The defendants claim in this Court that they have continued to make every monthly payment since the entry of the escrow order, and the plaintiffs do not dispute that. The Court of Appeals, in an unpublished per curiam opinion, affirmed in part and reversed in part. Finding the district court to have erred in the application of the “further orders” language, the Court of Appeals held that such language was an “improper ‘clog’ on defendants’ right of redemption.” The Court then affirmed the result, however, on the ground that the failure to make the monthly payments constituted a separate material breach and a proper ground for the issuance of the writ of restitution. We granted leave to appeal to address this issue, which may affect a substantial number of land contract vendors and vendees, and invited the Michigan State Bar Real Property Law Section to file a brief amicus curiae. We now affirm in part, and reverse in part. n The question before us concerns the appropriateness of the Court of Appeals sanctioning the use of summary forfeiture proceedings to enforce the payments due on the underlying land contract that accrue after a judgment has been entered, but prior to the issuance of a writ of restitution. The Court of Appeals held that the failure to make such payments constituted a material breach under the contract sufficient to support the issuance of a writ of restitution. We review this question of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75; 467 NW2d 21 (1991). A The concept of forfeiture in the land contract setting has undergone a substantial evolution under Michigan law. Originally, a common-law forfeiture ended the land contract. The seller was discharged from his duty to convey, and the purchaser was discharged from his duty to pay. See Stevens v Most, 251 Mich 23; 231 NW 47 (1930). In Stevens, this Court examined a situation similar to the instant case. The defendant in Stevens argued that the notice of forfeiture operated to terminate his duty to pay, and hence he should be able to redeem the contract by paying the amount stated in the notice of forfeiture. This Court rejected that argument, reasoning: This method would cause a multiplicity of suits and serve no useful end. We believe that the practice heretofore generally followed of including all amounts due up to the date of the judgment is correct, and carries out the intent and purpose of the present statute. [Id. at 27.] This same concern resonated in the views of the circuit court below. While the argument was abandoned here, the plaintiffs did advocate such a concern below. While we agree that such a concern can, in some circumstances, be very legitimate, we do not find it so here. In Gruskin v Fisher, 405 Mich 51; 273 NW2d 893 (1979), we addressed the area of land contract forfeitures as concerning the issue of election of remedies. We noted that, historically, the effect of the service of a notice of forfeiture was to end the contract, and, thus, was an election of remedies. Under modem summary proceeding practice, however, we found that a notice of forfeiture actually acted more as a condition precedent to the commencement of summary proceedings. In modem practice, including summary proceedings under the Revised Judicature Act, MCL 600.5701 et seq.; MSA 27A.5701 et seq., a seller may pursue alternative remedies until a writ of restitution has been entered, even after a judgment of possession has been entered. Id. at 66-67. We have recently restated the belief that the Revised Judicature Act is a codification of the common-law rule of election of remedies, with some arguable modifications. Michigan Nat’l Bank, Trustee v Cote, 451 Mich 180; 546 NW2d 247 (1996). While we do not return to the issues underlying Gruskin or Cote today, we are confident that the option of instituting a foreclosure action, as opposed to a forfeiture action, existed for the plaintiffs when they filed their initial claim. Indeed, we note that the plaintiffs earlier had filed and then dismissed a forfeiture action, for reasons that are not clear from the record. Whatever their reasons, the possibility of the need to file repeated forfeiture actions appears to have been more than an abstract concept to the plaintiffs. Nonetheless, they chose to forgo the acceleration advantages of a foreclosure action in favor of the ease of a summary forfeiture proceeding. This leads us to dispose of the problem that so troubled the circuit court and was a basis of arguments for the plaintiff below. A land contract vendor in the plaintiffs’ position need never face the diffi culty of being required to institute a multiplicity of suits. Such a vendor has another option: he may commence a foreclosure action. The Court hardly needs to concern itself with protecting the vendor from postjudgment defaults. The vendor has the option of protecting himself by instituting a foreclosure action. B We note that while the defendants and amici curiae urge us to address the question of a clogging of the equity of redemption, we are in fact not properly presented with that issue. The Court of Appeals ruled in favor of the defendants on this issue, and the plaintiffs filed no appeal or cross-appeal on this issue. Before this Court, the plaintiffs present a one-sentence argument with no citation to authority. On its face it is unclear what issue, if any, that sentence attempts to raise. More importantly, a mere statement without authority is insufficient to bring an issue before this Court. It is not sufficient for a party “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.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Accordingly, we need not address this issue, and therefore, decline to do so. To be thorough, however, and also to provide guidance to the bench and bar, as requested by the amici curiae, we note that to the extent that plaintiffs raise any question at all regarding the “further orders” language being viable, such language must fail as being contrary to the statute. MCL 600.5741; MSA 27A.5741 states: If the jury or the judge finds that the plaintiff is entitled to possession of the premises, or any part thereof, judgment may be entered in accordance with the finding and may be enforced by a writ of restitution as provided in this chapter. If it is found that the plaintiff is entitled to possession of the premises, in consequence of the nonpayment of any money due under a tenancy, or the nonpayment of moneys required to be paid under an executory contract for purchase of the premises, the jury or judge making the finding shall determine the amount due or in arrears at the time of trial which amount shall be stated in the judgment for possession. In determining the amount due under a tenancy the jury or judge shall deduct any portion of the rent which the jury or judge finds to be excused by the plaintiff’s breach of the lease or by his breach of 1 or more statutory covenants imposed by section 39 of chapter 66 of the Revised Statutes of 1846, as added, being section 554.139 of the Compiled Laws of 1948. The statement in the judgment for possession shall be only for the purpose of prescribing the amount which, together with taxed costs, shall be paid to preclude issuance of the writ of restitution. The judgment may include an award of costs, enforceable in the same manner as other civil judgments for money in the same court. [Emphasis added.] The statute clearly requires that the amount stated shall prescribe the amount to be paid to preclude issuance of the writ. Here the amount stated in the judgment was $2,000. The “further orders” language operated to circumvent this amount and purported to require that an amount in excess of the $2,000 stated actually would be required to prevent issuance of the writ. We find this language operated contrary to the statute, and, thus, was erroneously entered. c We now address the holding of the Court of Appeals that the failure to make monthly payments during the redemption period was a material breach sufficient to justify issuance of the writ of restitution. In so finding, the Court of Appeals relied on MCL 600.5744(6); MSA 27A.5744(6), which states: When the judgment for possession is for nonpayment of money due under a tenancy or for nonpayment of moneys required to be paid under or any other material breach of an executory contract for purchase of the premises, the writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff and other material breaches of an executory contract for purchase of the premises are cured. While we agree that this subsection applies to this question, we find that the Court of Appeals erred in interpreting it. The statute quoted prevents the issuance of a writ of restitution if payment is made in an amount provided in the judgment and other material breaches are cured. The statute separates “nonpayment of moneys required to be paid,” from “any other material breach.” It clearly divides monetary and non-monetary breaches. It seems clear that whatever the other material breaches may be, they do not include the failure to make monetary payments. To hold otherwise would nm contrary to the specific language of the statute and logic. A writ of restitution is issued only upon a failure to pay the amount specified in the judgment. To permit its issuance upon a failure to pay some other amount, under the context of a “material breach,” would be to allow the writ to be issued on the basis of a failure to pay an amount that has never been subject to proof before the court. As we have already noted, MCL 600.5741; MSA 27A.5741 requires only that the amount of the judgment need be paid to preclude the issuance of the writ of restitution. While some other nonmonetary material breach, which was specified in the judgment for possession, might need to be cured to preclude the issuance of a writ of restitution, we hold that the amount specified in the judgment is the only monetary payment that needs to be made to preclude the issuance of a writ of restitution in a land contract forfeiture proceeding under the Revised Judicature Act. The Court of Appeals erred in holding otherwise. m As we have noted, the Court of Appeals found that the reason relied on by the trial court for the issuance of the writ, the failure of the defendants to comply with the “further orders” language, was erroneous. We are not called on to review that decision. The sole remaining basis supporting the writ’s issuance, the holding of the Court of Appeals that the writ was properly issued on the basis of a material breach was error and is reversed. The writ of restitution is, therefore, quashed. Mallett, C.J., and Brickley and Kelly, JJ., concurred with Cavanagh, J. The land contract summary forfeiture proceedings in question are governed by the Revised Judicature Act, MCL 600.5701 et seq.; MSA 27A.5701 et seq. Plaintiffs also commenced a third action in July 1993, after the circuit court ruled in plaintiffs’ favor following defendants’ appeal from district court in the present case. That case was dismissed for a lack of progress in April 1994, and is not involved in this appeal. The record indicates that the entire hearing took two minutes to complete. The $1,600 figure represented four months of land contract payments of $400 a month. The math applied by the plaintiffs merits further discussion. The plaintiffs’ motion for issuance of the writ of restitution, in paragraph 3, claimed the defendants had paid a total of $1,400, in amounts of $600 on October 27, 1992, $400 on December 15, 1992, and $400 on January 8, 1993. In paragraph 4, the motion claimed that $1,600 had become due under the contract since entry of the judgment. Plaintiffs’ brief on appeal to this Court includes an attachment consisting of canceled checks and money orders received from the defendants. While the three amounts above appear on instruments with dates close to those above, an additional $400 check dated November 5, 1992 is included, along with a $350 check dated February 5, 1993. While it is apparent that the $350 check was issued after the date the plaintiffs’ motion was signed, the absence of any mention of the November 5, 1992, check is troubling. The motion claims that defendants have “failed to pay the monies which were due on the payments which accrued during the redemption period and have paid nothing toward the outstand ing balance on the Judgment of Land Contract Forfeiture.” Discarding the $350 check as not yet having arrived, the plaintiffs were admittedly in receipt of $1,800 at the time this motion was drafted. The plaintiffs claim $1,600 was due under the “further orders” language. Even if we were to adopt the plaintiffs’ reasoning and math, the defendants would have paid the entire amount that had become due as monthly payments, plus $200 toward the judgment amount (and all this before the last $350 payment). The plaintiffs’ statements in the motion appear to be irreconcilable with the checks that plaintiffs have presented to this Court and admit they received. The transcript reveals this hearing took three minutes to complete. Again, the plaintiffs’ math invites inquiry. This application was signed on February 18, 1993, by which time the plaintiffs were in receipt of $2,150. While plaintiffs attempt to argue that some of these payments were to be applied to monthly payments, and others to the judgment amount, this position is in conflict with their claim that the “further orders” language is controlling and that all payments first must be applied to the monthly amounts accruing. Moreover, even following plaintiffs’ arguments as they are included in their brief on appeal does not lead to any situation where the amount received “under the judgment,” even if we somehow discount amounts applied to ongoing monthly payments, equals $1,400. In short, it appears that both the motion and the application for the writ of restitution significantly understate the payments actually received, and the plaintiffs’ various competing rationales all fail to support the claims made in the application for the writ. Issued January 5, 1996 (Docket No. 164978). This portion of the decision of the Court of Appeals was not appealed by the plaintiffs, and, hence, is not before this Court. 454 Mich 921 (1997). The Court has benefited from the amici curiae briefs filed in this matter. Plaintiffs’ “brief’ is indeed just that, it contains one page of counter statement of facts and one sentence of argument with no citation of authority. Likewise, under Gruskin, it seems that the plaintiffs could have elected to seek foreclosure rather than seek a writ of restitution. What the plaintiffs tried to do is what Gruskin spoke of at some length, take advantage of a less sophisticated party. Id. at 69, n 13. The plaintiffs sought the speed of forfeiture, but tried to also collect as much of the payments as would become due under the contract in the interim of the redemption period. Nothing in Gruskin strikes us as holding permissible the actions taken in this case. It is the next section of our analysis, however, that is dispositive. The dissent fears that vendors will find themselves on a “litigation treadmill” (post at 255), apparently because foreclosure proceedings are inherently more complex than summary procedure forfeiture remedies, and hence not a realistic alternative. We disagree. The Legislature has granted vendors two alternative remedies, one that is very rapid, but does not allow for a recovery of all payments due under the contract, and one that is more complex, but does allow a full recovery. We simply decline to judicially legislate some provisions from the latter into the former. Despite having previously filed a case against defendants, then dismissing it, plaintiffs still elected a summary forfeiture proceeding. Even so, as we noted in Gruskin, supra at 66-67, the option of pursuing a foreclosure remedy remained open to the plaintiffs, even after the entry of a judgment of possession. If, before the entry of the writ, plaintiffs had decided that the four months’ worth of payments were more important to them than immediate possession of the property they had the option to commence a foreclosure proceeding. Rather, they chose to seek a writ of restitution, and, hence, forgo any amount greater than the specifically stated judgment amount. The dissent’s citation of Gruskin for the proposition that forfeiture proceedings should not be encouraged arrives without the necessary context. As we noted immediately before that statement, “[land contract] sellers do not seek a return of property, but payment.” Gruskin at 63. We noted the availability of summary forfeiture proceedings, which “move expeditiously and generally accomplish their purpose of persuading the purchaser to cure the delinquency.” Id. at 64. “If it appears that the purchaser does not desire or intend to perform and is willing to surrender his equity, then the seller must make a decision and, under the statute, is put to an election of remedies. He may accept possession or, if he wishes to obtain a deficiency judgment, abandon the summary proceedings in favor of foreclosure action.” Id. Contrary to the dissent’s implication, our decision in Gruskin hardly amounts to a wholesale disfavoring of foreclosure actions. While Justice Voelker’s statement expresses the point in a most eloquent fashion, this has been the rule in Michigan long before his statement, and long after. See, e.g., Arrand v Graham, 297 Mich 559; 298 NW 281 (1941), and Speaker-Hines & Thomas, Inc v Dep’t of Treasury, 207 Mich App 84, 90-91; 523 NW2d 826 (1994). The dissent of Justice Taylor suggests that we are, in effect, being wilfully blind of the possible effect of Flynn v Korneffel, 451 Mich 186; 547 NW2d 249 (1996). We disagree. We are called on only to answer a simple question: Did the Court of Appeals err in determining that the failure to pay the monthly payments was a “material breach” under MCL 600.5744(6); MSA 27A.5744(6). We find the answer to clearly be yes, and note that a close reading of Justice Taylor’s dissent finds that he does not disagree. The difference, then, is that we are content merely to conclude the task at hand, rather than continue onward toward some particular conclusion, or decide the applicability of a particular case to the facts before us, where that case was not even cited by any of the parties or amici curiae. Accordingly, we should not, and do not, express any opinion regarding the effect of Flynn to these circumstances, as we are simply not called on to do so. As well it should. Were we to adopt the dissent’s view, we would be condoning the use of a writ of restitution to hold a party liable for amounts never subject to proof before the trial court. The mere fact that defendants offered no defenses to the payments due before the entry of judgment does not preclude the possibility that legitimate defenses might exist to some all the payments otherwise due after the entry of judgment. It seems clear that the court should not be authorizing the entry of a writ on the basis of the owing of an amount that has never been (1) accurately ascertained, or (2) even been proven to be owed before the court. We again note that none of the parties have raised the issue what effect, if any, the defendants’ payment of the last $350 after the period of redemption should have on this case. Accordingly, we are not called on to address this matter and decline to do so. To the extent the dissent seems to find our decision to call into question all manner of contracts, we simply do not do so. This case is decidedly unusual, and the factual situation herein is likely not to be repeated often. Which is not to say, of course, that land contract forfeiture cases are uncommon. We today simply restate our Gruskin explanation of the differences between summary forfeiture and foreclosure proceedings, and the availability of each. Individual vendors must select their remedies on the basis of their situations.

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Brickley, J. i We are called upon to decide two issues in this case. First, we must determine whether violations of the soil erosion and sedimentation control act, MCL 324.9101 et seq.; MSA 13A.9101 et seq. (sesca), can form the basis of a prima facie case under the Michigan environmental protection act, MCL 324.1701 et seq.; MSA 13A.1701 et seq. (mera). We conclude that it can and, therefore, reverse in part the decision of the Court of Appeals and reinstate in part the judgment of the trial court. Secondly, we must determine whether the MEPA permits a trial judge to apportion attorney fees in the “interests of justice.” We conclude that it does not and, therefore, affirm in part the decision of the Court of Appeals. n In the fall of 1990, defendant developers began construction of a multimillion-dollar marina, condominium, and hotel project at the mouth of the Manistee River, on the shore of Lake Michigan, on property owned by defendant city of Manistee. Construction involved stripping the vegetation and topsoil from thirty acres of barrier dunes, digging a marina basin, and moving thousands of cubic yards of earth into piles on the edges of the construction site. In December of 1990, after this phase of the construction took place, a storm struck Manistee, and wind and water on the exposed dunes carried sand, snow, fly ash, and other sediments from the construction site to the surrounding area. The sediments buried nearby parcels in drifts several feet deep, destroyed window casings, damaged siding, and were blown into the interiors of homes in the area. Nine months later, a group of residents sued the developers and the city of Manistee. Plaintiffs had several theories of recovery; however, only the allegation of a violation of the mepa is before this Court. Plaintiffs argued that the developers’ violations of the sesca provided sufficient evidence that the developers’ activities violated the mepa by either polluting, impairing, destroying air, water, or other natural resources, or were likely to do so. See subsection 1703(1). The trial court issued a preliminary injunction against defendants on February 28, 1992, nunc pro tunc from December 7, 1991, enjoining excavation of soil and movement of soil in the project area. Neither the construction on the building sites nor the earthmoving activities where the defendants were trying to establish joinder of the Manistee River with the marina basin were enjoined. The trial judge made findings of fact on which he based his grant of the preliminary injunction. First, the court found that the severity of the storm that occurred in 1990 was due to the stripping of the vegetative cover of the project area. The trial court also found that there was “demonstrated indifference” in the past to proper soil erosion control measures by defendants, on the basis of the failure to implement soil erosion control recommendations resulting from the consultations between the city soil erosion officer and the county soil erosion control officer. However, this demonstrated indifference underwent significant change through the course of the litigation. In December of 1991, at the behest of the trial court, the city took steps to put in place a soil erosion control officer — independent of the city’s operational control. Before the independent officer’s insistence, no soil erosion control plan had been submitted by defendants that met the SESCA’s requirements. That officer also issued a cease and desist order, insisting that certain measures be taken before any work could continue on the site. Upon issuance of that order, the developers took immediate steps to conform to the requirements and “lay down this material to hopefully hold the soil in place until a proper mulch cover . . . and grass cover [could] be put in place.” The trial court specifically noted that there was no cover before this because the developers’ efforts in 1991 were not done in a timely fashion; therefore, the mulch and grass cover they attempted to put in was not able to take hold in a manner sufficient to meet the requirements of the sesca. The trial court was satisfied that plaintiffs had established a likelihood of prevailing on the merits; that is, they were harmed by the alleged violations of the environmental statutes. The trial court, in weighing the harm to plaintiffs and the cost to defendant developers, held that the cost of compliance with the injunction was minimal because the project was not “shut down.” The trial court ruled that the preliminary injunction would last until the proper permits by the independent soil erosion control officer were issued because the prior permits were not valid since the permits were not supported by an adequate soil erosion control plan. All that really remained to be done, according to the trial court, was for the developers to apply for the permits and the soil erosion control officer to make his independent evaluation regarding whether the permits should be issued. The injunction did not affect the city of Manistee. The trial court granted plaintiffs’ motion for a permanent injunction on October 27, 1992, and issued its final judgment and order on November 24, 1992. The final judgment and order provided that defendants were permanently enjoined as follows: (1) Enjoined nunc pro tunc, from December 7, 1991, until the issuance of proper soil erosion control permits, from performing any construction activities which include and involve movement of soil. This injunction to exclude solely (a) minor movements of soil for the continuing construction of building sites and (b) earth moving in the area where Defendants are attempting to establish a joinder of the marina basin with the Manistee River, i.e., at the “River site.” (2) Mandatorily enjoined and directed to the same extent and scope of any cease and desist order and/or directive from the Independent Soil Erosion Control Officer, subject to Defendants’ right to an administrative appeal from such order or directive and limited by any reversal or modification or other change thereof on such an appeal, and subject to Defendants’ concurrent right to challenge in this Court the propriety and scope of such Officer’s order or directive. Finally, the trial court awarded attorney fees and costs to plaintiffs, pursuant to the mepa, in the amount of $89,377 against defendants, Abonmarche, Morren, and MacLean, but not against the city of Manistee. The Court of Appeals, in an unpublished opinion per curiam, held that an injunction based on a violation of the mepa was not warranted because the activity of defendants did not “rise to such a level of impairment or destruction of a natural resource so as to constitute an environmental risk,” relying on Dafter Sanitary Landfill v Superior Sanitation Service, 198 Mich App 499; 499 NW2d 383 (1993). Slip op, p 2. Moreover, held the Court of Appeals, the natural resource in question — sand—and its location, was not rare, unique, endangered, or of historical significance. Id. Finally, the Court of Appeals held that sand is easily replaceable and that the movement of sand in that area would not have any significant consequential effect on other natural resources. m The first issue we are called on to decide in this case is whether the trial court properly held that plaintiffs established that defendants violated the mepa by showing that defendants violated the SESGA. Subsection 1703(1) of the mepa provides: When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts apply to actions brought under this part. At the center of this controversy is the proper application of our decision interpreting the mepa in Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975). Plaintiffs argue that the low threshold of harm required by the mepa and Ray has been chipped away by the lower court’s imposition of additional requirements. Defendants argue that a violation of the SESCA cannot, by itself, amount to a violation of the MEPA. First, we must reiterate exactly what is required by Ray. We held that the “judicial development of a common law of environmental quality, as envisioned by the Legislature, can only take place if circuit court judges take care to set out with specificity the factual findings upon which they base their ultimate conclusions.” Ray, supra at 307. We further observed that the MEPA itself provides substantial guidance to trial judges regarding what should be included in the findings of fact for actions brought under the MEPA. See subsection 1703(1). The trial judge must find facts on which the plaintiff claims to have made a prima facie case under the mepa, that is, what conduct of the defendant “has or is likely to pollute, impair or destroy the air, water or other natural resources.” Ray, supra at 309. Importantly, we held in Ray that the necessary showing to establish a plaintiffs prima facie case is “not restricted to actual environmental degradation but also encompasses probable damage to the environment as well.” Id. at 309. General rules of evidence govern this inquiry, and a plaintiff has established a prima facie case when his case is sufficient to withstand a motion by the defendant that the judge direct a verdict in the defendant’s favor. Id. at 309, citing Gibbons v Farwell, 63 Mich 344, 348; 29 NW 855 (1886). The basic import of Ray has not changed. We must now determine what effect plaintiffs’ showing that defendants violated the SESCA has on establishing a prima facie case under the mepa. This first involves an examination of the provisions and purposes of the sesca. The sesca defines “earth change” as a human-made change in the natural cover or topography of land, including cut and fill activities, which may result in or contribute to soil erosion or sedimentation of the waters of the state. [MCL 324.9101(5); MSA 13A.9101(5).] This statute also prohibits anyone from maintaining a land use of earth change except in accordance with this part and the rales or with the applicable local ordinance and pursuant to a permit approved by the appropriate county or local enforcing agency. [MCL 324.9112(1); MSA 13A.9112(1).] Pursuant to § 9104, the Department of Natural Resources has promulgated rules for a unified soil erosion and sedimentation control program, including provisions for review and approval of site plans, land use plans, or permits relating to erosion control and sedimentation control. According to these rules, a landowner or developer who engages in an earth change shall obtain a permit from the appropriate enforcing agency before commencement of an earth change that is within five hundred feet of a lake or stream in Michigan. 1979 AC, R 323.1704(1). Moreover, a soil erosion and sedimentation control plan shall be submitted to the appropriate enforcing agency by anyone proposing to undertake an earth change. R 323.1706(1). The soil erosion and sedimentation control plan shall be reviewed and approved before application for a permit by a person so designated and trained by the enforcing agency. R 323.1707(1). Upon a determination that a permit applicant has met all the requirements of these rules and the sediment act, the enforcing agency shall issue a permit for the proposed earth change. R 323.1707(5). The Court of Appeals agreed with the trial court that defendants “technically” violated the SESCA. Slip op, p 2. It is not disputed that defendants violated the sesca and the rules promulgated pursuant to it. The Court of Appeals also acknowledged that a major purpose of the sesca is to protect Michigan waters from pollution, the greatest source of which is sedimentation. Slip op, p 2; Executive Legislative Analysis, HB 4709, January 18, 1972. However, it then held that plaintiffs presented no evidence that defendants’ violations actually resulted in any type of water pollution. Thus, held the Court of Appeals, the defendants’ sesca violations did not constitute a violation of the mepa. Slip op, p 2. Sedimentation and erosion is a well-recognized source of water pollution. In his treatise, Professor Frank P. Grad of the Columbia University School of Law stated: Sediments carried by erosion represent the greatest volume of wastes entering surface waters. The volume of suspended solids reaching U.S. waters is at least 700 times greater than the total amount of sewage discharges. Sedi ments are washed in from croplands, unprotected forest soils, overgrazed pastures, strip mines, roads, and bulldozed urban areas. Agricultural development increases land erosion rates four to nine times over the rate from lands with natural cover. Construction may increase the rate a hundredfold. Federal studies have estimated the average sediment yield during a rainstorm at highway construction sites at about 10 times that for cultivated land, 200 times that for grass areas, and 2,000 times that for forest areas — depending on the amount of rainfall, land slope, and the exposure of the bank. High rates of sediment production also occur from commercial and industrial construction in urban areas. [2 Environmental Law, § 3.01(l)(f)(i), p 3-18.] Professor Grad’s explanation of the effect of sedimentation and erosion on water supports that contained in the Executive Legislative Analysis. See n 4. Thus, a major purpose of the SESCA is to prevent and control water pollution caused by sedimentation and erosion. Moreover, sedimentation and erosion necessarily implicate soil. The provisions of the SESCA and the rules promulgated thereto clearly evidence the legislative intent to protect soil. Additional evidence of the legislative intent to protect soil and water is found in part 93 — Soil Conservation Districts — of the Soil Conservation, Erosion, and Sedimentation Control portion of article II, chapter 2 of the Natural Resources and Environmental Protection Act, where the Legislature has expressly provided: It is the policy of the legislature to provide for the conservation of the soil and water resources of this state and for the control and prevention of soil erosion, and thereby to conserve the natural resources of this state, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, preserve wildlife, protect the tax base, protect public lands, and pro tect and promote the health, safety, and general welfare of the people of this state. [MCL 324.9302; MSA 13A.9302.] Thus, the Legislature has clearly provided that the protection of the soil and water of this state through the prevention of sedimentation and erosion is of the utmost importance. Now that we have established that the purpose of the SESCA is to prevent environmental harm caused by sedimentation and erosion, the crux of the issue then becomes whether plaintiffs’ showing of defendants’ sesca violations established a prima facie case under the mepa of actual or likely pollution, impairment, or destruction of a natural resource. The import of our examination of the provisions, purposes, and policies of the SESCA is to analyze whether the trial court properly determined the appropriate standard by which to evaluate the plaintiffs’ claim and the defendants’ conduct pursuant to § 1701(2). We conclude, on the basis of the purposes of the sesca and its public policy, that the trial court properly determined the sesca to be the appropriate pollution control standard applicable in this case. At the heart of the Court of Appeals error in this case was its failure to consider subsection 1701(2), which provides; In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may: (a) Determine the validity, applicability, and reasonableness of the standard. (b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court. This is a vital part of our courts’ development of the “common law of environmental quality.” However, the development of the common law in this area certainly does not preclude the Legislature or the dnr from further entering the arena of environmental law. To the contrary, that is expressly contemplated by subsection 1701(2). Nonetheless, the courts must still determine whether such legislative and administrative enactments are the appropriate “pollution control” standards to be applied to a claim under the mepa, as the trial court properly determined in this case. This function of the Michigan courts was discussed by the United States Court of Appeals for the Sixth Circuit in Her Majesty the Queen v Detroit, 874 F2d 332 (CA 6, 1989). Noting that the mepa is supplementary to other administrative and regulatory procedures provided by law, the court correctly stated that the mepa specifically authorizes a court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control “and to specify a new or different pollution control standard if the agency’s standard falls short of the substantive requirements of mepa.” Id. at 337 (emphasis in original). Furthermore, the mepa does not impose specific requirements or standards; instead, it provides for de novo review in Michigan courts, allowing those courts to determine any adverse environmental effect and to take appropriate measures. Id. at 341. Finally, Michigan courts are not bound by any state administrative finding, or any federal law. Even though the federal government may determine that a plant is not in violation with either state or federal environmental laws, Michigan courts are still empowered to determine whether the standards applied by the federal government are appropriate and if not, determine whether the plant would meet any more stringent standards selected by the Michigan courts. In sum, mepa creates a state environmental common law that is unaffected by federal law, and creates an independent state action that is unaffected by anything that happens in the federal sphere of government. [Id. at 341.] By the same token, defendants’ argument that the sesca does not provide for a private cause of action is without merit. The absence of a cause of action under the sesca does not preclude its use as an appropriate “pollution control” standard for a claim under the MEPA. However, the Court of Appeals simply applied the so-called Portage factors, set forth by another panel of the Court of Appeals in Portage v Kalamazoo Co Rd Comm, 136 Mich App 276; 355 NW2d 913 (1984). The Portage Court held: In determining whether the impact of a proposed action on wildlife is so significant as to constitute an environmental risk and require judicial intervention, the court should evaluate the environmental situation prior to the proposed action and compare it with the probable condition of the particular environment afterwards. The factors the court should consider include: (1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable . . . , (3) whether the proposed action will have any significant consequential effect on other natural resources . . . , and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the nature and location of the wildlife affected. [Portage, supra at 282.] This Court also addressed the issue whether the plaintiffs established a prima facie case under the MEPA in West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741; 275 NW2d 538 (1979). We held that the plaintiffs demonstrated a likelihood that the issuance of ten permits by the Supervisor of Wells for the proposed drilling of exploratory wells would result in an impairment or destruction of natural resources, noting that there was little dispute that the drilling of the wells “will have some adverse impact upon some wildlife, particularly elk, bobcat and bear.” Id. at 755. After thoroughly examining the plaintiffs’ proofs, this Court recognized that virtually all human activities can be found to adversely impact natural resources in some way or other. The real question before us is when does such impact rise to the level of impairment or destruction? [Id. at 760.] We then held that the limited number of elk, the unique nature and location of the herd, and the apparent serious and lasting damage that would result to the herd constituted an impairment or destruction of a natural resource. Id. at 760. Defendants argue, on the basis of their reading of Environmental Action Council and Portage, that the trial court made no findings about whether sand or vegetative cover were natural resources, that beach sand is arguably one of the most easily replaceable “elements” in Michigan, that plaintiffs presented no evidence that the excavation would affect any other natural resource, and, finally, there was no showing that there was a direct or consequential effect on a “critical number” of animals or vegetation. Defendants also thought it particularly significant that a witness from the DNR testified that no permit would have been issued if there were any mepa implications. Regardless of the validity of the Portage factors, defendants’ argument is inherently flawed for several reasons. First, the Portage Court acknowledged that the “removal of trees, a form of wildlife, constitutes destruction of a natural resource under the mepa.” Id. at 281. Thus, the holding in Portage was not based on a finding that trees were not a natural resource or that the number of trees in Michigan somehow negated their status as a natural resource. Likewise, the Court of Appeals in this case acknowledged that sand is a natural resource. Slip op, p 2. Second, plaintiffs are not required to show that a multitude of natural resources are affected. Third, simply because a dnr witness testified that the issuance of the permit did not have any mepa implications does not make it so. We found it error for a trial judge to defer to the dnr’s conclusion that no pollution, impairment, or destruction of a natural resource was likely to result. Environmental Action Council, supra at 752. The trial judge has a responsibility to independently determine the existence of actual or likely pollution, impairment, or destruction. Id. Furthermore, the Environmental Action Council analysis involved an evaluation of the plaintiffs proofs to determine the proper standard under which the court should grant relief. However, the factors used, like the Portage factors, were applicable to the facts of that case, the natural resources involved, and the evidence presented. It does not necessarily follow that because the natural resources involved here may not be scarce or unique, no actual or likely pollution, impairment, or destruction exists. The MEPA does not require air, water, or other natural resources to be “scarce” or “unique” to be protected from actual or likely pollution, impairment, or destruction. Indeed, one of the primary purposes of the mepa is to protect our natural resources before they become “scarce.” In Environmental Action Council, the nature of the herd — its limited number, unique nature, and location — provided, in part, the basis for finding that the effect rose to the level of impairment or destruction. This case is not and need not be the same; it is the actual or likely effect on the natural resources implicated in this case that is at issue. Thus, our conclusion is not that the Portage factors are necessarily incorrect or invalid, but that each alleged MEPA violation must be evaluated by the trial court using the pollution control standard appropriate to the particular alleged violation. Assuming that the Portage factors were proper for assessing whether the activity in that case violated the MEPA, it does not follow that the Portage factors, like the factors used in Environmental Action Council, are the proper pollution control standard here. A pollution control standard indeed has been articulated by the Legislature, through the SESCA, and by the dnr, through the rules promulgated by it pursuant to the sesca. It is proper for the trial court to independently determine whether these pollution control standards are valid, applicable, and reasonable in accordance with the courts’ development of the common law of environmental quality. If the trial court finds them deficient, it may direct the adoption of another pollution control standard that it so approves and specifies. Here, the trial court found the SESCA and the rules promulgated thereunder to be valid, applicable, and reasonable pollution control standards by which to evaluate plaintiffs’ mepa claim and defendants’ conduct. The trial court carefully evaluated plaintiffs’ claim and found that plaintiffs met their burden of proving by a preponderance of evidence that defendants’ actions would result in actual or likely pollution, impairment, or destruction of a natural resource in violation of the MEPA. The Court of Appeals held that a “technical violation” of the sesca did not equate to a “per se mepa violation under the circumstances of this case.” Contrary to the Court of Appeals holding in this case based on Dafter a prima facie case under the mepa can be established by proving violations of the SESCA. Where the purpose of the statute used as a pollution control standard is to protect our natural resources or to prevent pollution and environmental degradation, a violation of such a statute can establish a prima facie case under the mepa. The major purposes of the sesca are to protect water and soil through the prevention and control of erosion and sedimentation. Thus, a violation of the sesca can establish a prima facie case under the mepa, provided that the trial judge has deemed the sesca standards appropriate, applicable, and reasonable. Here, the trial court made findings of fact, in compliance with the mepa and Ray, indicating those facts that led it to conclude that defendants had not suc cessfully rebutted plaintiffs’ prima facie case. Id. at 310-311. Subsequent panels of the Court of Appeals have used the Portage factors alone to decide mepa cases. Those factors are not mandatory, exclusive, or dispositive. Thus, the Court of Appeals did not give substance to subsection 1701(2) or follow the mandate of Ray regarding the proper threshold of harm for a prima facie mepa case. The Portage factors may be appropriate or relevant in some cases; however, their use in every case has stifled the development of the “common law of environmental quality.” IV The second issue we are called on to decide is whether the mepa permits a trial judge to apportion attorney fees. The specific provision of the mepa at issue provides that “[c]osts may be apportioned to the parties if the interests of justice require.” Subsection 1703(3). Plaintiffs argue that the MEPA codified the common-law exception to the American rule regarding attorney fees by using the language “interests of justice.” Thus, the courts of this state must give substance to the common law of environmental quality, including this codified common-law exception. Defendants argue that attorney fees may not be recovered as costs unless expressly authorized by statute or court rule. See RJA, § 2405. As we have noted previously, “[f]or better or worse, the common-law tradition in Michigan follows what is sometimes called the ‘American rule’ regarding attorney fees.” Popma v Auto Club Ins Ass’n, 446 Mich 460, 474; 521 NW2d 831 (1994). This rule provides that attorney fees are not ordinarily recoverable unless a statute, court rule, or common-law exception provides the contrary. Id. at 473. Plaintiffs maintain that the Legislature, by use of the language “in the interests of justice,” codified the “well-established” private attorney general exception to the American rule as articulated by the United States Supreme Court at the time the mepa was enacted in 1970. Plaintiffs correctly note that the Supreme Court renounced this doctrine in 1975, but assert that the Legislature enacted the mepa, specifically § 1703, against the background of this “well-established” common-law exception. We shall now examine the history of the private attorney general exception in the federal system. The Supreme Court referred to the private attorney general doctrine in Newman v Piggie Park Enterprises, Inc, 390 US 400; 88 S Ct 964; 19 L Ed 2d 1263 (1968). Referring to congressional legislative history, the Court noted that if a title n plaintiff obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title n. [Id. at 402 (emphasis added).] This mention of the private attorney general doctrine was based on the purpose of and policy underpinning Congress’ specific grant of the prevailing party’s right to attorney fees as part of costs. In Hall v Cole, 412 US 1, 7, n 7; 93 S Ct 1943; 36 L Ed 2d 702 (1973), on which plaintiffs rely heavily, the Supreme Court had “no occasion to consider that question,” whether attorney fees might be justified on the ground that the respondent acted as a “private attorney general,” by vindicating a policy that Congress considered of high priority. In addition to the fact that this case was decided three years after the mepa was enacted, it hardly provides a solid basis for finding that a “well-established” common-law exception to the American rule ever existed in the federal system. Finally, in Alyeska Pipeline Service Co v Wilderness Society, 421 US 240, 245; 95 S Ct 1612; 44 L Ed 2d 141 (1975), the Supreme Court acknowledged the existence of two common-law exceptions to the American rule — the bad-faith exception and the common-benefit exception — but reversed the federal court of appeals holding that litigants who vindicate important statutory rights of all citizens were entitled to attorney fees. The Supreme Court rejected this “far-reaching” exception because it was “inappropri ate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged . . . Id. at 247. The Supreme Court noted that Congress had not repudiated the common-law exception to the general rule, but neither had it modified the limitations on taxable fees mandated by statute nor extended any authority to the judiciary to allow attorney fees as costs whenever the courts deem it appropriate. Id. at 260. This is also true regarding our Legislature’s enactment of RJA, § 2405. In sum, the Supreme Court persuasively held: It is trae that under some, if not most, of the statutes providing for the allowance of reasonable fees, Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation. . . . But congressional utilization of the private attorney general concept can in no sense be construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowance to the prevailing party and to award attorneys’ fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award. Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others. But it would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant and to allow attorneys’ fees only in connection with the former. [Alyeska, supra at 263-264.] The Supreme Court’s analysis in Alyeska Pipeline comports with our holding in Popma and with the observation that the Legislature knows how to provide for attorney fees when enacting a statute and has done so on many occasions, including several environmental protection statutes. Plaintiffs are correct that the mepa’s mandate that Michigan courts develop the common law of environmental quality does give the courts tremendous discretion in developing the substantive law of the mepa. It does not so provide with regard to the apportionment of costs. Contrary to plaintiffs’ assertions, our holding does not conflict with Macomb Co Taxpayers Ass’n v L'Anse Creuse Public Schools, 455 Mich 1, 9; 564 NW2d 457 (1997), in which we held that the voters who ratified the Headlee Amendment understood “costs” to mean “all expenses,” rather than the limited, technical use of “costs” as a legal term of art. We rejected the defendant’s argument that the voters should be charged “with knowledge of technical details of our legal system, such as the so-called American rule ... for awarding costs.” Id at 8. However, the Legislature is the entity that defined “costs” in § 2405. Thus, to charge the Legislature, the body that defined costs in § 2405 and enacted the mepa using the term “costs,” with knowledge of the American rule and with the technical meaning of the word “costs” is the only logical result. Moreover, it is a well-established principle that the Legislature is presumed to be aware of all existing statutes when enacting new law. Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). Perhaps it is true that the inability of a trial judge to award attorney fees to the mepa plaintiffs may impede the enforcement of the mepa. However, the proper forum for this public policy debate is the Legislature. The language of the statute is clear and unambiguous. We cannot create ambiguity where there is none by looking to the legislative history or by assuming the Legislature codified a not-so-“well-established” common-law doctrine. Thus, we cannot and should not unduly expand the meaning of the term “costs.” The Legislature has spoken, in accordance with RJA, § 2405, regarding which costs are apportioned in the interests of justice in an action under the mepa, and it has not included attorney fees. It may be that the inability of a trial judge to apportion attorney fees in the interest of justice is critical to effective judicial administration of the mepa. If attorney fees were apportionable in the interests of justice, plaintiffs would be compensated for pursuing environmental protection actions that protect our natural resources and our environment for the benefit of all Michigan citizens, and defendants would be protected from frivolous lawsuits. However, this is a matter for the Legislature to address. V In conclusion, we hold that plaintiffs’ showing that defendants violated the sesca can establish a prima facie case under the mepa, and, therefore, we reverse the Court of Appeals decision in part and reinstate the judgment of the trial court in part. We also affirm the decision of the Court of Appeals in part, agreeing with its conclusion that attorney fees are not included in the “costs” that may be apportioned pursuant to the mepa. Mallett, C.J., and Boyle and Taylor, JJ., concurred with Brickley, J. Weaver, J., concurred only in the result. Abonmarche Development, Inc., Abonmarche Consultants, Inc., Morren Construction & Engineering, Inc., and MacLean Construction, Inc. Theodore W. Nemeth, Winifred A. Nemeth, Jon C. Falk, Peggy Falk, Art Anderson, Wilma Anderson, and Wayne Hansen. Strictly speaking, in determining whether to issue an injunction with respect to a claim under the mepa, the trial judge should determine the appropriateness of such relief, temporary or permanent, or whether conditions should be imposed on the defendant to protect a natural resource from pollution, impairment, or destruction. See subsection 1704(1). However, in this case, the final judgment was based on alternative theories of recovery. The judgment provided that plaintiffs’ claims under all counts of the complaint for property damage seeking monetary awards, claims of zoning violations, and mandamus claims (count i-negligence, count n-nuisance, count m-nuisance per se, count iv-declaratory judgment and injunction to abate public nuisance, count V-deelaratory judgment and preliminary injunction based on the sesca, count vi-mepa declaratory judgment, preliminary and permanent injunctions) were dismissed with prejudice by agreement of the parties. The final judgment also provided that plaintiffs’ claims under the mepa, in combination with the sesca, and, alternatively, under trespass and nuisance theories seeking injunctive relief, were decided in plaintiffs’ favor by the trial judge. This alternative basis for the injunction explains the trial court’s balancing analysis. This analysis describes the purpose of the sesca: Soil erosion and sedimentation control was officially recognized by the legislature as early as 1937 when it enacted Act 297 of Public Acts of 1937, known as the Soil Conservation Districts Law. Added emphasis to soil erosion and sedimentation control has come to the forefront in recent years with recognition that from the standpoint of volume, sedimentation is the greatest polluter of water. For thirty years the State Soil Conservation Committee and the Soil Conservation Districts have been assisting landowners to reduce erosion. In recent years it has been recognized that many non-agricultural land uses are contributing large quantities of sediment to water. Highway construction, subdivision and shopping center developments and industrial building are examples of such contributors. Several local government units have already enacted construction ordinances which contain provisions for soil erosion and surface water movement control. The purpose of this bill is to provide for a statewide soil erosion and sedimentation control program with uniform rules and guidelines which may be used both statewide and by local entities to control soil erosion and sedimentation. Thus, if the trial court in this case had determined that the sesca did not provide sufficient environmental protection, that is, did not prevent likely or actual environmental harm, it could have specified a different pollution control standard that would have satisfied the mepa. The defendants offered none, resting their case on a denial that the plaintiffs established a prima facie showing that the defendant’s conduct had or was likely to impair, pollute, or destroy a natural resource. Id. at 755. This argument is based on a line of Court of Appeals opinions beginning with Kimberly Hills Neighborhood, Ass’n v Dion, 114 Mich App 495; 320 NW2d 668 (1982). In this case, the Court held that a “dual inquiry must be conducted: (A) whether a natural resource is involved, and (B) whether the impact of the activity on the environment rises to the level of impairment to justify the trial court’s injunction.” Id. at 503. The Court rejected both definitions of “natural resource" proposed by the parties. The plaintiffs argued that all animals, presently existing plant life, and conditions naturally located on land were natural resources. The defendants argued that the Legislature intended the term natural resources to be limited to those resources that are unique and relatively rare or that are somehow ecologically important. Id. at 504. While concluding that the wildlife, plant life, and water involved in that case were indeed natural resources the Court held that the “real question before us is whether the likely impact of defendants’ proposed activities rises to the level of impairment or destruction.” Id. at 505. Placing a restrictive definition of “natural resource” on the courts is not helpful in evaluating a claim under the mepa. What is most significant is determining whether the effect on the environment rises to the level of actual or likely pollution, impairment, or destruction of a natural resource. Defendants’ argument confuses the issues whether a natural resource is involved and the determination of the effect on natural resources. The Portage factors have been used by the Court of Appeals to determine the effect on the environment, not to define “natural resource.” In Dafter, supra at 504, the case on which the Court of Appeals specifically relied, the Court held that the plaintiff’s failure to address the Portage factors and merely alleging violations of another statute were insufficient to establish a violation of the mepa. We emphasize that this is not the end of the inquiry. The trial court held that plaintiffs’ showing of defendants’ sesca violations established a prima facie claim under the mepa. Then, defendants had the opportunity to rebut that prima facie showing either by submitting evidence to the contrary, i.e., that plaintiffs have shown neither pollution, impairment, nor destruction, nor the likelihood thereof, in spite of proof of the sesca violations, or by showing that there is no feasible and prudent alternative to defendants’ conduct. Subsection 1703(1). As plaintiffs point out, one could argue that the mepa is violated any time someone violates the sesca by putting a shovel in the ground within five hundred feet of a lake or stream. However, the rebuttal and affirmative defense provisions of the mepa address such frivolous claims. We recognized a common-law exception to this rule, the common-fund exception, which only applies when a prevailing party creates or protects a common fund that benefits himself and others. Id. at 475, citing In re Attorney Fees of Kelman, Loria, Downing, Schneider & Simpson, 406 Mich 497; 280 NW2d 457 (1979). Courts of equity hold it unfair to allow others to benefit at the expense of the prevailing party without contribution to the costs incurred in securing the common fund. Popma, supra at 475. This common-law exception does not apply in this case. Title n of the Civil Rights Act, 42 USC 2000 et seq. Subsection 2000a-3(b) provides that “[i]n any action commenced pursuant to this sub-chapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.” While plaintiffs’ argument only addresses the Supreme Court precedent regarding the private attorney general exception, we note that the general state of the common law in lower federal courts and state courts in 1970 also contradicts plaintiffs’ position. While we are not purporting to offer an authoritative analysis of the state of the common law on this issue as it stood in 1970, we find several general principles pervasive. First, the lower federal courts adhered to the rule that, absent a contrary statutory provision, court rule, or contractual provision, the prevailing party is not entitled to attorney fees. See Stevens v Abbott, Proctor & Paine, 288 F Supp 836, 848 (ED Va, 1968). However, the federal courts also recognized the same two exceptions acknowledged by the Supreme Court in Alyeska Pipeline Service Co v Wilderness Society, 421 US 240; 95 S Ct 1612; 44 L Ed 2d 141 (1975): (1) the common-fund exception, see Stevens, supra at 848-849; and (2) the bad-faith exception, see Taussig v Wellington Fund, Inc, 187 F Supp 179, 222 (D Del, 1960), aff’d 313 F2d 472 (CA 3, 1963); and Stevens, supra at 849. Second, where the lower federal courts did mention the “private attorney general” doctrine before 1970, it was often in reference to title vn of the Civil Rights Act, which, like title n of that act, permitted courts to award a prevailing party reasonable attorney fees. See Clark v American Marine Corp, 320 F Supp 709, 710 (ED La, 1970), aff’d 437 F2d 959 (CA 5, 1971). After 1970, the lower courts in the federal system began expanding the private attorney general exception. See Alyeska, supra at 270, n 46. The state courts also followed the general rule that attorney fees were not permitted in the absence of a statutory provision to the contrary or an express agreement of the parties. See Stone v Jeffres, 208 So 2d 827, 828-829 (Fla, 1968); Keel v Covey, 206 Okla 128, 132; 241 P2d 954 (1952); Vonachen v Independent Lumber, 172 Kan 545, 547; 241 P2d 775 (1952); Abramson v Abramson, 161 Neb 782, 793; 74 NW2d 919 (1956); Harris v Short, 253 Iowa 1206, 1208; 115 NW2d 865 (1962); Colvin v Superior Equipment Co, 96 Ariz 113, 122; 392 P2d 778 (1964). Some state courts, pre-1970, while acknowledging the general rule, recognized the common-fund exception. See Ewing v First Nat’l Bank of Atlanta, 209 Ga 932, 933; 76 SE2d 791 (1953); Hamilton v Liberty Nat’l Life Ins Co, 207 So 2d 472, 477 (Fla App, 1968). Other state courts simply recognized the general power of a court of equity to award attorney fees under some circumstances. See Gilbert v Hoisting & Portable Engineers, 237 Or 130, 141; 390 P2d 320 (1964); Low v Low, 255 Ala 536, 540; 52 So 2d 218 (1951), overruled on other grounds Starr v Starr, 293 Ala 204; 301 So 2d 78 (1974). Plaintiffs characterized this case as putting an end to a “well-established" common-law exception to the general rule; however, it does not appear from any Supreme Court precedent that this exception was ever “well established.” This section provides, in pertinent part, The following items may be taxed and awarded as costs unless otherwise directed: (6) Any attorney fees authorized by statute or by court rule. For example: water resources protection act, MCL 324.3101 et seq.; MSA 13A.3101 et seq.; hazardous waste management act, MCL 324.11101 et seq.; MSA 13A.11101 et seq.; liquid industrial wastes act, MCL 324.12101 et seq.; MSA 13A.12101 et seq.; environmental remediation act, MCL 324.20101 et seq.; MSA 13A.20101 et seq.; surface and underground coal mine reclamation act, MCL 324.63501 et seq.; MSA 13A.63501 et seq.

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Per Curiam. At the general election on November 3, 1992, the voters approved Proposal B. A part of that proposal, Const 1963, art 4, § 54, limits the number of terms persons may be elected to the office of state senator and the office of state representative. Plaintiffs filed this action, arguing that the submission of Proposal B to the voters was defective in two particulars. Plaintiffs sought an injunctive order preventing operation of art 4, § 54 for the general election of 1998 and thereafter. The circuit court granted summary disposition against plaintiffs, finding their claims without merit. Plaintiffs have filed a claim of appeal from that judgment in the Court of Appeals and have sought leave to appeal in this Court before decision by the Court of Appeals. We grant plaintiffs’ request that we decide the case before decision by the Court of Appeals, but, in lieu of granting leave to appeal, we affirm the decision of the circuit court upholding the validity of Const 1963, art 4, § 54. history of the case At the general election on November 3, 1992, the voters approved Proposal B, adding four new sections to the Constitution of 1963. On March 9, 1998, plain tiffs filed suit in the Wayne Circuit Court. Plaintiffs allege that they are voters in two legislative districts who would like to vote for the reelection of their current representatives but that those representatives are ineligible to run for reelection under Const 1963, art 4, § 54. Plaintiffs allege that art 4, § 54 is void because the submission of Proposal B at the 1992 election failed to comply in two ways with the requirements for submission of petition-initiated proposals set by Const 1963, art 12, § 2. Count I of the complaint alleged failure to comply with the requirement of the second paragraph of art 12, § 2, requiring that the published version of the proposal include “existing provisions of the constitution which would be altered or abrogated . . . Count n alleged that the statement of purpose (also called the ballot language) failed to comply with the requirement of the third paragraph of art 12, § 2 that the statement be “a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.” Plaintiffs sought temporary and permanent injunctive orders that defendant Secretary of State not enforce art 4, § 54. The parties submitted the matter to the Wayne Circuit Court on countering motions for summary disposition argued on April 15, 1998. Only two days later, April 17, 1998, the circuit judge issued a thorough, scholarly opinion and granted summary disposition to defendant. Plaintiffs filed a claim of appeal with the Court of Appeals and an application for leave to appeal to this Court before decision by the Court of Appeals. ANALYSIS GENERAL CONSIDERATIONS This Court has long expressed a preference that challenges such as the one brought in the present case be filed sufficiently before an election, in this case the election of 1992, for the courts to have time to resolve the dispute and, if necessary, to direct election officials to take corrective action or to enjoin submission of the proposal to the electorate. Carman v Secretary of State, 384 Mich 443, 449; 185 NW2d 1 (1971); City of Jackson v Comm’r of Revenue, 316 Mich 694, 714-716; 26 NW2d 569 (1947); Attorney General ex rel Miller v Miller, 266 Mich 127, 133-134; 253 NW 241 (1934). Because of the respect commanded by the vote of the people, postelection challenges bear a heavy burden of persuasion. As summarized in Carman, “the Courts should look at procedural errors of submission through different eyeglasses, once the electors have voted affirmatively.” 384 Mich 455. We stated in City of Jackson, supra at 718: “In reaching the decision, the court must necessarily have in mind the universal rule that, whenever a constitutional amendment is attacked as not constitutionally adopted, the question presented is, not whether it is possible to condemn, but whether it is possible to uphold; that every reasonable presumption, both of law and fact, is to be indulged in favor of the legality of the amendment, which will not be overthrown, unless illegality appears beyond a reasonable doubt.” [Quoted from Bd of Liquidation of State Debt of Louisiana v Whitney-Central Trust & Savings Bank, 168 La 560, 564; 122 So 850 (1929) (citations omitted).] With these considerations in mind, we turn to the allegations of plaintiffs. “ALTERED OR ABROGATED” CLAUSE The second paragraph of Const 1963, art 12, § 2 provides, in part, that the proposal and any “existing provisions of the constitution which would be altered or abrogated thereby . . . shall be published in full as required by law.” The publication of Proposal B included no existing provision of the constitution. Plaintiffs argue that Proposal B had the effect of altering Const 1963, art 4, § 7. Plaintiffs argue, in effect, that art 4, § 7 sets forth the exclusive list of qualifications of legislators. By creating a new condition for election, art 4, § 54 alters art 4, § 7 by making § 7 no longer an exclusive list of qualifications. Plaintiffs’ argument fails both on its premise that art 4, § 7 is an exclusive list of qualifications and on its premise that adding an additional qualification elsewhere in the constitution would alter art 4, § 7 within the meaning of the alter or abrogate clause of art 12, § 2, ¶ 2. Plaintiffs’ implicit argument that art 4, § 54 alters art 4, § 7 by depriving it of its exclusivity fails because art 4, § 7 does not purport to be the exclusive list of qualifications for legislative office. The language of art 4, § 7 does not state it is the exclusive list of candidate qualifications. Moreover, the very next provision of the constitution, art 4, § 8, states what can only be viewed as a qualification for legislative office in addition to those stated in art 4, § 7. Plaintiffs also miss the point of the line of cases in which this Court has defined the meaning of “altered or abrogated” in Const 1963, art 12, § 2, and its predecessor, Const 1908, art 17, § 3. Pontiac School Dist v Pontiac, 262 Mich 338; 247 NW 474 (1933), City of Jackson, supra, Graham v Miller, 348 Mich 684; 84 NW2d 46 (1957), and Ferency v Secretary of State, 409 Mich 569; 297 NW2d 544 (1980). The purpose of the provision is to definitely advise the elector “as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted.” Pontiac School Dist, supra at 344: But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces (“alters or abrogates”) a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published. When the test set out above did not halt arguments that a proposal “altered or abrogated” an existing pro vision by implication, this Court restated the test in Ferency: An existing constitutional provision is altered or abrogated if the proposed amendment would add to, delete from, or change the existing wording of the provision, or would render it wholly inoperative. [409 Mich 597.] The phrase “the existing wording” should be taken literally. An example of a proposal which would alter an existing constitutional provision by adding to its existing wording is found in Carman, swpra, in which the proposal added a new paragraph to an existing constitutional provision, Const 1963, art 8, § 2. Applying the Ferency test to this case is, as it should be, simple. Article 4, § 54 does not add, delete, or change the wording of art 4, § 7. It does not render it wholly inoperative. Quite the contrary, all the qualifications of art 4, § 7 remain in effect. The circuit court correctly dismissed this claim. STATEMENT OF PURPOSE The third paragraph of art 12, § 2 provides: The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment. At a public meeting on September 3, 1992, the Board of State Canvassers adopted the following statement of purpose for Proposal B: A Proposal to Restrict/Limit the Number of Times A Person Can Be Elected to Congressional, State Executive and State Legislative Offices. The proposed constitutional amendment would: Restrict the number of times a person could be elected to certain offices as described below: 1) U.S. Senator: two times in any 24-year period. 2) U.S. Representative: three times in any 12-year period. 3) Governor, Lieutenant Governor, Secretary of State or Attorney General: two times per office. 4) State Senator: two times. 5) State Representative: three times. Office terms beginning on or after January 1, 1993 would count toward the term restrictions. A person appointed or elected to an office vacancy for more than lh of a term would be considered elected once in that office. Should this proposal be adopted? No appeal was taken from the board’s action under MCL 168.479; MSA 6.1479. Plaintiffs argue that this statement of purpose has two deficiencies: first, it should have explicitly stated that the limitations on the terms for state legislative office were lifetime limits, and, second, it should have stated that the limits on the federal offices were severable from those on state offices. We see no merit in plaintiffs’ argument that the failure to state explicitly that the state term limits were lifetime somehow prejudiced the voters in favor of the proposal. In reaching this conclusion, we agree with the circuit court’s observation that .plaintiffs made no offer to show that there was any confusion over the intent of the proposal to impose lifetime limits on election to the specified state offices. A request to grant relief despite such a failure turns on its head the standard rule repeated in City of Jackson, supra, that “every reasonable presumption, both of law and fact, is to be indulged in favor of the legality of the amendment, which will not be overthrown, unless illegality appears beyond a reasonable doubt.” 316 Mich 718. We also agree with the circuit court that, avoiding any arcane or obscure interpretations, the available indicia suggest that the voters would have known the state limits were lifetime. As the circuit court stated: [RJeading the Statement as a whole, this court notes that the introductory sentence expressly states the purpose is to “[Restrict the number of times a person can be elected.” The remainder of the Statement of Purpose details how many times a person can be elected. Without some qualifying language, a reasonable conclusion of a voter could have been that a person could serve the number of terms specified and no more. In other words, there is no reason to suspect that a person reading the introductory sentence would have assumed that the restriction was somehow qualified when no qualification was stated. This point is driven home when the statement indicates that the restriction on terms for the specified federal offices lasts only a certain number of years. As stated by the trial judge, the fact that state legislative “term limits were otherwise unqualified would also lead a reasonable voter to conclude that ... a State legislator could only serve a certain number of terms and no more.” Lastly, we observe, as did the circuit court, that the term limit with which the average voter is most familiar is the limit on the office of President of the United States. That is a lifetime limit. We do not see any potential that the voters might have been misled that the limits set on holding the specified state offices were temporary, rather than absolute. This leaves only plaintiffs’ contention that the statement of purpose should have included a summary of the severability provision. This contention reminds us of the statement in Pontiac School Dist, 262 Mich 344, quoted above in the discussion of the publication requirement that “the ordinary elector, not being a constitutional lawyer, would be confused rather than helped” by a statement on such a technical matter as severability. The ballot language must, after all, “consist of a true and impartial statement of the purpose of the amendment” in not more than one hundred words. Art 12, § 2, ¶ 3. The ballot language relating to art 4, § 54, informed the voter that the purpose of the proposal was to limit the number of times a person could be elected to specified legislative offices. That is exactly what art 4, § 54 does. We affirm the decision of the Wayne Circuit Court. Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred. See MCR 7.303(F)(1). In Citizens for Legislative Choice v Secretary of State, 144 F3d 916 (CA 6, 1998), the Court affirmed a federal district court decision upholding Const 1963, art 4, § 54 against a claim that the provision violated rights guaranteed by the First and Fourteenth Amendments of the United States Constitution. US Const, Ams I and XIV. These are found at art 2, § 10, dealing with limitations on terms of office of members of the United States House of Representatives and United States Senate from Michigan; art 4, § 54, dealing with limitations on terms of office of state legislators; art 5, § 30, dealing with limitations on terms of executive officers; and art 12, § 4, dealing with severability of the other three provisions. This case involves a direct challenge only to art 4, § 54. Specifically, we do not consider the effect of U S Term Limits, Inc v Thornton, 514 US 779; 115 S Ct 1842; 131 L Ed 2d 881 (1995), on art 2, § 10. The section provides: No person shall be elected to the office of state representative more than three times. No person shall be elected to the office of state senate more than two times. Any person appointed or elected to fill a vacancy in the house of representatives or the state senate for a period greater than one half of a term of such office, shall be considered to have been elected to serve one time in that office for purposes of this section. This limitation on the number of times a person shall be elected to office shall apply to terms of office beginning on or after January 1, 1993. This section shall be self-executing. Legislation may be enacted to facilitate operation of this section, but no law shall limit or restrict the application of this section. If any part of this section is held to be invalid or unconstitutional, the remaining parts of this section shall not be affected but will remain in full force and effect. This section provides: Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amend ment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon. Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law. The ballot to be used in such election shall contain a statement of the prnpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of prnpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment. If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail. The circuit court permitted Taxpayers United for Term Limitations, the organization of persons who circulated the petition to put Proposal B on the ballot, to intervene as a defendant. The parties agreed that there were no disputed issues of fact. Plaintiffs relied on their motion for a temporary injunction as their motion for summary disposition. Docket No. 211116. Plaintiffs have also filed a motion for immediate consideration, which we grant. The issues raised in the instant case could have been raised before the election through the process established by MCL 168.479; MSA 6.1479. The entire provision is quoted in footnote 5. As noted in Ferency v Secretary of State, 409 Mich 569, 592; 297 NW2d 544 (1980), “The Constitution places the burden of publishing this information on the state, as a means of informing the voters.” See MCL 168.32; MSA 6.1032 regarding certain duties of the Director of Elections, and MCL 168.474-168.486; MSA 6.1474-6.1486 regarding certain duties of the Board of State Canvassers. The section provides: Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents. The removal of his domicile from the district shall be deemed a vacation of the office. No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature. No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature. All proposed amendments to the constitution and other questions to be submitted to the electors shall be published in full, with any existing provisions of the constitution which would be altered or abrogated thereby, and a copy thereof shall be posted in each polling place. Ferency defined the meaning of “alter or abrogate” in MCL 168.482; MSA 6.1482, pertaining to circulation of petitions. That statute provides, in part, “[i]f the proposal would alter or abrogate any existing provision of the constitution, the petition should so state and the provisions to be altered or abrogated shall be inserted . . . .” Ferency interpreted the words “in the context of the constitutional publishing requirement.” 409 Mich 593. The definition quoted in the text applies both to the statutory and constitutional usage of “alter or abrogate.” We see no reason that the ballot language, like the language of the constitution, should not be read according to the “common understanding” of “the great mass of the people” who voted on it, avoiding “any dark or abtruse meaning in the words employed . ...” 1 Cooley, Constitutional Limitations (8th ed), p 143, quoted with approval by this Court in such cases as Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), and Durant v Michigan, 456 Mich 175, 192; 566 NW2d 272 (1997). US Const, Am XXII, provides, in part: “No person shall be elected to the office of the President more than twice . . . .” The language of Const 1963, art 4, § 54 begins, “No person shall be elected to the office of state representative more than three times. No person shall be elected to the office of state senate more than two times.” The failure of the federal amendment to use the word “lifetime” has caused no confusion.

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Kavanagh, J. Plaintiff commenced an action by attachment against certain land. In its declaration plaintiff declared on 3 counts: First, upon a written contract; second, upon the common counts in assumpsit; and third, in tort for misrepresentation and secretion of corporate assets. Defendants were Pontiac Speedway, Inc., a Michigan corporation, and 2 individuals — William Buettner and John F. Engelhardt, directors of defendant corporation. Buettner was also an officer. Defendants Buettner and Engelhardt answered denying the allegations in the declaration. They admitted fee ownership of the land, but alleged it was acquired subject to a land contract interest. The corporation defaulted. At pretrial proceedings plaintiff waived the contract count. Trial proceeded under the common counts in assumpsit and the tort count. The court gave judgment against the corporation, by default, and in favor of the defendant directors. Motion for new trial was denied, and plaintiff took a general appeal. On June 10, 1957, plaintiff entered into a contract to pave a race track located on the land involved. This contract was between the plaintiff as contractor and defendant corporation. The contract form, prepared by plaintiff, indicated the defendant corporation as “owner.” The contract called for a total price of $18,066.50, and the terms were specified in the contract — $1,000 on completion of the work and the balance in I payments to be secured by promissory notes. Defendant Buettner signed this contract as secretary-treasurer of defendant corporation. Plaintiff performed the work, and, when the defendant corporation was unable to pay, filed this action on July 22, 1958. Defendant corporation acquired title to the land involved in 1952. On December 8,1955, the land was acquired by one Reithmeier at a sheriff’s sale on foreclosure by advertisement, the deed being given by the Oakland county sheriff, to become operative in 1 year if no redemption was made. Four days after the sheriff’s deed became operative, on December 12, 1956, defendants Buettner and Engelhardt acquired the land by warranty deed from Reithmeier. This deed was recorded December 21, 1956. At the trial plaintiff swore only 2 witnesses. One was Daniel T. Murphy, Jr., clerk — register of deeds of Oakland county. The deed from Reithmeier to' Bnettner and Engelhard! was admitted in evidence without objection. Plaintiff then offered the deed dated December 8,1952, by which Pontiac Speedway,. Inc., originally acquired the land in question. Defendants objected to its admission in evidence. The court permitted it to be received, commenting: “The court fails to see the materiality of it, but it will allow it.” The sheriff’s deed to Reithmeier was also received over defendants’ objection. The annual report of Pontiac Speedway, Inc., called the 1956 report, was identified and admitted in evidence. The 1957 annual report was received in evidence. This report was due May 15, 1957; however, it was not filed with the corporation and securities commission until October 9, 1957. It was during this period of default that the contract in question was signed and carried out. Mr. Murphy testified that no further annual reports had been filed. The other witness for plaintiff corporation, its comptroller, Edwin P. Dowd, testified as to the amount owing under the contract. "He stated that Bnettner negotiated and signed the contract in the office of A & A Asphalt Paving Company after the contract was prepared for signatures by plaintiff corporation. A letter from Bnettner, dated February 15, 1958, on Pontiac Speedway’s stationery, addressed to plaintiff, was admitted in evidence. It was signed by Buettner. The letter in substance said, “We have had a bad year. We cannot pay now.” Mr. Dowd was asked on cross examination whether' or not he had ever in his life talked with defendant Engelhardt. He testified he had not and would not know him if he were in the courtroom. He stated he had tallied with Buettner and that he had not known of the sheriff’s deed or the deed to Buettner and Engelhard! Mr. Dowd also testified that no one at the meeting informed him (Dowd) or the representatives of plaintiff corporation in his presence the property was not owned by Pontiac Speedway. Pie further testified no mention was made at that time that the property was owned by Buettner and Engelhardt. ■ At the conclusion of plaintiff’s proofs, defendants’ attorney moved to strike all of the exhibits except the deed to Engelhardt and Buettner. He then moved to dismiss count 2, there being no testimony that the individual defendants made requests of plaintiff to furnish materials, labor, et cetera, as alleged in that count. Defendant’s attorney also moved to dismiss the third count on the ground the only charge of fraud was that title was secreted in the defendants, no testimony having been introduced that any statement was made by the individual defendants which induced plaintiff to enter into the contract. It is admitted by plaintiff that it did not rely upon the representations in the annual reports when entering into the contract and that it did not know what was in the annual reports until some 2 years after the contract was entered into. Defendants introduced no testimony. The burden of proof in this case, as always, is on the plaintiff. The mere making of allegations in a declaration which are denied requires plaintiff to produce testimony to support them. Justice Carr, in Marshall v. Ullman, 335 Mich 66, 73, 74, writing for the Court, said: ' “This Court has recognized that to establish a cause of action based on fraud certain facts are essential. In Candler v. Heigho, 208 Mich 115, 121, the following statement was quoted with approval from 20 Cyc, p 13: “t «ipke general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” ’ “And it was further said: “ ‘That these several elements of such a charge must be established has long been the rule in this State. Parker v. Armstrong, 55 Mich 176; Frohlich v. Deacon, 181 Mich 255 (Ann Cas 1916C, 722); Kimble v. Gillard, 177 Mich 250, 256. In the latter case the Court said: “ ‘ “It is a well-settled rule, familiar and fundamental, that, in order to make misrepresentation actionable, there must be a reliance upon the representation.” ’ ” The allegations in the declaration on which appellant claims it was entitled to judgment constitute a mere conclusion that defendants were guilty of fraud. The supporting factual testimony relied on in support of such conclusion is insufficient to establish a cause of action. There is no proof that defendants made a material misrepresentation to plaintiff at any time. There is no proof that plaintiff acted in reliance upon any such representation. The trial court correctly concluded that no actionable fraud had been proven. Plaintiff raises the question whether CL 1948, § 450.87 (Stat Ann § 21.87), should be applied to the defendant Buettner. 1 In disposing of this question the trial court in his opinion stated as follows: “This statute was not properly pleaded by the plaintiff and was not raised by the plaintiff at the pretrial conference or at the trial. This statute was raised by the plaintiff for the first time in his brief filed subsequent to the trial. This statute has no application to the defendant Engelliardt.” (Engelhardt was not an officer of the defendant corporation.) The court said later in its opinion: “1. Michigan Court Rule No 35, § 4 (1945), dealing with pretrial conference, provides in part as follows: “ ‘The summary of results controls the subsequent course of the action undess modified at or before trial to prevent manifest injustice.’ (Emphasis added.) “2. ‘The pretrial statement, or summary of results of the pretrial conference, controls the triable issues, in the absence of modification at or before the trial in order to prevent manifest injustice.’ (Willingham v. City of Dearborn, 359 Mich 7, syllabus.)” An examination of the record in this case discloses that the pretrial conference was held on April 21, 1960, and was followed by trial the same day. The court requested of each of the attorneys waiver of the filing of the transcript of the results of the pretrial conference prior to starting the trial. The record of the pretrial was not transcribed and filed until June 29, 1960. This Court held in Willingham v. City of Dearborn, 359 Mich 7, 9, 10: “The pretrial statement (now termed ‘a summary of the results of the pretrial conference’), not having been 'modified at or before the trial to prevent manifest injustice,’ controlled and limited the triable issues.” No opportunity in this case was given either party to modify the pretrial statement since neither party had a written pretrial statement until well after the trial was completed. To so conduct a pretrial subverts its purpose, destroys its effectiveness, and constitutes a nullity. We would normally consider reversal for this failure to make available the transcript and the opportunity to both parties to review the transcript of the pretrial before trial. However, we believe that CL 1948, § 450.90 (Stat Ann § 21.90), is applicable to the facts with reference to defendant Buettner, and the statute of limitations having run “it is not within the discretion of a trial court to permit an amendment which states a cause of action barred by the statute of limitations.” Bockoff v. Curtis, 241 Mich 553, 558. Since the 1957 annual report was due May 15, 1957, but was not filed by that date and the corporation was thereby in default by failure to so file, the statute would apply to defendant Buettner for a period of 2 years subsequent to May 15,1957. Plaintiff’s attempted notice to defendant Buettner by raising this issue in its brief submitted subsequent to trial came too late since the statutory limitation under CL 1948, § 450.90 (Stat Ann § 21.90), had expired and plaintiff’s cause of action, based upon CL 1948, § 450.87 (Stat Ann § 21.87), was barred. The other questions raised by appellant do not need discussion. The action of the trial judge in dismissing plaintiff’s cause of action as to defendants Buettner and Engelhardt is affirmed. Defendants shall have costs. Kelly, Smith, Black, Edwards, and Souris, JJ., concurred with Kavanagh, J. Dethmers, C. J., and Carr, J., concurred in result. CL 1948, § 450.87 (Stat Ann § 21.87), provides as follows: “Sec. 87. (1) If any corporation neglects or refuses to make and file the reports and/or pay any fees required by this act within the time herein specified, and shall continue in default for 10 days thereafter, unless the secretary of State shall for good cause shown extend the time for the filing of sueh report or the payment of sueh fee, as the ease may be, as provided in section 91 of this act, and (2) if sueh corporation shall continue in default for 10 days after the expiration ■of sueh extension, its corporate powers shall be suspended thereafter, until it shall file sueh report, and it shall not maintain any action or suit in any court of this State upon any contract entered into during the time of sueh default; but nothing herein contained shall prevent the enforcement of sueh contract against the corporation by the other party thereto, and during the period of such suspension sueh corporation may exercise the power of disposing of and conveying its property and may settle and close its business. Any officer or officers of such ■corporation so in default who has neglected or refused to join in making of sueh report and/or pay sueh fee shall be liable for all d ebts •of such corporation contracted during the period of such neglect or refusal.” As amended. See 852 Mich xv.—Reporter. CL 1948, § 450.90 (Stat Ann § 21.90), reads in part as follows: “All actions and suits based on the neglect or refusal of the officers of such corporation to make and file the reports required by this act shall be commenced within 2 years after such neglect or refusal has occurred and not afterwards.”

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Kavanagh, J. On January 21, 1958, defendant George Walters purchased a motor truck from plaintiff Gersonde Equipment Company. Defendant executed and delivered to plaintiff a conditional sales note in the amount of $8,926. The terms of the note provided that title to the motor truck would remain in the seller until the purchaser performed a condition, namely, payment of the above sum in 24 monthly instalments of $371.95 each, with the first instalment due March 1, 1958. The note provided in the event of default as follows: “I (Walters) further agree that if I make default in the payment of any one of said instalments, or in paying said taxes, or use said property for any illegal purpose, or if said property is levied upon, or if I attempt to sell or remove the same, or if at any time the payee shall deem itself insecure, then it may in either or any such event either (1) declare the entire sum remaining unpaid hereunder to be immediately due and payable, and elect to sue for the amount due, thereby vesting the absolute title to said property in me, or (2) take possession of said property wherever found and thereafter hold it absolutely free from all claims by me, and retain all payments made by me hereunder as and for reasonable rental for the use of said property, diminution in salable value thereof and liquidated damages.” Defendant took possession of the motor truck on the date of sale. Plaintiff discounted the note to the Benton Harbor State Bank. The indorsement to the bank was as follows: “Pay to the order of Benton Harbor State Bank. For value received I hereby indorse the within note unconditionally and guarantee the payment of the same and of all instalments, renewals and extensions thereof and hereby assign and transfer to the owner or holder thereof all interest in the property thereon described.” Subsequently defendant defaulted in his monthly payments. Under the terms of the indorsement plaintiff made 4 monthly payments to the bank on behalf of defendant. The 4 payments of $371.95 each totaled $1,487.80. Defendant reimbursed plaintiff to the extent of $615, leaving a balance of $872.80. On or about June 21, 1958, plaintiff, because of defendant’s continuing default in the monthly payments, repurchased the note from Benton Harbor State Bank. It then repossessed the motor truck on or about June 30,1958, and sold the truck at public sale, sustaining a loss. Plaintiff filed a declaration in the circuit court for Berrien county containing 3 counts. The first and third counts have nothing to do with the appeal before this Court, and have been otherwise disposed of. Under count 2 of the declaration plaintiff seeks reimbursement for the balance of the 4 monthly payments which it made to the bank as indorser of the note on behalf of defendant. Defendant moved to dismiss count 2 of the declaration for the reason the defendant’s obligation to pay was, as a matter of law, canceled by the plaintiff’s repossession of the motor vehicle. The trial court granted the motion to dismiss and plaintiff appeals. It contends that where a conditional vendor negotiates a conditional sale note to a third party, becoming secondarily liable for the payments, and then makes payments on the note for the conditional vendee in default, the conditional vendor has a legal right to bring an action of assumpsit against the conditional vendee for reimbursement of the payments so made even after repossession of the subject matter of the conditional sale. Plaintiff-appellant admits that by indorsing and guaranteeing payment of the note to the bank, it became secondarily liable on the note. Plaintiff also asserts the indorsement of the note to the bank, with the accompanying guarantee of payment, changed the legal relationship between the maker and the payee. It is plaintiff’s position that the indorser became a surety. One of the rights which a surety has against the principal is the right of reimbursement. Plaintiff, however, admits the instrument in question is a negotiable instrument. The payment of the monthly payments by plaintiff was the performance of the legal obligation created by it by indorsement to the bank. When it repurchased the note from the bank, it paid a lesser sum to the extent of the monthly payments which it had paid on behalf of defendant. Unquestionably plaintiff’s motive in making the monthly payments for defendant was to assist defendant so that he would keep the motor truck and complete payment of the note. To this extent it was beneficial to both plaintiff and defendant. CL 1948, § 439.123 (Stat Ann 1959 Rev § 19.163), provides in part as follows: “Where the instrument is paid by a party secondarily liable thereon it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties.” The following similar statement, followed by numerous citations, is found in 11 ALR 449, 453: “If the original creditor takes up the paper thus transferred, he is remitted to his original rights, and may bring his action upon the paper or upon the original consideration, at his election.” This means plaintiff thereby terminated any rights it may have created by its agreement with the bank and is again in its original position as far as rights under the contract with the maker. Plaintiff contends it has dual rights because of the different capacities in which it was connected with the note. It alleges that by electing to repossess the truck it exercised one of the remedies available to it as holder of the note according to the terms of the note. It argues the present suit was brought to enforce plaintiff’s other right, namely, its right of reimbursement which was acquired as a surety on the note. No such dual rights exist. One contract was entered into — a statutory retail instalment sale contract covering a motor vehicle, a part of which was a provision how the payments were to be made. When the contract was entered into, the maker did so with an understanding that in the event he defaulted he could be sued for the unpaid balance or have the property repossessed in accordance with the terms of the contract. Plaintiff also entered into the contract with the same understanding. No authorization was given by the maker requesting the plaintiff to make the payments to the bank, and none can be implied. Plaintiff made them to protect itself. It is limited by its contract to the alternative remedies of suit for payment or repossession of the property. It is likewise limited by statute, since the contract dicl not expressly provide for personal liability for any deficiency judgment after repossession. If the payee were allowed to compel the maker to reimburse the payee for the defaulted payments, the breach which justified the taking of his property would be cured. This is the reason behind the alternate remedies. If the payee decides to sue for the payments, title passes to the purchaser and, having title and possession of the automobile, he is required to pay the sums owing under his contract. Plaintiff chose to repossess, and the trial court properly found that having made its election, plaintiff could not sue for the payments made to the bank. An argument is made that plaintiff is a surety and that the law of suretyship, with its accompanying rules of reimbursement and restitution, should be applied to the instant case. 50 Am Jur, Suretyship, § 6, pp 906, 907, deals with suretyship as applicable to negotiable instruments, and reads in part as follows: “The law of negotiable instruments, considered in a separate article, has been at least partially codified in the uniform negotiable instruments act, which is universally in force throughout the United States and is controlling in all matters comprehended by its terms. However, nowhere in the uniform negotiable instruments act is the term ‘surety’ mentioned. It is declared that the person ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are ‘secondarily’ liable. A surety is held to come squarely within the definition of a person whose liability is primary. This omission of the term ‘surety’ from the law has led to some conflict in the holdings of the courts in respect of its effect on the law of suretyship as applied to commercial paper. The majority of the courts hold that the uniform act supersedes the law as it stood prior thereto, and that the law of suretyship no longer applies to negotiable instruments.” This statement is supported by numerous authorities from a number of States. In 50 Am Jur, Suretyship, § 9, p 909, the rights and duties of an indorser and surety are distinguished as follows: “The rights and duties of an indorser correspond in some respects to those of a surety. He has in some instances been referred to as a surety, and has been regarded as such where his indorsement was irregular or anomalous. He may, of course, by the terms of his contract expressly assume the liability of a surety. The contract of an indorser, however, differs in some important respects from that of a surety. “As elsewhere stated, an indorser agrees to pay upon certain conditions. Unlike a surety, who is absolutely liable to pay if the principal does not, the indorser is only conditionally and secondarily liable, the extent of the conditional contract of indorsement being to pay on demand made on the maker, and notice of dishonor given to the indorser in case payment is not made by the maker. Hence, without due demand and notice at the maturity of a note, an indorser will be discharged, while a surety continues liable on his contract, although in some jurisdictions, by statute, notice to a surety The same as to an indorser’ is required. Also, in some cases it has been held that a surety may spur the creditor into activity by notice to pursue the principal debtor, on pain, for neglect, that the surety will be no longer bound; but an indorser cannot call on the holder of a protested note to sue the drawer, and if he refuses, thereby relieve himself, for if he wishes instant recourse to the principal, it is his duty to pay the note and sue for himself.” The order of the trial court granting the motion to dismiss is affirmed. Defendant not having filed any appendix or brief, no costs are allowed in this Court. Dethmers, C. J., and Carr, Kelly, Black, and Edwards, JJ., concurred with Kavanagh, J. PA 1939, No 305, §1 (CL 1948, § 566.301 [Stat Ann 1959 Rev § 19.415(1)]), provides in part as follows: “See. i. * * * (a) The term ‘retail instalment sale’ means and includes every retail contract to sell a motor vehicle and every retail sale of a motor vehicle to any person (1) in which the eash price of the motor vehicle may be paid in instalments over a period of time, and (2) in which the seller has taken or retained a security interest in the motor vehicle thereby contracted to be sold. * * * “(g) The term ‘retail instalment contract’ means any written instrument which is executed in connection with any retail instalment sale and includes conditional sales eontraets, pureliase-money chattel mortgages and bailment leases retaining a security interest in the seller.” PA 1939, No 305, § 8 (CL 1948, § 566.308 [Stat Ann 1959 Rev §19.415(8)]), provides as follows: “See. 8. If the proceeds of the resale are not sufficient to defray the expenses thereof and also the expenses of retaking, keeping and storing the motor vehicle and the balance owing under the contract, after crediting the same with that portion of the finance charge above provided, the seller may recover the deficiency from ’ the buyer or from anyone who has succeeded to or assumed the liability of the buyer: Provided, That such instalment sale contract expressly provides for personal liability for such deficiency.” (Emphasis supplied.)

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Kavanagh, J. Plaintiff brought this action to recover damages allegedly caused by the negligence of defendant railroad company. The accident occurred on April 20, 1956, in the village of Gregory, Livingston county, Michigan, on State trunkline M-36 where it intersects the defendant’s railroad. Around noon of that day plaintiff was proceeding in a southerly direction on highway M-36 and defendant’s freight train was proceeding in a westerly direction toward the highway. The Ford truck which plaintiff was driving and the freight train collided. Plaintiff had both his legs severed, one above and the other below the knee. The case was tried to a jury and a verdict of $199,962 was returned in favor of plaintiff. The trial commenced on February 18, 1959, and plaintiff concluded his proofs on March 2, 1959. Various motions to strike and for a directed verdict were presented by defendant and taken under advisement by the court. On March 3, 1959, chief counsel for defendant, Maxwell F. Badgley, became ill and the case was continued until the following day to determine the seriousness of the illness and whether or not Mr. Badgley would be able to proceed with the trial. An attending physician counseled with the court and advised it would be approximately 3 months before Mr. Badgley would be medically fit to carry on the trial. The trial court adjourned the case until March 25th with a suggestion if new counsel was to be procured it should be done by that time. Up to the time of the adjournment the trial was being conducted by Mr. Badgley as attorney for defendant. Mr. Badgley during the first 4 days of the trial had been assisted by defendant’s assistant general attorney, Mr. Livesay, who had participated in the trial on the first and second days, cross-examined at least 1 of plaintiff’s witnesses, and made objections to the testimony and handled himself as associate counsel. On the second day Mr. Livesay was asked to leave the courtroom by Mr. Badgley to obtain an expert witness from Westinghouse Air Brake Company to secure and furnish him data for an opinion on stopping distances. On the fourth day of trial the court ruled that associate counsel Livesay either return and stay until the close of the trial or remain away, and further that trial counsel Badgley make all the arguments. The court at the time of adjournment on March 4th, was advised that a motion for mistrial would be made if Mr. Badgley was not going to be able to return on March 25th. This motion for mistrial was; filed on the 19th of March and presented and argued on the 25th of March. A transcript of the testimony was ordered verbally on March 4th from the court stenographers and by written communication on March 9th. The motion for mistrial was accompanied by affidavit from the court stenographers who had reported the proceedings to the effect that the transcript would not be ready by March 25th. During the argument on the motion for mistrial on March 25th the court questioned the reporters off the record and then stated on the record that the reporters were unable to give a definite date when the transcript would be furnished but they would get it out as quickly as possible and forward it to counsel in different stages. Mr. Cobb, counsel for defendant at the mistrial motion hearing, indicated he believed defendant’s, counsel had the right to choose what part of the testimony he was entitled to and should not be forced to go ahead with only a piecemeal portion of the record. The court denied the motion for mistrial. The court then set April 8th as the date to continue the trial and instructed the jury to report back on that date. On inquiry as to whether the court stenographers would have the transcript ready before that time, the court replied, “They are going to do their very best.” Mr. Livesay advised the court that if the full transcript was ready in time defendant would get new counsel to try the case. Mr. Cobb inquired as to what the reporters had said in chambers to the judge with reference to when the transcript would be ready. The court indicated that was not going to be gone into. Mr. Cobb said, “What I am asking is this, your Honor: that we be given an adequate length of time after the transcripts become available to commence the trial.” The court indicated he would cross that bridge when he came to it. Counsel for defendant moved for a continuance of 30 days after the transcript was ready. This was denied. Counsel then moved for a 15-day continuance. This was also denied. Mr. Cobb indicated that if he had until about April 20th, he 'was advised by Mr. Badgley he would make himself available in court and the defendant would be responsible for going ahead on that date. The court denied this stay and concluded the matter by saying, “I will put it over until April 8th. That is, for trial.” The transcript was not completed on April 8th. In fact, it was not completed until April 17th, the final day of proofs. The trial commenced again on April 8th with new counsel and was completed without counsel Badgley returning to the courtroom. After the jury verdict, defendant made a motion for new trial, claiming the court erred in numerous respects. The court in a written opinion denied the motion for new trial. Defendant appeals, renewing all the reasons given in the motion for new trial and placing the errors complained of in 3 general categories: (1) Procedural matters which include— The trial court’s ruling excluding associate trial counsel from the courtroom; The court’s denial of the motion for mistrial; The court’s denial of a continuance upon defendant’s trial counsel being disabled until the transcript was available for substitute counsel; The refusal of the court to grant an additional ■continuance for 12 days until trial counsel could return and continue the trial; The conduct of a considerable portion of the trial in chambers after objection to such procedure. (2) Errors relating to evidentiary matters. (3) Errors relating to the charges of the court. The adjournment of a case is always a matter of discretion on the part of the trial judge. This Court has held the allowance of a continuance on account of the illness of a party or an important witness is not a matter of right, but rests in the sound discretion of the court. Stevens v. N. Z. Graves Corporation, 210 Mich 585. The rule that appellate courts will reverse only when they find an abuse of discretion on the part of the trial judge has been followed in People v. Fenner, 217 Mich 239; Kranich & Bach v. Lobell, 227 Mich 288; Baker v. Wetherald, 291 Mich 646; In re Earle, 316 Mich 295. In McLay v. McLay, 354 Mich 19, this Court has lately held that the court did not abuse his discretion in denying a motion for continuance where the appellant’s attorney was unable to be present; where there had been 1 previous adjournment; where there were out-of-town witnesses present; where the adjournment request was based on unavailability of counsel, whose presence could not be promised for a considerable period of time; where the appellant was known to the judge as a lawyer and known to him to have a competent law partner immediately available; and where there was no showing made of any effort to secure or summon witnesses prior to the date set for hearing or as to what such witnesses would testify if called. This Court reviews the discretion of the trial judge with reference to the facts in each individual case to determine whether or not an abuse of discretion has taken place and whether that abuse has created an injustice which denies a party due process and a fair trial. In view of the above we consider the facts with reference to this particular case. This was a lengthy trial involving complicated legal questions. The testimony of expert witnesses, both of an engineering and medical nature, was presented at great length. Many of the objections and motions had first been made and discussed in the chambers of the trial judge without the stenographers being-present. In addition to this, of the more than 1,100 pages of the transcript of the case approximately 300 pages represent proceedings in chambers on at least 30 different occasions. We consider, too, the order of the court, even though in the alternative, excluding co-counsel Livesay, so that the only defense counsel familiar with the testimony, rulings of the court, exhibits, motions, and the granting and denial of objections to testimony, including unrecorded conversations with the court in chambers, was defense counsel Badgley. Taking all these facts into consideration, we conclude the trial court abused his discretion in this particular case by refusing to grant a continuance until the new trial counsel had the full transcript for examination at least several days before he would be required to proceed with the trial. We recognize the trial court was faced with a difficult situation where plaintiff had concluded his proofs and the granting of a mistrial would have caused great expense. However, we do not see where the continuance for the preparation of the transcript would have injured plaintiff in any way. We are not ruling upon the alleged error in conducting a considerable portion of the trial in chambers, except as this relates to a factor in the lack of knowledge of any new counsel as to what had transpired during the trial. We do say, however, that such practices are not to be encouraged but should be limited to unusual circumstances. A general statement of the law is contained in 53 Am Jnr, Trial, § 36, p 51, as follows: “Policy of the law requires that proceedings of the court in the trial of actions, with certain exceptions, be open and public. In criminal cases the accused has a constitutional right to a public trial. Publicity of proceedings implies that doors of the courtroom be kept open and that the public or such portion thereof as may be conveniently accommodated be admitted, subject to the right of the court to exclude objectionable characters and persons of tender years. And in civil cases the policy of the law requires that all proceedings of the court should be open and notorious, and in the presence of the parties, so that they may take exceptions in the mode pointed out by law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.” Since we hold the trial court abused his discretion in not granting the continuance requested, a new trial will result. We, therefore, cannot anticipate that improper rulings would be made with reference to admission of evidence and other errors relating to the charge of the court and the failure to make certain requested charges. We conclude it is not necessary for us to review or discuss the other alleged errors complained of on appeal. Reversed. New trial granted. Defendant shall have costs. Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred.

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Smith, J. This case involves the estate of Nellie M. Zimmerman, a resident of Lansing, who passed away on May 3, 1956. Her last will and testament provided, in part, as follows: “I further declare that I have no children or issue thereof surviving me and further that I have no relatives other than cousins of various degrees, all of whom I hereby specifically disinherit.” The person nominated as executor filed a petition praying that the said will be admitted to probate. This petition stated: “I further represent that the names, relationship, ages and residences of the devisees, legatees and heirs-at-law of said deceased are as follows: “Cousins of various degrees only, all of whom are unknown to the petitioner and all of whom are specifically disinherited in will. “Last will names the John and Elizabeth Whiteley Foundation as sole beneficiary' — which foundation has been and is now duly incorporated under the laws of the State of Michigan.” Upon consideration of this petition the court, on May 3, 1956, entered an order of publication requiring that public notice “be given by publication of a copy of this order for 3 successive weeks previous to said day of hearing, in the Ingham County News, a newspaper printed and circulated in said county and that the petitioner in said estate give known interested parties additional notice as required by law.” Subsequently a hearing upon claims and for determination of heirs was held, as a result of which it was determined as follows: “This day having been appointed for a determination of the heirs-at-law of the deceased and for the examination and adjustment of all claims and demands against said deceased, and due notice thereof having heen given as required by law, the executor •of said estate appeared, and upon hearing the proofs taken thereon, the court finds and determines that there are no known heirs-at-law of said deceased.” Thereafter, and in due course, orders allowing final account and assigning residue were entered, and, on February 10, 1958, the administrator cle bonis non with will annexed (the executor having died) was discharged. We thus approach the issue. The appellants presented themselves for the first time in the following month, March of 1958, and filed a petition in the probate court stating that they were heirs-at-law of Nellie M. Zimmerman, that they had had no notice of the probate proceedings, that the court “lacked jurisdiction” because the “file and record, upon its face, fails to show that the names and addresses of petitioners and others in their class could not be ascertained by the exercise of reasonable diligence, and in fact said file and record, upon its face, shows a lack of any diligence or effort of any kind to locate heirs-at-law,” and prayed that an order be entered setting aside all decrees and orders theretofore entered in the cause. These allegations having been controverted by appellees, the probate court denied the relief prayed, primarily upon the ground that it was a court of limited jurisdiction, and that its statutory authority in setting aside orders was limited “to cases in which a petition is filed within 3 months of the entering or making of the order in question.” Appeal to the circuit followed, appellees appearing specially and moving to dismiss. Such motion was granted upon the ground that the orders admitting will to probate, and determining heirs, were not appealed within the statutory term. As for appellants’ assertion that the orders entered subsequent to the admission of the will to probate were “not in accordance with the law and jnst rights of said appellants,” the trial court held that the grounds therefor were not set forth with requisite certainty and particularity and allowed appellants 10 days for amendment thereof. Such amendment, however, was not made. Rather, appellants dismissed their appeal and filed a petition for order to show cause why writ of mandamus should not issue requiring the probate judge to set aside the order admitting the will to probate and all subsequent orders. Upon hearing, such petition was dismissed and application for leave to appeal filed with this Court. Subsequent to our denial thereof appellants filed the bill of complaint in the case at bar. It sets forth, substantially, the same claims as formerly made and asserted in the application for leave to appeal, namely, that the probate orders hereinabove referred to were null and void because of “want of jurisdiction of the probate court over the person of the heirs-at-law of Nellie M. Zimmerman, deceased,” coupled with a prayer that they be so declared. Motion to dismiss having been filed, the pretrial statement provided that such motion be considered at the trial on the merits. Apparently, however, decision was made to hear arguments upon the motion alone, it being granted, on February 16, 1960, upon the grounds that the probate court had jurisdiction and that appellants had an adequate remedy at law. The legal point is extremely narrow. For purposes of clarity it should be observed that, although it involves, generally, the question of notice to heirs, it does not involve the ancient controversy as to whether they should be notified at all. Despite the fact that in many States wills may be probated without the necessity for notice to the heirs-at-law or' other interested parties, it being a proceeding in rem, not in personam, in others, including Michigan, the governing statutes require some sort o f notice. The problem of notice to the “unknown” heirs, however, those of the family who have left the testator’s presence and knowledge, and whose whereabouts are unknown, is a sizeable one. Should personal service upon such be required, the administration of the assets of a deceased would be a lengthy if not impossible process. It is provided, therefore, that, in a petition that a will be admitted to probate, the petitioner must state the names and addresses of heirs only “if known.” Furthermore, as to service upon such unknown persons it is provided as follows : “Such service by registered or certified mail may be dispensed with whenever the names or addresses of such interested persons are unknown and cannot be ascertained by the exercise of reasonable diligence.” The statute, it will be noted, does not require the recitation by affidavit, or otherwise, of the acts amounting to the exercise of reasonable diligence. Nor does the provision prescribing what is commonly known as the printer’s affidavit which, on its face, refers merely to the situation where the “address” of some person, obviously known and entitled to service, is unknowm. Whatever the steps constituting reasonable diligence may be, they will vary, with the circumstances, from case to case. There is no requirement that they be proved in affidavit form. As a matter of fact, appellants make no charge that reasonable diligence was not exercised. Their point is much narrower. They assert that the files do not show it. The answer is that the-statutes make no such requirement. The diligence-exercised is a matter for the satisfaction of the probate judge. If challenged (and it has not yet been),, and the challenge is timely, the proponent will have to meet it, but he will not have to meet it in advance-in affidavit form. "We observe moreover, in the record, findings by the probate judge, on the probate of the will, that all interested persons had been duly notified, and, in addition, on the determination of heirs, that upon proofs taken after due notice, there were no known heirs-at-law. We cannot assume that the testimony on these findings was insufficient, nor does the appellant make any such claim. There was jurisdiction over both the subject matter and the person, and, as the trial chancellor properly held, if appellants were aggrieved they “had an adequate remedy at law, and are not now in a legal position to complain in equity.” Decree affirmed. Costs to appellees. Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred. See Levy, Probate in Common Form in the United States: The Problem of Notice in Probate Proceedings, 1952 Wis L Rev 420. Simes, The Administration of a Decedent’s Estate As a Proceeding in Rem, 43 Mich L Rev 675. CL 1948, § 702.21 (Stat Ann 1943 Rev § 27.3178 [91]). CLS 1956, § 701.32 (Stat Ann 1959 Cum Supp § 27.3178 [32]). CLS 1956, § 701.35 (Stat Ann 1959 Cum Supp § 27.3178 [35]).

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Black, J. (for affirmance). We scrutinize for validity statutory proceedings designed to incorporate the new home-rule city of Dearborn Heights. If the proceedings are held to be of legal force, such new city will include — coterminously—all of former Dearborn township plus an area taken from the then and now incorporated home-rule village of Inkster. A map, appearing in the margin, was attached to the statutory petition. The north-south (heavier shaded) rectangle shown as connecting the separated parts of Dearborn township was, prior to such election, a part of the village. The remainder of the village lies immediately west of such rectangle. The incorporated city of Dear-born lies immediately east thereof. Thus we perceive the rectangle as an adopted means (probably the only means) of connecting, for incorporation purposes, a township which had been separated into 2 noncontiguous parts by previous incorporation proceedings. The facts are stipulated and the parties agree that our answer to the sole and agreed question will deter mine the right or wrong of that which the defendant board of canvassers certified below. The agreed question: “In proceedings to incorporate portions of Dear-born township as a home-rule city under the home-rule city act may a part of the village of Inkster, a home-rule village duly incorporated under the home-rule village act, he included in said home-rule city without the consent of said village expressed in proceedings to detach said part of the village?” The board’s answer was affirmative. So was that of the chancellor. The plaintiff village, appealing, insists upon a negative answer. It relies upon sections 2 (CL 1948, § 78.2, amended by PA 1958, No 140 [Stat Ann 1959 Cum Supp § 5.1512]) and 5 (CL 1948, § 78.5 [Stat Ann § 5.1515]) of the home-rule village act of 1909 and says that the only method by which part of an incorporated village may he separated from that village is by “detachment or annexation proceedings in accordance with the home-rule village act or by annexation proceedings in accordance with the home-rule city act.” The defendant township, on the other hand, relies upon section 9 of the home-rule city act of 1909 (CLS 1956, § 117.9 [Stat Ann 1959 Cum Supp § 5.2088]); recently considered in Cavanagh v. Calhoun County Board of Canvassers, 361 Mich 516, and particularly upon the proviso which, by PA 1931, No 314, was added to that section. Citing Bray v. Stewart, 239 Mich 340; Presque Isle Prosecuting Atty. v. Rogers Township, 313 Mich 1; City of Dearborn v. Village of Allen Park, 348 Mich 449; and Ford Motor Co. v. Village of Wayne, 358 Mich 653, the defend ant township alleges that the questioned election and its certified result effectively incorporated such new city. Carefully hearing in mind that the proceeding-before us is one to incorporate a new city (under sections 6 through 11 of the mentioned home-rule city act ) and that it is not a proceeding to annex, detach, or consolidate, we find that the stated question is controlled by the interpretive declaration of legislative intent appearing in the cited eases of City of Dearborn v. Village of Allen Park and Ford Motor Co. v. Village of Wayne. In each of these cases like proceedings under the same statutory provisions were considered. Ruling was made that: “In annexation or consolidation the people interested are the people in the annexing municipality, the people in the area to be annexed and the people in the area from which the annexed portion is taken, but in the incorporation of a new city the people interested and the area affected consist of the area proposed to be incorporated only. It follows that only those living within the affected area can petition for the incorporation and vote for or against the resolution.” (p 665 of Village of Wayne; p 454 of Allen Park.) In this case the proceedings were designed and conducted in strict accordance with such declaration of legislative intent. They were, in fact, instituted and pursued within a few days after the handing-down of our unanimous determination, in the Village of Wayne Case, to reaffirm the quoted declaration. The case manifestly is one where all duty-bound public officials and their counsel have proceeded according to the guidance of recent and authoritative decisions. It is our duty in these circumstances to confirm their action. This case, originally assigned to the writer, was fully submitted on briefs and oral argument October 12, 1960. The foregoing proposed opinion thereof was delivered December 17th to the other Justices for their consideration. The opinion omits — as I think it should — reference to the presently considered racial-constitutional question which, during oral argument, was injected into the case by a member of this Court. Now, on the eve of over-delayed decision of the briefed and argued question (with respect to which no member of the Court has as yet expressed disagreement), the attorney general has intervened and moved to remand for the taking of testimony to determine whether this incorporation proceeding “represents an attempt unlawfully to segregate races of citizens * * * or an attempt to segregate white and colored voters by eliminating-all Negro citizens from the proposed city of Dear-born Heights.” Such question was neither raised nor tried below. It has not been raised, briefed, or discussed by the parties in this Court. It was repudiated by all counsel during oral argument when they were questioned with respect thereto. Nonetheless it is moved now that we make of this specific case of statutory construction a vehicle for presentation and trial of a fresh issue as in Gomillion v. Lightfoot, Mayor of TusJeegee, 364 US 339 (81 S Ct 125, 5 L ed 2d 110). How that is to be done is not explained. Possibly it is contemplated that the case on remand shall be held in abeyance until some new suit, brought by necessary and proper parties plaintiff on necessary and proper original pleadings, is attemptedly tried through all courts to final determination of the new and Gomillion-suggested issue. In the meantime, as recently suggested by a Brother Justice, this abstruse statute may be amended again, thus necessitating new starts and new interpretive lawsuits. I protest this gratuitous interposure of an issue which belongs only in an original class action, filed in a court of original jurisdiction and supported by such testimonial record as might raise, to the plane of due justiciability, that which the attorney general has alleged ex parte under date of February 24th. Such an issue cannot even be framed until and unless the agreed question of statutory construction has been settled by this Court as the chancellor settled it. By failing to decide that question, and by order for remand on motion of a mere intervenor, we cast an important case adrift on an uncharted sea of doubt and delay. The right and orderly way to go about raising and presenting the attorney general’s stated issue is to pursue the route which, by original class complaint, was started in Gomillion v. Lightfoot (MD Ala), 167 F Supp 405, after the statute of Alabama had—per its tenor—changed the boundaries of Tuskegee. Here section 9 can have no Gomillionattackable effect on the boundaries of the respectively involved municipal units until this Court determines the statutory propriety of that which was voted and upheld below. > I vote again to affirm. Affirmance will nowise impede or blockade an original suit based on the allegations of the attorney general. It will in fact open the way to prosperous prosecution of such a suit if there be provable ground therefor. APPENDIX (Taken from stipulation of facts.) The election on the proposed incorporation was held June 20, 1960, in the area proposed to be incorporated with the following results: Northern part of Dearborn township: Yes ...... 2,525 No....... 2,869 The part of the village of Inkster proposed to be included within the new city of Dearborn Heights: Yes ...... 627 No....... 48 Southern part of Dearborn township: Yes...... 3,056 No....... 1,062 Total vote of the electorate in the area proposed to be incorporated as the new city of Dearborn Heights: Yes...... 6,208 No....... 3,979 Carr, J. (for affirmance). This case involves the interpretation and application of certain provisions of the city home-rule act*. In accordance with said statute a petition was submitted to the board of supervisors of Wayne county seeking the approval of that body and submission to an election by the qualified voters of the question of incorporating the city of Dearborn Heights from lands located in Dear-born township, a portion of such territory being contained within the village of Inkster. Said board found that the petitions were in compliance with the statute and adopted a resolution fixing the date of an election to be held in the territory proposed to “be incorporated. Thereupon the plaintiff village instituted the present suit in equity in the circuit court of Wayne county alleging that all proceedings taken with reference to the petitions were illegal and void, and that any election held on the question of incorporating the proposed new city would be a nullity. Injunctive relief against the holding of the election was sought and a decree in accordance with the averments of the bill of complaint. It was the claim of the plaintiff as set forth in its pleading that the city home-rule act does not permit the incorporation of a city including any part less than the whole of a home-rule village, and that before a portion of a village organized under the village home-rule act of 1909 may be included in a city such part must first be legally detached from the village by proceedings instituted under the village act. Following the filing of the bill of complaint the trial court denied injunctive relief against the holding of the election but issued a restraining order forbidding the defendant Wayne county board of canvassers from certifying the results of such election pending the further order of the court in the premises. The election was held, the question of incorporation of the proposed new city being submitted to the voters entitled to vote thereon within the territory proposed to be incorporated. A total of 6,208 votes were cast in the area in favor of incorporation and 3,979 votes against such action. The cause was submitted to the trial judge on a written stipulation of facts and the briefs and oral .arguments of counsel. An opinion was rendered sustaining the proceedings taken as in compliance ivith the statute, and a decree Avas entered setting aside the restraining order and dismissing the bill of complaint. From such decree plaintiff has appealed. The trial judge concluded that the question at issue involved the interpretation of pertinent provisions of the statute under which the incorporation proceeding was instituted, and that this Court had in prior decisions passed on the questions at issue adversely to the contentions of plaintiff. That such is the situation is not open to question. In Ford Motor Company v. Village of Wayne, 358 Mich 653, the statutory provisions concerned were discussed, and interpreted in accordance with prior decisions cited. Reviewing the matter in detail would serve no useful purpose. We are in accord with the holding of the circuit judge and the decree entered by him is affirmed. In view of the nature of the controversy no costs are allowed. Dethmers, C. J., and Kelly, J., concurred with Carr, J. Edwards, J. (for remand). Subsequent to presentation of oral arguments and briefs in the above-styled matter, this Court has received notice of intervention from the attorney general of the State of Michigan under the power given him by virtue of PA 1919, No 232, § 1 (CL 1948, § 14.101 [Stat Ann 1952 Rev § 3.211]). The notice of intervention filed with this Court indicates that intervention is made by the attorney general for the purpose of recommending the remand of the above-styled matter to the circuit court for the taking of testimony as to whether or not the proposed annexation of a portion of the village of Inkster represents an attempt unlawfully to segregate races of citizens in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States (Brown v. Board of Education of Topelta, 347 US 483 [74 S Ct 686, 98 L ed 873, 38 ALR2d 1180]; Cooper v. Aaron, 358 US 1 [78 S Ct 1397,1399, 1401, 3 L ed 2d 1, 3, 5, 19]), or an attempt to segregate white and colored voters by eliminating all Negro citizens from the proposed city of Dearborn Heights in violation of the Fifteenth Amendment to the Constitution of the United States (Gomillion v. Lightfoot, Mayor of Tuskegee, 364 US 339 [81 S Ct 125, 5 L ed 110]), or both. These questions were not considered at the trial •of the cause, nor were they the subject of oral argument or briefing in the briefs now before the Court. The cause should be, therefore, remanded to the -circuit court for testimony upon the questions set forth above, and for such further proceedings as may he required by the testimony adduced. Smith, Kavanagh, and Souris, JJ., concurred with Edwards, J. The proviso reads: “Provided, however, that when a territory is proposed to be incorporated as a city only the residents of the territory to be incorporated shall vote on the question of incorporation.” See appendix for stipulated details showing the manner of conduct and certified result of such election. So far as concerns the village, only those electors residing in the area of the village designed to he included in the new municipality were permitted to vote. CL 1948 §§117.6-117.11, as amended (Stat Ann 1949 Eev and 1959 Cum Supp §§ 5.2085-5.2090).—Reporter. The ease in OCA 5 is reported in 270 E2d 594.—Reporter. CLS 1956, §117.9 (Stat Ann 1959 Cum Supp § 5.2088)—Re-porter. PA 1909, No 278, as amended (CL 1948, § 78.1 et seq., as amended [Stat Ann § 5.151Í et seq., as amended]).—Reporter. PA 1909, No 279, as amended (CL 1948, § 117.1 et seq., as amended [Stat Ann 1949 Rev § 5.2071 et seq., as amended]).

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Smith, J. This case involves a dispute between 2 neighbors. They live across the road from each other. One has blocked it off and the other objects. At an earlier time the neighbor raising the objection, Leslie F. Feighner, and his wife, owned all of the property here involved. Between the years 1938 and 1911 they conveyed to the plaintiff, Robert Dryfoos, the land to the north of the road and a portion of the land to the south, retaining, however, that portion upon which their home stood, which was to the west of the portion conveyed. The road, alleged to be a public highway, is only about 30 rods in length, running east from a road called “East road” (sometimes called “Cemetery avenue,” or “road”) to a lake, described in the record as “Lake One.” ' The road, short though it may be, is long enough to arouse both recrimination and resentment. Controversy over its status (public road or private way) had smoldered for years. It was fanned into flame by the action of plaintiff Dryfoos in installing posts in it near its intersection with East road. The defendant highway commissioner served notice on the plaintiff to remove them, whereupon plaintiff filed a bill of complaint to enjoin the township from removing obstructions and to decree that the public has no right, title, or interest in the premises owned by the plaintiff. Mr. Feighner thereupon sought and obtained permission to intervene, and filed a cross bill claiming that the road is a public road. It is not asserted that there was any formal dedication but it is asserted that there has been long and established user. The trial chancellor having found no acceptance of the road, the defendants and intervenor are here on a general appeal. The difficulty with the defendants’ case lies in the facts. There has been some user of the way since long before the' turn of the century. Forty or 50 years ago some persons used to get their summer ice from Lake One, but whether this use was permissive or not is not shown. Ice fishermen have used it, some with permission, others with knowledge of trespass. Still others said they considered it a public road and at least 1 witness concluded his testimony by guessing it was a public road. Some permissive use of the road through the kindness of Mr. Feighner himself was shown and in this connection it was of significance to the trial chancellor, as it is to us, that when Mr. Feighner himself deeded property to plaintiff in 1941 he reserved a “right to access to the lake,” a precaution hardly necessary if, in truth, the road in question was a public highway. All of this is a far cry from the situation in Pulleyblank v. Mason County Road Commission, 350 Mich 223, upon which appellant relies, wherein the user was found to have been continuous by the general public, including the transportation thereon of lumber and farm produce for some 35 years. As for upkeep of the road the showings are equally thin. There may at one time have been some working by village officials, though the extent is doubtful. Since 1943, when the disputed road and adjacent area was disconnected from the village of Nashville, no work has been done on it. It has never been accepted as a part of the Barry county road system, nor has any work been done on it by the township. Actually, it is in poor condition, there being some testimony that it is rutted and washed out. Whether actually passable or not, we note that both plaintiff and Mr. Feighner have built new roads into their properties, not relying upon the one here under consideration. I There seems to be no possible theory upon which defendants may prevail. We cannot find an implied' dedication by the landowner, or prescription, for lack of use by the general public, exclusive, open, and notorious. See Alton v. Meeuwenberg, 108 Mich 629. Moreover, a dedication in this State as a matter of general law, as well as under the statute relied upon by defendants, must be followed by an acceptance by the public authorities, with the way taken and maintained as other highways, Chapman v. City of Sault Ste. Marie, 146 Mich 23, proof of which, also, is here lacking. The decree is affirmed. No costs, a public matter. Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred. CL 1948, § 221.20 (Stat Ann 1958 Rev § 9.21).

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Edwards, J. Plaintiffs-appellants are home owners in a developing subdivision who filed a bill of complaint in equity to restrain alleged violation of a building restriction and a drainage easement in the construction of an adjacent house. After hearing plaintiffs’ testimony, the Oakland county circuit judge granted defendants’ motion to dismiss the bill of complaint, holding that plaintiffs had not proved their entitlement to injunctive relief and that they have an adequate remedy at law in a suit for damages. Plaintiffs appeal. Appellant Jeffery bought a home in September, 1956, in the Woodcroft subdivision of Farmington township. The price was $29,500. The salesman involved in the deal was defendant-appellee Earl Lathrup. Mr. and Mrs. Lathrup also owned the adjacent lot to the south of appellants, and were the original subdividers of Woodcroft. The original deed to the Jeffery lot made reference to the recorded plat of the Woodcroft subdivision. At the time of the Jeffery purchase, the plat for the Woodcroft subdivision showed a 20-foot “easement for drainage” running over the rear portion of the Jeffery property, diagonally across the adjacent lot owned by the Lathrups. At the time of the sale Lathrup discussed the drainage with Mr. Jeffery and told him that there was an 8-inch tile line in this 20-foot easement. Mr. Jeffery claimed Lathrup represented that his lot would have perfect drainage. For 3 years Jeffery claims he had no drainage problems. In the fall of 1959 appellees commenced construction activities involving the building of a house squarely across the 20-foot easement for drainage shown on the Woodcroft subdivision plat. The Lathrups had previously sold the lot adjacent to the J'efferys to appellee Dahl. In preparation for Dahl’s construction of a house for appellees Kozub, Earl Lathrup undertook to reroute the 8-inch drain. The easement referred to followed a natural draw and the effect of the building plan was described as follows: “The Court: Do you concede that the natural drainage has been changed? Remember, we are dealing with acreage. “Mr. Wilmot: We admit that the property of the defendants is located in a draw oyer which the normal —a certain amount of the normal watershed passes. We also admit that there was in this draw to take care of that water, an 8-inch tile and that we have diverted the 8-inch tile from the point at the northwest corner of the defendants’ property along the north boundary of the property until it arrives at the easterly portion of the property and then along the easterly portion of the property back into the same tile drain.” Construction of the house was begun while the Jefferys were on vacation. On their return on September 21, 1959, Mr. Jeffery claimed that he found the condition described below: “A. Well, the ground, the lowest part of our septic drain field became saturated and caused back pressure in our septic tank so that we couldn’t flush our toilets and the drains, we couldn’t drain water out of them and my wife couldn’t wash and it occurred 2 or 3 weeks after they commenced their basement, the water wouldn’t flow away. We also had a drain in our basement and this drain together with our conductor drains are connected to the pipe in the field and because of the fact that the water couldn’t run away it backed up in the spill-well and ran into our basement, causing our basement floor rugs to gather large areas of alga mold. In addition to that when we came back from our vacation, the odor in the house was such we couldn’t live there unless we aired it out. * * * “Q. Now, will you explain to the court how the changing of the course of that tile, in your opinion has created an odor? “A. Well, I can’t tell you how it is causing the odor but -I know the odor is there and I am not kidding about it. My wife vomited for 3 days when we came back from our vacation, she couldn’t keep food down and I will bring my mother-in-law in, she is 82 years old, when she walked in the house after we came back, she said, ‘What in the world is that awful smell,’ and it was coming from the basement.” Plaintiffs’ testimony tended also to show that the drainage easement which followed a natural draw was important for more reasons than that the 8-inch tile was located in it: “A. Yes, in the spring of the year, shortly after we bought — it was in the spring, I believe, lo and behold we woke up one morning and saw this water coming down over the hill following that natural watercourse where this drain is and I went out there to clear off the grass that had flowed onto the catch basin and the water was right up to my knees, right where that catch basin is at the back of our lot and it flowed in a gusher down over this natural valley and the easterly portion of that south half of lot 94 had 2 feet of water on it and it remained there and flowed away slowly down into the drain where the catch basin is at the south half of lot 94. * # * “A. During these conversations, Mr. Lathrup represented to both Mrs. Jeffery and I that we had perfect drainage and we would never be bothered with drainage problems because of the natural slope of the land and even when we told him about the freshet coming over the hill, he assured me that it would flow away and go down its natural drainage, which it did, and I had extreme confidence in Mr. Lathrup and I didn’t question him further because the water did exactly what he said it would, straight across and down into the catch basin in the road and flowed away in an orderly fashion and didn’t hurt anybody. “Q. When you say it flowed away in an orderly fashion, you mean it flowed on the surface of the land ? “A. Yes. “Q. How deep was that water? “A. Two feet. “Q. In other words, the drainage tile, in your opinion, was never adequate to take care of the natural flow of water? “A. No, I don’t think any drainage tile would ever take care of the flow that came down that day because it was 20 feet wide.” This evidence lends considerably greater importance to plaintiffs’ contentions pertaining to violation of the grade-line building restriction. The 8th restriction in the Woodcroft deeds provided : “8. Each residential lot shall have an established grade line of 18 inches above the average level of the crown of the road in front of said lot.” As to this restriction, plaintiffs presented evidence tending to show that the final grade of the ground level of the house being built by defendants would exceed the 18-inch grade line by a matter of several feet. As to this, Mr. Jeffery testified: “A. Well, the brick wall on the front corner at the north wall of the house is approximately 6 feet above the grade of our land and they will have to grade down in an area of 10 feet or from 6 feet and it is going to leave me down in a hole and since the water has no place to go it is naturally going to flow to the lowest level.” A builder called by plaintiffs, after describing the location and construction of the house under construction, testified: “Therefore, when the house is completed you will have a sheer wall of dirt that will act as a spillway onto Mr. Jeffery’s property.” We take this record, of course, as it comes to us containing the evidence of plaintiffs, but not of defendants since defendants’ motion to dismiss was granted at the close of plaintiffs’ proofs. The chancellor may have believed that plaintiffs’ claims as to the situation were exaggerated. If so, we must say that the record did not disclose in what particular they were. Plaintiff had alleged, and his proofs tended to show, violation by defendants of a drainage easement and a building restriction, and both present and continuing damage. When plaintiffs rested they had presented a prima facie case, and a full record of the dispute should have been written prior to decree. We believe the circuit judge erred in granting the motion to dismiss. The chancellor may have been moved by the fact that at time of hearing the footings and basement walls of the new house were in and that no injunctive relief was possible absent great financial damage to defendants. As the testimony stood before him, however, it was obvious that plaintiffs had presented evidence of great and continuing damage to their quiet enjoyment of their own home, resulting from defendants’ violations of an easement and a building restriction. There can be no question that in such a situation as plaintiffs alleged, equity has jurisdiction. Sokel v. Nickoli, 347 Mich 146. Defendants, however, contend on this appeal that neither easement nor restriction was effective. They assert that since the easement was not dedicated to the public and was not recorded as a covenant in the deeds it was totally ineffective and could be disregarded. We believe this contention is erroneous. Under Michigan law, an easement recorded on a subdivision plat by reference to which subdivision sales are made is binding on the parties. Pulcifer v. Bishop, 246 Mich 579; Westveer v. Ainsworth, 279 Mich 580; Rindone v. Corey Community Church, 335 Mich 311. As to the restriction, defendants claim abandonment, contending that many violations of the 18-inch grade already existed in the subdivision. None was shown, however, which nearly approached the extent of violation involved here. Where the restriction has been violated in some degree, it does not thereby become void and unenforceable when a violation of a more serious and damaging degree occurs. Carey v. Lauhoff, 301 Mich 168; Polk Manor Co. v. Manton, 274 Mich 539; Morgan v. Matheson, 362 Mich 535. We must presume that this house may now have been completed since no injunction appears to have been in force. If such proves to be the case, expert testimony should be taken on remand as to present and future damages (if any), along with engineering testimony as to possible drainage solutions. Such a solution might be presented to defendants as an alternative to damages representing permanent impairment of the value of plaintiffs’ property if the proofs warrant so doing. Once equity has taken jurisdiction for one purpose, it should dispose of all aspects of the litigation. Second Michigan Cooperative Housing Association v. First Michigan Cooperative Housing Association, 358 Mich 252. We agree with the circuit judge that this record discloses no laches on plaintiffs’ part. We have granted plaintiffs’ motion to strike certain statements contained in defendants’ brief by which defendants have sought to introduce into the record on appeal facts which were not before the chancellor below. Reversed and remanded for further proceedings consistent with this opinion. Costs to appellants. Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred. Same ease, 362 Mich 460.

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Souris, J. This appeal involves the sufficiency of service of a notice of tax sale made upon the joint owners of real estate. Mr. and Mrs. Mardigian, 2 of the defendants herein, are record joint owners of real estate in the city of Detroit. Plaintiff, in 1957, purchased that land at a tax sale for 1954 delinquent taxes. No redemption having been made from such sale within the statutory period therefor, a tax deed was issued to plaintiff in accordance with the general property tax law. The deed was duly recorded, and thereafter plaintiff delivered to the sheriff of Wayne county the statutory purchaser’s notice for service upon parties in interest. This controversy revolves about the attempted service upon Mr. and Mrs. Mardigian of said notice. The issue is framed in plaintiff’s suit for a writ of assistance, plaintiff claiming that redemption from the tax sale was not made within the 6-month statutory period following notice thereof. Counsel for the parties stipulated and agreed before trial that the only issue to be resolved by the court was the sufficiency of service of the notice upon the Mardigians. The circuit judge, after hearing testimony from the parties, determined that no proper service had been made upon them. There is in evidence a duly executed return of service by a deputy sheriff upon Mr. Mardigian. The trial judge, after hearing somewhat conflicting testimony from the deputy sheriff and from Mr. Mardigian, concluded that service was not in fact made personally upon Mr. Mardigian hut rather upon some other person at Mr. Mardigian’s place of business and that such service was not made within the contemplation of the statutory provision for substituted service because not made at Mr. Mardigian’s usual place of residence. The controlling statute is found in the general property tax law, which provides: “That such service may be made upon any resident of this State by leaving such notice at his usual place of residence with some member of his family of mature age.” Without determining the propriety of the circuit judge’s ruling with reference to the attempted service upon Mr. Mardigian (there having been, as noted, somewhat conflicting testimony relating thereto), disposition of this case can be made upon the basis of undisputed facts relating to the attempted service of the notice upon Mrs. Mardigian, an owner by the entireties with Mr. Mardigian, and as such, also entitled to be served with notice under the statute. Dolph v. Norton, 158 Mich 417; Hansen v. Hall, 167 Mich 7; and McVannel v. Pure Oil Co., 262 Mich 518, 522. Plaintiff concedes that the deputy sheriff attempted substituted service upon her by giving an extra copy of the notice to the person whom he believed to be Mr. Mardigian. The statute clearly requires that substituted service be made at the usual place of residence of the person sought to be served. Plaintiff concedes that the service here attempted was made not at the residence of the Mardigians but rather at the place of business of Mr. Mardigian. For .that reason and that reason alone, the trial court’s decree denying plaintiff’s petition for writ of assistance is affirmed. Costs to defendants. Dethmers, 0. J., and Carr, Kelly, Smith, Black,, Edwards, and Kavanagh, JJ., concurred. CL 1948, § 211.1 et seq., as amended (Stat Aim 1960 Rev § 7.1 et seq.). CL 1948, § 211.140 (Stat Ann 1960 Rev § 7.198). CL 1948, § 211.140 (Stat Ann 1960 Rev § 7.198).

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Montgomery, J. This is an action against the principal and sureties on a bond given on a sale of real estate made by authority of an order of the probate court by an executor, the principal on the bond in suit. Under the record as presented to us, we find it impossible to deal with most of the points made in the brief of counsel for appellant. It is first contended that there was error in receiving the-bond in evidence, and in basing judgment upon it, for the reason that no authority was shown for bringing suit upon the bond. The court found as a fact, however, that such authority had been duly and regularly given, and no exception to this finding of fact appears in the record. Unless the point is made, therefore, by an exception to the introduction of testimony, the question is not properly before us. The introduction of the bond in question was objected to, it is true, but the objection was put upon the-distinct ground that no suit or proceeding had previously been brought against the principal or bondsmen on the general bond of the executor, and that action could not be brought upon this bond until a suit had first been brought upon the executor’s general bond. No other point was suggested by the objection, and the exception must be. limited to the ruling upon the objection made. Detzur v. Brewing Co., 119 Mich. 286 (77 N. W. 948, 44 L. R. A. 500). The brief of defendant’s counsel also attacks certain of the special findings of the court. The record shows no exception to these findings. Under Cir. Ct. Rule 26 it is settled by repeated decisions of this court that the record will not be examined for the purpose of ascertaining whether the testimony supports the findings of fact, unless the findings are excepted to under the rule. Haines v. Saviers, 93 Mich. 440 (53 N. W. 531); Robards v. Waterman, 96 Mich. 233 (55 N. W. 662). It is, of course, competent for the appellant to assign as error that the findings do not support the judgment. While there is no such distinct assignment in terms, yet, as error is assigned upon the finding concluding that judgment should be entered for plaintiff, we think it sufficiently raises the question as to whether, upon the findings, the plaintiff is entitled to judgment; and, as there is no finding that any suit had been brought against the sureties on the original bond of the executor, the meritorious question in the case is fairly presented for our consideration. Both counsel rely upon the case of Durfee v. Joslyn, 92 Mich. 211 (52 N. W. 626). The appellant contends that, under the authority of that case, the bond here in suit is an additional security, and that the primary obligation is upon the general bond of the executor; and deduces from that the conclusion that, until the remedy upon the executor’s general bond is exhausted, no action can be maintained upon the bond in suit. We do not so construe the holding of the court in that case. It is distinctly stated in that case by Mr. Chief Justice Morse that “the representatives of the estate are entitled to recover upon both bonds, with the only limitation that they cannot recover more in both suits than the whole amount due from the administrator, and no greater sum upon the special bond than has been realized from the sale of real estate under it.” It is true that the special bond is referred to as an additional security, which does not supersede the general bond; but, had the term “cumulative security” been employed, it would have been equally apt, as appears by the holding above quoted. We think the circuit judge was right in holding that an action upon the executor’s bond was not a prerequisite to the maintenance of the suit upon the present bond. As this is the only question which it is open to the appellant to raise upon the present record, and the court rightly ruled this, the judgment will be affirmed, with costs. Hooker, C. J., and Moore, J., concurred. Grant, J., took no part in the decision.

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Grant, J. (after stating the facts). 1. We think the tax law does, not confer upon the auditor general the right to proceed upon his own motion to withhold the conveyance of lands sold for taxes, or upon his own motion to proceed to cancel deeds. Thousands of acres of land in this State have been intentionally abandoned, and the payment of taxes intentionally neglected or refused. Owners are presumed, under the law, to know that taxes are imposed upon their lands. It is their duty, therefore, to look after their taxes and attend to their payment. If they fail to do so, the statute has wisely provided a limitation to their right to take proceedings to cancel the tax deed and set the proceedings aside. Under the contention of the respondent, he could absolutely set aside the running of the statute of limitations by his own voluntary act, ■when no one solicits his action. The statute clearly contemplates that somebody interested in the lands shall set the auditor general in motion in order to confer upon him the authority to act. No case is cited holding that the auditor general may proceed on his own motion to cancel deeds. The State and the parties interested are entitled to a hearing. 2. The right of the auditor general to cancel deeds under section 98, where the lands have been sold under section 84 of the tax law, is not disputed. Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128). The claim of the relator is that that power does not extend to lands which have been deeded to the State, and placed under the charge and control of the land office, as homestead lands. That question is now presented to the court for the first time. The statute (section 127) provides for an adjudication and determination by the auditor general and the commissioner of the State land office as to whether the lands have been abandoned, and their value. They are required to ascertain if the lands have been delinquent for taxes for five years or more; if they have been bid off to the State one or more times; if the time of redemption has expired; if no application has been made to pay, redeem, or purchase the same; and if no action is pending in the circuit court of the county where the land is situated to set aside the taxes, or to remove the cloud on the title occasioned thereby. If these things are found, the statute provides that.“the title to the State shall be deemed absolute in and to said lands.” The auditor general and commissioner of the State land office are further required to determine what lands so examined come within the provisions of this section, and then to record their determination in a book to be kept for that purpose. Pursuant to the determination of these two State officers, the auditor general then issues a deed to the State. The deeds are then delivered to the commissioner of the land office, whose duty it is to record them. The statute above quoted (section 127) then provides a way by which the owner of the land may proceed in the courts to test the validity of the finding of these officers. We think it was the clear intention of the legislature, in enacting this law, to put these lands, after the determination has been made by the auditor general and commissioner of the State land office, beyond the control of the auditor general, and to place the power to question their proceedings in the courts. All the cases cited in behalf of the respondent are cases where the lands have been sold under section 84, and the language used in those eases is applicable, and must be confined, to sales made under that section. 3. It is conceded by the respondent that no certificate of error can be legally issued by him against those lands which were homesteaded prior to the time Act No. 107 took effect, as the statutory limitation of six months had run before any proceeding was taken to set the deed aside. Similar statutes of limitation have been sustained in other jurisdictions. Meigs v. Roberts, 162 N. Y. 371 (56 N. E. 838, 76 Am. St. Rep. 322); People v. Turner, 145 N. Y. 451 (40 N. E. 400); Terry v. Anderson, 95 U. S. 628; Saranac Land & Timber Co. v. Comptroller of New York, 177 U. S. 318 (20 Sup. Ct. 642). Under this disposal of the case it is unnecessary to pass upon the other provisions of the statute in regard to the limitation of the right to take proceedings to cancel deeds. The writ of prohibition will issue, without costs. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.

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Hooker, C. J. The bill in this cause was filed by the complainant, a building and loan association, to foreclose a mortgage upon defendant’s premises. A decree was granted in favor of the complainant, and the defendant has appealed. Many points are raised in the brief, but the one which is in its nature meritorious is that the defendant was induced to take stock and a loan, according to the plan of business pursued by the complainant, upon the representation that the 'amount of his indebtedness would be fully paid in eight years if he made certain specified payments monthly. The learned circuit judge, who saw the witnesses, was of the opinion that the defendant had failed to prove the alleged statement that the stock would mature in eight years at the furthest, and we are of the same opinion. At the time this defendant procured his loan, he was told that he could appear and bid for his loan, or he could send in his bid, and he chose the latter course, authorizing an officer of the company to bid 25 per cent. He asserts that he was informed that the association would not receive bids below 25 per cent., and his counsel insist that a practice that does away with competitive bidding is a noncorn. pliance with the statute, which entitles the borrowing stockholder to a loan for such premium as he may be able to bid it in for. The learned circuit judge found from the evidence that, while a motion to fix a minimum rate of premium at 20 per cent, was made nearly two years before the defendant made his application for this loan, it was not adopted, and that the offer to pay 25 per cent, was volun tary. In our opinion, he might have added explicitly, what, perhaps, should be inferred from his language, i. e., that the evidence failed to prove that he was given to understand that competitive bidding below 25 per cent, would not be considered by the directors, and that the evidence does not satisfactorily show that it would not have been. We therefore agree with him that the contract was not usurious. We are also satisfied that the statements relied upon as warranties were the expressions of opinion, and that they do not affect the contract. It is said that a rule was afterwards adopted fixing a minimum premium, and that,the rule was followed; that there came a time when inducements were offered for the withdrawal or surrender of immature stock; that money was loaned to persons who did not use it for the erection of homes; that nonmembers were induced to become members by the promise of loans; that the defendant was injured by complainant’s allowing corporations to become members and obtain loans; compromising disputed claims; referring bids to a committee before they were passed upon by the board; refusing to make a loan to a lady member from Marinette, upon the ground that their business from that locality would not justify it; payment of excessive salaries, etc. Whatever remedies may exist against the continuance of any or all of these practices, they do not constitute a defense to his mortgage, nor does the claim that the contract was ultra vires. As a stockholder, he has the right to insist that the business shall be conducted according to law, and may enforce his right by appropriate remedies; but he cannot permit practices which affect others as well as himself, and then claim advantages over them. The decree is affirmed. Moore, Grant, and Montgomery, JJ., concurred.

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Grant, J. (after stating the facts). Insurance companies may lawfully contract with the insured that the contract of insurance shall be void upon a conveyance of the title to the property without notice to, and the assent of, the insurer. Insurance companies may decline to insure the purchaser and grantee, while willing to assume the moral hazard of the person originally insured. This provision was therefore valid. Plaintiff seeks to avoid the result by insisting that this policy was in fact issued for the benefit of Mr. Eckert, and that he had a contract with defendant. This contention is settled against the plaintiff by Van Buren v. Insurance Co., 28 Mich. 398; Hartford Fire-Ins. Co. v. Davenport, 37 Mich. 609; Minnock v. Insurance Co., 90 Mich. 236 (51 N. W. 367). The contract of insurance was made with Mr. Navrot alone. He alone could bring suit upon it. He alone was liable for the premiums. Counsel for plaintiff cites Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834 (60 N. W. 133, 35 L. R. A. 679), and other similar cases. In that case the policy contained a mortgage slip by which it was agreed that, “as to the interest of the mortgagee, the insurance should not be invalidated by any act or neglect of the mortgagor or owner of the property.” The mortgagor had forfeited his rights in the policy. It was held that the mortgagee had not, but that this clause gave him an independent right of action against the company. No such clause is found in the present policy. The direction of the court was correct, and the judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred.

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Montgomery, J. In this case it appears that, while plaintiff was driving east, the front wheel of her buggy was struck by a car approaching from the west. The testimony shows that she turned in towards the track to pass another buggy standing by the curb. Before this inturn was made, the appearance did not indicate to the motorneer any danger. It is defendant’s contention that the turn was made so suddenly that the motorneer had not time to check the car after discovering plaintiff’s danger, and that the case falls within the case of Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), and is not within any exception to the rule there laid down. The circuit judge so held. The evidence tended to show that there was standing by the side of the road a buggy, which made it necessary for the plaintiff to turn in towards the track, and that she did in fact turn in. One witness testified that she turned in towards the track when she was about 20 feet from the other buggy, and that at this time the car which came in contact with her was half a block away. The- block, according to the offer of proof, treated as made, was 500 feet in length, and the plaintiff offered to show that the car could be stopped on that track within 100 feet. It is true that one witness was made to state, on cross-examination, that from the time plaintiff turned in on the track until she was struck did not take very long, and, in answer to'the question, “Wasn’t it instantly, almost?” replied that it was. The examination was attempted of another witness upon this subject, on cross-examination, when the following occurred: “ Q. If she was midway between the curb and street-railway track, how did she get within a foot of the track ? “ A. When the car struck her, she was pretty well past this other buggy, and she had to come near to the track. “Mr. Brennan: I don’t want that. “Mr. Humphrey: I object. “The Court: Ask another question.” The circuit judge held that the plaintiff was guilty of negligence in going so near the track without looking for the approaching car. We think the question whether the plaintiff was in position to have been seen by the motorneer a sufficient length of time to have enabled him to stop the car was a question for the jury. See Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and cases cited; Quirk v. Railway, 130 Mich. 654 (90 N. W. 673). Judgment reversed, and a new trial ordered. Hooker, C. J., and Moore, J., concurred with Montgomery, J.

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Montgomery, J. This is certiorari to review the decision of the circuit judge granting a mandamus. The question involved is whether the ordinance under which respondent occupies Michigan avenue, in the village of Dearborn, requires the respondent to construct street crossings from sidewalk line 'to sidewalk line, or whether it is satisfied by the construction of a crossing of respondent’s tracks. Two provisions of the ordinance bear upon the question. Section 4, after providing that from Military avenue easterly to the village limits the track should be laid in the center of Michigan avenue, and that the space between the rails should be planked, and that two planks should be placed outside the rail, eight inches wide and four inches' thick, further provides: “It is also further provided, between the points of Military avenue and the westerly limits of said village, that the said grantee, its successors and assigns, shall at all times construct and maintain public and private crossings, constructed in the same manner as is herein provided for planking laid on the said grantee’s railway track between the points at the corner of Military avenue and Michigan avenue and the easterly limits of the said village of Dearborn.” Section 8 provides: “The said grantee, its successors and assigns, shall have the right to construct and maintain all necessary bridges and culverts along the line of said railway, or use, where feasible, the bridges and culverts now existing, and shall maintain pine plank crossings at all cross and intersecting roads and highways, and shall also build and maintain private pine plank crossings where such crossings now exist, or may be in the future reasonable or necessary.” It is altogether clear that, if the provisions of section 4 measure the respondent’s duty in the premises, a cross-walk from sidewalk line to sidewalk line was not contemplated, and cannot be required. The circuit judge was of the opinion, however, that the obligation of the company was enlarged by section 8, and that the provisions of that section, so far as they relate to crossings, are meaningless, unless some further requirement than that named in section 4 was intended. We do not find this difficulty. A reference to section 4 shows that the particular crossings required are not specified. The provisions of section 8 were apparently intended to make more certain the requirements imposed by section 4, namely, by requiring crossings at all cross roads, and private crossings where they now exist, or may in the future become reasonably necessary. We are all agreed that the character of the crossing required is fixed by section 4. It follows that the order of the circuit judge must be reversed, and the application denied, with costs of both courts. Hooker, C. J., Moore and Grant, JJ.; concurred. Long, J., did not sit.

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Hooker, C. J. At its 1901 session, the legislature passed local act No. 315, entitled: “An act to incorporate the public schools of the village of Jerome, Hillsdale county, Michigan; define the boundaries thereof, provide for the election of trustees and fix their powers and duties, and provide for the distribution of the territory of the disorganized districts.” By this act it sought to incorporate in one union and graded school district lands described in the act, which had previously been divided between several primary school districts. It named the persons who should constitute the first board of trustees, and provided for the distribution of long and short terms between them by lot; their successors to be elected by the electors of the district shortly before the expiration of their, respective terms. It provided that the primary and graded school law should apply to this district; and it may be said, in a general way, that it gave to the new district the property within its limits which had belonged to the respective districts from which it was created. It also required the new district to assume and pay the outstanding debts and obligations of the old districts. The new district did not include all of the lands comprised in the several districts from which it was organized, and the act provided that, within 30 days after the act should take effect, the board of school inspectors of the township of Somerset should meet, and attach to other school districts the portions of the several districts not included in the new. This proceeding is in the nature of a quo warranto against the persons constituting the board, to inquire into their right to exercise and enjoy the office of trustee of said new district, which they were doing at the time the proceeding was instituted, in the effort to carry out the provisions of the act. It was commenced in October, 1901, and it cannot be said to have been unreasonably delayed. Counsel for relatora attack the validity of this legislation. Their brief states the points thus: “ First. It deprives this school district or municipality of the right of local self-government, guaranteed to all municipalities by the Constitution. “ Second. The title to the act indicates, and the act itself embraces, more than one object. “Third. The act is broader than the title. The body of the act embraces many objects not covered by the title. “Fourth. The act, as passed, impairs the obligation of contracts, within the meaning of the Constitution of the United States and the Constitution of the State of Michigan.” Does this act impair the right of local self-government ? Cases have, of late, been frequent where legislation has been said to impair this right of local self-government, and it would seem that different views are entertained by counsel and by the public as to the character and extent of this alleged, right. It may, therefore, be profitable to consider briefly what it is, whence it is derived, and whether it has limitations upon it, or is itself a limitation upon the authority of the State. It is often alluded .to under the name of “home rule.” As descriptive of a policy, “home rule ” is a significant and appropriate term; but, as descriptive of a right, it is indefinite, for it is legally coextensive with the right of local regulation or control, and its extent must always be tested by the Constitution. The State, ■consisting of its electors, has absolute political power, except as limited by the Federal Constitution. Until the electors have adopted a Constitution, there is no public corporation, either municipal or quasi municipal, that can resist the authority of the State, which has power to create both, and to destroy them, and to make governmental ■agencies of them. It is not necessary to discuss municipal corporations proper, because we are not dealing with one; so we may pass them with the suggestion that, under repeated decisions, they exist through the action or acquiescence of the State; are subject to regulation and control by the State, except as qualified by the provisions of the United States Constitution; and this has application to interests in the nature of private rights only, which such corporations have and enjoy. The quasi corporations are radically different. They consist of counties, townships, school districts, highway ■districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are for and about the business and policies of the State, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, bridges, etc. This may be called a right or an obligation, according to the views of the citizen who is taxed locally for the several purposes; but, whatever it is called, it depends upon the Constitution or law of the State, and otherwise would not exist. If upon the Constitution, the legislature has not the power to change it; but, if upon an act of the legislature, it is so subject to change. There is danger of confusing rights derived from these different sources, and it is possible to erroneously conclude that any apparent injustice in legislation is an invasion of local rights of self-govern ment, and therefore’invalid, when that can be truly said only of such as invade constitutional rights of self-government. The school district is a State agency. Moreover, it is of legislative creation. It is true that it was provided for in obedience to a constitutional requirement; and, whatever we may think of the right of the district to administer in a local way the affairs of the district under the Constitution, we cannot doubt that such management must be in conformity to the provisions of such laws of a general character as may from time to time be passed, and that the property of the district is in no sense private property, but is public property, devoted to the purposes of the State, for the general good, just as almshouses and courthouses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general. We insert here from counsel’s brief the alleged infringements upon local rights, upon which reliance is placed: “ (a) The act names and appoints for definite terms (not provisionally) the officers of this municipality. “(5) It fixes definitely the site of the central school building for said district, and the uses to be made of said building, and does not allow the resident taxpayers and voters any voice in the matter. ‘ ‘ (c) It gives arbitrary power to a board appointed by legislative enactment (and to no other) to confiscate the property of the old districts, and fixes definitely what is to be done with this property; thus depriving the resident taxpayers and voters of all voice in the matter. “ (d) It fixes definitely what shall be done with the property of the old districts, and the uses to which it shall be put, and leaves absolutely no discretion in the local authorities nor in the trustees of said district. “ (e) It fixes definitely what shall be done with the territory of the old districts not included in the new district, and appoints by legislative enactment the officers that are to make the disposition of this territory. “ (/) It appoints by legislative enactment a board of school inspectors for this district, which are constitutional officers, and deprives the local taxpayers and voters of all voice in the matter.” Among the above points, our attention is naturally attracted to “c,” wherein it is stated that the territory excluded is deprived of any share of the public property. It does not seem to be denied that the legislature may change the boundaries of districts. That has been too often done to admit of question. Numerous school districts have lost territory through city charters, and the case of Keweenaw Ass’n v. School Dist. No. 1, 98 Mich. 437 (57 N. W. 404), is conclusive upon the point. See, also, Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391), and Pingree v. Board of Education, 99 Mich. 408 (58 N. W. 333). The authority of the legislature to change the boundaries of counties, -townships, and school districts does not necessarily involve the obligation to reimburse the portion deprived of the use of the public property. Frequently such laws contain provisions for the purpose, but it is not necessary. The property is public property, held and used for the purposes of the State, which may, in the absence of constitutional prohibition, make such disposition of it as it sees fit. Mr. Dillon, in his work on Municipal Corporations (4th Ed., § 185), in discussing the enlargement of boundaries, states the general rule: “Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory. And it is no constitutional objection to the exercise of thispoiver of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a pre-existing municipal indebtedness, since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the legislature to determine.” A-copious note fully vindicates the text. Again (section 187) he says: ‘ ‘ In connection with the power of the legislature to create municipal corporations and to determine their territo rial extent, reference may be made to the division of toions or public corporations by legislative act or authority. There is no restriction on the general power, unless it be found in the constitution of the State. In case of division, the legislature may, as we have already seen, apportion the burden between the two, and determine the px-oportion to be borne by each. In Connecticut, ‘ the legislature,’ says the supreme court, ‘ have immemorially exercised the power of dividing towns at its pleasure, and, upon such division, apportioning the common property and common burdens in such manner as to it shall seem reasonable and equitable.’ Accordingly it may impose on one town, upon such division, the entire expense of erecting and maintaining a bridge across a river which is the dividing line between the two towns.” And again, in section 188: “ So it has been frequently held that if a new corporation is created out of the territory of an old corporation, or if part of its territory or inhabitants is annexed to another corporation, unless some provision is made in the act respecting the property and existing liabilities of the old corporation, the latter will be entitled to all the property, and he solely answerable for all the liabilities.” In further elucidation of this rule, we quote section 189: ‘ ‘ But upon the division of the old corporation, and the creation of a new corporation out of part of its inhabitants and territory,-or upon the annexation of part to another corporation, the legislature may provide for an equitable appropriation or division of the property, aixd impose upon the new corporation, or upon the people and territory thus disannexed, the obligation to pay an equitable proportion of the corporate debts. The charters and constituent acts of public and municipal corporations are not, as we have before seen, contracts, and they may be changed at the pleasure of.. the legislature, subject oxxly to the restraints of special constitutional provisions, if any there be. And it is an ordinary exercise of the legislative dominion over such corporations to provide for their enlargement or division, and, incidental to this, to apportion their property, and to direct the manner in which their debts or liabilities shall be met, and by whom. The opinion has been expressed that the partition of the property must be made at the time of the division of or- change in the corporation, since otherwise the old corporation becomes, .under the rule just before stated, the sole owner of the property, and hence cannot be deprived of it by a subsequent act of the legislature. But, in the absence of special constitutional limitations upon the legislature, this view cannot, perhaps, be maintained, as it is inconsistent with the necessary supremacy of the legislature over all its corporate and unincorporate bodies, divisions, and parts, and with several well-considered adjudications.” See, also, Township of Springwells v. Wayne County Treasurer, 58 Mich. 240 (25 N. W. 329), which impliedly recognizes this rule. See, also, Perrizo v. Kesler, supra, where Morse, C. J., explicitly concedes this power to the legislature in a school-district case. Whatever we may think of the justice of this act (and we cannot say that the situation was not fully known and discussed by the legislature), we cannot doubt the legislative authority to change these districts, and provide for the disposal of their property and payment of their debts, as was done in this case. The law is said to fix the site of a school building. This is not usual, but we are not convinced that it is beyond the power of the legislature to locate its schoolhouses, courthouses, and almshouses. No authority is cited to the contrary, and, without deciding the question, we may say that the sites alluded to had already been located, and one built upon, by the districts. In saying that these should be deemed to be, respectively, a schoolhouse site and the central schoolhouse for the new district, the legislature, if it had not the power to fix beyond revocation such sites, can easily be held to have made a provision which was directory merely, and, whatever we may think of their power in the premises, no one would claim that it was designed to forbid future action by the board, and we might safely eliminate the provision, if necessary to sustain the act, in accordance with a common and well-understood rule. But it.is said that some of the territory was left out of the new district, and that the legislature fixed definitely what should be done with it, and appointed the officers who should attach it to new districts. I£ this opinion is correct upon the first point discussed, it cannot be doubted that the legislature might itself have attached this territory to specific districts. This it did not do, but attempted to confide the subject to the township school inspectors. This was the board authorized to deal with such questions, and had been elected by the township for such purposes. This cannot be said to be an appointment by the legislature, within the case of Moreland v. Millen, 126 Mich. 381 (85 N. W. 882). The further objection is made upon the ground that the officers were named by the legislature, and their terms fixed at one, two, and three years, respectively. We understand that four of these have been superseded by 'Successors duly elected. Presumably, two still hold their offices, and, if the legislature had not the power to appoint them, the district should have filled them under the general law. We are of the opinion that the Constitution refers to school districts as they existed under our previous Constitution and laws, and that it was expected that they would be managed by local officers, and therefore that the rule laid down in Moreland v. Millen applies as to .officers. The officers were named by the legislature for unnecessarily long terms, even if it be supposed that the appointments were intended to be provisional. Under the general law, the offices might have been filled, and may be yet. We understand from counsel, though the record does not appear to so state, that only four of respondents do not now hold under such appointment, if they are still acting as officers. The other two unlawfully hold the office, but we have no means of telling which ones of the six they are. Perhaps this is not important, as the attack seems aimed at the legislation, rather than the appointees. The other two points need little discussion. We have so often discussed titles to acts that the law is pretty well understood; and we therefore content ourselves with say ing that, in onr opinion, this title does not indicate more than one purpose, which is to give school facilities to all of the territory mentioned, under changed conditions. Nor do we think the act broader than the title. We have already shown that the obligation of contracts is not impaired. The districts did not hold this property' under any contract with the State, but as a public agency. The judgment of ouster should be affirmed as to such officers as now hold under the legislative appointment, if there be any thus holding. As to others, if any, it will be reversed. Neither party will recover costs. Montgomery, J., concurred with Hooker, O. J.

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Montgomery, J. The plaintiff recovered a judgment of $300 in an action against the defendant based upon the defendant’s failure to keep a certain highway in a condition reasonably safe for-travel. The testimony tended to show that the highway in question, on the west side of Black Lake in defendant township, consisted, in one portion of its length, of a corduroy way some 30 to 40 rods in extent; that the plaintiff had occasion to go to the farm of one John Grant to get some hay, which he had contracted for; that the usually traveled way was the one in ques tion; that he started out two teams in charge of drivers, and that he himself followed with a single driving horse. The testimony further tended to show that the corduroy was not in good condition, and that, while crossing this portion of the road, the plaintiff’s driving horse stepped on a rotten piece of corduroy, and broke through, receiving injuries. Plaintiff repaired this place in the corduroy, and proceeded to the residence of Mr. Grant, caused the hay to be loaded, and started the teams in charge of the drivers homeward, cautioning the drivers to use care in crossing the corduroy. In crossing, one of the teams passed safely, but the other broke through. There was another road on the opposite side of the lake, but it was a much longer route, and there was some testimony to the effect that a bridge on this road was out of repair. Plaintiff testified as follows as to his knowledge of the condition of the road: “This road is a pretty bad piece of road. The corduroy is dangerous to drive over. I can’t say that I ever drove over it when I considered it was not dangerous. I had not driven over it that summer since the snow went off. I told my men to be careful. I found enough to warrant me in telling them. I went down to look after the men, to see if they got through all right, and, if anything happened, to help them out. I told them to be careful on the corduroy when they started from home. “ Q. What did you say to them ? “A. Why, I told them to be careful in going over, and they would get over all right, Other teams had done the same, and I supposed I could, and charged them to be careful expressly on the corduroy. “ Q. You knew there was a poor road there, didn’t you? “A. Yes, but what difference would that make to me? How could I help it ? “ Q. ■ Then you was a little °kittish about that highway? You stopped, and tied your horse, and went to help these other teams; is that the idea ? “A. No, I tied the horse, and followed them along, so that, if anything happened, I would be there to help them. “ Q. Why did you do that ? • “A. Why, I knew it wasn’t altogether right. I knew that there might be a chance to get them horses in. I just tied my horse there, because, if one of the teams got hurt, I didn’t want to get out and in again. I knew that there was a better chance of them getting in than her. ‘ ‘ Q. The first team got over all right ? “A. Yes.” At the close of the plaintiff’s case, an amendment to' the declaration was permitted in the statement of the number of the town and range. Plaintiff recovered for the injury to the driving horse, and also for the injury to the team. Two questions are raised by this appeal: First, was the amendment properly permitted ? and, second, was the plaintiff guilty of contributory negligence, as a matter of law, in attempting to pass over the way ? The amendment was properly allowed, as the declaration on its face showed that the attempt was to describe a highway in the defendant township, and the misstatement of the town and range was a clerical error, which could not have misled the defendant. We are not prepared to hold that the knowledge which the plaintiff possessed that this highway was in general in a dangerous condition precluded him from the right to attempt to pass over it, using care for that purpose. He knew that the highway was in constant use; that others were daily using it. And while he knew that it was not in perfect condition, we are not prepared to say that he must be held bound to have anticipated the exact danger encountered. There are cases in which one knowing of the existence of a hole in the way, or a particular defect, stepping into which would necessarily result in injury, has been held guilty of negligence in walking into such danger. In such cases the exact danger is known and assumed. Such cases are Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868); Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844); King v. Township of Colon, 125 Mich. 511 (84 N. W. 1077). But the true test is, Was the danger arising from the kndwn defect obvi ously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the highway at that point ? If not, it is not negligence, as matter of law, for one to attempt to pass over a highway known to be defective. Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Laughlin v. Railway Co., 62 Mich. 220 (28 N. W. 873); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7). See, also, 15 Am. & Eng. Enc. Law (2d Ed.), 470. Had there been an accessible way to drive around this corduroy, or to turn the team out to pass it, the case might have been different. We think it was not error to submit the case to the jury. Judgment affirmed. Hooker, O. J., Moore and Grant, JJ., concurred.

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Montgomery, J. This is an action of replevin for a quantity of coal, which was seized by the defendant, as marshal of the city of Gladstone, for a personal tax that had been assessed upon the roll of that city for the year 1900. The assessment is made to “J. M. Beattie, agent for the Pioneer Fuel Company.” The tax extended is $964.58. As the case stood at the close of the testimony, there was, in addition to the facts of the assessment and the seizure by the marshal, evidence that the coal, which was assessed in the manner above stated, was not the property of the plaintiff, but was the property of the Erie Railroad Company; that it was stored at Gladstone; that from time to time shipments were made from it, under a contract, to parties resident of Minnesota; but that shipments from this mass of coal were also made to residents of Michigan. At the close of the testimony, the circuit judge directed a verdict for the defendant for the amount of the tax, with interest. The plaintiff, by this appeal, presents four- questions: It is contended — First, that the marshal had no authority to make the levy, the warrant being directed to the city treasurer; second, that the property was not assessed to the plaintiff, but to Beattie, and •that the process is not process against the present plaintiff, but against Beattie, and that plaintiff’s property cannot, therefore, be seized; third, that the procedure under the tax law, being directed against the property of the plaintiff, who is a nonresident, and claims not to be the owner of the property assessed, is not due process of law; and, fourth, that the coal assessed was in transit, and the subject of interstate commerce. As to the first question, it is conceded by plaintiff that, if the amendment incorporated by'Act No. 349 of the Local Acts of 1897, which purports to authorize the marshal to collect taxes, is legal, the proceedings are regular. Without discussing at length the criticism made upon this enactment, it will suffice to say that the act is not unconstitutional for the reasons urged, and that authority for this holding will be found in People v. Judge of Superior Court of Grand Rapids, 39 Mich. 195, Fort-St. Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631), and Common Council of Detroit v. Schmid, 128 Mich. 379 (87 N. W. 383). Under the showing made, we think, also, that the point that the assessment of this property is an interference with interstate commerce is without force. It appears that from this mass of coal shipments were being made to cities within the State, and, as the circuit judge rightly held, if any portion of the coal was assessable in the city of Gladstone, this action will not lie. The question remains whether, under an assessment in form such as this, property of the present plaintiff could be seized, where the property assessed was not the property seized, and not the property of the present plaintiff. It is conceded in the brief of plaintiff’s counsel that, had the property actually assessed been seized, it would be immaterial in what name it was assessed. But it is contended that, the plaintiff being a nonresident of the State, and not in fact owning any property subject to the jurisdiction of the taxing officers, it is not due process of law against this plaintiff to assess property of a third party to plaintiff’s assumed agent, and then subject the plaintiff’s own property to the payment of the tax. 1 Comp. Laws, § 3837, provides for the assessment of property, under circumstances such as those existing in the present case, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse. Section 24 of the tax law (Id. § 3847) provides that assessments to one other than the owner shall show in what capacity it is assessed to him; and, as we held in Spanish River Lumber Co. v. City of Bay City, 113 Mich. 181 (71 N. W. 595), this section does not limit the authority conferred upon the assessing officer by section 3837, to assess property to the person having control. It is very clear that, under the authorities, the assessment to the person having control makes such.person personally responsible for the tax. See Forster v. Brown, 119 Mich. 86 (77 N. W. 646); Spanish River Lumber Co. v. City of Bay City, 113 Mich. 181 (71 N, W. 595); Township of Orion v. Axford, 112 Mich. 179 (70 N. W. 417); Minneapolis & Northern Elevator Co. v. Traill County, (N. Dak.) 82 N. W. 727, 50 L. R. A. 266; Lockwood v. Johnson, 106 Ill. 334. This tax was, therefore, a valid tax against Mr. Beattie. Was it also a valid tax against the plaintiff? To determine this, we may ask, Against whom should suit have been brought to recover the tax? If brought against Beattie, we .think he could not have defended successfully upon the ground that he was described in the assessment as the agent of the Pioneer Fuel Company, if, as a matter of fact, he was the person having control of the property, as must be assumed from the assessment. We think it could not be said, therefore, that it was an assessment against the Pioneer Fuel Company, which would entitle the municipality to bring suit to recover the tax. Reliance is had upon section 99 of the tax law (1 Comp. Laws, § 3922), which provides that no tax shall be held invalid on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, etc. This curative provision might be urged if the property assessed were that in con troversy in the case, or, possibly, if the .plaintiff were shown to be the actual owner of the property assessed. But neither of these facts is conceded on the present record. For a discussion of the question of when replevin will lie for property seized under a tax warrant, see Forster v. Brown, 119 Mich. 86 (77 N. W. 646). We think the present case comes within the line of cases there discussed, in which the property of plaintiff has been seized for a tax assessed against a third party. It follows, from the views expressed, that the judgment of the circuit court must be reversed, and a new trial ordered. ' Hooker, C. J., Moore and Grant, JJ., concurred.

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Per Curiam. Lee Mills, a juvenile offender, was sentenced to the “reform school” at Lansing upon his plea ■of guilty. The record indicates that the statute (1 Comp. Laws, § 2261) requires a report from the county agent to be made after the arrest and before further proceedings. That said report must be in writing is clear, for the reason that the law provides that it shall be attached to the commitment if the offender is sentenced to imprisonment. As the commitment is dated October 16, 1901, while the report attached is dated five days later, it is manifest that the-statute was not complied with. The prisoner is therefore discharged.

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Grant, J. Respondent was convicted of resisting an officer. The treasurer of the village of Benzonia, in July, 1901, by virtue of his tax roll and warrant, levied upon certain personal property as the property of Otis Smith for a tax levied against him. While in the act of removing it, the respondent interfered, and resisted the officer. Two defenses were interposed: 1. That the property seized belonged to respondent, although in the possession of Otis Smith, and he offered to show ownership in himself. 2. The illegality of the organization of the village of Benzonia. Both defenses were ruled out, and respondent was convicted. Upon the first point counsel for respondent relies upon People v. Clements, 68 Mich. 655 (36 N. W. 792, 13 Am. St. Rep. 373). In that case a sheriff levied u'pon exempt property, and it was held that the debtor was not compelled to submit to a trespass without reasonable resistance. That case does not apply to property not exempt, and which is seized by virtue of a tax' warrant, and the officer has already seized and is in possession of the property. The treasurer in this case loaded the property, and was in the public highway in the act of removing it, when the repondent forcibly interfered. Under Sears v. Cottrell, 5 Mich. 251, the levy was lawful. The village of Benzonia was organized by an act of the legislature in 1899. Its organization cannot now be collaterally attacked. Carleton v. People, 10 Mich. 250, 255; Coe v. Gregory, 53 Mich. 19 (18 N. W. 541). Conviction affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.

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Moore, J. This is an appeal from an order of the probate court approving the findings of a jury in condemnation proceedings brought under the provisions of 2 Comp. Laws, §§ 6361-6366, inclusive. The petition averred that petitioner was a body corporate organized under Act No. 244, Pub. Acts 1881; that its capital stock had been subscribed as required by the act; that it had surveyed its depot grounds and the route of its proposed tracks, made a map, etc., and filed it in the register’s office. “Your petitioner further shows that the lands and properties hereinafter described are required and necessary for the purpose of its incorporation, and that the taking thereof is necessary for public use, to wit, for the purpose of your petitioner’s incorporation in constructing, operating, and maintaining its said railway freight and passenger depots, with the necessary railroad tracks, dock and wharf properties, and the appurtenances thereto, and as and for a right of way; that under this petition the said Benton Harbor Terminal Railway Company seeks to acquire title as and for a right of way, by special proceedings under the statute of the State of Michigan in such cases made and provided, to the following described pieces or parcels of land, situated in the county of Berrien and State of Michigan.” Then followed a description of nine different parcels of land, with a statement as to who owned them, respectively, .with a further statement that the petitioner had been unable to acquire title to the lands, and asking for the appointment of commissioners “to ascertain and determine the necessity for taking and using each of said parcels of land, and all of said land, by your petitioner, for the purpose aforesaid, and, if they deem the same necessary to be taken for the purpose aforesaid, to ascertain and determine the damage or compensation which ought justly to be paid by your petitioner to the several parties interested therein, and to each of them, in manner and form as required by law.” An order was made by the court, which was served upon all the respondents. On September 20, 1901, Weldon Bros, entered their appearance for Charles W. Hall. Gore & Harvey entered their appearance for Alexander C. King and Julia King, William S. Dunbar and Alice T. Dunbar, and William Hamilton, Angelina G. Hamilton, and Theodore W. Hamilton. Motion on behalf of all the respondents was made to dismiss the proceedings because : “1. The petition is filed under an act to authorize the incorporation of companies for the construction of union railroad stations and depots, with the necessary connecting tracks, and. the management of the same (Act No. 244, Pub. Acts 1881, approved June 9th); and said petition fails to show that it is filed on behalf of any company or companies whose existence and business render the condemnation of lands necessary for the purposes stated in said act. “2. Said petitioner, as incorporated, is not entitled to the lands prayed for in its said petition, for the reason that the property sought to be condemned is not for ‘union railroad stations and depots,’ but it affirmatively appears to be for general railroad purposes, as stated in paragraph 4 thereof.” Motion to dismiss proceedings was denied. Answer of Chai'les W. Hall was filed. Mr. Hall demanded a jury," and one was summoned. After the jury was sworn, Mr. Hall demanded a separate trial, which was denied. After the jury was sworn, the following occurred: V. M. Gore, one of the attorneys for the respondents, demanded of said jury that the testimony be taken in writing, and that a stenographer be employed to take the testimony offered in the case. The court thereupon instructed the jury that a stenographer was not necessary, unless they desired the services of such stenographer, and the jury could take such testimony themselves as they wished. Mr. Gore excepted to the remarks of the court. No further action on this matter was taken. The jury were then provided with paper for the purpose of making such notations as they desired. Several witnesses were sworn upon the part of petitioner. The attorneys expressed a desire that the jurors visit the premises. They did so. After viewing the premises, three witnesses were sworn on behalf of the petitioner. Several witnesses were sworn upon the part of the respondents. On convening at 1:30, the jury expressed a desire to hear no more testimony, unless the parties had proofs on new points. Mr. Gore remarked they would offer no more testimony, as they did not wish to offer testimony unless the jury desired to hear it. The court asked Mr. Gore if he desired the respondents King or Dunbar to tes tify. Mr. Gore replied he did not. Mr. Weldon desired to introduce further proofs, and the following-named witnesses were sworn and testified on behalf of the respondent Charles W. Hall: Seeley McCord, J. N. Norrington, and F. E. Avery. Testimony then closed. The jury'declined to hear arguments of counsel. A vote of the jury was then taken by the court, which resulted in a unanimous vote declining to hear arguments of counsel. The jury were then instructed by the court that it was their duty first to find whether it was necessary to take the private property described in the petition in this cause for the use and benefit of the public for the proposed public improvement, and, if they found that the taking of this property was necessary, they should make a return to the court in writing that the taking of the property was nec-. essary, and fixing the compensation and damages to be paid to the persons owning such property for the property taken for this purpose described in the petition. The jury then retired to a private room in charge of Martin Dwan, deputy sheriff. At 11 o’clock p. m. the jury rendered their verdict in writing, signed by all of said jurors, finding said proposed public improvement to be necessary, and awarded the compensation to be paid for such property as therein described as follows: William Hamilton, Angelina G. Hamilton, Theodore W. Hamilton, $850; Alexander C. King, Julia King, $150; Charles W. Hall, $450; William S. Dunbar, Alice T. Dunbar, $150. The Hamiltons did not appeal. The others did. The three cases involve practically the same questions. It is said: “1. The respondents were denied their rights and greatly prejudiced by the refusal of the jury to take the proceedings in writing, as' required by law, upon request of the respondents. “2. The respondents were prejudiced by the jurors proceeding to hear all the testimony concerning the several tracts of land jointly, and rendering one finding thereon, instead of obeying the statute, and determining the necessity for taking each parcel separately. “3. There was no evidence of public necessity for taking the said lands. “4. It nowhere appears in the record that the jurors were residents of the county of Berrien. “ S. The jury refused to hear the arguments of counsel, and the jury determined the question of public necessity and the important question of damages without any instructions from the court or counsel with reference to the elements of damage the jurors should take into consideration in such case.” The record shows the request was not simply that the testimony be taken in writing, but was coupled with a request that a stenographer be employed. When the jury were told by the judge that a stenographer was not necessary unless the jury desired it, counsel did not then request that the testimony be taken in writing, but appeared to acquiesce in letting the matter pass. There is nothing in the statute which requires the jury to employ a stenographer ; and it is not made to appear that the jury refused to have the testimony reduced to writing. As to the action of the jury in hearing testimony as to the several descriptions of land, the jury followed the requirements of section 6363. As to the third objection, the testimony is not all before us, and we cannot say there was no evidence that there was a public necessity to take the land. As to the suggestion that the record does not show that the jurors were residents of Berrien county, that objection was not made in the court below, but the parties appeared and took part in the trial. If in fact the jurors had not been residents of Berrien county, it is altogether likely the objection would have been made before the trial proceeded. It is too late to raise that question now. As to the suggestion that counsel had a right to be heard by the jury before they rendered their verdict: The jury had viewed the premises, and had listened to such testimony as the parties presented. It does not appear that the respondents insisted upon the right to be heard by counsel. The record does show that considerable tes timony was taken after 7:30 o’clock in the evening, and the verdict of the jury was rendered.at 11 o’clock at night. There is nothing in the record to show that, if counsel had insisted upon being heard, the jury would have refused to hear them. We are not called upon to say whether, under the statute, it would be error for the jury, after they have viewed the premises and listened to the witnesses, to refuse to hear counsel when counsel insist upon being heard. The record discloses an attempt to comply with all the essential provisions of the statute, and we think there was such compliance. Fort-Street Union Depot Co. v. Jones, 83 Mich. 415 (47 N. W. 349), and cases there cited. The judgment is affirmed. Hooker, C. J., Grant and Montgomery, JJ., concurred.

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Montgomery, J. The plaintiff is a Michigan corporation, with headquarters at Adrian, incorporated for the purpose of “the buying, selling, and merchandising of cheese, all kinds of meats, fruits, vegetables, canned goods, groceries, oysters, and all kinds of fish and provisions.” The defendant is likewise a Michigan corporation, incorporated for “ the buying and selling of live stock, the slaughtering, packing, and selling the same, both at wholesale and retail, the rendering of fats, and dealing in all kinds of meats, both salt and fresh, and pork and beef .products, and transacting all business incidental thereto.” Beginning in 189?, an account appeared upon the books of defendant company headed “Da Z. Mason,” and was opened under the following circumstances, as testified to by Mr. Craig, defendant’s manager: “In 189? Mason was at our office at one time, and he wanted to buy some lard in Chicago, and said that he wasn’t acquainted with any commission firm over there, and wanted to know if we could accommodate him by buying some goods for them; and I explained to him how the commissions were. I told him that they would buy and sell for 6.25; that they usually charged 6.25 for buying, and 6.25 for selling. I told him I could save him a little that way, and that we would be glad to accommodate him. Nothing was said at that time about the name in which the account should be carried. I told him my brokers over in Chicago were Hately Bros. * * * We sent money for Clark, Mason & Co. before they gave it to us, because we had guaranteed to Hately Bros, the account of A. Hayward, our traveling salesman, in whose name these deals were made; and therefore we were responsible, in a way, for that money, and we had to send it as soon as called for. I talked with Mason about it. I had told him previously that when we were called on for money he must send it as soon as it was called for, and he didn’t always do it. * * * When the $200 came in, I" didn’t know exactly what to do. I had to make some entry to keep a record of it. I didn’t want to put it into Clark, Mason & Co.’s 30-day business, and so, as a memorandum, I put it right under their account, and opened it, ‘Account of Ira Z. Mason,’ so as not to get it mixed up with the regular 30-day business; and I gave them credit for the $200 there, and charged them with the $500 sent to Chicago. There was no credit business in Chicago; it was all cash. I remitted to Chicago all the moneys that were sent from Adrian, — to Hately Bros. * * * Mr. Hayward was one of our traveling salesmen, and we had guaranteed his account with Hately; and we didn’t want to guarantee Clark, Mason & Co.’s account, and we didn’t want to have it mixed up with our own business. . We were dealing ¡with Hately, and we put it that way so as to keep it separate and distinct, so that it could be traced,— not mixed up with our business. Mr. Mason was informed of that. He knew it was in the name of Hayward when he came in the next time.” This commission business continued during the years 1897 and 1898, and until November, 1899. During a considerable portion of this period remittances were made by the checks of Clark, Mason & Co. There was testimony tending to show that the transaction was a transaction on behalf of Mason, although the defendant’s testimony controverted this; and the plaintiff sued to recover upon the grounds: First, that the dealings were the personal transactions of Mason; that, without authority to do so, he used the plaintiff’s money; and that the fact that checks were drawn on the bank account of Clark, Mason & Co. was sufficient notice to put the defendant upon inquiry; and, second, that, if the transactions were not the personal transactions of Mason, they were gambling transactions, in which Clark, Mason & Co. did not, nor did Parker, Webb & Co., intend any actual sale or purchase, nor any actual receiving or delivery, of the lard, but both intended that accounts should be settled by the payment of differences, according as the market price of lard might rise or fall. The court below left it to the jury to determine whether or not these transactions were those of Mason individually, or of Clark, Mason & Co.; but complaint is made of the instructions given to the jury as to the plaintiff’s rights in case the jury should find that the deals were the personal deals of Mason. The defendant, in this court, contends that in no view of the case was the plaintiff entitled to recover against the defendant. A careful examination of the record leads us to the conclusion that this contention is sound. The testimony of the directors is that no such business as that attempted to be transacted was authorized by the board of directors of Parker, Webb & Co. It is also in evidence, and, so far as we discover, undisputed, that a majority of the directors remained in ignorance of these transactions until after they were closed. It is to be noted that the plaintiff was not misled in any way 'by an appearance of authority on the part of those connected with the business. We think it is manifest that no authority in fact existed. The defendant company was not organized to act as a gratuitous agent. It appears that the attempted services which Mr. Craig undertook to render for Mason, or for the plaintiff, were entirely gratuitous, and rendered as an accommodation. Neither the articles of incorporation nor any authority of the board of directors conferred upon him this power. The company was the mere conduit through which these funds were transmitted. No benefit whatever inured to the defendant company. While, if the money had remained in the hands of defendant, it might be recoverable, the mere fact that it passed through its hands does not entitle the plaintiff, to an action for money had and received. See Wixson v. Haywood, 33 Mich. 68. The case presents a very different aspect than it would had the dealings been for the ostensible benefit of the defendant corporation. But the party representing the plaintiff, or acting on its behalf, was in no way misled by any apparent authority of Craig. He knew that the transaction was not engaged in in the interest or on behalf -of the defendant company, or, at most, with any idea of profit to the company, but that it was solely for the benefit of either himself or the corporation which he represented. Under such circumstances, the same - considerations which would deny to defendant the right to assert that the plaintiff’s agent, Mason, was acting within the line of his authority, entitled the defendant to assert that Craig was acting without authority from his board of directors. See Shavalier v. Lumber Co., 128 Mich. 230 (87 N. W. 212); Merchants’ Nat. Bank v. Detroit Knitting & Corset Works, 68 Mich. 620 (36 N. W. 696); Rice v. Peninsular Club, 52 Mich. 87 (17 N. W. 708); 7 Am. & Eng. Enc. Law (2d Ed.), 790, and cases cited. We think the case should have been determined upon the ground that the contract was wholly ultra vires, so far as the defendant corporation was concerned, and that, as no benefit accrued to that company, no recovery should be had. Judgment affirmed. Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.

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Hooker, C. J. The plaintiff, a married woman, recovered a verdict and judgment of $750 against the defendant village by way of recompense for an injury suffered through a fall occasioned by a loose board in a sidewalk. The defendant has appealed. The accident is said to have happened in the evening after dark. She was walking with two of her children, when she was tripped by the board, which flew up in front of her as one of the children stepped upon its end, outside of the stringer. There was evidence tending to show that the walk was old, and that the boards had been loose for a long time. The plaintiff testified that she knew that the boards in the walk were accustomed to rattle as they were walked upon. Several witnesses were examined, and testified in relation to the walk, and error is alleged upon the ground that this testimony was not confined to the place of the accident, and that it was not properly restricted in point of time. The accident happened near an alley, and the testimony referred to a board walk in front of a lot owned by McKay, upon which the woman fell. It was plaintiff’s theory that the stringers were rotten, and did not hold nails well, and it was competent to show the general character and condition of that walk. Campbell v. City of Kalamazoo, 80 Mich. 660 (45 N. W. 652); O’Neil v. Village of West Branch, 81 Mich. 546 (45 N. W. 1023); Fuller v. City of Jackson, 92 Mich. 205 (52 N. W. 1075); Grattan v. Village of Williamston, 116 Mich. 463 (74 N. W. 668). Witness Congdon was asked to state the condition of the walk, and replied that he did not think it good. He proceeded to describe it. Mrs. Clifton answered a similar question by saying that it appeared to be in bad condition. Plaintiff’s counsel at once admonished her that her answer was not proper, and asked her to state the shape that it was in. Both questions were objected to when asked, and an exception was taken to the answer given by Mrs. Clifton. It is obvious that, if the witnesses gave opinions of the condition of the walk, they were not asked to do so, and counsel could not well have prevented it. It was corrected at once, and should not be made a ground for a reversal of the case. One Gillum testified that he repaired the walk a short time before the accident, and it is insisted that this made testimony regarding its previous condition immaterial. He was called by the plaintiff, and testified that he was street commissioner; that he found this walk in front of McKay’s premises in bad condition, the stringers gone,— rotted out; that he could not nail through and get the boards to stay down; that he reported that condition to the council; and that he was directed to take stuff and patch it up. He visited the place and nailed the board in. The stringer was so that it wouldn’t hold the nails; and he said that he “kind of toe-nailed them crossways to the other boards.” That the council had notice of the defective condition of this walk, if Gillum’s testimony is true, admits of no doubt. Their duty was then to put it in a condition reasonably safe and fit for travel. That duty was not discharged by sending a man to repair it. It was therefore for the jury to determine whether the repairs made by Gillum were such as to render the walk reasonably safe and fit for travel. Counsel beg the question when they ask us to assume that Gillum’s repairs were adequate because his statement that he made repairs is not directly contradicted. We think no error was committed in admitting the depositions. No exceptions were taken to one, and the condition upon which the other was to be read was complied with. There was prima facie proof that the witness could not attend court, and no attempt was made to contradict it, except by the unsworn statement of counsel. The hypothetical question objected to is not open to the objection made, as there was testimony which warranted it. Moreover, the objection, when made, was very general, and did not point out what facts were assumed by the question. A piece of wood was offered upon the claim that it was a part of the stringer of the walk. It was not claimed that it came from the exact spot where the accident occurred, but that it was a part of the stringer in immediate proximity. It was said to have been taken from the walk after it had been taken up. We think the testimony was competent. It is unnecessary to discuss the questions raised upon the testimony of witnesses Potts and Shockley, further than to say that, if the questions asked the former were improper, they elicited no harmful testimony, and it was within the discretion of the circuit judge to permit questions tending to show Shockley’s interest as a taxpayer. A number of errors assigned relate to the charge. Counsel asked that the jury be instructed that the plaintiff was guilty of contributory negligence and could not re cover. We think that this was a question for the jury. A way might be in condition which would justify a court in saying that it was negligent to attempt to walk upon it; but that cannot be said of all highways that are out of repair, or that are not reasonably safe and fit for travel. They afford the only avenue for locomotion from place to place, and the exigencies of life are such that persons may go upon highways, though not in perfect condition, using reasonable prudence and care under the circumstances. Usually these questions are for the jury, as it was in this case. Mackie v. City of West Bay City, 106 Mich. 242 (64 N. W. 25); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517). Other cases are also cited by counsel. It was proper to leave the question of the extent of the plaintiff’s in jury to the jury, although the physician called to see her did testify that her injury was trivial. We think the court did not err in refusing to give the requests of counsel. Some of them have been covered by what has been said, and of others it is sufficient to say that the charge as given covered their substance. We think it was competent for the jury to award damages for plaintiff’s expenditures in and about her sickness, and she was under no obligation to this defendant not to compensate her nurse merely because she had made no charge, and she is not compelled to lose her damages of any kind merely because she does not prove the amount with mathematical precision and certainty. The circumstances being laid before the jury, they ascertain the amount that it is reasonable to believe will be compensatory. The court said to the jury that “fright and suspense may be treated as elements of damage.” If there was no direct proof of fear as to the consequences, and suspense, they are readily inferable from the circumstances, and. it was not error to leave these questions to the jury. The statement of the plaintiff immediately after her fall was properly treated as a part of the res gestee; and, if this accident happened after dark, there was no error in stating to the jury that it is the duty of the village to keep its sidewalks in a condition reasonably safe and fit for travel by night as well as by day. There is proof that the accident occurred after 5 o’clock on the evening of December 19th, and that it was after dark. It was therefore proper to instruct the jury upon that theory. The motion for new trial was passed upon by the circuit judge, and we think his order denying it should not be disturbed. The judgment is affirmed, Moore, Grant, and Montgomery, JJ., concurred. Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 13 Am. St. Rep. 457); Fuller v. City of Jackson, 82 Mich. 480 (46 N. W. 721); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 35 Am. St. Rep. 561); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7); Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).

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Marston, J: Plaintiffs in error, as co-partners, engaged in the business of banking, on the 22d of October, 18?3, issued a certificate, of which the following is a copy: “Certificate of deposit. Not subject to check, and no interest.” “$800. S. A. Tripp & Co., Bankers, 1 “South Haven, Mich., Oct. 22, 1873. j “Daniel Howard has deposited in this bank eight hundred dollars, payable to the order of himself, in current funds, on the return of this certificate properly endorsed. “No. 265. $800. “S. A. Tripp & Co.” Howard endorsed this certificate and transferred it to B. H. Dyckman, who, being indebted to the defendants in error, bankers at Kalamazoo, delivered to them this certificate to apply upon his indebtedness, shortly prior to February 14, 1876. The certificate was presented for payment February 14th, 1876, and payment refused, and an action was commenced March 10th following to recover the amount thereof. Hpon the trial counsel for plaintiffs in error offered to prove that four hundred and sixty-two dollars and six cents had been paid upon this certificate at or about the time it was issued, leaving a balance which had afterwards been tendered to Dyckman while he held it, and since then paid into court. This evidence was objected to, principally upon the ground that the plaintiffs below were hona fide holders. The objection was sustained and judgment rendered for the whole amount of the certificate. In Cate v. Patterson, 25 Mich., 191, it was held that a certificate of deposit, similar to the one issued in this case, contained all the elements necessary to constitute, and was in legal effect a promissory note, and such is the undoubted weight of authority, as will appear from the cases collected and cited in the brief for plaintiffs in error. This being the case, it is difficult to see .why the principles applicable to promissory notes, payable on demand, should not apply to this class of paper. It is but a promise to pay money on demand, without interest, which indicates an intention to leave it on deposit but for a short period. It is argued that a certificate of deposit and a certified cheek are in legal sense the same thing, are governed by the same rules, and that no mere lapse of time will render such check or certificate' past due or dishonored. The authorities cited to sustain this view are Willets v. Phœnix Bank, 2 Duer, 121; F. & M. Bank v. B. & D. Bank, 4 Kern., 624; Smith v. Miller, 43 N. Y., 176; Meads v. Merchants’ Bank, 25 N. Y., 147; Merchants’ Bank v. State Bank, 10 Wall, 648; and Girard Bank v. Bank of Penn, 39 Penn. St., 92. In these cases the court in discussing the legal qualities and effect of a certified check, likened it to a certificate of deposit, and held, that a check, when certified good by a-bank, cannot be dishonored by lapse of time alone; that the bank, when it so certifies a check, at once charges the amount thereof up to the drawer on his account, and that funds are retained from that time by the bank to meet such check. Upon a very careful examination we were able to find but one case where the question came up directly upon a certificate of deposit. In the case of The National Bank of Ft. Edward v. Washington Co. National Bank, 5 Hun, 605, it was held that where a bank issues a certificate of deposit, payable on its return'properly endorsed, it is liable1 thereon to a bona fide holder, to whom it was transferred seven years after its issue, notwithstanding a payment thereof to the original holder; that such a certificate was not dishonored until presented. The reasoning in this case is not very satisfactory, the court laying stress apparently upon the fact that the certificate is payable only upon its return, and also the fact that it was issued by a bank. The first argument is equally applicable to a promissory note. Such paper is properly payable only upon presentation and return, and the mere fact that the instrument is issued by an individual, copartnership or corporation engaged in the banking business, cannot, in our opinion, or at least should not, make any difference. Certificates of deposit are not intended for long circulation, or for more than a temporary convenience, and as a substitute for a draft or a certified check; and to hold that any ostensibly demand paper could be circulated and used as bank bills, would be contrary to the general policy of our banking laws. Bank bills, notes, or other evidences of debt issued by any bank, are excepted from the provisions of our statute relating to the limitation of actions. — § 7151, Q. L. The notes here referred to are the circulating notes,' in the similitude of bank notes, of the different denominations authorized to be issued under our general banking law, and would not include certificates of deposit, — Gomp. L., § 2192j while the other evidences of debt has reference to the ordinary deposits which arer like a running account, on which the time of limitation only begins when there is a special occasion for making a new departure. But upon all demand paper not excepted by the statute, the time runs from the beginning, and no one can become a Iona fide purchaser who does not take it within some reasonably short period. To hold otherwise, would enable banks to issue certificates •of deposit, of any denomination, for circulation as ordinary bank bills, and with' a like effect. In Brummagim v. Tallant, 29 Cal., 503, it was held that the statute of limitations begins to run against a banker’s certificate of deposit, payable on demand, from the ■date of the same, and that no special demand is necessary to put the statute in motion. We think this is the safer and better doctrine, and is correct in principle. To hold such instruments to be in legal effect promissory notes payable on demand, and yet not apply the principles applicable to demand promissory notes, either because of the peculiar form of the instrument, or because issued by a firm engaged in the business of banking, would be to create a distinction unsound in principle and one not warranted by any reason ■or necessity that we can discover. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

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Cooley, Ch. J: This action is brought to recover back four hundred dollars paid in the plaintiff’s name on a contract for the purchase of lands. The contract was entered into April 24, 1875, and purports to be between Jesse C. Widoe as vendor and Henry Armitage as vendee. The purchase price was thirteen thousand dollars, of which three thousand dollars was payable on or before May 10, 1875, and the balance in ten annual installments of one thousand dollars each, with annual interest. Henry Armitage was about seventeen years of age at the date of .the contract, and his name was signed to it by William H. Armitage, his father. The plaintiff, by his own evidence showed that he was ignorant of the contract at the time it was made, and never saw it until after this suit was brought; that he had no money to pay upon it and did pay none; and that his father told him what had been paid on the contract was to be recovered back in his, the son’s, name. The father was sworn as a witness, and testified that he made the contract and paid the money for his son, and that the son afterwards, on being informed of it, assented to what had been done. There is some complaint of refusal or unwillingness on the part of the defendant to perform the contract on his part, and on the contrary he relies upon it as a valid contract, and offers to perform, but the suit appears to be grounded upon the right of an infant to disaffirm his contract and recover back what has been paid upon it. 1. Obviously the first question in the case 'is, how this infant, who had nothing to do with the making of this contract in the first place, has become entitled to any benefit under or because of it. If he has any right at all, it would seem that he must have acquired it in one of three ways; no other being conceivable. These are— 1. By virtue of the contract itself, made in his name, and which, though made without his knowledge, purported to assure to him rights which we may suppose were of value; 2. By the adoption of the act of his father in making the contract; 3. By accepting the contract as a gift from his father. It is not claimed, as we understand it, that by the contract itself, independent of any action afterwards taken, the infant would have had any rights at all. No contract is binding upon any party until he assents to it. Even a deed must be delivered and accepted; and much more must a contract be which contains onerous conditions, and assumes to bind the party to the payment of a large sum of money. Any suggestion therefore, that the contract as made entitled the infant to any rights, may be dismissed from consideration. If when made it was a valid contract in favor of any one as vendee, it must have been in favor of the father, who, having made it in the name of another person without authority, might possibly have been compelled to perform it as his own contract, and been entitled to the benefit of it as hjs own. What rights there may have been by or against him, we need not consider, as they are not involved in this litigation. II. If the contract became that of the infant through the adoption of the act of his father in making it, it must be because the infant has thus retrospectively made the father his agent. This, and this only, must he the force of the adoption; it is giving authority retrospectively, by claiming as his own that which without authority at the time was done in his name. Had the infant in the first place "undertaken to make another his agent to enter into the contract for him, the appointment would not have been valid. On the authorities no rule is clearer than that an infant cannot empower an agent or attorney to act for him.—Whitney v. Dutch, 14 Mass., 457, 460; Lawrence’s Lessee v. McArter, 10 Ohio, 37; Fonda v. Van Horne, 15 Wend., 631, 635; Trueblood v. Trueblood, 8 Ind., 195; Cole v. Pennoyer, 14 Ill., 158; Knox v. Flack, 22 Penn. St., 337; Sadler v. Robinson, 2 Stew. (Ala.), 520; Robbins v. Mount, 4 Robt., N. Y., 553. But if he cannot appoint an agent or attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he could not authorize.—Doe v. Roberts, 16 M. & W., 778, 781; Fonda v. Van Horne, 15 Wend., 631, 636; Trueblood v. Trueblood, supra. It would be extraordinary if a party who has no power to do a particular act could yet do it indirectly by the mere act of adoption. Such a doctrine would deprive the infant wholly of his protection; for one has only to change the order of proceeding, assume to act for the infant first and get his authority afterwards, and the principle of law which denies him the power to give the authority is subverted. But such a doctrine is wholly inadmissible. The protection of infancy is a substantial one, and is not to be put aside and overcome by indirect methods. III. Did the infant become entitled to the contract by the gift of his father? That he did, might perhaps be claimed with some degree of plausibility had the payment made on the contract been the whole or the principal part of the purchase price. But- the payment was in fact insignificant when compared with what remained to be paid. If the infant took the contract, he took it with all its conditions, one of which was the payment of the sum of twelve thousand six hundred dollars in the manner provided for therein. Now there can be no presumption whatever that such a gift was for the benefit of the infant, — and even if he were an adult, acceptance could not be presumed without some express evidence to establish it. In this case, instead of there being evidence that the infant accepts the contract, the suit itself assumes that he rejects it. But treating the act of the father as a gift to his son, how does this entitle the son to demand and receive back the four hundred dollars paid on the contract? This sum never belonged to the son, and there is no pretense that it was ever given to him. The gift was of a right under the contract acquired by means of the payment of this sum. This right is offered to the son, and according to the testimony of the father, he at first accepts it, but then turns around and says in effect: “No, I will not take this right, but I will demand and have what was paid for it.” If he may do this, then what he obtained from his father was not the contract itself, but the right to repudiate the contract. But the right to repudiate a contract is not the subject of gift at all. Besides the father never had it to give. If the contract was valid in his hands, he could not repudiate it, and he mild not empower another to do what he could not do himself. In what has thus far been said, we have not touched upon the authority of the infant to disaffirm a contract of purchase before coming of age. If the contract had become his in any way, it would be, we take it, only a voidable contract, and in Dunton v. Brown, 31 Mich., 182, the right to disaffirm a voidable contract during infancy was denied. But it is enough in this case to show that the infant never became entitled either to the contract or to the moneys paid under it. The judgment must be affirmed, with costs. The other Justices concurred.

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Graves, J: On the 14th of July, 1873, McHugh gave his note to one Eyan for one hundred dollars payable six months after date with interest at ten per cent. A mortgage was given upon a span of horses to secure the note. October SO, 1874, the note and mortgage were transferred by Eyau to Brown, the plaintiff. He was not aware that there was any defense to the note, and he paid full value for it. Soon after he bought it he commenced this suit to recover the amount. The court tried the case without a jury, and the only obstacle to a recovery by Brown was the defense that the note was void under the liquor law in force at the time it was given. The facts reported by the judge on this subject were, that Eyan was a grocer, and that four dollars of the consideration of the note was for “intoxicating liquors” which McHugh had got at Eyan’s store. On the strength of this fact, and this alone, the court found, as a conclusion of law, that the note ivas void. This finding of fact was not sufficient to sanction the defense and lead to the conclusion of law stated by the court. Whether the court might not have gone further and found all the conditions of fact requisite to show upon the face of the record that the item of four dollars was illegal consideration under the liquor law, is not a question to be investigated here. The judgment must find its support in the actual state of facts ascertained and reported by the judge, or fail. No aid can be derived from facts not embodied in the finding; nor can facts of equivocal import be reduced to certainty by conjecture, or a ground of illegality be presumed. The finding should afford the means for its own interpretation and for fixing its own sense, and should be sufficiently distinct and definite to enable the court to decide upon the judgment due. Any clause equally open to two meanings, where one would import or indicate lawful conduct or action, and the other unlawful, should be received in the former sense. Now whether the item of four dollars carried into the note sued on was illegal under the liquor law or not, depended on the character of the liquor. If the “intoxicating liquor” mentioned in the finding was native wine or beer, as permitted under § 19 of the liquor law, and was sold in lawful quantities and as prescribed in that section, then the charge for it was not unlawful and the note was not tainted by it. And there are no facts to show that the liquor belonged to the forbidden class, and was not of the sort tolerated by the provision cited. It is therefore seen that the finding is lacking in facts to maintain the defense of illegality in consideration, and that the judgment given for the defendant upon the assumption of sufficient facts to make the defense good, is not sustained by the finding. The judgment should be reversed, and one entered here in favor of plaintiff in error for one hundred and thirty-seven dollars and seventy-eight cents, and costs of both courts. The other Justices concurred.

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Cooley, Ch. J: This case has twice before been in this court: Montgomery v. Merrill, 18 Mich., 338; Merrill v. Montgomery, 25 Mich., 73. It is an action of ejectment brought for lands which the plaintiff claims under an execution sale on a judgment against the Calhoun County Bank. The defendant is in possession, and though the nature of her claim is not disclosed by this record, it appeared when the case was before us in the first instance that she claimed under proceedings against the bank ante-dating the plaintiff’s judgment. The only questions which the present record brings up are: First, The validity of an amendment made to the record of plaintiff’s judgment in order to show that the court had jurisdiction to render it; and second, whether, if the amendment was not admissible, the facts upon which it was made could be shown on the trial in order to sustain the jurisdiction of the court which rendered the judgment. The charter of the Calhoun County Bank expired in 185?, but by statute the bank was continued in existence for three years longer for the purpose of winding up its concerns. The suit in which the plaintiff obtained his judgment was commenced in 1858, after the bank had ceased to do business. Service of the declaration was made upon persons who, the attorney showed by affidavit, he' was informed and believed were the last president and two of the last directors of the bank. This showing was held insufficient to warrant - such service; a positive showing of facts being requisite when an exceptional service is' to be made.—Merrill v. Montgomery, supra. After the decision to that effect had been made by this court, the plaintiff made an ex parte application in the court below for leave to amend by making the positive showing that should have been made in the first instance, and this was granted August 3, 1875. The showing consisted in affidavits that Sidney Ketchum, one of the parties upon whom service of the declaration was made, was the last president of the bank. That showing, if originally made, would have been sufficient to support the judgment. When the cause went to trial again, this amended record was offered in evidence, objected to and rejected on the ground that the amendment was unwarranted. The plaintiff then offered to show, by affidavits and parol evidence, that Ketchum was in fact the last president of the bank, and he claimed that such a showing would sustain the service on Ketchum and support the action of the court in rendering judgment -upon it. This offer was rejected, and the plaintiff being then unable to support his title, judgment passed against him. Counsel for the plaintiff have been very diligent in collecting cases to show how liberal have been the rulings of the courts in permitting amendments in support of their proceedings and in furtherance of justice. The power to amend is a highly valuable one, and we should not willingly see. it limited beyond what is necessary to keep it within safe bounds. So many errors occur through inadvertence or the carelessness of officers that some power of correction is absolutely essential, and the errors occur under such a variety of circumstances and differ so greatly in the manner in which they affect interests when discovered, that it is not safe to lay down any very strict rules regarding the time and the manner of permitting amendments. Where the record itself furnishes the data for the required amendment, great liberality should be allowed, because the danger of injustice in permitting amendments is very slight.—Emery v. Whitwell, 6 Mich., 474. But where the amendment is to be made on an extrinsic showing, all practicable precautions should be taken- that no one be wronged by the action of the court; and as most facts are susceptible of contradiction, there ought always when practicable to be notice to the party adversely interested, in order that he may have the opportunity to make a counter showing. And the more ancient are the proceedings, the greater is the importance of giving this notice, because the danger of a false showing increases as the distance in time from the facts increases. In Denison v. Smith, 33 Mich., 155, it was decided that a party who would be affected by an amendment of proof of service could not be bound by one which was made ex parte. The right to notice in such cases is affirmed by Mr. Freeman in his treatise on Judgments, § 72, who cites cases in its support. It is also recognized tacitly by the great majority of all the cases cited by the plaintiff’s counsel on the argument, for the amendments sanctioned by them were made on notice and after a hearing. We refer to the following as cases which either expressly affirm the right or tacitly recognize it.—Chichester v. Cande, 3 Cow., 39; Hamilton v. Seitz, 25 Penn. St., 226; Wilkie v. Hall, 15 Conn., 32; Weed v. Weed, 25 Conn., 337; Farmington v. Somersworth, 44 N. H., 589; Den v. Fen, 12 N. J., 321; Hill v. Hoover, 5 Wis., 386; Gillett v. Robbins, 12 Wis., 319; McGlaughlin v. O’Rourke, 12 Iowa, 459; Blaisdell v. Steamboat, 19 Mo., 157; Webster v. Blount, 39 Mo., 500; Jackson v. O. & M. R. R. Co., 15 Ind., 192; Young v. Thompson, 14 Ill., 380; Means v. Means, 42 Ill., 50; Dorsey v. Pierce, 6 Miss., 173; Alexander v. Stewart, 23 Ark., 18. The requirement of notice is only a matter of common right in such cases, for the party is condemned unheard if an amendment is allowed which gives to the proceedings an effect adverse to his interests which they did not have before, without his being allowed the opportunity to dispute and disprove the grounds of the action. In a few cases amendments made on an ex parte showing have been supported, but we cannot regard them as consistent with principle. But it is said that the bank having gone out of existence, there was no one upon whom notice could be served. Whatever force there might be in this excuse in some cases, it could have none under the facts of this case. The amendment was desired for the purpose of controlling this very case, and this defendant was the party to be affected by it. She was the party, and so far as we know the sole party interested adversely to the amendment, and as this was perfectly well known to the plaintiff, the duty to give notice was apparent. This seems to us a fatal defect; we cannot assume that the defendant, if allowed the opportunity, might not have disproved the showing which was made. At any rate she should have been allowed the opportunity. In general such amendments are not suffered to affect rights which third parties may have acquired while the proceedings remained defective,—Freeman on Judgments, § 74; Herman on Executions, 56; but if the defendant’s rights, such as they are, accrued previous to the judgment, probably she would not be within the protection of this principle. Her right to notice, however, is at least as good as would have been the right of the bank if still in existence. Another objection seems to us fatal. The application for leave to amend was not made until seventeen years after the service had been made. If it be urged that the delay in the application was because the defect was not discovered until the case was last in this court, the case is helped but little, for even then there was a delay of three years, which is only excused by showing that the circuit judge had been of counsel in the case and was incompetent to hear an application. But with other circuit judges within easy reach at any time we cannot attach much importance to this fact. The matter had been delayed longer than is now necessary under our laws to bar a right of entry; and it is the party’s misfortune if he has lost rights in consequence. The utmost promptness is required when application is to be made to correct errors in the record.—Rogers v. Rogers, 1 Paige, 188. We think also that the court was right in rejecting the evidence offered by the plaintiff on the trial to show that Sidney Ketchum was in fact the last president of the bank. Jurisdictional facts cannot rest in parol, to be proved in one case and disproved, perhaps, in another. The record must be complete in itself. The judgment must be affirmed, with costs. Campbell and Marston, JJ., concurred. Graves, J., did not sit in this case. ■

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Graves, J: A verdict having been returned by direction of the court against Reynolds, who was plaintiff below, he has brought error. The action was on an alleged agreement of July 18th, 1874, to insure his interest up to three thousand dollars for one year in a steam mill and its appliances, at. Manchester, in Washtenaw county, the property having been destroyed "by fire August 3d, 1874, and no policy having been received by him. He claimed the agreement was made on the part of the company by one Kirchhofer, then its agent at Manchester, and that he paid one hundred and thirty-five dollars as premium. ' The insurance company maintained that, conceding Kirchhofer to have been its agent to take common risks, he had no power to take any of the class of plaintiff’s, and that if he assumed to • agree as alleged, his act was unauthorized, and hence was not a ground of action against it. Excluding a point now made on the rejection of an offer by Reynolds at the close of the trial, relative to proof, and which will be noticed at the proper time, the record of the trial shows that in the first place Reynolds insisted upon giving evidence of a bargain for the special risk in question, with Kirchhofer, ánd without any evidence of power in Kirchhofer to make such a bargain; and as ground for maintaining that he was fully justified in regarding Kirchhofer as authorized to bargain for the risk in question, he insisted secondly that he was entitled to prove that there was a practice at other agencies to take such risks; that Kirchhofer was entrusted with policies in blank, signed by the president, and actually solicited the risk and received the premium. These facts, it was claimed, entitled Reynolds to ' transact with Kirchhofer upon the faith that the latter had power to bind the company by the bargain for the risk in question, notwithstanding the fact, unknown to Reynolds, that the commission and policies debarred Kirchhofer. The company resisted these claims and contended that before adducing .evidence of a bargain with Kirchhofer it was incumbent on Reynolds to prove that Kirchhofer was empowered, and that the practice at other agencies as to the kinds of risks agents assumed power to take, and the other facts proposed in connection, were without force to sustain the theory on which they were suggested, or to hold the company on the supposed bargain, and hence were inadmissible. This outline will give an idea of the attitude of the parties at the trial. The court was very indulgent to the plaintiff and allowed great latitude in his various efforts and expedients to get over inherent difficulties. When the trial opened, the plaintiff took the witness stand and having sworn that at and before July 18th, 1874, Kirchhofer acted as insurance agent at Manchester, was then asked by his counsel for what com.panies he was acting. The question was ruled out and error • is assigned upon the ruling. The true object of the question must have been to draw an answer that Kirchhofer was acting for the defendant corporation, and yet it had not been shown that the plaintiff had any other means of knowledge than the very transaction which was in dispute, and surely if Kirchhofer assumed the power the existence of which was the point in issue, his act could not be made use of by the plaintiff as- evidence that the power so assumed actually existed. Immediately after this rejection, plaintiff’s counsel put this question: “ State whether any agreement or bargain was: made for the insurance of your- mill property and the fixtures, machinery, etc., contained therein, in behalf of defendant?” and plaintiff at once replied: “Yes, sir,' he insured me.” The counsel for defendant then objected that the question did not ask for any bargain with him as agent for the company; that if it did it would be inadmissible until the agency, the authority to make the bargain and agreement, had been proved, and following this objection defendant’s counsel produced the commission given by the company to. Kirchhofer, and the plaintiff submitted it in evidence. It. bore date June 23, 1874, and defendant’s counsel admitted that Kirchhofer received it before July 18, 1874. It ex pressly excepted from his authority the power to grant policies upon “manufactories and other special hazards,” and for the classification of hazards referred to the provisions of the policies of the company. The fact of Kirchhofer’s agency was therefore shown at the outset, and there is no plausible ground whatever for the first charge of error. Indeed, the real controversy concerning Kirehhofer’s authority was •not upon the fact of his being an agent, but upon the extent of his power as agent. That he was actually an agent was not denied. The next charge of error is founded on the exclusion of a question to the witness Millen. He was local agent at Ann Arbor for several companies, and had been for many years. ' His practice was to take risks on all classes of property. He was aware that his companies gave greater authority to some agents than to others, but he had no knowledge of the course pursued at other agencies. His ability to speak of the practice in this respect was confined to his own agency. The excluded question required him to state, so far as he knew, what the usual custom was in the county as to .agents taking risks on all kinds of property. As he had already stated distinctly what his own practice was and that he knew nothing of the practice at other agencies, and that the- same companies did not give as .extensive powers to some agents as to others, the inquiry could only elicit in effect, and most likely in a form calculated to mislead the jury, a repetition of what was the practice at his own agency alone. Again, waiving all questions touching the right to prove that there existed in Manchester a practice to take all risks, and still the practice at that place could not be inferred from the fact of there being such a practice at Milieu’s agency.—1 Starkie Ev., 618, 619 (mar.), and notes. The precise theory which the plaintiff’s counsel had in mind at this point is not readily discerned. Surely he could not have meant to claim that usurpation of power by agents of one concern, and followed by acquiescence of the principal, could be urged as a reason for holding another concern bound for its agent’s unauthorized act, and which was not acquiesced in, but repudiated. As to whether there was any showing whatever of power in Kirehhofer to make the alleged bargain, the case appears clear. The plaintiff submitted the commission, and that withheld authority in express terms to take his risk. It was also shown by plaintiff that the company furnished Kirehhofer with blank policies signed by its president. But' such of these as there was evidence to explain excluded such risks. There was no evidence that different ones were ever confided to Kirehhofer, or in fact that the company used any others. No facts were adduced tending to show a grant of greater power than the commission gave. Again, there was no evidence of any act of the insurance company tending to show the creation of any apparent power to exceed the commission and insure such property as plaintiff’s. There was not a scintilla of proof that Kirehhofer was held out by the company as authorized to do any thing beyond the terms of the written delegation, or that the company had in any instance acquiesced in an act of his in excess. Indeed, it did not appear that in any instance he had previously assumed to insure property excluded by his commission, and certainly it will not be pretended that his own proceedings, the authority of which was the fact in issue, could be brought forward to sustain that side of the issue which asserted the authority. The single circumstance that he was the company’s local insurance agent at Manchester, ivas not tantamount to a declaration of the company that he had power to insure every kind of property and to exercise unlimited authority as to risks, modes and terms. By itself it could imply nothing more than authority to insure in the mode allowed by the company’s charter, and to take such risks as the policies of the company in common use by its agents would warrant, and we have seen that so far as there was evidence the plaintiff’s risk was not within the purview of the policies in use. There- was no evidence of the power conferred by the charter.—Security Insurance Co. v. Fay, 22 Mich., 467; Meister v. The People, 31 Mich., 99; Mussey v. Beecher, 3 Cush., 511; Markey v. Mutual Benefit Life Ins. Co., 103 Mass., 78; Turner v. Quincy Mutual Fire Ins. Co., 109 Mass., 568; Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 3 Ker., 632; Adraince v. Roome, 52 Barb., 399; Risley v. Ind., B. & W. R. R. Co., 1 Hun, 202; De Grove v. Metropolitan Ins. Co., 61 N. Y., 594; Bush v. Westchester Fire Ins. Co., 63 N. Y., 531; Swazey v. Union Manufacturing Co. (Sup. Ct. of Conn., Sept., 1875); Kornemann v. Monaghan, 24 Mich., 36; Farmers’ Ins. Co. v. Taylor, 73 Penn. St., 342. Hitherto the case has been considered without reference to the point made upon the exclusion of the plaintiff’s final offer of proof. It remains to examine that point. Does-it affirmatively appear from the bill of exceptions that the judge erred in refusing the offer? Unless it does the charge of error- is not sustained. In submitting propositions' of proof it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one.—Clay Fire & Marine Ins. Co. v. Huron Salt, etc., Co., 31 Mich., 346, 356. ■The object is to economize time by getting an admission of the facts or a ruling on their admissibility without the tedious process of examination, and the facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility. Common fairness, as well as the nature of the proceeding, demand this. If the judge is compelled to rule upon the offer he may possibly go beyond its obvious import and concede an intent not fairly indicated. This, however, is not to be intended. It must be clearly shown. He must be supposed to have passed upon the statement in view of what it actually seemed, and in case of exclusion, his decision, if correct when applied to the proposition as it appeared, cannot be questioned in an appellate court upon the claim of the party who made the offer, that the proposition covered some meaning which required a different ruling. The ruling must be presumed to have been made on the proposition as it appeared, and not on it as it did not appear. In Daniels v. Patterson the court had occasion to consider a question somewhat similar to the present, and Judge Bronson, who gave the opinion, observed: “We all know that offers of evidence are usually made in as broad and strong terms as the facts will warrant. Before a party excepts on account of the rejection of evidence he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appears that it was so understood by the court which rejected the evidence, and if the meaning of the offer depends upon argument arid inference, he must have much the best of the argument before a court of review should reverse the judgment.”—3 Comst., 47. See also Elwell v. Dodge, 33 Barb., 336; First Baptist Church v. Brooklyn Fire Ins., 23 How. P. R., 448; Johnson v. Carnley, 6 Seld., 570, 575, 576; Pepin v. Lachenmeyer, 45 N. Y., 27; Harger v. Edmunds, 4 Barb., 256; Van Buren v. Wells, 19 Wend., 203; Hosley v. Black, 28 N. Y., 438; Wheeler v. Rice, 8 Cush,, 205; Weidler v. Farmers’ Bank of Lancaster, 11 Sergt. & R., 134; Wright v. DeGroff, 14 Mich., 164; Gilbert v. Kennedy, 22 Mich., 117; Albright v. Cobb, 30 Mich., 355. In the light of these considerations we may proceed to notice the terms of the plaintiff’s proposition and in connection with the course of proceeding. After repeated rulings, which were well warranted, that the alleged bargain with Kirchhofer could not be shown, for the reason that no evidence had been adduced of his power to bargain for plaintiff’s risk, the plaintiff took the stand for the third time, and swore that there were other insurances and that the whole amount of premium for all was twelve hundred and fifty dollars; that he paid Kirchhofer for this insurance one hundred and thirty-five dollars, and that the money had not been returned; that he did not know to which of the companies Kirchhofer applied it, and that he might have applied it to this company and might have applied it to some other. Plaintiff’s counsel then said: ‘‘We now offer to prove by the witness the other facts alleged in the declaration, not proposing to offer any other evidence on the subject of agency, but the other facts to entitle us to recover three thousand dollars, with interest from the fourth day of August, 1874, the day of the fire; that they received the money for this loss and kept it.” The’judge then observed: “It is not necessary to take up time. I think the ruliug before made should govern, if that is all the evidence.” Plaintiff’s counsel replied: “That is all on the subject of agency.” “It is conceded that the other proof is made.” The judge responded: “It has been offered once before, and I think it may bo governed by the ruling before made.” And counsel rejoined: “We offer to prove the other facts to entitle us to recover.” Whereupon the judge answered: “It is objected to and the objection is sustained.” Plaintiff’s counsel thereupon excepted. The charge of error is, that the court refused to allow the plaintiff to prove that the insurance company received this money for this loss and kept it, and hence ratified the bargain alleged to have been made with Kirchhofer. It ■will be noticed, in passing, that although the judge clearly indicated how his mind was directed by the general and ambiguous statements of plaintiff’s counsel, and that he ■regarded them as only amounting to reassertion of claims and theories ruled previously, and not to an offer to adduce facts to make out a case in some other way or on some ■other theory, still the plaintiff acquiesced in the judge’s construction and made no attempt to correct his impression if not right. The charge of error supposes the offer to have meant something else, and that the judge mistook in his understanding of it. There is high authority for saying that the plaintiff cannot question the correctness of the judge’s construction, for the reason that it was virtually assented to at the trial.—Morrish v. Murrey, 13 Mees. & Wels., 52; Boeklen v. Hardenbergh, 60 N. Y., 8. But the point need not be disposed of on this principle. An examination of the course taken at the trial and of the proposition make it very apparent in the first place that the judge did not understand the offer in the sense now sought to be imposed on it by the plaintiff, and in the second place that there is no solid ground for considering that it was fairly open to any such meaning. The main part of it was a proposal in so many words to make out the case set forth. The declaration had already made this proffer, and in better form. An offer of particulars was required upon ■which some judgment could be formed. No hint was given of any ratification, and all further proof relating to agency was disclaimed. Again, the whole of the evidence suggested was to be made by the plaintiff himself. This was expressly stated. Nothing was proposed from any other source. The offer was distinctly confined to testimony by the plaintiff. And yet, he had just sworn that he knew nothing as to whether the insurance company had or had not received -the money paid to Kirehhofer. Indeed, the offer did not propose in terms to prove that the company had received the money. As worded, the proposition was not distinctly unequivocal. It was capable of being so construed as to be consistent with the fact the plaintiff had sworn to, that the agent, Kirchhofer, had received it; but it could not be-very well reconciled with the notion that the plaintiff would swear that the company had received it. Certainly the court could not be expected to understand from the language that plaintiff’s counsel proposed to show by the plaintiff, in plain contradiction to what he had distinctly sworn to only a moment previous, that as matter of fact the corporation actually received the money. There was no intimation that the plaintiff had testified under a mistake or that any error had been committed. Considered as an offer of proof, the statement was insufficient, blind and indefinite, and in view of. all the circumstances, it would have been remarkable if the judge had accepted it as having the sense and drift now imputed to it on the part of the plaintiff. As represented in the record, and as it must have looked at the1 trial, it was natural for the judge to view it rather as a compendious reassertion of positions already ruled, than as a regular offer of proof of facts to make out a case, and there is some reason for thinking that the construction now claimed by the plaintiff for the proceeding was not thought of at the trial at all. This charge of error must be overruled. Finally, it is considered clear that no case for the jury was made, and that the judge did not err in directing a verdict for defendant. Had the plaintiff purposed to sue in equity to enforce performance of the alleged agreement, his-want of material facts to enable him to set forth a prima facie provable agreement against the company on the basis, either of an original authority in Kirchhofer, a subsequent-ratification, or matter of estoppel, would have been very-conspicuous to him. The judgment should be affirmed, with costs. The other Justices concurred.

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Campbell, J: Plaintiff sued the three school districts named as defendants, as jointly liable upon a debt of a formerly existing district, number seven, which was extinguished by dividing up its-territory among the three named. Where the territory of a school district is absorbed by other districts, the statute contemplates that the township board of school inspectors shall make an equitable adjust ment of property and debts so as to apportion them fairly among the districts which have succeeded to the jurisdiction of that which has been divided. — O. L., §§ 3644, 3645, 3646. How far this may have been attempted in the present case we are not informed, nor can we now discuss the completeness or efficiency of the statutory proceeding to reach the equities of those parties. The only question before us is, whether a joint action lies against defendants for the debt of the dismembered district. The court below held there was no such liability. This holding was correct. There is no legal identity or corporate succession between the various bodies, out of which a joint obligation can be made to arise. Where one district is made up out of two entire districts, 'it is clear enough that it must succeed to their rights and liabilities, because no part of their territory is left out from it, and there is nothing to apportion.—Brewer v. Palmer, 13 Mich. R., 104. But where one is parceled out among three other existing districts, the amount which should properly fall to each of them out of the property, and the amount each should bear of the debts, depends partly on the valuation of the taxable property divided, and partly on the location of the school-house, according as it is retained or sold. There is no presumption that they will be on exactly equal footing; and even if this were assumed, there is no law making them jointly interested, or jointly responsible. Whatever they are bound to pay must be a several, and not a joint obligation. We can find no support for an action like the present. The judgment must be affirmed, with costs. The other Justices concurred.

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Marston, J: This case was before us and decided at the October term (35 Mich., 169), when we held the contract was an executory one, and that the title to the oats and wheat had not passed. A new trial having been ordered, was had and proceeded upon the theory that the parties at the time of their agreement did not intend that the title to any particular one hundred bushels of oats should then pass, but that the oats should be delivered at some future time when demanded, but that the title to the wheat should and did then pass, and that such possession as could be given of growing wheat was given at that time: in other words, that there was a present sale of the wheat and possession given, payment therefor to be made, not in money, but oats at a future day. The case was submitted to the jury upon this theory, and they found in favor of the plaintiff below. There can be no doubt but that the parties had a right to make such a contract, and that when made it would be binding. The wheat could have been sold for money payable in the future, and it could in the same way have been made payable in oats, or any other commodity the parties chose to agree upon, and time could as well be given for the delivery of the oats, as for the payment of the money. It is also claimed that the wheat being in shocks, and not divided at the time the writ of replevin was issued, such an action could not be sustained. Thé defendant in that suit did not have or claim any interest in the other undivided half of the wheat, and we do not see how he has any right to raise this question. We discover no error. The judgment must be affirmed, with costs. The other Justices concurred.

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Per Curiam: 1. The court are of opinion that the statute does make the county of Kent liable for jurors’ fees in the superior court of Grand Bapids, and that it is competent to do so.—People v. Auditors of Wayne County, 13 Mich., 233. 2. The court also think that under the constitution it was competent to establish the superior court. The constitution, it is true, declares that “the judicial power is vested in one supreme court, in circuit courts, in probate courts and in justices of the peace.” But it also in the same section declares that “municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.” — Art. VI., § 1. This is a plain reservation to the legislature of the power to carve out of the judicial power vested in the other courts named such authority as it would be proper to confer upon city courts, and to create such courts for its exercise. Where that is done, the legislature must determine the extent of the authority to be given the municipal courts, subject to the restriction that it must not exceed that which can properly pertain to a municipal court. Whether the statute in this instance has overstepped the bounds, is a question not before us. But we do not think' it was the intention of the constitution that every municipal court should possess both civil and criminal jurisdiction. This opinion will probably bo conformed to without the issue of any writ of mandamus, and we therefore make no order at this time.

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The action was tried without a jury and the judge found the facts and decided that defendant was entitled to judgment upon them. The plaintiffs ask that the proceedings be reviewed on a case. No point is made on the findings. Unless some error was committed in rulings in regard to evidence, the judgment cannot be disturbed. In respect to most of the facts there was no dispute. But the result hinged upon a conveyance the defendant claimed to have been made by Andrew Rector and Edwin R. Cobb to one Charles A. Rosevelt, in April, 1859, and this conveyance was a deed of assignment with schedules. The main instrument contained apt words of conveyance, but no specific descriptions. The identification of parcels was left to schedules. The defendant claimed that soon after they were made, the deed and schedules were copied by the register of deeds into one of the books of deeds in his office on the request of Rosevelt to record them, and that Rosevelt was dead and the original papers lost,. and he gave evidence which was sufficient, prima facie, to show the existence and delivery of the papers and their loss, and also that they were copied by the register into the book of deeds, and he was allowed to introduce these copies for the purpose of proving the contents of the lost originals. A number of objections were taken by plaintiffs’ counsel, during the course of this proof, but it is unnecessary to detail them. They were all grounded upon the assumption that the copies in the register’s book were cither records or adduced as records. This was a misapprehension of the scheme of proof. When the entries in the book of deeds were first offered by defendant, plaintiffs’ counsel objected to them as not lawful records, and the court sustained the objection. Defendant’s counsel then shifted ground and suggested that he would seek to show the conveyance by secondary evidence, and following up the suggestion, he proceeded to give evidence of the existence and loss of the originals, and of their contents, and adduced the entries by the register for this latter purpose. This method of proof was not illegal. It was entirely regular, and the objections, that the record was the best evidence, that it must prove itself, that parol evidence was not admissible to prove the contents of a deed, or change or explain a record, were entirely inapplicable. Moreover, as already stated, the plaintiffs’ counsel had just taken the position that the entries were not records, and had secured a ruling to that effect, which excluded them as records, and when, in consequence of such objection and ruling, the defendant proceeded to use them as mere copies, as a step in making secondary proof, it was scarcely consistent to assume they were records, as a ground for urging new objections. But whether they were or were not regular records, we do not see upon what principle the plaintiffs could object to their use by defendant as inferior proof, if he chose so to use them. Whether the evidence actually given for that purpose was or was not of sufficient weight to show what the originals contained, is not a question for discussion here. The exceptions only go to the admissibility of the evidence, and it was clearly admissible. The case presents nothing further. No ground is seen for disturbing the judgment, and it must be affirmed, with costs. The other Justices concurred.

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Marston, J: Marvin, who was plaintiff below, brought an action of assumpsit to recover the value of certain meat furnished by him to be used in a boarding train upon the D., L. & L. M. R. R. It appears from the testimony that one Hiram Cook, who was engaged in keeping such boarding car, had obtained his supply of meat from the plaintiff, and in June, 1875, was owing him for meats furnished one hundred and seventeen dollars and seventy-eight cents; that about the 14th of June he refused to trust Cook any longer or furnish him with any more meat unless some different arrangements were made; that Welch, who had been supplying Cook with groceries, went to see Marvin, in company with Cook, to make some arrangement about this matter. Marvin testified that he (Welch) then said: “This pay is now assigned over to me from the railroad company, and I am going to become responsible for the meat, and I want meat to run this train, and what meat you let Cook have from now, I will pay you for.” Marvin then told Welch that Cook had got meat there from the middle of April up to the 1st of June, that had not been paid for, and that he would not let any more meat go until he was paid for that; that Welch replied: “Well, you get an order on me from Cook, and I will accept that order, and pay you as fast as the money comes into my hands to pay that.” The next morning an order was drawn up for the one hundred and seventeen dollars and seventy-eight cents; this order was accepted by Welch, providing money enough came into his hands from the company to pay his own account first, the balance to be paid on this order. Different amounts were paid by Welch, in all amounting to two hundred and fifteen dollars; but it does not appear that any other orders were given. It also appeared from plaintiff’s testimony that he, in September, received an order from Cook on the railroad company for one hundred dollars, which he endeavored to collect. After the arrangement made with Welch, plaintiff continued to charge the meats thereafter delivered to-Cook, in the same manner he had previously done, no change having been made on his books in the manner of keeping the account. There was considerable conflicting evidence, as is usually expected in such cases, as to what the agreement really was, as to the reason of continuing to charge the meat to Cook upon plaintiff’s books, and the efforts made to collect the account. The court, in charging the jury, very properly left it to them to find what the agreement between the parties actually was, and the conclusion to be drawn from such finding. Defendant’s counsel requested the following instructions to be given: “If the jury find that Marvin sold meat to Cook and charged the same to Cook, and that Welch became responsible for it, in order to take the promise out of the statute of frauds, and make Welch legally liable, they must also find that Marvin thereupon absolutely discharged Cook from liability, and looked only to Welch for pay.” Other instructions having a similar tendency were requested to be-given. These requests were refused, the jury being merely instructed that the manner of keeping the account, and efforts to collect from Cook, were facts capable of explanation, and might be considered by the jury. We are of opinion that defendant was entitled to have the jury instructed as requested. Under no theory of this case, could Cook and Welch both be responsible to plaintiff, severally, at his option. If Cook was liable for the meats furnished after the arrangement with Welch was made, then clearly Welch’s, liability could not be an original one. It is equally clear, that if Welch’s promise was an original promise, and the debt his debt, then Cook could not be held liable thereon. The parties might have made an agreement under which they would have been jointly liable, which is not claimed in this case. But they could not, under the circumstances, be severally liable, at plaintiff’s option. We know of no better test than this, in a case like the present.—Bresler v. Pendell, 12 Mich., 224; Gibbs v. Blanchard, 15 Mich., 292; Corkins v. Collins, 16 Mich., 480. The judgment must be.reversed, with costs, and a new trial ordered. The other Justices concurred.

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Cooley, Ch. J: This is a. foreclosure suit, based upon a purchase money mortgage. The bill did not waive an answer on oath, and the mortgagor answered, admitting the mortgage, but setting up various defenses, the chief of which were, that he received from the mortgagee a warranty deed of the lands, the covenants in which were broken by the existence of paramount outstanding titles to a portion of the land, and that under the advice of the mortgagee he had paid fifteen hundred dollars to one adverse claimant, which should be applied on the mortgage. Also that one parcel of land was twice described in the deed and twice taken into account in computing the amount to be inserted in the mortgage. The allegations of the answer are not disproved by complainant, and as it was called for on oath, it is claimed by defendant that it must be received as true. This would be so, so far as it is a response to the averments in the bill; but affirmative matters of defense must be proved.—Schwartz v. Wendell, Wal. Ch., 267; Attorney General v. Oakland County Bank, Ibid., 90; Van Dyke v. Davis, 2 Mich., 144; Hunt v. Thorn, Ibid., 213; Roberts v. Miles, 12 Mich., 297. The existence of paramount titles was not proved by the production of any documentary or record evidence, but the mortgagor was made a witness on his own behalf, and gave evidence which it is claimed tended to show admissions by the mortgagee of the defects in his title, and a consent that fifteen hundred dollars, which the mortgagor had paid to an adverse claimant, should be accounted for on the mortgage. This evidence was taken after the death of the mortgagee, and as it related to matters which in his lifetime must have been equally within his knowledge, it was' inadmissible under the statute, and was properly disregarded in the court below.—Comp. D., § 5968; Kimball v. Kimball, 16 Mich., 211; Wright v. Wilson, 17 Mich., 192; Twiss v. George, 33 Mich., 253. Rejecting this evidence, no part of the defense is found to be established. We are not satisfied that any understanding existed that the fifteen hundred dollars, which was undoubtedly paid by the mortgagor in settlement of a dispute growing out of the cutting of timber by a third party on the mortgaged lands, should be accounted for on the mortgage. The settlement left a large amount of timber in the mortgagor’s hands ready for working up, and the fact that this was cut without expense to him was undoubtedly taken into account by him in negotiating for a settlement. It is not to be assumed that the mortgagee agreed to allow this sum, until a reason is shown which either in law or in morals would require him to do so. As to the parcel said to have been twice described in the deed of conveyance, there is no evidence that it was twice taken into account in fixing upon the amount of the mortgage, and therefore the defense on this point must fail. The decree must be affirmed, with costs, but with such modifications as will allow the defendants ninety days from this day in which to make payment before a sale under the decree shall be advertised. The other Justices concurred.

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Per Curiam: The relator had applied for letters of administration on an estate, and his application appeared to make out a satisfactory case. On the hearing, the probate judge denied it. Held, That if there was any error in this denial, the relator could not correct it by this proceeding. Writ denied.

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Campbell, J: This is a certiorari to review the proceedings of a circuit court commissioner, dissolving an attachment sued out by plaintiff against defendants in the Muskegon circuit court. The action was had by Edwin Baxter, circuit court commissioner for the adjoining county of Ottawa, founded on a showing that J. E. Jamison, the only circuit court commissioner for Muskegon, was disqualified. The facts of disqualification were, that Jamison was engaged in practicing law with Mr. Keating, the plaintiff’s attorney, and that a portion of the papers in the cause were in his handwriting, and that he had told the defendants’ attorney that he was interested as counsel and could not act as commissioner in the matter. On the hearing of the application by Mr. Baxter, Heyn appeared by counsel specially, and after a preliminary motion for security, moved to dismiss the proceeding for \yapt of jurisdiction, on the ground that the application could only be made to the circuit judge or commissioner of Muskegon. Heyn’s affidavit averred that Jamison was never employed as his counsel. It did not deny his connection with Keating, nor his action'in drawing the papers, nor his statements of disqualification; and Jamison and Keating made no affidavits. The affidavit for certiorari is also silent on this. The statute authorizing the commissioner of an adjoining county to act in such cases was passed two years after the act for the dissolution of attachments, and declares “ that in all cases where, by the laws of this state, any duties are required to be performed by a circuit court commissioner of the proper county, if such circuit court commissioner be attorney, solicitor or counsel in such suit or matter, or be a party thereto, or otherwise interested or unable to act' or incapable of acting therein, such duties may be performed by a notary public of such county, being an attorney of the supreme court of this state; or, if there be no such notary public in such county, then such duties may be performed by a circuit court commissioner of an adjoining county.”— O. L., § 6596. Section 5597 requires that such other'officer, before acting, shall be satisfied, by affidavit or other competent proof, that such disability exists. The statute (O. L., § 5580) renders a commissioner incapable of acting where his law partner is interested. It was held in Chandler v. Nash, 5 Mich. R., 409, that a notary public could not lawfully act under this statute, to dissolve an attachment. The evidence before Mr. Baxter was such as to authorize him to decide that Jamison was disqualified, and from the affidavits he would have found it difficult to decide otherwise. The point that application should have been made to the circuit judge' is without force. The statute placed applications to dissolve attachments on no different footing from other official action, and we cannot import any such excep tion into the law. It is for the legislature to define public policy; but we cannot perceive any special hardship in compelling a plaintiff who has sued out an attachment, which he cannot honestly do without means of proof of its propriety, to show that proof before an officer who must be presumed to be as competent in one county as in another. The facility with which plaintiffs satisfy their consciences in making such affidavits needs no extraordinary encouragement from the courts. The objection that the proceedings before the commissioner should have been entitled in the original cause, is not well taken. The proceeding is a special one, applicable to proceedings before justices and other courts besides those in circuit courts; and the commissioner acts as an independent judicial officer, and not as a referee in the cause itself. The proceedings were correct, and should be affirmed, with costs. The other Justices concurred.

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Cavanagh, J. We granted leave to appeal in this case to determine whether the 1996 amendments of the Michigan housing facilities act, MCL 125.651 et seq., sever the employment relationship between a municipality and its housing commission by operation of law. We hold that the 1996 amendments, specifically MCL 125.655(3), do sever a coemployment relationship by operation of law, thus we affirm the decision of the Court of Appeals. 1. BACKGROUND AND PROCEDURAL HISTORY In 1933, the city of Detroit established the Detroit Housing Commission (dhc) under the authority of the housing facilities act, 1933 PA 18 (Ex Sess), MCL 125.651 et seq. Section 2 of the act provided that any city or incorporated village with a population of over 500.000 was authorized “to purchase, acquire, construct, maintain, operate, improve, extend, and/or repair housing facilities and to eliminate housing conditions which are detrimental to the public peace, health, safety, morals, and/or welfare.” Section 3 of the act authorized any city with a population of over 500.000 to create by ordinance a commission with the power to accomplish the purposes set forth in § 2. Under the 1933 version of the housing facilities act, the dhc was under the control of the city, and dhc employees were city employees. The United States Department of Housing and Urban Development (HUD) funds, monitors, and regulates public-housing authorities, including the DHC. From 1979 through 1990, the hud Public Housing Management Assessment Program rated the dhc a poor performer. The dhc was consistently on hud’s list of severely troubled public-housing authorities because it was failing its essential purpose because of an unreasonable number of vacant and dilapidating properties, untimely rent collections, and a general failure to meet hud standards. In an attempt to cure these problems, the city entered a series of agreements with hud that would permit the dhc to make substantial improvements in its performance, effectiveness, and efficiency. In July 1995, hud and the city entered into a memorandum of agreement, followed by a partnership agreement in December 1995. One of the primary objectives of the partnership was a com píete separation of the dhc from the city’s governmental systems. Hud and the city entered into a revised memorandum of agreement (revised moa) approved by the city council in September 1996 and executed in October 1996. The revised MOA, by its terms, expired on June 30, 1997, and also focused on a complete separation from the city’s governmental systems. In June 1996, the Legislature passed 1996 PA 338, effective June 27, 1996, which substantially amended the housing facilities act. The 1996 amendments designated housing commissions, such as the dhc, as distinct “public bodies corporate” with enumerated independent powers and authorities. See MCL 125.654(5). In addition, housing commissions such as the dhc were authorized to employ and fix the compensation of their directors, officers, and other employees and to prescribe the duties of those persons. MCL 125.655(3). The dhc was removed from hud’s troubled list in 1997. In 1998, the mayor prepared a memorandum of understanding and related ordinances, seeking to establish the dhc as a separate entity, which the city council rejected. Thus, all dhc employees were treated as city employees from 1998 through 2001 under the city’s compensation and classification plan and the city housing ordinance, which expressly subjected DHC employees to the provision of the city charter related to civil service. See Detroit Code, subsection 14-5-3(7). On July 17, 2001, relying on the 1996 amendments of the housing facilities act, the mayor notified the city council that the dhc would begin functioning as a “public body corporate” on September 21, 2001. The mayor asked the city council to approve a proposed intergovernmental agreement between the city and the dhc to allow current city employees who elected to be employed by the dhc to continue to participate in the city’s health and retirement plans. The mayor also submitted a proposed amendment of the executive organization plan recognizing the dhc as a separate “statutory agency” and a proposed ordinance to implement the minimum statutory requirements of the housing act. The city council rejected the mayor’s proposals and adopted a series of ordinances and resolutions, which effectively avowed dhc employees as city employees and prevented the separation of the dhc from the city. Specifically, on September 17, 2001, the city council adopted a resolution opposing separation of the dhc from the city and retaining all dhc employees as city employees. On September 26, 2001, the city council enacted the following ordinance: All housing commission employees shall be members of either the classified service or the unclassified service as is provided under Section 6-517 of the Charter of the City of Detroit, and shall be entitled to all rights of all employees of the City of Detroit, including but not limited to pensions and benefits. [Detroit Code, subsection 14-5-3(7).] Subsequently, the city council formally rejected the mayor’s proposed amendments to the city housing ordinance and the executive organizational plan. The council also overrode the mayor’s vetoes of the city council’s resolutions and ordinances. The American Federation of State, County and Municipal Employees (afscme) filed suit on September 19, 2001, in the Wayne Circuit Court against the city of Detroit and the dhc, seeking an injunction to maintain the status quo while it pursued an unfair-labor-practice charge against the city and the dhc with the Michigan Employment Relations Commission (merc). On September 20, 2001, the parties stipulated the court’s entry of a temporary restraining order indicating that all afscme dhc employees remained city employees. On September 21, 2001, the city council intervened as a plaintiff and sought a declaratory judgment to clarify the validity of the ordinances pertaining to the operation, procedures, and employees of the dhc. Afscme amended its complaint on October 18, 2001, to add a request for declaratory relief concerning whether the housing facilities act gave the city the power to divest itself of the dhc and to sever its relationship with dhc employees. On October 19, 2001, the city council amended its complaint, seeking to extend the temporary restraining order, relative only to afscme employees, to all dhc employees. The city council further sought a declaratory judgment to clarify the validity of the ordinances and the resolution, which provide that all DHC employees are and will remain city employees. The council also sought a permanent injunction restraining defendants from acting in a manner inconsistent with the declaratory judgment. The trial court issued a declaratory ruling on November 19, 2001, holding that severance of the city’s employment relationship with dhc employees is permissive under the 1996 amendment of the housing facilities act and that the housing facilities act did not sever the DHC from the city by operation of law. The court also found that, as recently as April 2001, the mayor had taken affirmative action to continue to treat dhc employees as city employees by proposing the budget for the fiscal year of July 2001 through June 30, 2002, which included funds for those employees. On January 25, 2002, the court entered an order declaring that the city had appropriately exercised its authority under the housing facilities act to establish employee compensation ranges and classifications to be used by the dhc, and that all dhc employees are city employees “at least until June 30, 2002.” With respect to afscme’s request for declaratory relief, defendants filed a motion for summary disposition on February 15, 2002, on the basis that the 1996 amendments of the housing facilities act made housing commissions separate independent employers by operation of law. With respect to the city council’s request for declaratory relief, defendants moved for summary disposition on the basis that certain ordinances and resolutions adopted by the city council violate state law and are preempted. Afscme filed a cross-motion for summary disposition, essentially arguing that the court had already determined that the 1996 amendments of the housing facilities act did not sever the city’s relationship by operation of law and that the city had continued to exercise the power to reserve employment through its continued inclu sion of dhc employees in the city’s compensation plan, the inclusion of the dhc in the city budget through June 30, 2002, and the continuation of the housing ordinance until September 2001. Afscme also argued that any changes in the status of dhc employees can only be effectuated in accordance with the city charter. On May 21, 2002, the trial court entered an order of declaratory judgment that certain ordinances pertaining to the employment status of dhc employees were valid and enforceable. The trial court also entered a preliminary injunction barring the city from severing its employment relationship with dhc employees until further “legislative action” by the city council. The trial court, however, invalidated two of the ordinances related to the dhc because they were preempted by the housing facilities act. Defendants appealed and plaintiffs cross-appealed to the Court of Appeals. A unanimous panel affirmed in part, reversed in part, and vacated in part the trial court’s judgment. 252 Mich App 293; 652 NW2d 240 (2002). Specifically, the Court of Appeals reversed the trial court’s ruling that the 1996 amendments of the housing facilities act did not, by operation of law, sever the city’s employment relationship with dhc employees, because the plain language of MCL 125.655(3) explicitly authorized housing commissions to act as independent employers. The Court of Appeals further reversed the trial court’s ruling that such a severance could be attained only with the concurrence of the city council by means of direct “legislative action.” Additionally, the Court reversed the trial court and held that subsections 14-5-3(2), 14-5-3(5), 14-5-3(6), and 14-5-3(7) of the Detroit Code were invalid because they were preempted by the housing facilities act. The Court affirmed the trial judge’s order declaring subsection 14-5-3(9) and § 14-5-10 invalid and subsection 14-5-7(1) valid. Finally, the Court of Appeals vacated the injunction enjoining the city from divesting itself of dhc employees. We granted afscme’s and the city council’s applications for leave to appeal. 467 Mich 899 (2002). II. JURISDICTION Afscme asserted, as a preliminary matter, that the Court of Appeals lacked jurisdiction to accept this case because count I of afscme’s first amended complaint was still outstanding. This count requested a preliminary injunction to maintain the status quo while afscme litigated an unfair-labor-practice change in MERC. The Court of Appeals stated that it has the jurisdiction to entertain appeals by parties aggrieved by a final order of the circuit court. MCR 7.203(A)(1). “Final order” is defined in MCR 7.202(7)(a)(i) as “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties . . . .” “Claim” is defined in MCR 2.111(B)(1) as a “statement of facts, without repetition, on which the pleader relies in stating the cause of action, with specific allegations necessary to reasonably inform the adverse party of the nature of the claims the adverse party is called on to defend . . . .” Count i of afscme’s first amended complaint requested the issuance of a preliminary injunction to keep the status quo while afscme litigated an unfair-labor-practice charge in MERC. The circuit court issued a preliminary injunction in favor of afscme in both the January 2002 and May 2002 orders. The Court of Appeals concluded that these orders disposed of afscme’s claim for a preliminary injunction and adjudicated the rights and liabilities of the parties concerning this cause of action. The Court stated that if the injunction was not as broad as afscme desired, while the issue may be relevant in regard to the circuit court’s actions, it is not relevant to the jurisdiction of the Court of Appeals. We agree with the Court of Appeals analysis on the matter of jurisdiction. The circuit court’s preliminary injunctions meet the criteria of a “final order” as set forth in MCR 7.203(A)(1). Therefore, the Court of Appeals had jurisdiction to entertain the parties’ appeals. We also agree with defendants’ assertion that the jurisdiction issue is moot because MERC issued its final ruling, dismissing the majority of plaintiffs’ claims. Therefore, the Court of Appeals had jurisdiction to entertain this appeal. IH. STANDARD OF REVIEW “We review de novo decisions on summary disposition motions.” CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002). Likewise, we review questions of statutory interpretation de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). IV. DHC AS AN INDEPENDENT EMPLOYER — MCL 125.655(3) The trial court held that the 1996 amendments of the housing facilities act did not, by operation of law, sever the city’s employment relationship with DHC employees and that such severance could be accomplished only with the consent of the city council by means of the council taking “legislative action” under the Detroit City Charter. The Court of Appeals reversed, holding that the plain meaning of MCL 125.655(3) evidences that the Legislature explicitly authorized housing commissions to act as independent employers, separate from their incorporating cities. 252 Mich App 307. Additionally, the Court of Appeals stated that nothing in the housing facilities act implies, much less mandates, formal acquiescence by the city council before the DHC may act as a separate and autonomous employer. Id. We agree with the Court of Appeals and hold that the 1996 amendments of the housing facilities act, specifically MCL 125.655(3), sever the city’s employment relationship with the DHC as a matter of law, unless the mayor recommends, and the city council approves, a resolution declaring otherwise. Because the issue is one of statutory interpretation, we must apply familiar principles of statutory interpretation that were recently restated in Omelenchuk v City of Warren, 466 Mich 524; 647 NW2d 493 (2002): “The paramount rule of statutory interpretation is that we are to effect the intent of the Legislature. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). To do so, we begin with the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). In reviewing the statute’s language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).” [Omelenchuk at 528, quot ing Wickens v Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001).] Additionally, we may not read into the statute what is not within the Legislature’s intent as derived from the language of the statute. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). At issue in this case is MCL 125.655(3). Before its amendment by 1996 PA 338, MCL 125.655(3) provided: A president and vice-president shall be elected by the commission. The commission may appoint a director who may also serve as secretary, and other employees or officers as are necessary. The commission shall prescribe the duties of its officers and employees and, with the approval of the appointing authority, may fix their compensation. The commission may employ engineers, architects, and consultants, when necessary. [1978 PA 205 (emphasis added).] Under the 1978 version of MCL 125.655(3), a housing commission could fix the compensation of its employees only with the approval of the appointing authority. Without this approval, a housing commission was a coemployer with the incorporating unit, not a separate employer. See Grand Rapids Employees Independent Union v Grand Rapids, 235 Mich App 398, 403; 597 NW2d 284 (1999). As amended in 1996, MCL 125.655(3) provides: A president and vice-president and other officers designated by the commission shall be elected by the commission. The commission may employ and fix the compensation of a director, who may also serve as secretary, and other employees as necessary. Upon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the governing body or establishing compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees. The commission shall prescribe the duties of its officers and employees and, shall transfer to its officers and director those functions and that authority which the commission has prescribed. The commission may employ engineers, architects, attorneys, accountants, and other professional consultants when necessary. [Emphasis added.] The statute’s language is clear and unambiguous. Housing commissions have the authority to employ and fix the compensation of their employees, as well as the express authority to determine the duties of their employees. We believe MCL 125.655(3) presents an alternative to severance. As a matter of law, the statute provides that the housing commission may employ and fix the compensation of a director and its employees as necessary. However, if the appointing authority makes a recommendation, the alternative becomes viable and the governing body may then adopt one of the two resolutions as set forth in the statute. However, if the appointing authority does not make a recommendation, or if the governing body does not adopt a resolution based on the recommendation in accord with the statute, then the housing commission retains the exclusive authority to fix the compensation of its director and employees. Thus, we agree with the Court of Appeals that the Legislature explicitly authorized housing commissions to act as independent employers, separate from their incorporating cities. We reject afscme’s argument that the Court of Appeals holding renders MCL 125.655(3) a nullity. Afscme maintains that the Court of Appeals analysis does not take into account the current status of dhc employees, which is the product of seven years of “proposals,” both before and after the 1996 amendments. However, we note that the city’s actions as a coemployer with the dhc, in the absence of any valid resolution, do not negate the legal status of the dhc as an independent employer. Merely because the city has been acting as a coemployer with the dhc does not mean that MCL 125.655(3) does not sever the employment relationship as a matter of law. Additionally, as has been noted by counsel for the city and the dhc, and as is apparent in several documents including the revised moa, the dhc was not in a position to immediately separate from the city in June 1996, when the amendments of the housing facilities act became effective. Afscme argues that while MCL 125.654(5) provides that a housing commission shall be a “public body corporate,” subsections a through e recite public body corporate attributes and make no reference to employment capabilities. Therefore, afscme would have us conclude that the designation of a housing commission as a “public body corporate” divests it of employment authority. We believe, however, that whether the attributes of a “public body corporate” specifically include employment is irrelevant because MCL 125.655(3) expressly designates employment authority to housing commissions. Afscme makes the same argument in relation to MCL 125.657, which sets forth the enumerated powers and duties of housing commissions. We reject this argument for the same reason. MCL 125.655(3) clearly designates employment authority to housing commissions, thus, it is irrelevant that MCL 125.657 does not set forth employment authority as an enumerated power or duty. AFSCME also argues that MCL 125.655(3) “expressly” reserves employment classification and compensation powers to the city. This is incorrect. Contrary to afscme’s argument, MCL 125.655(3) automatically gives housing commissions unfettered authority unless the appointing authority engages the alternative in the statute, as discussed above, by making a recommendation to the governing body. We also agree with the Court of Appeals that the trial court erred in holding that concurrence or “legislative action” by the city council is required before the dhc may act as a separate and autonomous employer. In fact, quite the opposite is true. Contrary to the trial court’s holding, it is apparent that MCL 125.655(3) declares a housing commission an independent employer as a matter of law. Only upon the recommendation of the appointing authority and the adoption of a resolution by the governing body establishing compensation of dhc employees could the city be regarded as a coemployer. A. ACTIONS BY THE MAYOR The mayor submitted four different proposals to the city council that the various parties argue satisfy the “recommendation” requirement prescribed by MCL 125.655(3): (1) the mayor’s proposed resolution dated February 27, 1996, (2) the revised moa dated October 1996, (3) the mayor’s proposed amendment dated July 17, 2001, and (4) the budgets submitted by the mayor from 1997-2001. For the reasons that follow, we do not believe that any of these actions by the mayor constitute the type of recommendation required by the statute. 1. FEBRUARY 27, 1996, PROPOSED RESOLUTION Afscme and the city council argue that the February 27, 1996, resolution proposed by the mayor constituted the “recommendation” required in MCL 125.655(3) before the city council could adopt a resolution. However, the 1996 amendments of the housing facilities act did not become effective until June 27, 1996. See MCL 125.655. Therefore, a resolution proposed before the effective date cannot satisfy the requirement under the statute. 2. THE OCTOBER 1996 REVISED MOA The revised moa was entered into between hud and the city of Detroit. It was approved by the city council in September 1996 and executed in October 1996. Relevant to employment, the moa at page five stated: The revised moa also provides for steps to be taken to create a separation of systems for public housing. The City of Detroit has acknowledged its support for the transfer of certain operational functions to the DHC. .. . The reasons for the transition are due to the dhg not being able to manage all of the critical components of its public housing program while having to depend on city operated systems (e.g.[,\ in the areas of personnel, financial management, automated data processing and procurement) .... The DHC is troubled and needs to not only have the capacity to operate all public housing activities in-house but it can also not afford to pay other departments for services for public housing in the long term. It is important to note that the dhc can not immediately separate from the city with respect to all of the functions relating to financial management, procurement and personnel. The agency does not have its own systems in place but will take steps under this MOA to create its own administrative systems and then move toward operating these systems separate from the City of Detroit. Dhc will follow the model used by other Housing Commissions in the State of Michigan. Transferring responsibilities to the Commission will meet hud’s concerns that the public housing program operate with significant independence and authority. The Commission will have control over necessary functions for public housing and be a part of the plans and programs for revitalization of the City of Detroit. This moa also requires the DHC to seek additional approvals from City Council in order to take full advantage of state legislation providing greater authority for housing commissions. [Emphasis added.] Assuming that this moa meets the recommendation and adoption requirements under the statute, it does not contain the necessary information regarding compensation or classification of employees. MCL 125.655(3) is precise: if the appointing authority makes a recommendation, the governing body may adopt a resolution “either conditioning the establishment of any compensation . . . upon the approval of the governing body or establishing compensation ranges and classifications . . . .” Therefore, the 1996 MOA cannot serve as a recommendation sufficient to constitute a joint employer relationship between the city and the DHC. In fact, to the contrary, the MOA notes that one of the reasons for the transition is the dhc’s inability to manage all the critical components of its public-housing program while having to depend on city-operated systems. One of these “critical components” was personnel. Additionally, the MOA recognized that these transitions could not occur overnight, because the DHC did not yet have the resources. This does not evidence a recommendation that the city retain control over the compensation and classification of dhc employees. 3. JULY 17, 2001, PROPOSED AMENDMENTS The purpose of the mayor’s July 17, 2001, proposed amendments of the city code was to recognize the status conferred on the dhc by the housing facilities act as a separate “public body corporate.” The proposed amendments tracked the language in MCL 125.655(3) that “the commission . . . may [employ] and fix the compensation of a director . . . and . . . other employees While the mayor’s July 17, 2001, proposed amendment may constitute a “recommendation” to the city council, the recommendation was not to “establish^] compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees” as required by the statute. MCL 125.655(3). Instead, the recommendation merely attempted to comply with the housing facilities act by providing the DHC with authority to fix compensation for and describe duties of its employees. Therefore, the July 17, 2001, proposed amendments do not meet the statutory requirements. 4. BUDGETS The trial court agreed with AFSCME and the city council that the mayor’s actions in submitting budgets that included funding for employees assigned to the DHC constituted the mayor’s “recommendation” to the city council to fix the compensation and classification of dhc employees. The Court of Appeals rejected this position, as do we. The mayor proposed a lump sum budget for the entire city for July 2001 through June 30, 2002. This does not constitute the detailed “classification” or “compensation” recommendation required by MCL 125.655(3). We recognize that the budgets incorporated by reference the city of Detroit White Book, which contains specific compensation ranges and classifications for all employment positions in the city of Detroit. The White Book includes positions that are unique to the DHC. The attorney for the city council informed us at oral argument that, where a separate public agency is established, such as the library, positions unique to that agency are no longer included in the White Book. The crux of AFSCME and the city council’s argument is that the budgets constitute the recommendation of the mayor required for engaging the MCL 125.655(3) alternatives because the budgets reference the White Book, which includes compensation ranges and classifications for employees of the DHC;. thus, the mayor recommended that the city council adopt a resolution regarding DHC compensation and classification. We disagree and hold that the budgets did not constitute the necessary recommendation to the city council. The budgets for the city of Detroit include the recommended allocation for every imaginable service the city provides. We decline to accept the inference that the mayor, by submitting a budget that encompassed all the operating costs for the entire city, was recommending that all dhc employees remain city employees. The budget submission is too broad in scope to allow the specific conclusion that the mayor was recommending that the city council adopt a resolution regarding dhc employees compen sation and classification. Further, the mayor did make specific recommendations that the dhc separate from the city with respect to personnel and employment functions, which were rejected by the city council. Therefore, the mayor’s submission of the general lump sum budget for the entire city could not have constituted a recommendation from the mayor on which the city council could have taken action. B. GRAND RAPIDS EMPLOYEES INDEPENDENT UNION v GRAND RAPIDS Afscme and the city council argue that the Court of Appeals failed to follow a previous Court of Appeals decision, Grand Rapids, supra. In Grand Rapids, the city executive proposed that the city council amend existing ordinances to transfer all employment authority from the city to the housing commission. The Grand Rapids city council agreed. The Grand Rapids Court held “in the absence of a city resolution to the contrary, housing commissions are now permitted to fix the compensation of their employees.” Grand Rapids at 405. Afscme and the city council maintain that the Court of Appeals holding in this case is contrary to the decision in Grand Rapids. Afscme and the city council argue that if there is a city resolution to the contrary, which there is in this case, the housing commission is not permitted to fix the compensation of its employees. Afscme and the city council further maintain that the 1996 amendments permitted the city to continue to exercise employment oversight for the commission and that it did so between 1996 and 2002 when it included the dhc in its budgets. Defendants, however, counter that the Court of Appeals decision is not in conflict with the decision in Grand Rapids because it also held that housing commissions are independent bodies corporate and the sole employer of commission employees. Defendants interpret Grand Rapids as providing that the city council may adopt an ordinance defining powers of the commission as the employer if it is consistent with the housing act, but the ordinance may not withhold or deny powers granted by the statute. We agree with this interpretation; the ordinance in Grand Rapids did not conflict with the housing facilities act; Detroit’s does. We decline to accept plaintiffs’ position that the Grand Rapids Court holding that “in the absence of a city resolution to the contrary, housing commissions are now permitted to fix the compensation of their employees,” is applicable in this case. The Court of Appeals in this case is not bound by that language to conclude that because there was a resolution to the contrary in this case, the DHC could not be the sole employer. The Grand Rapids panel and the instant panel are consistent in their reading of the housing facilities act, but differ on the facts under consideration. The Grand Rapids Court was not faced with a resolution in conflict with the statute and, thus, did not have to address what happens when there is such a resolution. Therefore, the Court of Appeals did not err by declining to follow the fact-specific holding from Grand Rapids. V. DETROIT CITY ORDINANCES The Court of Appeals opined that subsections 14-5-3(5) to (7) of the Detroit City Code are in direct conflict with MCL 125.655(3). The city council argues that this is incorrect. We reject the council’s arguments, however, and agree with the Court of Appeals. The city of Detroit is a “home rule city.” Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 637, 652, 669 n 8; 537 NW2d 436 (1995) (opinions by Weaver, Cavanagh, and Mallett, JJ.). We have held that “home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied.” Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994). As a home rule city, certain powers are left to the city under Michigan’s constitution: Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [Const 1963, art 7, § 22 (emphasis added).] While prescribing broad powers, this provision specifically provides that ordinances are subject to the laws of this state, i.e., statutes. See also the Home Rule City Act, MCL 117.1 et seq., specifically MCL 117.4j(3), which provides: For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state. This Court has held that a municipality may not enact an ordinance that directly conflicts with the state statutory scheme or if the state statutory scheme preempts the municipality’s ordinance by “occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.” People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977). As analyzed below, it is clear that the city ordinances at issue directly conflict with the housing facilities act. A. SUBSECTIONS 14-5-3(5) AND (6) The city council amended subsections 14-5-3(5) and (6) to provide: (5) The mayor shall recommend to the City Council either a compensation Schedule or compensation ranges and classifications for the [housing] Commission officers and employees. (6) The City Council shall adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the City Council or establishing compensation ranges and classifications by the commission in fixing the compensation of its officers and employees. [Emphasis added.] The city council's position is that the plain meaning of MCL 125.655(3) suggests that the mayor (or “appointing authority”) has an affirmative duty to make recommendations to the city council (or “governing body”). The city council maintains that the statute is discretionary because it provides that “[u]pon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt. . . (Emphasis added). The city council would have us interpret this as giving the governing body discretion to adopt either a requirement that the compensation of each officer or employee be approved or establish compensation ranges and classifications. The city council believes that while it may choose either of the two alternatives, it must in fact act. If the city council has the affirmative duty to choose an alternative, the city council states that it is incumbent upon the appointing authority to make the appropriate recommendations. Under the city council’s interpretation, the appointing authority has discretion regarding what is recommended, not whether to make a recommendation. If the city council’s interpretation is correct, it would follow that subsections 14-5-3(5) and (6) do not conflict with the statute and thus axe not invalid. The city council’s position, however, is flawed. Subsections 14-5-3(5) and (6) do conflict with MCL 125.655(3) and are preempted. We cannot read into the statute what is not there. Omne Financial at 311. MCL 125.655(3) includes no duty to make a recommendation. Likewise, we cannot read into the statute a duty mandating the adoption of a resolution regarding employee compensation and classification. Rather, as discussed in part iv, we believe MCL 125.655(3) presents two alternatives. As a matter of law, the housing commission may employ and fix the compensation of a director and employees as necessary. If the appointing authority makes a recommendation, the second option becomes viable and the governing body may adopt one of the two resolutions as set forth in the statute. However, if the appointing authority does not make a recommendation or if the governing body does not adopt a resolution in accord with the statute, the housing commission has the exclusive authority to fix the compensation of its director and employees. Subsection 14-5-3(5) provides that the mayor shall make a recommendation to the city council regarding compensation and classification of DHC employees. Likewise, subsection 14-5-3(6) states that the city council shall adopt a resolution regarding compensation and classification of DHC employees. The city code makes the mayor’s recommendation and the city council’s adoption mandatory. However, MCL 125.655(3) clearly provides, in pertinent part: The commission may . . . fix the compensation of a director . . . and other employees as necessary. Upon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the governing body or establishing compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees. [Emphasis added.] Subsections 14-5-3(5) and (6) are clearly contrary to the plain language of the statute. First, the statute gives the housing commission the express authority to fix the compensation of its director and other employees. Second, the statute provides that “[u]pon the recommendation of the appointing authority, the governing body . . . may adopt a resolution” regarding the compensation and classification of housing commission employees. There is nothing in the language of the statute mandating that the appointing authority make a recommendation to the governing body. Therefore, subsection 14-5-3(5) is contrary to the plain language of the statute and is invalid. Likewise, there is nothing in the language of the statute mandating that the governing body adopt a resolution. Therefore, subsection 15-5-3(6) is also contrary to the plain language of the statute and is also invalid. Because the mandates in subsections 14-5-3(5) and (6) directly contradict the express language of MCL 125.655(3), which gives the appointing authority the discretion to make a recommendation and the governing body the discretion to adopt a resolution, subsections 14-5-3(5) and (6) are invalid. B. SUBSECTION 14-5-3(7) The city council’s amendment of subsection 14-5-3(7) provides: All housing commission employees shall be members of either the classified service or the unclassified service as is provided under Section 6-517 of the Charter of the City of Detroit, and shall be entitled to all rights of all employees of the City of Detroit, including but not limited to pensions and benefits. We hold today that the 1996 amendments of the housing facilities act, specifically MCL 125.655(3), sever the city’s employment relationship as a matter of law, unless the mayor recommends and the city council approves a resolution declaring otherwise. As we have already established, the mayor did not make such a recommendation; therefore, there was nothing for the city council to approve. As a result, subsection 14-5-3(7), declaring that all DHC employees are city employees, is contrary to MCL 125.655(3) and the mayor’s actions in this case; thus, subsection 14.5-3(7) is invalid. C. OTHER ORDINANCES To the extent afscme argues that if the ordinances are declared invalid, the status quo will revert to the prior housing ordinance, which still maintains DHC employees as city employees, AFSCME is mistaken. Any prior ordinances that conflict with the housing act are invalid and have no effect. VI. CONCLUSION We hold that the 1996 amendments, specifically MCL 125.655(3), sever a coemployment relationship between a municipality and its housing commission by operation of law. The only way to establish a coemployment relationship is under the unambiguous language of MCL 125.655(3): upon the recommendation of the appointing authority, the governing body may adopt a resolution regarding the compensation and classification of housing commission employees. In this case, the mayor of the city of Detroit did not make such a recommendation, therefore, the dhc is the sole and independent employer of DHC employees. As a result, ordinances enacted by the Detroit city council to the contrary are invalid. The judgment of the Court of Appeals is affirmed. Corrigan, C.J., and Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred with Cavanagh, J. See also In re Brewster Street Housing Site, 291 Mich 313, 323; 289 NW 493 (1939). Id. Section Cl(b) of the partnership agreement stated: The separation plan shall deal with all aspects of the housing commission, which will have the power of governance and by-laws (written draft by March 1, 1996), including: housing commission capacity to hire, fire, transfer, [and] assign employees as well as set job descriptions, compensation levels, and performance criteria. The plan will include a timetable and date certain for complete separation from the City.

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On order of the Court, the Judicial Tenure Commission has issued a Decision and Recommendation for Discipline, and the Honorable Helen E. Brown has consented to the Commission’s findings of fact, conclusions of law and recommendation of public censure. We are called on in this case to discipline a judge for the two ethical transgressions outlined below. One of the situations presented relates to the respondent’s involvement with a charitable organization. The respondent has volunteered as a part of the consent resolution of this matter to refrain from participating in charitable activities that would otherwise be well within those allowed by our Code of Judicial Conduct. Thus, while we adopt the findings and conclusions of the Judicial Tenure Commission, this should not be interpreted in any way as discouraging members of the judiciary from participating in civic and charitable activities in conformance with Canon 5B of the Code of Judicial Conduct, such as forming a civic or charitable organization, serving on the board of directors of such an organization, or attending a charity fundraiser. As we conduct our de novo review of this matter, we are mindful of the standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000): [Ejverything else being equal: (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct; (2) misconduct on the bench is usually more serious than the same misconduct off the bench; (3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated; (6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery; (7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship. The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations. In this case those standards are being applied to the following findings and conclusions of the Judicial Tenure Commission, which we adopt as our own: 1. Respondent was a judge of the 3rd Circuit Court, Family Division, in the City of Detroit, Wayne County, Michigan at all relevant times mentioned. 2. As a judge, Respondent is subject to all of the duties and responsibilities imposed on her by the Michigan Supreme Court, and is subject, at a minimum, to the standards for discipline set forth in MCR 9.104 and MCR 9.205. 3. The Commission has conducted a preliminary investigation of certain grievances filed against Respondent, which are identified as Grievance Nos. 01-13491, 01-13598, 01-13717 and 02-13858 (collectively referred to as “Investigated Grievances”). 4. On March 8, 2002, the Commission provided notice to Respondent of the charges being made in the Investigated Grievances pursuant to then-MCR 9.207(C), in what is commonly referred to as a 28-day letter. 5. On June 13, 2002, the Commission issued a supplement to the 28-day letter to Respondent. 6. The Commission and the Respondent have engaged in negotiations to resolve this matter. As a result of those negotiations, Respondent has consented to the resolution of this matter through an order of public censure by the Supreme Court. 7. The recommendation for order of public censure is based on the following facts: A. Respondent is the founder and Chairman of the Board of Trustees of the Coalition for Family Preservation (“Coalition”), a Michigan nonprofit corporation. 1) On Friday, October 5, 2001, the law firm of Garber & Mayers, P.L.L.C. held a golf outing fundraiser for that organization. 2) On or before September 5, 2001, Garber & Mayers presented a number of the invitations for the event to Respondent by delivering them to her staff. 3) The invitation states that Respondent sponsored the golf outing. 4) The invitation also identifies the Coalition for Family Preservation as a “501(c)(3) non-profit organization,” when it did not yet [have] such status under section 501(c)(3) of the Internal Revenue Code[.] 5) The program for the event prominently identifies Respondent as the “Coalition Founder.” 6) A sign recognizing donors to the golf outing and a handout identifying the prizes for the outing, which were posted at the event, prominently identify Respondent as the “Coalition Founder.” 7) The sign and handout also erroneously state[d] that the Coalition had received 501(c)(3) status, when it did not. 8) Respondent was aware of Canon 5B(2), which prohibits judges from individually soliciting funds for charitable organizations, or using her prestige of office for that purpose. 9) In relation to the use of her name and the identification of the Coalition as a 501(c)(3) organization, Respondent failed to: a) Take sufficient care to review all materials distributed in accordance with the golf outing to insure that her name was not used in an improper manner, and that the tax exempt status of the Coalition was correctly identified; b) Take action to revise the invitation; c) Notify personnel at Garber & Mayers of the need to make changes to the invitation; or d) Advise personnel at Garber & Mayers of limitations regarding the use of her name, and the erroneous identification of the organization as having received 501(c)(3) status, for other documents relating to the golf outing, after receiving the invitation. 10) MCL 450.2911 requires all corporations authorized to conduct affairs in this state to file a report with the State of Michigan no later than October 1 of each year. 11) Respondent, as Chairman of the Board of Trustees, is ultimately responsible for the filing of all required reports of the Coalition. 12) As of October 1, 2002, the Coalition had not filed annual reports for the years 2000, 2001, and 2002 with the State of Michigan. As a consequence, the Coalition was dissolved on October 1, 2002 pursuant to MCL 450.2922. B. Respondent was at all relevant times assigned to Elizabeth Bousquette v David Bousquette, Third Judicial Circuit Court Case No. 00-024584 DM. 1) One of the issues in the case concerned the custody of two minor children. 2) After the plaintiff moved out of the state, custody was temporarily awarded to the maternal grandparents, Norman and Deborah Bresinski, as the defendant could not provide a suitable residence for the children, and as he was working a midnight shift. 3) On December 14, 2001, the Bresinskis and the defendant, both with counsel, appeared before Respondent for an evidentiary hearing to determine if the house purchased by the defendant was a suitable residence for the children, and to confirm that the defendant had begun working a day shift so he could care for them. 4) During the hearing, the attorney for the grandparents raised the issue of where the children would spend the approaching Christmas holidays. 5) Counsel for the parties noted that there were conflicts in the judgment of divorce and a subsequent order, which clouded the issue of where the children would spend Christmas Eve and Christmas Day that year. 6) Respondent encouraged the parties to resolve the matter themselves, but when they were unable to agree and where each side had equally compelling arguments as to why the children should be with one party on Christmas day instead of Christmas Eve she told the parties it was nothing more than a coin flip. 7) Instead of just issuing a decision regarding the dispute, Respondent stated that she would decide it by the flip of a coin. 8) Although the Bresinskis’ attorney and Norman Bresinski protested using a coin flip to determine the issue, Respondent produced a coin, allowed the defendant to call heads or tails, and flipped it. 9) The defendant called heads, which is what appeared on the coin, and Respondent thereby ordered that the children would spend Christmas Eve with defendant. 8. By consenting to this recommendation for discipline, Respondent expresses her deep regret for her conduct as set forth above, and for the resulting negative impact on the public perception of judges, the institutional integrity of the judiciary, and the administration of justice. 9. By consenting to this recommendation for discipline, Respondent will: A. Take no measures to reactivate the Coalition for Family Preservation or to incorporate any other charitable organizations; B. (1) Refrain from being an officer or board member of any other charitable organization, (2) refrain from participating in any charitable fundraising as an individual, and (3) refrain from lending her name to assist in the solicitation of funds for any other charitable organization. Respondent is not precluded from making contributions of her time or money to a charitable organization should she choose to make any; and C. Refrain from resolving any disputed issue by the flip of a coin. 10. In consideration of Respondent’s consent to discipline and her promises as to future conduct, the Commission agrees to dispose of all pending Investigated Grievances and to refrain from entertaining any further grievance or Request for Investigation for any act set forth in the Investigated Grievances. 11. Respondent’s conduct as admitted and described above constitutes: (a) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205; (b) Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205; (c) Failure to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1; (d) Irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A; (e) Non-adherence to the usual and accepted methods of doing justice, contrary to the Code of Judicial Conduct, Canon 3A(9); (f) Individual solicitation of funds on behalf of a charitable organization, or permissive use of the prestige of the judicial office for that purpose, contrary to the Code of Judicial Conduct, Canon 5B(2); (g) Conduct which is prejudicial to the proper administration of justice, in violation of MCR 9.104(1); (h) Conduct which exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2)[.]”

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Grant, J. (after stating the facts). We deem it unnecessary to state more fully the proceedings taken and the objections thereto. The appellants stood by; saw these proceedings taken; do not claim to be damaged; their assessments are small; and they took none of the statutory steps to contest the legality of the drains. They are now about completed. Under the repeated decisions of this court, we think they are not now in position to raise the questions. The drain law provides methods for the speedy determination of all questions involving the validity of the proceedings. The evident intent and purpose of this is to have the validity determined before large expense is incurred and the drains constructed. The following decisions are conclusive against the appellants: Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22). The constitutionality of this act has been attacked before, but perhaps not on the specific ground now alleged against it. A similar provision is found in the general tax law. We see no constitutional objection to adding an amount to cover contingent expenses. The decree is affirmed, with costs. The other Justices concurred.

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Montgomery, C. J. This is a contest over the will of Elnora Saier. The grounds of contest are undue influence and mental incapacity. The record discloses that in 1895 Mrs. Saier had executed a will in which she had devised her property to her children, share and share alike, except William and Joseph. The shares which, had she died intestate, would have been theirs, were devised to their respective wives. Before the making of this first will, Mrs. Saier had loaned to her son William $800 on mortgage security, and had loaned to Joseph Saier $500, and to Charles $500. The will offered for probate was executed on the 11th of January, 1898, the day of the testatrix’s death, and differs from the first will only in that the shares given by the first will to the wives of William and Joseph were given direct to her sons, and that by the will in question it was recited that these loans of $800, $500, and $500, respectively, should be treated as advancements to William, Joseph, and Charles, and deducted from their respective shares, the will reciting that these sums remained unpaid. The testimony tended to show that the mortgage given by William had on the 2d of November, 1894, been formally discharged by Mrs. Saier, and that William had, by her direction, paid the money due thereon to Joseph. The children of deceased consisted of Mrs. Mary Hen-rich, of Milwaukee; Charles Saier, John B. Saier, Joseph Saier, and Mrs. Kate Savage, of Lansing; William Saier, of Millett; and Clara O’Neil, of Gharlotte. About a week before Mrs. Saier’s death, Mrs. Henrich was sent for, from Milwaukee, and arrived in Lansing five days before the mother’s death. She arrived Friday morning, and her mother died the following Tuesday evening. On her arrival she went to the house of her sister Mrs. Savage, and there had a conversation with Mrs. Savage about William’s mortgage. By her direction, Mrs. Savage wrote a letter to Mrs. O’Neil, at Charlotte, the same morning. The object of the letter was to haye Mrs. O’Neil go to the register’s office and ascertain if William had placed on record a discharge of the $800 mortgage. The next Monday, about 10 o’clock, a telegram was received from Mrs. O’Neil, stating that the mortgage was discharged December 7th. Mrs. Savage and Mrs. Hen-rich were at their mother’s house when the telegram came, and Charles was at work at Mrs. Savage’s house. On receiving the telegram, Mrs. Savage went over and talked with Charles about it, and they then went back to their mother’s house, and read her the telegram and talked to her about it. Mrs. Henrich,.Mrs. Savage, and Charles all assert that their mother denied, at once, having made any discharge of the mortgage, and pronounced it a forgery. There was testimony relating to other facts and circumstances from which an inference of undue influence might be drawn by the jury. There was testimony tending to show a want of memory, in some measure affecting the disposition made of her property by the testatrix. The jury found that the discharge of William’s mortgage was executed and acknowledged by Mrs. Saier, and that she had apparently forgotten this fact, as she charged that it was a forgery. There are numerous assignments of error based on the admission of testimony. But two of these require discussion. Charles Saier was permitted to testify to statements of Joseph to the effect that William had admitted to him that the mortgage given to his mother was unpaid. This testimony was hearsay and clearly inadmissible, unless there is some fact to take it out of the rule excluding hearsay testimony. It is suggested that Joseph Saier had testified in his deposition to the payment of the $800 mortgage, and that this made the testimony of his admissions competent; but it does not appear that any foundation for impeaching the testimony of Joseph Saier was laid. It is also suggested that, if the mortgage was not paid, William Saier and Joseph were co-conspirators. We discover no evidence in the case tending to show conspiracy, unless it be in the fact that the testimony of one witness was corroborated by the other upon this point. It would be an exceedingly dangerous doctrine to admit into the law of evidence that, where two witnesses testify to the same state of facts as to the payment of a sum of money, the opposite party is to be permitted to introduce declarations of one not a party, affecting the rights of a party, under the claim that their testimony shows that they are guilty of conspiracy. We think it was error to admit the testimony. There is one other item .of testimony which was improperly excluded, in our opinion. As tending to show that the testatrix retained her mental faculties, evidence was offered that, a few hours after executing the will, a priest was called to administer the last sacrament, and that Mrs. Saier participated in the service, repeated audibly and properly the prayers, made the sign of the cross at the proper time, and appeared to comprehend the service. On cross-examination of Mrs. O’Neil, who was'called as a witness by proponents,— it appearing that she was present at this time,' — ■ she was interrogated as to what this service consisted of, and, under objection, the testimony was excluded. We think it should have been admitted. It had a direct bearing upon the condition oí the patient. The charge, in the main, was full and fair, but there is one portion which, while the rule as laid down is, in the main, correct in the abstract, yet, as applied to the facts in the case, was calculated to mislead the jury: “Neither, in a case of this kind, are you to be moved by any appeals of any kind made to you. I wish those things could be eliminated from the court-room; * * * and all appeals to your prejudice, all appeals to your passion, all appeals of any kind made to you, are simply so many strings to pull you away from the pure question of fact that you have to determine. And when you go to your rooms I want you to act upon your own judgments, upon your own consciences, in the matter. It is not for you to make a will one way or the other; that is none of your business. You have got no more right to make a will for Mrs. Saier, now that she is dead and gone, than you would have had to step into her room when she was living, and impudently dictate to her what she should do with her property. Whether it is such a will as you would have made is immaterial. Whether she did just right, or did not do right, is immaterial. Those are not questions for you. You gentlemen have the control of your own property, and she had the right to control hers, if she was mentally competent.” It is true that a jury has no right to substitute its own judgment for that of a testator as to what a will ought to be. It is true that whether she did just right was not the ultimate question for the jury to determine. But if she discriminated against William to the extent of this mortgage, claiming that it had not been paid, when in fact it had, this was a circumstance which was to be weighed by the jury, in connection with the other facts in the case, in determining her mental condition, and determining whether she acted under undue influence. It does not require any argument to show that such a provision is against natural justice, and the fact that a provision of the will is against natural justice may be considered, with other facts, as bearing upon this question. Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566). We think the other questions raised do not call for special discussion. The rule of the case is sufficiently in dicatecl by the foregoing. We cannot, however, pass by in silence certain matters contained in the brief of Messrs. Smith & Hood, attorneys for contestants. The brief contains strictures upon the trial judge which are unwarranted by anything which appears in the record, and which have no place in a legal argument. Some allowance may be made for zeal of counsel, but we cannot permit such matter to be spread upon the records of this court, and a repetition of the offense will call for something more than a reprimand. For the errors pointed out, the judgment will be reversed, and a new trial ordered. Moore, Long, and Grant, JJ., concurred. Hooker, J.. did not sit.

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Hooker, J. The plaintiff’s testate was drowned through riding a bicycle off from a bridge, at night, while the draw was open to permit the passage of a vessel. Deceased had a place of business about two blocks from the bridge, and was in the habit of crossing the bridge on his way to and from his home. The testimony varies as to the degree of darkness, but it is shown to have been a moonlight night, and a red lamp upon the center of each side of the bridge was facing the street. Commonly a chain was stretched across the bridge when the draw was open, and this chain had been stretched on this occasion, but had been driven against and broken. Notwithstanding this fact, the draw was opened for the approaching boat, without any steps to provide warning to persons approaching being taken. The learned circuit judge left the questions of negligence and contributory negligence to the jury, and they returned a verdict as follows: “We find that George P. Burgess came to his death through contributory negligence, ánd therefore no cause of action.” No requests for special findings had been submitted to them, but, as this verdict clearly shows that it was based on contributory negligence, it necessarily implies that they found the defendant guilty of negligence. It becomes unnecessary, therefore, to discuss the -assignments of error bearing alone upon defendant’s negligence. There are other bridges in Port Huron where conditions are similar. The defendant showed that on one or two other occasions the deceased had ridden his bicycle against the chains upon the bridge where he ultimately met his death, and had been violently thrown down upon the bridge. An attempt was made to show that he had done the same upon another bridge, and, after the answer had been excluded, a similar question was asked as to a third bridge. It was not answered, however. The argument was afterwards made that the fact that the deceased rode against the chain on other occasions tended to show that he was a careless rider, and corroborated the testimony of witnesses that on the night in question he started from ¡ his place of business at a rapid pace, with his head down, (and was seen thus riding, and warned, when near the chain. It is urged that the admission of this testimony, and the conduct of counsel in relation to it and to that excluded, call for a reversal of the case. In his charge the judge said upon this subject: “Now, in determining whether or not Mr. Burgess on that night in question was guilty of contributory negligence, you have a right to take into consideration his knowledge of the surrounding facts and circumstances. There was some testimony introduced here tending to show that Mr. Burgess on one or two other occasions had run against the chain on the bridge, and was thrown off his bicycle. Now, that testimony was admitted for the single and sole purpose of showing, or tending to show, that Mr. Burgess knew the kind of a barrier that was used there, and so far as it tended to throw any light on the fact that he knew it was a drawbridge, and that it was opened at times for vessels to pass through. The defendant’s counsel, in his arguments, said to you that the evidence tended strongly to show what kind of a rider Mr. Burgess was, on his bicycle. Now, that argument was not proper. Counsel was distinctly advised before that testimony came in that it could not be used for that purpose. You have no right to consider that testimony for the purpose of showing that Mr. Burgess was a careless rider, because, though he may have been careless at other times, that does not show that he was careless on this night. Whether he was or was not careless on the night he was drowned must depend upon the evidence bearing upon his conduct that night, and not at any other time, so that for that purpose you will disregard that testimony; but you may consider it for the purpose of showing his knowledge of the bridge and the surrounding circumstances and the guards that were used there, but for no other.” It was certainly competent to show that the deceased was acquainted with the situation, and the fact that on other occasions he had ridden his wheel up to the verge of the chasm, and had stopped at or been stopped by. the chain, would be convincing evidence of such acquaintance, admissible notwithstanding the fact that it showed carelessness upon those occasions. It is a well-understood rule that testimony that is offered for a purpose for which it is competent is not to be excluded because it tends to prove another fact which is incompetent. The court carefully restricted the use of this proof, and plainly instructed the jury to disregard the objectionable argument. This was all he could do, and in the absence of intentional professional misconduct, or some evidence that the jury disregarded the instructions of the court, we should not reverse the case for the offer of proof. Counsel for plaintiff requested the court to charge that: “The love of life is instinctive. Men do not usually expose themselves to great discomfort or great danger without some strong motive. Mr. Burgess is dead, and cannot speak; but his estate is entitled to any presumption that may arise from this instinct of self-preservation, and you should not find him guilty of negligence without satisfactory proof or strong inference that he is so.” The request is objectionable, because argumentative; but, furthermore, the inference which a jury may draw, in the absence of testimony, in a case where the victim of the accident is dead, may be overcome by any proof which, in the opinion of the jury, reasonably tends to show want of care, and the judge was not called upon to instruct the jury that the “proof must be satisfactory, and the inference strong,” without further explanation of the subject. It is contended that the court should have instructed the jury that the deceased had a right to assume that the city would do its duty in the premises. A request of this kind was offered, but it was coupled with the implication that the deceased was under no obligation to look for danger if he could not reasonably be expected to see or expect that the draw was open. Under undisputed proof, we think that the deceased knew he was approaching a place that might be dangerous; and if, as the court said, he could not see, there was occasion for caution, and he should not blindly push on, in reliance upon the expectation that he would be stopped by running into a chain on the brink of a chasm. Again, the claim that, if he momentarily forgot the conditions, it would excuse his failure to act upon his knowledge, is not tenable. If it were, no one need do more than to forget his knowledge of conditions (%. e., be absent-minded or preoccupied), to be excused from all care. But these things amount to inattention, and inattention is heedlessness, and this is not to be thus excused. The cases cited do not support this claim. They go no further than to say that it is for the jury to determine what is due care in attempting to avoid a known danger. Again, a request was offered to the effect that if deceased rode over the draw because of the absence of the chain, which he was looking for, the plaintiff was entitled to recover. This should not have been given. It left out other circumstances. It would not be due care to ride rapidly towards a place of danger in a dark night, in the expectation of seeing a small chain on the brink of a chasm in time to avoid danger. It would be- a very hazardous performance. It is contended, also, that the court ought to have called attention to differences in the condition of the bridge and surroundings at the time of the accident from those existing at the time of the trial, but we think the request was more in the nature of an argument than a proper request. The jury could not have failed to understand, if they were possessed of ordinary intelligence, that it was the condition upon the former, and not the latter, occasion that they were considering. The court told the jury that: “ It is the settled law of this State that no person can recover damages against a city for injuries, -nor for the death of any person, if the person who was killed or person injured was guilty of contributory negligence. Now, that means merely this: If they were guilty of some act which in itself was negligence, and contributed to the injury they received, or to the death they complained of, it would make no difference how slight the negligence may be, if it contributed to the result, it defeats recovery absolutely.” I't is now argued that this was error, and that the contributory negligence must be such as to materially contribute to the injury. This is based on an expression, probably used out o'f “abundant caution,” in the case of Denman v. Johnston, 85 Mich. 396 (48 N. W. 565). No such question was involved or passed upon in the case, and no other is cited. On the other hand, it is settled that if the plaintiff was guilty of any want of ordinary care and prudence, however slight, which neglect contributed directly to produce the injury, he cannot recover. Cremer v. Town of Portland, 36 Wis. 92. The language quoted from the charge might, under some authorities, be objectionable, if standing alone; but, in connection with the remainder of the charge, it is clear that want of ordinary care was made the test of contributory negligence. E. g., the court sums up the subject by saying: “All these matters are proper for your consideration, and from them determine whether or not Mr. Burgess, when he rode into that draw, was in the exercise of that reasonable care and caution that a prudent,.careful, and cautious man would have exercised on such a night as that was, approaching that bridge, with the knowledge of the surroundings Mr. Burgess had. From this testimony, and all the surroundings, and your own view of the bridge, you must determine the fact whether he was in the exercise of reasonable care and caution, — in other words, whether he was guilty of contributory negligence. ” For an interesting, but perhaps rather technical, discussion of this question, see Beach, Contrib. Neg. § 20, and notes. We have endeavored to give the questions raised a critical examination, and think that the plaintiff’s case was fairly tried, and clearly submitted to the jury. The judgment is affirmed. The other Justices concurred. Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).

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Moore, J. Pingree & Smith are engaged in the business of manufacturing boots and shoes in the city of Detroit, and have a good many men and women in their employ. Prior to December 16, 1899, differences arose between the employers and employed over the scale of wages. December 16, 1899, an agreement was signed by Pingree & Smith, on the one side, and Timothy O’Connor and Ernest A. Allen, on the other side, representing the employed, reading in its material part as follows: “Being unable to agree on prices of the following work, we hereby jointly request an arbitration of the same by your honorable board, agreeing to abide by your decision. Prices to remain in force until May 1st, 1900.” A hearing was had before the court. The taking of testimony was completed March 9, 1900, and the case was argued by the counsel for the respective parties. On March 31st the court made a decision in writing, and filed the same in the office of the county clerk of Wayne county April 19, 1900. Pingree & Smith were dissatisfied with the decision of the court, and on April 6th moved for a reheai’ing of the case. June 23, 1900, the court granted the motion for a rehearing. The relators ask for a writ of prohibitioxx or a writ of mandamus, or other appropriate writ, to prevent the respondent from rehearing the controversy. It is the claim of the relators that, when the court rendered its decision, it exhausted its powers, and had no authority to grant a rehearing. Three questions are involved in this proceeding: First. The existence of the court of mediation and arbitration. Second. Its power to grant a rehearing after it has once decided a controversy submitted to it. Third. Have the relators sought a proper remedy ? The existence of the court is attacked by the attorneys who argue the case axxd submit briefs in the interest of Pingree & Smith upon constitutional grounds. We cannot s'tate their position more clearly than by quoting from bxúef of counsel: “The act under which this court of mediation and arbitration was organized is unconstitutional. By section 1 of article 6 of the Constitution, the judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities. By section 23 of article 6, the legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law. “The general scheme of the Constitution, as far as it relates to judicial officers, is for their election, and not for their appointment, as shown by article 12, which provides for impeachments and removals from office. Section 4 of that article provides that no judicial officer shall exercise, his office, after an impeachment is directed, until he is acquitted; and section 5 of that article provides that the governor may make a provisional appointment to fill a vacancy occasioned by the suspension of an officer, until he shall be acquitted, or until after the election and qualification of his successor. Chandler v. Nash, 5 Mich. 409. “Section 23, art. 6, of the Constitution, provides for the establishment of courts of conciliation; and by ‘courts,’ here, as well as elsewhere in the Constitution, is meant a permanent organization for the administration of justice, and not a special tribunal provided for by law, that is occasionally called into existence by particular exigencies, and that ceases to exist with such exigency. Streeter v. Paton, 7 Mich. 341; Shurbun v. Hooper, 40 Mich. 503; Risser v. Hoyt, 53 Mich. 185 (18 N. W. 611). If the administration of justice embraces the enforcement of the orders or decrees of courts, the court of mediation and arbitration, being deficient in authority given by the legislature to do this, is not such a court as is meant by section 23 of article 6; for, by the act of its creation, it can do nothing but render a decision on subjects submitted to it in a particular way, and file its decision with the county clerk. The Constitution provides for the formation of a court of conciliation, while the act provides for the establishment of courts of mediation and arbitration, which are not courts of conciliation. * * * Under the act there is no authority given to the judges or members of the court to compel the appearance of either party, nor is there any method of composing the differences or questions in dispute by turning over the parties to a court with authority to enforce its decrees. From the terms of the act, it is clear that whoever drafted it had in mind the definition given above of ‘arbitration,’ which, as that definition says, usually implies a tribunal without power to compel attendance.” It is true that as to the members of the supreme court, the circuit judges, judges of probate, and justices of the peace, the Constitution provides that they shall be elected; but we think it is not open to question that, if the Constitution did not require these judicial officers to be elected, but authorized the legislature to establish these courts and prescribe their powers and duties, it would be entirely competent for the legislature to do so. This is just what is done by section 23, art. 6, of the Constitution. The act does not fail because the legislature, in creating the court, did-not provide' its members should be elected. We are, then, confronted with the question, Is the court of mediation and arbitration a court of conciliation ? When the constitutional convention met which framed our present Constitution, in 1850, courts of conciliation had been in practical-operation in Norway for more than 50 years. They had accomplished most excellent results in the way of harmonizing differences between parties who were otherwise likely to resort to litigation. The purpose of these courts was to create an inexpensive and speedy tribunal, before whom parties between whom differences had arisen in civil cases must go before resorting to the courts of law for relief. The parties were required to appear personally and without counsel, and state their differences, and present such proofs as they could in support of their respective claims. It was the duty of the court to advise with the parties, and, if possible, to bring about an amicable settlement of their differences, and have them depart as friends, and not enemies. If an amicable settlement was agreed upon, a judgment was entered, which would have the same effect as a judgment in any court. As these courts were first constituted, if the parties did not agree upon an amicable settlement they were left to their remedy in the courts of law; but, as we shall see later, further powers were afterwards conferred upon them. Interesting descriptions of courts of conciliation are to be found in 68 Atlantic Monthly, 402, and 72 Atlantic Monthly, 671. Courts of a like character had also been in operation with most satisfactory results in France and Sweden, and possibly in some other countries of Europe. It is possible that, because of the results attained by these inexpensive and speedy tribunals, the framers of the Constitute were led to incorporate in it section 23, art. 6, which reads, “The legislature may establish courts of conciliation, with such powers and duties as shall be prescribed by law.” This language is simple and clear, and would seem to give the legislature abundant authority to create courts of conciliation, and to clothe them with as little or as great power as to the legislature seemed proper. At an address made at Michigan’s semicentennial celebration, Justice Campbell called attention to this constitutional provision. He had no doubt of the authority of the legislature to create these courts, .and expressed regret that the legislature had not brought them into existence. In 1889 an act was passed by the legislature entitled “An act to provide for the amicable adjustment of grievances and disputes that may arise between employers and employés, and to authorize the creation of a State court of mediation and arbitration.” The act is a brief one, containing but 10 sections, and is very general in its provisions. 1 Comp. Laws 1897, §§ 559-568. It is in marked contrast with the edicts or statutes calling these courts into existence in some of the countries of the old world. The Norwegian law of 1824 relating to courts of conciliation is a carefully-drawn statute, of 87 sections. It has been amended at various times. In 1869 the functions of this tribunal were considerably enlarged. These courts were primarily instituted for the purpose of being peacemakers in civil causes, and had no authority to enter judgment, except by the consent of- the parties. As a rule, resort must be had to them in civil cases before the aid of the law courts could be invoked. By the later amendments, in case the parties do not agree to an amicable settlement after listening to the advice of the court, the court is authorized, by the consent of the parties, to arbitrate, the differences between them, and, in cases involving small amounts, may adjudicate the controversy at the request of either party. In the decision of this case we áre not aided by precedents. The constitution of the State of Louisiana makes it the duty of the general assembly “to pass such laws as • may be proper and necessary to decide differences by arbitration.” Const. art. 165. A law was passed calling into existence a board of arbitration, conferring upon it powers of a very similar character to those with which the court of mediation and arbitration is clothed.- The action of this board was invoked in a matter of difference arising between the employés of a railroad company and their employer. The railroad company sought to have the board of arbitration enjoined from proceeding with the hearing. This the court refused to do. In disposing of the case, it used the following language: “It is in place here to state that the board is not vested with judicial functions. It sits as a court of conciliation, with the authority to formulate a decision and to have it recorded.” New Orleans, etc., R. Co. v. Board of Arbitration, 47 La. Ann. 879 (17 South. 418). It is to be regretted that the law passed by the legislature is not a more perfect one, but we think it very clear that the power conferred upon the respondent, if exercised, is calculated to bring about conciliations between those employers and employed between whom differences have arisen, and that the law was enacted, as suggested by its title, to provide for the amicable adjustment of grievances and disputes that may arise between employers and employed. The act does not apply to all classes of cases, and the aid of this tribunal is not a prerequisite before bringing an action in a court of law, as is required in Norway and in some other countries, but the provisions of the act are intended to bring about amicable adjustments of differences. "We are not concerned with the extent of the power conferred by the legislature upon this court, nor with the effect of its decisions. Those are questions we reserve until they are properly before us. The act does not undertake to confer power or impose duties in relation to all classes of civil cases, but such power as it does confer is within the constitutional right of the legislature. ' We now come to the second question: Has the court a right to grant a rehearing after it has once rendered its decision ? From what has already been said, it is apparent that the purpose to be served by the establishment of this court is to have a speedy and inexpensive disposition of the differences submitted to it. It was not the purpose of the legislature to create what we ordinarily understand by a court of law. The Constitution provides that these courts shall have such powers and duties as shall be prescribed by law. The law which called this court into existence is the limit of its power. The act nowhere authorizes the court to grant a rehearing. When its decision has been rendered and filed, it has exhausted its power in a given case. Some question is raised by counsel as to the effect of the decision rendered by the court, and the method of its enforcement; but we do not regard tjiat question as properly before us in this proceeding, and do not pass upon it. We now come to the final question: Have the relators sought a proper remedy? We have already stated that the court had no authority to act further in the proceeding. The statute does not provide for an appeal from the action of the court of mediation and arbitration. It has been repeatedly held that, unless the statute expressly or by plain implication provides for an appeal, none can be taken. See Sullivan v. Haug, 82 Mich., at page 555 (46 N. W. 795, 10 L. R. A. 263), and the many cases there cited. Section 191, 1 Comp. Laws 1897, provides when the Supreme Court shall have general superintending control over all inferior courts, and for the issuance of various writs,- — among them, writs of prohibition and writs of mandamus. Section 9977, 3 Comp. Laws 1897, provides when writs of prohibition shall issue. This section of the statute was construed in Maclean v. Wayne Circuit Judge, 52 Mich. 257 (18 N. W. 396). In that case a mandamus was ordered to vacate a restraining order improperly made, and a writ of prohibition was ordered to stay further proceedings in a case where the court attempted to exercise jurisdiction improperly. See, also, 2 Green, Prac. p. 827, and the cases there cited. The writ of mandamus will be granted, to vacate the order granting a rehearing; and the writ of prohibition, staying any further proceedings in the cause by the respondent. The other Justices concurred.

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Montgomery, C. J. The bill in this case was originally filed by the complainant to enforce a land contract between the intestate, as vendor, and the defendants, as vendees. The contract was signed by the intestate and wife and by Frank E. Snow, trustee. The bill avers that: “Said Frank E. Snow executed the same as Frank E. Snow, trustee, but your oratrix avers the fact to be that said Frank E. Snow, in executing said contract, acted for and on behalf of himself and said defendants Fremont Woodruff and William A. Jackson, and that said Frank E. Snow, Fremont Woodruff, and William A. Jackson were the joint purchasers of the premises in accordance with the terms of said contract, and should be held liable and decreed to perform the said contract.” To this bill the defendants interposed a demurrer, setting up the following grounds: “ 1. The bill is by the personal representative of a deceased vendor, and the heir is not made a party. “2. There is no offer in the bill to put the defendants in possession, nor any averment that they are in possession. “8. It appears that defendants Woodruff and Jackson did not sign the contract of purchase, but the bill avers that they, with defendant Snow, ' were the joint purchasers of the premises.’ The bill contains no averments to show them to be such, nor how or in what manner, or upon what authority to Snow, they became such. The bill is multifarious and uncertain. “4. The prayer of the bill is for judgment and execution, and not for a sale. “5. It does not appear that any tender of performance was made by complainant, or that a deed was tendered before the bill was filed.” -On the hearing the court sustained the demurrer as to want of parties, and overruled it as to other grounds, at the same time permitting an amendment to the bill making the heirs at law of the deceased parties defendant. From the order overruling the demurrer, defendants have appealed. Counsel for appellants discusses the question of want of parties, but that question is not before the court. The appeal can only be considered as one from so much of the order as overruled defendants’ demurrer. The contract in this case is under seal, and does not name or purport to bind defendants Woodruff or Jackson. The technical rule that a party not named in a sealed instrument cannot be made liable upon it, in the absence of some act of subsequent ratification, applies. Mechem, Ag. § 418 et seq.; Briggs v. Partridge, 64 N. Y. 357 (21 Am. Rep. 617); Henricus v. Englert, 137 N. Y. 488 (33 N. E. 550). No facts showing subsequent ratification are averred in the bill. The demurrer was therefore well taken, and must be sustained. The case will be remanded, with leave to complainant to amend under the rule. Defendants will recover costs of this court. The other Justices concurred.

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Grant, J. (after stating the facts). Plaintiff was a passenger, invited to ride in the defendant’s car, and entering at the time and place with the knowledge and assent of the defendant. He was not guilty of contributory negligence in entering the car and taking a seat, although the rest of the train was then backing towards it. The law governing the rights of passengers riding upon freight trains, and the duties of railroads in carrying them, is stated in Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112), and the authorities there cited. The contract of defendant was to carry plaintiff with the care and precaution incident to the usual and proper methods of running freight trains. Plaintiff gave evidence tending to show the backing of the train with unusual and unnecessary force. We think the record leaves a fair inference that this bed frame was a part of the equipment of the car. If the train was backed with the customary caution and speed, and any portion of the car overhead gave way and fell, the onus was then shifted to the defendant to show due care. If it was backed with such great force as to cause some part of the car to give way, and injure a passenger, then negligence is established, to which proof of a properly-constructed car would be no reply. If plaintiff had depended solely upon negligence in backing the cars, by reason of which some portion of the car fell upon him, he would not be required to show that the car was negligently constructed. If the seat on which plaintiff was sitting, or the back of the seat in front of him, to which he was holding, had given way, he would not have been required to allege and prove that the seats were improperly constructed. Mr. Cooley approves the rule stated in Sullivan v. Railroad Co., 30 Pa. St. 234 (72 Am. Dec. 698), that— “When, in performing this contract, they hurt a passenger without fault of his, the law raises prima facie a presumption of negligence, and throws on the company the onus of showing it did not exist.” Cooley, Torts, 663. The author adds: “ This is the rule where the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control as a part of its duty to carry the passengers safely. But this rule of evidence is not conclusive. The carrier may rebut the presumption, and relieve himself from responsibility, by showing that the injury arose from an accident which the utmost skill, foresight, and diligence could not prevent.” The same rule is approved in Wilson v. Railroad Co., 130 N. Y. 675 (29 N. E. 1034, 9 N. Y. Supp. 277); Memphis, etc., Packet Co. v. McCool, 83 Ind. 392 (43 Am. Rep. 71); Railroad Co. v. Walrath, 38 Ohio St. 461 (43 Am. Rep. 433); White v. Railroad Co., 144 Mass. 404 (11 N. E. 552); Och v. Railway Co., 130 Mo. 27 (31 S. W. 962, 36 L. R. A. 442). The learned counsel for defendant cites, in support of his contention, 4 Elliott, R. R. § 1644, which reads: “It is, therefore, too broad a statement of the rule to say that in all cases a presumption of negligence on the part of the carrier arises from the mere happening of an accident or an injury to a passenger, regardless of the circumstances and nature of the accident. The true rule would seem to be that, when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, without contributory negligence on the part of the passenger, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.” Under this rule, we are of the opinion that the case was one for the jury. It would be so unusual that a hat-rack or other equipment of a car should give way by a jar, when trains are made up in the ordinary manner, that it may fairly be inferred it could not have happened without negligence in construction. But, -aside from the question whether the bed frame was properly secured, plaintiff was entitled to go to the jury upon the question whether there was negligence in backing the freight cars against the caboose, and whether that caused the accident; and, as already stated, the company could not defend by showing the proper construction of the bed frame. Judgment reversed, and new trial ordered. The other Justices concurred.

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Moore, J. The case comes here upon exceptions before sentence. The respondents were convicted of the larceny of a cow. The important part of the information filed against the respondents reads as follows: “In the Circuit Court for the County of Mecosta. “Albert B. Cogger, prosecuting attorney-for the county of Mecosta, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court at the November term, in the year of our Lord one thousand eight hundred ninety-eight, and gives the said court here to understand and be informed that William Turney and John Hendricks, late of the township of.Martiny, in the county of Mecosta and State of Michigan, on, to wit, the 20th day of September, A. D. 1895, at, to wit, said township, county, and State, one cow, of the value of fifty dollars, ‘of the goods, chattels, and property of one Stephen W. Foster, then and there being found, feloniously did steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.” A motion was made to quash the information because it does not charge that any offense was committed within the jurisdiction of the court. The trial judge overruled the motion. It is said he erred. We think the information charges the offense to have been committed at the township of Martiny, in the county of Mecosta and State of Michigan, on the 20th of September, A. D. 1895, and that the trial court made a proper disposition of the motion. James Lowrey was called as a witness for the people. He testified that he knew the cow said to have been stolen, and that he saw it on the farm of the owner. He says he was in charge of the meat-market of one Mr. Thomas; that at about midnight he was called up by respondents, who said they had a cow for Mr. Thomas, who was then absent from home; and that he went with them to the slaughter-house, and with their assistance butchered the animal, and put it into the cooler belonging to Mr. Thomas. On the cross-examination of this witness, for the purpose of discrediting him, it was sought to show that he had proposed to various persons to steal cattle and sheep, they to divide the profits with him. The defense was not allowed to pursue this line of cross-examination. If Mr. Lowrey was a man who proposed to others to steal cattle and divide the profits, jt would very properly affect his credit as a witness, and the cross-examination should have been allowed. For-the purpose of showing that the testimony of Mr. Lowrey was actuated by spite, it was sought to show by him that an animal had been stolen from one of the respondents, and that Mr. Lowrey had been accused by respondent of stealing it. The court refused to allow the inquiry to be made. In this we think he erred. Upon the part of the defense an effort was made to impeach Mr. Lowrey. A number of witnesses were sworn who testified they knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad. For the purpose of rebutting this testimony, witnesses were called who were allowed to testify that they had had dealings with Mr. Lowrey, and that he treated them fairly in those deals. This was not competent sustaining testimony. Other errors are assigned, but they are either not well taken or are not likely to occur again. For the errors pointed out the conviction is set aside, and a new trial ordered. The other Justices concurred.

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Hooker, J. The defendant was convicted of burglary, upon a charge of breaking and entering a farmer’s barn and stealing a double harness. The outline of the case for the prosecution is that the barn door was found open in the morning, and the harness gone. The yard gate was open, and tracks showing that a buggy had stood near by, and afterwards gone south, were distinguishable. The defendant and his companions were shown to have hired a buggy in Bay City that night, about 12 midnight. The harness was found in possession of one Sackles, south of Saginaw, the next morning. He had traded a horse for it, the morning that it was missed, to Burkhardt and Wines, the men who were with defendant in the buggy. The defendant claimed that he had a slight acquaintance with one Martin, and that, a few days before the harness was stolen, he met Martin, who told him that he had a harness to sell. Defendant had no use for the harness, and the subject dropped. On July 9th defendant met Wines, who told him of a man who would trade a horse for a harness, and defendant mentioned his talk with Martin. On July 12th defendant again saw Martin, who agreed to bring the harness to Burkhardt’s barber shop for inspection that evening, which he did about 10 o’clock. Defendant paid Martin $10 for it, $3 of which he borrowed from Burkhardt, and $2 from a young woman named Hattie Smith. The horse and buggy were then hired, and used for the purpose of getting and taking the harness to Saginaw county, where it was traded for the horse. Wines was taken because he alone knew where to find the man with whom they were to trade. This horse was afterwards sold to Boutell. Burkhardt, who had been previously convicted, was sworn, and testified to the facts claimed by the defense. Martin was not called by the defense. During the examination of Burkhardt, the following colloquy occurred: “ The Court: You have had the services of the sheriff of the county at your disposal. Why haven’t you brought this Mr. Martin here ? “Mr. Simonson: We have endeavored to get Mr. Martin. “ The Court: Why haven’t you taken a subpoena for him? “Mr. Simonson: We sent a man yesterday to try to find out where this Mr. Martin was, in order to get a subpoena. We took the— ' “The Court: You haven’t sent the sheriff to look for him at all. I have been so advised, and I think there is an order in the case that the witnesses be subpoenaed at the expense of the county. “Mr. Simonson: We take an exception to the remarks of the court. “ The Court: It looks to me like an imposition on the court. “Mr. Simonson: We take an exception to the remarks of the court. “ The Court: Take all the exceptions you are a mind to. Good faith in an attorney must be exacted in every court of justice. I cannot allow you to pick up or look after a straw man here, in order to tempt people to commit perjury. “Mr. Simonson: We take an exception to the remarks of the court. “The Court: If there was any such man as Mr. Martin, he can be produced or accounted for. You have had the assistance of the whole State of Michigan at your back to do it, without a cent of costs. “Mr. Simonson: We take an exception to the remarks of the court. “The Court: It seems to me that you are trifling with the court, and occupying its time sillily and foolishly. Not only that, but you are encouraging the commission of a crime. If there is no such man as Martin, then the testimony is all false. “Mr. Simonson: We take an exception to the remarks of the court. Shall I go on with the witness ? “The Court: You can do whatever you are a mind to. “Q. You came back after you took Miss Smith home, and you found Mr. Daniels and O’Hare in front of your place ? “A. Yes. “Q. What did you do then, and what conversation did you have ? “A. Mr. Daniels got up and leaned against a pole, and I sat down, and we were talking, and I says: ‘I believe Mr. Vanderbilt has an opening at his place, and a dance. I ought to go out, as he comes to my place, but I guess I won’t go; it will be too far to walk back.’ “The Court: Where does Martin live? “A. I couldn’t tell you. It seems to me that I saw the man once or twice previous to that. “The Court: You told us on the other trial that he lived up at Portsmouth. “A. That is what I learned from a man in the jail. “The Court: You haven’t taken any subpoena for him or sent the sheriff after him ? “A. I mentioned it to the sheriff. “Q. You mentioned it to your attorney? “A. Yes. That day when he came in I told Mr. Anneke about it. Mr. Anneke was the first one I mentioned it to. “Q. Why didn’t Mr. Simonson send for him? “A. I never spoke to Mr. Simonson. “Q. You knew he was a necessary and material witness? “A. Certainly, we would like'to have him. “'The Court: But you made no effort to get him? “A. I couldn’t do anything. ' “The Court: You could ask the sheriff. ‘ ‘A. I did tell the sheriff over there. “The Court: Instead of getting a man that you thought, if he existed and would tell the truth, could help you out of this scrape, you saw fit, both of you, to ransack every crib and bad place there is here to get some witness that would tell a lie. It seems to me that has been the practice, instead of the legitimate practice of the law. “Mr. Simonson: We take exception to the remarks of the court. “The Court: I don’t think a lawyer is fit to practice law that would be guilty of such a practice as that. “Mr. Simonson: We take an exception to the remark of the court. “The Court: You can have no exception here. “Mr. Simonson: Shall I proceed with the witness? “ The Court: There is an order of the court assigning you to defend this man, which directed the sheriff to subpoena all of his witnesses at the expense of the county. ‘ 'Mr. Simonson: How could I know what Mr. Martin— “ The Court: You knew the importance of Mr. Martin, and that, of all things in the world, he ought to be produced. “Mr. Simonson: As soon as I was appointed I directed a man to go up there, and to go to every Martin family up there, and find out who he was. ‘ ‘ The Court: Whom did you send ? “Mr. Simonson: John L. Averill. “ The Court: Why didn’t you send the sheriff ? ‘ 'Mr. Simonson: How could the sheriff go and subpoena a man until he knew whom to subpoena and where he was ? Suppose I say, ‘ Go and get Mr. Martin.’ What would he tell me? He would say, ‘Who is Mr. Martin, and where does he live ? ’ “The Court: I cannot have this class of work done here, and I won’t have it. ” In his charge the court alluded to the subject as follows: “Now, under this state of facts, as to that man Martin, I think the defendant was bound to produce him, or account for him, if he could. You have heard the testimony of the defendant, and of this man Horn, and of this girl, and of his accomplice, Burkhardt. Horn testified that he saw a man come into the Grand Central Hotel and speak to O’Hare, and that finally he went out with him to the corner; looked at the man and the harness; he had a very small horse. Both Burkhardt and O’Hare testify about O’Hare borrowing the money,— that he had $5, Burkhardt only had $3, and that they borrowed these $2 of the girl to make up the $10 that he wanted. Now, gentlemen, if a $38 harness was offered in the night for sale for $10, a prudent man ought to be on his guard about buying it. He ought to be able to show, if he bought it, that the transaction was honest and free from suspicion. You have heard the testimony of both Burkhardt and the defendant here, and you must be aware of the terrible strain and temptation they are under to controvert this evidence by false testimony, if false testimony will do them any good. As to the relations between the girl and this Burkhardt, she testifies that he was her lover, and they were engaged to be married. A wife has often as much interest for her husband as the husband himself can have. But now I reach a branch of the case which I think I ought to fully submit to you. Last Monday, I think it was, Mr. O’Hare applied to the court to assign him counsel and means to procure his witnesses with. An order was made assigning Mr. Simonson to aid him. A similar order was made that the sheriff summon, at the expense of Bay county, all the witnesses that he might need in his defense. The sheriff is an officer of the court, over which the court has absolute control about the service of papers, and the court can punish him for contempt for any'violation or lack of duty. Simply giving the name of a witness to the sheriff was all that was needed in order to secure his attendance here if he could be found. This court does not recognize any constable at all, except as the sheriff may employ him to preserve order in the court-room. I cannot take his return as any evidence, as I do that of the sheriff or deputy sheriff. He has no business to perform any service of this court except the solitary duty of attending court when requested by the sheriff. Mr. Averill, a constable, an officer not recognized by the circuit court of this county, is sent out by Mr. Simonson to find this man. He starts out at 3 o’clock, and is back that night. He takes a city directory and looks over four or five names, and he goes out to look for Martin. If the story was true that such a man existed, did he or his attorney avail themselves of what the law had placed in their hands in order to get him here? If it is not so, it casts a very black shadow over this defense. You may look at it as part of a scheme to fabricate a defense, to justify it by perjury, and force it through by an immense number of witnesses swearing falsely.” The witness Hattie Smith corroborated Burkhardt. She was interrogated upon cross-examination as to her relations with Burkhardt, and denied any impropriety in them. Afterwards an officer was permitted to testify that she was a street-walker, and had such a reputation among the police officers, and that she associated and roomed with another woman, not a witness, of bad repute. Wines was not a witness, yet a witness was permitted to testify that on one occasion he knew of his being arrested. The course taken by the circuit judge cannot be approved. His strictures upon counsel were excessive, and it was not for him to make a partisan argument upon the failure of the defendant to produce Martin. Again, it was error to admit proof of Hattie Smith’s reputation, and of Wines’ arrest. The judgment is reversed, and a new trial ordered. The other Justices concurred.

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Montgomery, C. J. In 1893 defendant was engaged in the wholesale grocery business in the city of Detroit. The capital invested in the business was $36,000, of which plaintiff had contributed $10,000 under an agreement that she should share in the profits and losses of the business, and with the further agreement that plaintiff might, on giving 60 days’ notice, withdraw the funds so furnished by her. It was stipulated that plaintiff should not have any voice in the business. This relation continued until May 1, 1895, the plaintiff’s husband being employed in the business as cashier. On May 1, 1895, or shortly thereafter, a new agreement under date of May 1st was entered into in the following terms: “For and in consideration of the sum of ten thousand dollars ($10,000.00) furnished me by Frances M. Scudder, of Detroit, Mich., receipt of which is hereby acknowledged, for the purpose of carrying on a wholesale fruit and fancy grocery business at 53, 55, and 57 Jefferson avenue, as Ward L. Andrus & Co., of which firm I am sole partner, I hereby agree to pay said Frances M. Scudder or assigns, at the end of each year, ten thirty-fourths (10-34) of the net profits of said business. Said Frances M. Scudder may withdraw at any time the aforesaid funds so furnished by her by giving sixty days’ notice thereof. This agreement shall be in force five years (5) from May 1st, 1895, unless otherwise terminated. It is expressly understood that the said Frances M. Scudder shall not in any manner or in any way have any voice, direction, or control in the management of said firm on account of said funds so furnished ; and I hereby agree not to, personally or otherwise, sign or indorse any note, bond, or other obligation not pertaining to the business of said firm, or do any act which would place in jeopardy the money furnished by said Scudder.” In February, 1897, plaintiff elected to withdraw her funds from the business. Within the 60 days fixed by the contract, defendant repaid $5,000, hut insisted, when demand was made for the balance, that plaintiff should bear her portion of the losses, while plaintiff insisted on her right to the $5,000 without abatement or deduction, and instituted this suit. Defendant thereupon filed a bill in chancery alleging that he was induced to sign the last agreement by the fraud of plaintiff’s agent, John Scudder; that the agreement should have stated that the amount contributed was the amount of the worth of plaintiff’s interest in the business on May 1, 1895; and that it should also have provided, as did the first agreement, that plaintiff should share in the losses as well as in the profits of the business. The bill filed by Mr. Andrus was dismissed on final hearing, and this decree was affirmed by this court on appeal. Andrus v. Scudder, 120 Mich. 502 (79 N. W. 794). It was contended on the trial of this case that the chancery case was res judicata of the question as to whether plaintiff should participate in the losses, and also as to all questions raised in thi's case. The effect of the chancery decree was this: It determined that there was no fraud inducing the execution of the agreement of May 1, 1895, and, as a consequence, it was not competent for defendant to assert that plaintiff should bear a portion of the losses occurring after that date; but it was competent to introduce any defense which would have been open on this trial had no bill been filed. The defense attempted on this trial was to show that the recital of consideration was inaccurate in fact; that plaintiff, on May 1, 1895, contributed only the amount of her then present interest in the business, and that this amount, deducting losses then and subsequently ascertained, was but $7,424.55. The recital in the agreement of May 1, 1895, is not a recital of the amount advanced at the time, necessarily. Whatever the amount of Mrs. Scudder’s interest then was on the basis of the first agreement, the fact was that she had at one time $10,000, and this agreement of May 1, 1895, was a substitute for the agreement of 1893. It was strictly accurate and truthful to state that Mrs. Scudder had advanced $10,000, therefore. The circuit judge admitted testimony of the actual value of the plaintiff’s interest, on the 1st of May, 1895, and charged the jury .that the plaintiff should recover no more than the unpaid portion* of that interest, unless the parties agreed to call her interest $10,000 at the time the agreement in question was made. This instruction was sufficiently favorable to defendant, unless, as is contended, there was a failure of consideration or the contract was usurious. John Scudder, who acted for the plaintiff in the transaction, testified that the defendant agreed to call plaintiff’s interest $10,000, and that the parties took into account.the good will of the business, and the fact that Andrus had, by drawing out of the business a consider-' able sum, crippled the business. Defendant contends that at this time the evidence shows conclusively that the business had sustained a loss, of which plaintiff’s portion was not less than $1,250, and that subsequent events have shown the loss to have been even more. There can be little doubt on this record that the loss sustained by the firm prior to May 1, 1895, as it noto appears, was considerably in excess of $5,000; but the important question is whether there was any such uncertainty as to the actual condition of the business as that the parties, by agreement, might fix upon the terms of settlement which they chose to make. The evidence discloses that on May 1st the books showed a profit of $2,196.92. True, it appears that there were included in the statement of assets suspense accounts, $5,076.28, which have since proved worthless in the main; but the parties had a right to fix a value upon them. Mr. Scudder testified that he considered these suspense accounts of some value, and defendant’s witness John L. Lewis testified that a suspense account had an element of hope in it, which a profit and loss account does not have. In view of the fact that the loss had not been definitely ascertained, and of the claim, that defendant had injured the business by his overdraft, can it be said that there was no uncertainty as to the rights of the respective parties which they might adjust? We think not. The jury have found that they did reach an agreement as to the amount of Mrs. Scudder’s interest. That fact determines the case. Watkins v. Ford, 69 Mich. 357 (37 N. W. 300). We do not overlook the fact that Cochrane, who occupied a similar relation to the defendant, settled with him on the theory -that the firm had sustained losses up to May 1, 1895, and that Mr. Scudder took some part in the figuring ; but this fact did not prevent the two parties to this suit adopting a different basis by agreement. No error was committed to the prejudice of defendant, and the judgment is affirmed. The other Justices concurred.

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Moore, J. The statement of facts is taken largely from the brief of counsel for defendant. Catherine Boyle, the plaintiff, brought suit against the city of Saginaw, the defendant, to recover damages for injuries she sustained on a defective sidewalk on October 29, 1898. On the trial of the case she recovered a verdict of $1,000. She was a married woman, and at the time of her injuries, and previous thereto, she was a healthy woman, weighing 150 pounds, who always did her own housework, and, in addition, frequently did washing by the day for other people. She supported herself by her own earnings, her husband, for 15 years previous to this time, not having contributed to her support, though he did to the support of the children. She was the mother of 11 children, 7 of whom are alive, and the youngest of whom was 10 months old at the time of her injuries. The plaintiff lived on North Bond street, about three blocks southwest from the place where the injury occurred. She left home on the night in question, about 8 o’clock, to go to Stingel’s meat market, which is several blocks from where she lived. The night was dark,» and the condition of the walk was not familiar to the plaintiff. There were no artificial lights within a block or two to throw light on the walk on the west side of Stone street at the point where she fell. The plaintiff took the west side of Stone street, and went north to a point within five or six feet from the corner of Union street, when she stepped into a hole in the sidewalk, and fell. After remaining there a few minutes, she got up, and started to go, and took another step forward, when . her foot was caught by a broken board, and she again fell forward, and hurt her hip and ankle. She called for help, and Mrs. Doak, who lived in the house in front of which she fell, came out with a light, and removed the board which held Mrs. Boyle’s foot, and brought her to the stoop, where she sat a few minutes. Mrs. Boyle then went across the street to the store of Mr. Gager, and had him drive her home. She secured a doctor the Monday following the injury. She applied liniment and otherwise treated herself according to the doctor’s instructions. She became nervous, and was sick more or less from the time of the injury to the trial. Previous to the injury she was strong and healthy, and did her own work and work for others, and had never been sick. She was a married woman and it was agreed between herself and husband that she should have her earnings for herself. This agreement was made about 15 years ago, and whatever she earned she collected and used for herself. After her injury, Dr. J. W. Freeman made one visit to her, for which she paid him §1.25. Dr. F. W. Freeman made three or four visits, which were charged to her. Dr. J. W. McMeekin called a number of times. She does not know how much she owes him for these visits, which were 16 or 17. The plaintiff earned about five dollars a week at times working for different people in the city. She spoke to Dr. Mc-Meekin about his bill when he first came to visit her, and said she would pay him in a short time. He 'told her he could wait for his pay. She told him she would pay him herself, and the account was charged to <her. Some payments had been made by her to the doctor at the time of the trial. The first question to be decided is, Did the court err in permitting plaintiff to show the condition of the sidewalk in front of the lot at other places than where the plaintiff’s testimony tended to show she was injured? It is claimed by defendant that, where the defect which caused the injury can be definitely pointed out, the evidence as to defects must be confined to the hole which caused the injury; citing Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Tice v. Bay City, 78 Mich. 209 (44 N. W. 52); Campbell v. City of Kalamazoo, 80 Mich. 655 (45 N. W. 652). It was the claim of the plaintiff that, at the place where she was injured, there was a plank out of the walk, and another broken in two, the broken ends resting on the ground between the stringers, and the planks and the stringers were rotten. The declaration, after describing the walk, alleged that the city— “Knowingly and negligently permitted the same to become out of repair, and to continue out of repair, and to become and remain unsafe and unfit for public travel for a long space of time, to wit, six months, prior to said 29th day of October, and that during all of said time the boards, planks, and stringers of said sidewalk upon the west side of said Stone street, between Congress and Union avenues, were in a condition not reasonably safe and fit for public travel, in that the planks and boards of that portion of said sidewalk were decayed, rotten, loose, shaky, torn up, unfastened, broken, and displaced, and in an unsafe and dangerous condition for the public to travel upon.” Under the repeated decisions of this court, we think the testimony was competent for the purpose of charging the defendant with notice of the condition of the. walk. Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616); Will v. Village of Mendon, 108 Mich. 251 (66 N. W. 58); Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444); Haynes v. City of Hillsdale, 113 Mich. 44 (71 N. W. 466); Rodda v. City of Detroit, 117 Mich. 412 (75 N. W. 939). The next question calling for our attention is, Was the trial judge justified in submitting to the jury the question of fact whether the plaintiff was entitled to recover the medical expenses for treatment of her injuries? Upon this feature of the case the judge charged the jury as follows : “Now, in addition to such damages, if you find any, you may consider in connection with the question of the loss of services and her doctors’ bills; and I will say to you if you find, by a preponderance of the evidence in the case, that the plaintiff has paid, or has agreed to pay, the charges for medical treatment for the injuries which she sustained by reason of the negligence of the defendant, out of her own personal estate, and that such expenses were charged to her individually, and she was given sole credit for the same, she would be entitled to recover such sum so expended or incurred for such medical treatment. * * * But before you can allow her anything for her medical treatment and for her loss of services, you must find that the agreement existed between her and her husband that she should have her earnings; and, on the question of her doctors’ bills, you must find first that the credit was given to her solely and individually, without any expectation of coupling somebody else with her in paying the doctors’ bills.” The charge of the court was in harmony with the decisions of this court. Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583); Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153); Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17). There was testimony justifying the verdict. The other assignments of error do not call for discussion. Judgment is affirmed. The other Justices concurred.

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Grant, J. (after stating the facts). The claim of the defendant is that because Mr. Cowin had no insurable interest in Mr. Maxted’s life, and could not be made a beneficiary, therefore the contract between complainant and defendant is void, as against public policy, and that the courts will not afford relief. This position ignores another legal and equitable rule, — that a trustee cannot be heard to say, “I will not carry out the trust, because the parties had no legal right to repose the trust in me.” The Ancient Order of United Workmen is not here complaining. If it were, a different question would arise. There was no attempt to defraud the association. It was fully informed of the situation, and, after being so informed, consented to pay over the money. Upon what principle of justice or equity can the trustee be heard to say, “I will profit to the full extent of the money placed in my hands by the consent of all parties, although one of them might, if it chose, contest its legality?” If the association had issued a certificate to the defendant, and provided therein that she should hold the money in trust to pay his creditors, the certificate would be void, if the association saw fit to make that defense ; but if the association should choose to waive such defense, and pay over the money to the trustee, neither law nor equity would permit the trustee to profit by the transaction, and keep the money. The rule is settled against the defendant by numerous authorities: Peek’s Ex’r v. Peek’s Ex’r, 101 Ky. 423 (41 S. W. 434); Town of Remington v. Ward, 78 Wis. 539 (47 N. W. 659); Gilmore v. Roberts, 79 Wis. 450 (48 N. W. 522); Wells v. McGeoch, 71 Wis. 196 (35 N. W. 769); Hurd v. Doty, 86 Wis. 1 (56 N. W. 371, 21 L. R. A. 746); Standard Life & Accident Ins. Co. v. Catlin, 106 Mich. 138 (63 N. W. 897); Hosmer v. Welch, 107 Mich. 474 (65 N. W. 280); Woodruff v. Tillman, 112 Mich. 188 (70 N. W. 420). The sole parties concerned in the validity of this transaction are Mr. Cowin and the association. If they are satisfied, it does not lie in the mouth of the defendant to complain. She has no equities. She paid nothing. Mr. Cowin parted with his interest in the homestead, worth $600, in consideration of making this agreement, and, besides, paid Mr. Maxted’s assessments for several years. The decree is affirmed, with costs. The other Justices.concurred.

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Long, J. The claimant, Cynthia A. Blackburn, is the widow, and administratrix of the estate, of George N. Blackburn, who died intestate on October 9, 1895. She ■was married to him in the year 1883, at Alpena, where both had resided for some years. At this time she was a 'widow, and Blackburn a widower, with two children, of whom the contestant, William A. Blackburn, is one. On May 7, 1884, Mrs. Blackburn sold and conveyed to her husband an undivided one-half of a house, and lot, of which she was the owner, in the city of Alpena, together with a considerable amount of household furniture, for the sum of $2,300; receiving therefor three promissory notes, bearing the common date of May 7, 1884, with interest at 7 per cent., — the first for $700, payable one year from date, and the second and third each for $800, payable, respectively, two and three years from date. On the trial the execution of these notes by the deceased was duly proved, but, when the same were offered in evidence, the estate objected to their reception because said notes, upon their face, appeared, to be outlawed. There were upon each of these notes indorsements of payment sufficient to save the bar of the statute of limitations, if they had been in the handwriting of deceased, but they were not; and claimant was unable to make any proof in regard to such indorsements or payments, except by her own testimony, which was rejected as incompetent. It was then made to appear that said George N. Blackburn, together with his wife and family, removed from the city of Alpena, with their household effects, and took up their permanent residence in the State of North Carolina, on the 16th day of May, 1888, and that said George N. Blackburn, together with his wife and family, continued to reside in the State of North Carolina, and remained absent from the State of Michigan, from that date until July 3, 1892 (a period of 4 j'ears, 1 month, and 17 days), when said Blackburn, wife and family, returned to and continued to reside in Alpena until his death. Upon this being made to appear, the court held the first of said notes to be outlawed, and the second and third not outlawed, and permitted a recovery upon such last-named notes for the amount conceded to be due thereon, after compelling claimant to deduct the amount of said indorsements and interest therefrom. Contestant, William A. Blackburn, brings error. It is claimed by counsel for claimant that the second and third of these notes, falling due, respectively, May 10, 1880, and 1887, were saved from being barred by the statute of limitations by the exception created by the latter part of section 9736, 3 Comp. Laws 1897, which provides: “If, after any cause of action shall have accrued, the person against whom it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.” It is conceded by counsel for contestant that if George N. Blackburn alone had been absent from and resided out of the State, and in the State of North Carolina, the time of such absence could not be taken as a part of the time limited for commencement of action; but it is claimed that where' both parties (the maker and the payee of the note) go out of the State, and take up a residence in the same State, the statute above has no application. The argument in support of this contention is that, if a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim, by failing to present it. If it were to be admitted that these notes were barred by the statute of limitations of North Carolina, it would constitute no bar to an action in this State. As was said by Kent, C. J., in Ruggles v. Keeler, 3 Johns. 267 (3 Am. Dec. 482): “A foreign statute of limitations can no more be pleaded to a suit instituted here than it can be replied to a plea under our statute. Statutes of limitations are municipal regulations founded on local policy, which have •no coercive authority abroad, and with which foreign or independent governments have no concern.” It is, we think, well settled that, though the claimant resided with the deceased in the State of North Carolina for the time stated, yet that fact would not take the case out of the exception created by this section of the statute. Kempe v. Bader, 86 Tenn. 189 (6 S. W. 126); Ruggles v. Keeler, 3 Johns. 263 (3 Am. Dec. 482); Graves v. Weeks, 19 Vt. 178; Hartley v. Crawford, 12 Neb. 471 (11 N. W. 729); Bulger v. Roche, 11 Pick. 36 (22 Am. Dec. 359); 2 Wood, Lim. § 245, and note. In Kempe v. Bader, supra, the action was upon two promissory notes made in the State of Missouri, both maker and payee being residents of that State at that time and for several years thereafter. At the time suit was brought, the maker of the note (Bader) had become a resident of Tennessee, while the payee, Kempe, still remained a resident of Missouri. The defendant pleaded in bar of the action the statute of Tennessee of six years, but the plaintiff replied the section of the statute of Tennessee similar to our statute under consideration; and it appeared that defendant, after his removal to Tennessee, had been absent from that State from July, 1878, to November, 1879, or a sufficient time, if this exception was applicable to these parties, to save the action. It was insisted that this section was not applicable, inasmuch as both parties were nonresidents at the time the right of action accrued, and that the plaintiff was still a nonresident. The court held that the residence of either or both of the parties when the cause of action accrued or when the action was brought had no effect in limiting the effect of this exception, and that the suit was not barred. In Graves v. Weeks, 19 Vt. 178, it was held that an action in which both parties were nonresidents would be sustained, although the cause of action was barred at the commencement of the suit by the statute of limitations of the State of which both parties were resident citizens. But, whatever may be said of the general rule, it is well settled by the decisions of North Carolina that these notes were not barred by the statute of limitations of that State. Under the statutes of that State, both as to personal and real actions, a woman under the disability of coverture is expressly excepted from the operation of all their statutes of limitations. 1 Code 1883, §§ 148, 163. The courts of that State have uniformly held that none of the married woman’s acts has any effect to cause the statute of limitations to run against a woman under the disability of coverture. State, ex rel. Lippard, v. Troutman, 72 N. C. 551; Campbell v. Crater, 95 N. C. 156; Summerlin v. Cowles, 101 N. C. 473 (7 S. E. 881). The judgment of the court below must be affirmed. The other Justices concurred.

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Per Curiam. This cause is referred to in the case of Ernest v. Woodworth, ante, 1 (82 N. W. 661). That case was in replevin for certain apples. In the present case, a bill was filed to restrain the defendants from selling the apples in controversy. The facts are sufficiently stated in the other case, except that it now appears in the •present case that the court on the hearing entered a final decree making the injunction perpetual, with costs in favor of complainants. Defendants have appealed. The other case having been affirmed, the decree here must be affirmed under the decision in that case. Complainants will recover costs.

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Hooker, J. The petitioner was complainant in foreclosure proceedings wherein John W., John H., and H. Kirk Howry were (among others) defendants. They appeared in the case by resident counsel, who required and 'received a copy of the bill, but did not answer, and a decree was taken pro confesso. This decree recited that they were personally and primarily liable for the debt, and that, unless they should pay the same, the premises should be sold, and a report of sale, including any deficiency, should be made by the commissioner. It was further decreed that “the right is reserved to John W. Howry, John H. Howry, and H. Kirk Howry, and to each of them, to make the defense that they have been discharged in bankruptcy, in any proceeding that may be hereafter had or taken to enforce any deficiency that may be reported by the commissioner in his report of the sale.” A deficiency was reported. All of these three defendants were nonresidents of the State, and each was personally served with a copy of the petition for execution, and the notice of hearing the same, at a place not within this State. No order for a substituted service was procured, but this was waived, so far as it could be, upon the hearing. Copies of the petition and notice were also served upon the solicitors who had represented the defendants in the foreclosure case. They appeared specially, and moved to quash the service and proceedings as invalid, and this motion was granted. We are asked to compel the court to vacate that order, and proceed to hear the questions raised by the petition. The right to a decree for a deficiency remaining after sale, and application of the proceeds of mortgaged premises to the debt secured, depends upon statute. See Laws of 1833, p. 361, § 37 (Rev. Stat. 1838, p. 376, § 105); 1 Comp. Laws 1897, § 517; Lawrence v. Fellows, Walk. Ch. 470; Johnson v. Shepard, 35 Mich. 122; McCrickett v. Wilson, 50 Mich. 516 (15 N. W. 885). See, also, 9 Enc. Pl. & Prac. 451, 452; McCarthy v. Graham, 8 Paige, 480. Where the bill alleges the necessary facts and contains the requisite prayer, and a subpoena, accompanied by the proper underwriting, is personally served upon a defendant, the court may, in its original decree, determine the question of personal liability for a deficiency. Outhwite v. Porter, 13 Mich. 540; Johnson v. Shepard, 35 Mich. 123; Gies v. Green, 42 Mich. 107 (3 N. W. 283); Booth v. Insurance Co., 43 Mich. 299 (5 N. W. 381); Ransom v. Sutherland, 46 Mich. 492 (9 N. W. 530); Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440); Ward v. Obenauer, 119 Mich. 17 (77 N. W. 305); Simons v. McDonnell, 120 Mich. 621 (79 N. W. 916). Such decree is final, and cannot be afterwards questioned, except upon rehearing or bill of review. Johnson v. Shepard, 35 Mich. 125; Ransom v. Sutherland, supra; Haldane v. Sweet, 58 Mich. 429 (25 N. W. 383); Wallace v. Field, 56 Mich. 3 (22 N. W. 91); Corning v. Burton, 102 Mich. 97 (62 N. W. 1040); Jehle v. Brooks, 112 Mich. 133 (70 N. W. 440); Ward v. Obenauer, supra; Simons v. McDonnell, supra. Before payment can be decreed or execution issued, the amount of the deficiency must be adjudicated, after the report of sale has been made. Johnson v. Shepard, supra; Howe v. Lemon, 37 Mich. 166; Gies v. Green, 42 Mich. 108 (3 N. W. 283); Ransom v. Sutherland, supra. That is the object of the proceeding commenced by the petition. The crucial question in the case is whether the defendants are properly before the court. It is contended on their behalf that no absolute decree for the payment of a deficiency can be made, except on personal service of a copy of the sworn petition, and notice of the time and place of hearing. We have cases which hold that a decree in personam cannot be made where the defendant is not personally served with proper process. Booth v. Insurance Co., supra; Gies v. Green, supra; Vaughan v. Black, 63 Mich. 218 (29 N. W. 523); Ransom v. Sutherland, supra. But, where this has been done, not only have we held that the decree is final, but also that a substituted service may be made in the supplementary proceeding. It is true that this has been called a “new proceeding,” but it has always been considered supplementary. Johnson v. Shepard, supra,; Ransom v. Sutherland, supra; Shelden v. Barlow, 108 Mich. 377 (66 N. W. 338); Prentis v. Richardson’s Estate, 118 Mich. 259 (76 N. W. 381). And the cases seem to con template that something less than personal service will support an execution for the deficiency, which could hardly be said if it were not that the court had already jurisdiction of the parties by the service of the original process. Ransom v. Sutherland, supra; McCrickett v. Wilson, 50 Mich. 515 (15 N. W. 885). The statute has not provided for a service of any particular kind, or by any prescribed method, in such cases; and we are of the opinion that the court might prescribe the kind of 'notice, and method of service, and, although it did not in this case, the notice actually given being a copy of the petition, and information as to the time set for. hearing, served personally upon each defendant and the solicitors, such notice is all that any court could require, and the omission of the order may he treated as an irregularity, which, under the facts in this instance, was waived. There are many other States where the practice of rendering decrees for deficiencies rests upon statutes. In others it is based upon the general rule that equity has power to render full relief when it has jurisdiction of the cause for foreclosure. In others the practice is based upon rules of court, which seems to imply that the original subpoena gives adequate jurisdiction, but that justice requires notice of the supplementary proceeding. In New York, from which it is said that our statute is derived (see Prentis v. Richardson’s Estate, 118 Mich. 262 [76 N. W. 382]), it appears to be unnecessary to wait for confirmation of the report. McCarthy v. Graham, 8 Paige, 480; Bank of Rochester v. Emerson, 10 Paige, 115. In this case, then, there was substantially a substituted service. We think it was sufficient to support proceedings upon the petition. The writ is granted. The other Justices concurred.

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Hooker, J. The plaintiff’s horses and wagon were injured in a collision with the defendant’s trolley ear. The defendant has appealed from a verdict of $125 in favor of the plaintiff. The only questions in the case are whether the record conclusively shows contributory negligence, and, if it does not, then whether the verdict is so clearly wrong as to make the denial of a motion for a new trial error. The distance that a car was visible from the point where the accident occurred is in dispute; defendant claiming it to be at least 70 or 80 rods, while the plaintiff and his witnesses place it at 40 rods. The plaintiff was driving along the road, until he should come to a point where a private lane turned off, and where he intended to cross the track. He testified that he looked both ways before turning in towards the track, and neither saw nor heard a car, and, as he drew up nearer the track, the step of the car hit his forward hub and the horse. There is opportunity for the belief that he did not turn short upon the track, and that he drove some 8 or 10 feet before he was struck, after looking and not seeing the car. We cannot say, therefore, that he drove immediately in front of the car, or that it was so close that it was necessarily negligent not to see it when he looked. He had a right to suppose that the car would be run at an 8-mile rate of speed, in conformity to the ordinance; and, if no car was within 40 rods, we cannot say, as a legal proposition, that he should not attempt to cross the track, had he seen it. In this respect the case resembles Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278). Upon a motion for new trial, affidavits were produced which show that, by actual measurement, the car was visible for a greater distance than plaintiff claimed; but the view that we have taken precludes reversal upon this ground. The judgment is affirmed. The other Justices concurred.

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Long, J. The parties were married in 1893. They lived together about five years, when they separated. They have no children. Complainant was about 26 years of age at the time of the marriage, and was a school teacher by occupation, earning $70 per month. She filed a bill for divorce some time before the present bill was filed. Their differences were settled, and they commenced living together again. Defendant is about 3G years of age, is engaged in business in Detroit, and has considerable property. The complainant filed the present bill in September, 1898. It charges the defendant with adultery and cruel treatment. On the hearing the defendant did not deny the charges made. The court found that the material allegations in the bill were sustained by the proofs, and entered a decree of divorce on the ground of adultery. The complainant was awarded a large amount of alimony. She was given the household furniture, excepting the silverware and china, .which came- from defendant’s family. The defendant was required to release and transfer to complainant all his interest in a policy of insurance, which had a cash value of $800, and to pay the complainant $7,600 in cash; these payments to be in lieu of temporary alimony or for maintenance of complainant, and for bills incurred by her in connection with the former divorce proceeding instituted by her. This was to be in full satisfaction of her interest in defendant’s property. She was also given a lien upon all of his property in this State to secure the payment of the alimony, and a receiver was appointed to take possession of the property. The defendant appealed from this decree, and gave a bond to release the property. The only question raised in this court is the amount of the alimony. The defendant’s property consisted, at the time of the entry of the decree below, of the following items: Baseball irfterests, the highest value stated at_____$12,000 Insurance policy.................................. 800 Furniture................-...........-........... 400 Cash..................... 800 Western lands, which, it is argued, were worth____ 5,600 $19,600 It is claimed by his counsel that he owed debts amounting to $3,000. We think, under the proofs, the court below very properly granted the decree of divorce, but we are satisfied that the award of alimony was excessive. The proofs show that the defendant, while living with the complainant as his wife, was guilty of the most lewd conduct. He apparently consorted constantly with lewd women, and was guilty of adultery upon several occasions. The law is well settled that these facts should be taken into consideration. The court should, however, in fixipg the amount of alimony, have taken into consideration the property affairs of the defendant, the amount of property, what cash assets he had, and the other available property. It is apparent that the land, which is situate in another State, is not available for immediate sale. If the baseball interest is worth $12,000, which defendant denies, the payment out of that of $7,600 would leave him without much available funds to carry on his business, which would apparently be thus broken up and destroyed. There was included in the amount given complainant the sum of $500, which she claimed she owed her solicitor in the former divorce proceeding. It appeared all that was done in that matter was the drawing and filing of a bill for divorce. No proofs were given of the value of those services. Ordinarily, from $25 to $50 would be the limit allowed by the law for such services, and, as no proofs were given of their value, we think but $50 should be allowed complainant for that item. It is conceded that $135 should be allowed for other debts of complainant. The alimony must be reduced, and the following awarded: The defendant will be required to deed to complainant one-half of the land in the foreign State, she to take it at the value of $2,800; $450 will be deducted from the $500 which was allowed to complainant to pay for divorce proceedings ; the defendant will be required, not only to make the deed as above provided, but shall pay in cash to complainant or her solicitors the sum of $3,000. The .complainant will therefore be awarded: Cash....................-_________________________ $3,000 Household furniture, valued at----•.................. 400 Insurance policy............-...................... 800 Western land, valued at....................-....... 3,800 Making a total value of..........-...............$7,000 —Out of which complainant can pay her solicitors and the other debts. With this modification, the decree below will be affirmed. No costs of this court will be allowed. The other Justices concurred.

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Hooker, J. The relator, De Gaw, instituted quo warranto proceedings to try the right of Fitzsimmons to the office of justice of the peace, to which each claims to have been elected at the election in the fall of 1898 in the city of Detroit. The cause was heard by the circuit judge without a jury, and the court found that the respondent received, and was elected by, a majority of the votes cast, and rendered judgment of not guilty. The relator brought the cause here by writ of error. At the commencement of the trial, the court, by consent of the parties, appointed auditors, who opened the ballot-boxes of those precincts in which the correctness of the count was questioned. They tabulated the undisputed ballots, and marked and returned to the court such ballots as were questioned, with the result of their count. The questions before us are (1) whether the entire vote in certain precincts should have been excluded; (2) whether certain rejected ballots in different precincts should have been counted for the relator; (3) whether other ballots counted for the respondent should have been rejected. Counsel have also discussed some ballots alleged to have been erroneously counted for relator. We have inspected the disputed ballots, and the tabulation. which follows will serve to explain the result reached by us in relation to them. The finding of the circuit judge does not give the total vote of each party, or the plurality received by either. These are deducible only from the various findings, and, as we understand them, the court counted for the relator 18,255, and for respondent 18,260, ballots. We are of the opinion that to these should be added some ballots improperly rejected (13 for relator and 7 for the respondent), and there should be deducted some that were improperly counted (viz., 5 for the relator and 12 for the respondent). This is exclusive of the 22 disputed ballots in the Fifth district of the Twelfth ward, 4 of which should be deducted from the respondent, because we are compelled to say, under the decision of Attorney General v. Glaser, 102 Mich. 405 (61 N. W. 648), that they bear distinguishing marks. It is urged with plausibility that the other 18 ballots are subject to the same rule, but we find it unnecessary to determine as to them. As already said, we compile the following table of votes counted, from the finding of the circuit judge: De Gaw. Fitssimmons. Reported by auditors.--!_______________■ 16,786 16,671 Fifth district of Twelfth ward, undisputed------------:__________________ 91 158 Fifth district of Twelfth ward, disputed, but counted.......... 4 18 Ballots initialed in blue pencil, counted 699 906 Bromley ballots, Second district, Fourteenth ward.............. 158 120 Bleil ballots, Second district, Fourteenth ward........... 84 56 Bridgman ballots, Seventh district, Sixth ward---------- 216 180 Theo. ballots__________________ 193 114 Of disputed ballots_________ 24 37 18,255 18,260 We make changes in the above as follows: De Gaw. Fitzsimmons. Disputed ballots erroneously rejected-.. 13 7 Add---------- 18,255 18,260 18,268 18,267 Erroneously counted, deduct.......... 5 12 18,263 18,255 From 22 ballots, Fifth district, Twelfth ward, reject and deduct.............. 4 18,263 18,251 The table shows three classes of ballots that were questioned, of which the relator has a majority, viz., those designated “Bromley,” “Bridgman,” and “Theo.” Messrs. Bromley and Bridgman were clerks of the respective boards of inspectors. Theodore E. Vitalius was an inspector. The ballots were initialed by each of these persons in his respective district, by order of the board of inspectors. Bridgman wrote his own initials, and handed some of the ballots to the voters, and Vitalius wrote “Theo.,” instead of the first letters of each "of his names. The circuit judge found that these things were done in good faith, and that no injury resulted to either candidate through the departure from the letter of the statute. Should these ballots be deducted, it would reduce relator’s aggregate 153 votes. Upon the other hand, there were many ballots initialed in blue pencil.' The court took proof tending to show that the material of which these pencils were made was Prussian blue and clay, and that the former, if dissolved in water, would make ink, and held that this was a substantial compliance with the law. Of these ballots the respondent received a plurality of 20?, and, if thrown out, that number would be deducted from his aggregate. The law requires that ballots shall be initialed by an inspector, and with his own initials, in ink, and be handed to the voters by him. Each party maintains that these provisions are mandatory in part and directory in part. Relator will be benefited by the exclusion of the ballots initialed in blue pencil; respondent, by the exclusion of the others. To our mind, the law is mandatory as to all of these requirements, or directory as to all. At all events, if it is to be held mandatory as to the requirement that only inspectors can handle the ballots, it must be so construed as to the requirement that they be initialed with ink. The blue pencil was not, in effect, ink. Not only does the proof fail to show that clay is an ingredient of the ink made from Prussian blue, but there was no proof that water was used in the application of the initials, and an experiment shows that common India rubber will efface the blue initials upon these ballots. Taking the view that all of these provisions are to be treated alike, it becomes unnecessary to decide whether they are mandatory or not, because the result would be the same if all these votes were excluded as it is under the count made, as the respondent would lose the difference between 207 votes and 153 votes; and, as this would be still further increased if the vote of the Fifth district of the Twelfth ward were to be excluded, u is unnecessary to discuss the questions relating to those votes. We must therefore reverse the judgment of the circuit court, and, as the finding is conclusive of the questions involved, we may properly enter a judgment of ouster here. It will be so ordered, with costs of both courts to the relator. The other Justices concurred.

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Moore, J. In July, 1898, complainant filed a bill for the purpose of foreclosing a mortgage given to it by the defendants Albert H. Burch and wife upon lands in Muskegon, Mich. The complainant claimed there was due upon the inortgage at the time the decree was made upwards of §1,000. The circuit judge granted a decree in favor of the complainant for the sum of §157.14, from which decree the complainant has brought the case here by appeal. It is claimed upon the part of the defendants that the bond and mortgage are usurious, and that the circuit judge gave a decree for all that complainant is entitled to. Defendants did not appeal. It is claimed on the part of the complainant that the contract is a New York contract, governed by the New York law, and is not usurious. The complainant is a corporation organized under the laws of New York. It claims to be a building and loan associa'ion. Its articles of association provide that the principal office shall be in the city of New York. Section 2, art. 4, provides: ‘ ‘ The board of directors may appoint a general advisory board and local advisory boards from among the shareholders at such places as they may deem best.” The articles provide the capital of the association to be accumulated shall be $50,000,000. The shares are $100 each. Three kinds of shares may be issued, among them: “Paid-up shares of the par value of $100 will be issued for $70 per share, upon which there will be paid to the holder semi-annually, from the earnings of the share, interest at the rate of six per cent, per annum upon the purchase price. Such shares shall be liable for no further dues or assessments, and will be payable at the maturity of, and in the same manner as, installment shares of the same date.” Section 4, art. 8. One person may hold 200 shares, enabling him to invest $14,000, upon which he shall receive 6 per cent, interest on the purchase price, and share in the profits the same as the installment shares. Another section provides: “Interest at the rate of six per cent, per annum will be charged upon all loans, which interest must be paid monthly, with the monthly dues, on or before the last business day of each month, until the maturity of the pledged shares, and a premium of fifty cents per month will be charged on each one hundred dollars borrowed, which premium must be paid on or before the last business day of each month, for the period of eight years, or until the maturity of the pledged shares, should they mature before the expiration of the eight years. The premium for six months in advance will be deducted and retained from such loans.” Section 2, art. 13. The mortgage follows the terms of this provision. Article 13 provides for loans upon the withdrawal value of shares upon the same rates for interest and premiums as charged in the case of loans upon real estate. It is then provided: ‘ ‘ The residue of the loan fund not required by shareholders may be invested in such securities as the laws of New York permit for investment of savings banks deposits.” Article 14. In 1890 the complainant appointed George W. Howell its agent at Muskegon, ‘ ‘ with full power and authority to solicit and receive applications for shares of our association in the said territory, and he is fully authorized and empowered to collect and receipt for entrance fees on all shares of the association so taken by him, but has no authority to collect any other moneys of the association.” A local board was organized at Muskegon. Mr. Howell was supplied with the literature of the company, and was active in its interests. His testimony, in part, is: '' The association had a local board here. I organized it. There was a president, vice-president, secretary, treasurer, and board of appraisers. The object of the local board was to look after the interest of their business here in' Muskegon, — to do the local business of the association. It did this up to the time when the local board was dissolved. This local board was in existence at the time this mortgage was given by Mr. Burch, and for some time afterwards; I have forgotten how long. I think the first treasurer of the local board was W. R. Laughray. The local treasurer gave a bond, and collected the money here.” Mr. Burch was the owner of a lot upon which there was a mortgage of $400. He was interviewed by Mr. Howell, and assured that, if he would become a member of the association, he could obtain from it a loan of $1,000, which would enable him to pay off the mortgage and build a house upon his lot, and could obtain this money at a cost of 6 per cent., and that all sums of money above that amount paid by him would be applied upon the principal of the loan. Mr. Burch says that, relying upon these statements, and for the sole purpose of borrowing the money to enable him to pay off the mortgage on his lot and build a house thereon, he subscribed for 10 shares of stock, and soon thereafter applied for a loan of $1,000. Mr. Howell’s version of the matter is not very different from that of Mr. Burch. He undoubtedly believed the statements he made to be true. The application for the loan was accepted by-the company, and for the purpose of securing its payment Mr. Burch assigned to the com pany his shares of the stock as collateral security, and executed a mortgage on his land in Muskegon for $1,000. Mr. Howell took the application for the loan. The land was appraised by members of the local board, and the loan approved by the officers in New York city. The loan, according to the terms of the mortgage and the bond accompanying it, was payable at the office of the company in New York. After the loan was approved, a check for $582 and one for $18 were sent to the local attorney of the company at Muskegon. They were both indorsed by Mr. Burch, who was allowed to retain the one for $582. The $18 check was used by the company as six months’ premium on the loan. Afterwards a check for $379.87 was given to Mr. Burch, the company retaining $11.13 as premium on the loan, and $9 as interest. These items made up the $1,000 for which the mortgage was given. The local attorney examined the title to the lands, and turned over the checks to Mr. Burch. The mortgage was delivered to the local attorney, put upon record, and sent to the complainant. Mr. Burch made payments to the treasurer of the local association. He paid, in all, the sum of $1,080.26. It is claimed by the association that the paypaents were applied as follows: For dues on the shares, $402; fines, $42;'interest on loan, $318.13; premium on loan, $318.13. Mr. Burch was unable to keep up his payments. The association, in June, 1898, applied the withdrawal value of the shares, said by them to be $381.66, upon the mortgage, and filed this bill to foreclose it, claiming, as we have before stated, that more than $1,000 was due. The first thing to be considered is, Was the contract in violation of our usury law ? According to the articles of the association, and the terms of the mortgage also, Mr. Burch was to pay for this loan 6 per cent, interest, and as premium five dollars a month for eight years, or until the loan was all paid or the shares matured. If we eliminate the payment of dues upon the shares, it is apparent the mortgage calls for a payment for interest of upwards of 12 per cent, on the loan for a period of eight years, or until the pledged shares mature, and would be usurious, under our usury laws (section 4856, 2 Comp. Laws 1897), unless it is saved by the provisions of our laws governing building and loan associations (section 7584, Id.). That section refers only to corporations organized under the act. The Michigan act also requires the directors to loan the surplus to the stockholder who shall bid the highest premium (section 7581); while it will be observed there is no such provision in the New York association, but, on the contrary, it requires a borrower to pay, in addition to 6 per cent, interest, a fixed premium on the sum borrowed. In this State such a contract could not be enforced by an association organized under our law. Myers v. Building Ass’n, 117 Mich. 389 (75 N. W. 944). Such a provision is contrary to the spirit and purpose of a building and loan association. See McCauley v. Saving Ass’n, 35 L.R. A. 244 (97 Tenn. 421, 37 S. W. 212, 56 Am. St. Rep. 813), and note, where there is a full collation of the authorities. The articles of association also provide for loans on shares, at the withdrawal value thereof at the same rate of interest charged uppn real loans. The directors are authorized to .invest the residue of the loan fund in such securities as the laws of New York permit for the investment of savings banks deposits. Our statute applying to building and loan associations (section 7584, 2 Comp. Laws 1897) reads as follows: ! “Corporations organized under this act being of the nature of codperative associations, therefore no premium, fines, nor interest on such premiums that may accrue to .the said corporation, according to. the provisions of this act, shall be deemed usurious, and the same may be collected as other debts of like amount may be collected by law in this State. ” Our law does not authorize the issuance of paid-up shares, thus allowing persons to make investments which shall bring them rates of interest much in excess of that allowed by our usury laws. We think it very clear that a Michigan building and loan association could not do what was done here. It is said the contract is a New York contract, and must be governed by the New York law, and for that reason can be enforced. We db not think it at all clear this is a New York contract, or that it was so understood to be when it was made. While by the terms of the mortgage the loan was to be paid in New York, it was expected the money would be paid to the treasurer of the local branch at Muskegon, and most of it was paid to him. A case quite similar to this was passed upon in Meroney v. Loan Ass’n, 116 N. C. 882 (21 S. E. 924, 47 Am. St. Rep. 841), where the following language is used: “Wharton, in his treatise on the Conflict of Laws (section 510), says of the question ‘whether, when a mortgage is given as security for a loan, and the mortgage is in one State and the place of payment of the loan in another, the law of the former State or that of the latter State is to prevail in the settlement of interest,’ that it has been frequently litigated in the United States, and ‘ with results which, on their face, are .irreconilable.’ And the learned author says: • ‘ ‘ The true test is, Was the mortgage merely a collateral security, the money being employed in another State and under other laws, or was the money employed on the land for which the mortgage was given ? If the former be the case, then the law of the place where the money was actually used, and not that of the mortgage, applies. If the latter, then the law of the place where the mortgage is situate must prevail.’ “ It is stated in the elaborate brief of the learned counsel #or appellant that the authorities cited by Wharton do not sustain the rule thus laid down by him. Among these cases is Chapman v. Robertson, 6 Paige, 627 (31 Am. Dec. 264), in which it was adjudicated, as stated in the head-notes of that case in 31 Am. Dec. 264, that ‘the construction and validity of personal contracts depend on the laws of the place where they were made, unless they were entered into with the view of being performed elsewhere;’ and also that ‘ transfer of lands or other heritable property, and the creation of liens thereon, is governed by the laws of the place where such property is situate.’ Of this case Folger, J., said in Dickinson v. Edwards, 77 N. Y. 573 (33 Am. Rep. 671): " ‘ Chapman v. Robertson is a case often cited and relied upon, but it does not impugn the general rule that the validity of a purely personal contract is to be tried by the law of the place of its performance. The learned chancellor concedes that the case would have come clearly under that principle if the contract in suit had been only the personal contract of the defendant; but he holds that, as it was a mortgage actually executed here, by a resident here, upon lands here, for moneys loaned to be used here, though to be repaid elsewhere, the law of this State would fix the legality of the rate of interest reserved; and he further reasons that the contract was partly made here actually in reference to our laws, with an appeal to our courts contemplated by the parties, if necessary:’ “A distinction seems thus to be clearly recognized between a contract ‘purely personal’ (as, for instance, a promissory note executed in this State, but made payable bona fide in Georgia) and a contract not ‘ purely personal ’ (as, for instance, a loan of money by a citizen of Georgia to a resident here to be repaid in that State, and to be evidenced by note so payable, and mortgage on land in this jurisdiction). “In Jackson v. Mortgage Co., 88 Ga. 756 (15 S. E. 812), Bleckley, C. J., speaking of a loan of money made by the defendant to the plaintiff in New York, but secured by a mortgage on land in Georgia, where he resided, says; “ ‘There was not one contract for making notes and another for securing them by a conveyance, but a part of one and the same contract was expressed in the notes, and a part in the deed executed at the same time. * * There was no intention to make a loan without having it secured both by notes and a deed. It was, therefore, impossible to accomplish the object without calling in the law of Georgia as to a part of the transaction. New York had no law which could make any contract conveying land situated in Georgia operative or obligatory. As the law of Georgia would thus be essential with respect to a part of the transaction, that law, if possible, ought to be applied to the whole. There was no intention to make a mere personal contract, but the scheme was to make one partly personal, and partly confined by its very nature to a given situs, to wit, the State of Georgia.’ “See, also, Martin v. Johnson, 84 Ga. 481 (10 S. E. 1092, 8 L. R. A. 170), which was a suit to foreclose a mortgage, the debt being payable, in Massachusetts. It is there said: “ ‘There is a portion of this contract which, under no circumstances, could he enforced in the State of Massachusetts,— that as to the land upon which it is sought to set up a lien. Nor can we very readily see how any portion of this contract could he enforced in the State of Massachusetts against a person resident in the State of Georgia.’ “The difference in the contracts makes a difference in the rule applicable to their enforcement. Hence, in Pine v. Smith, 11 Gray, 38, it was decided, that a note made in, Massachusetts, and secured by mortgage on land in that State, although payable in New York, was to be construed by the Massachusetts law; and in Thompson v. Edwards, 85 Ind. 414, it was held that if A., of Indiana, borrowed in Indiana, on notes secured by a mortgage on land there, money of a citizen of New York, some of the notes being payable in New York and some specifying no place of payment, the' contract was an Indiana contract, and the question of its being usurious was to be tested by the law of that State. In Pancoast v. Insurance Co., 79 Ind. 172, the notes and mortgage were payable in Connecticut, and the court said: ‘“It is true that the notes and mortgage are made payable at Hartford, in the State of Connecticut. But it is true that they were executed in this State, the mortgagor lives in this State, the lands lie in this State, and from the terms of the mortgage it is clear that the intention of the parties was that the contract was to be enforced in this State. The mortgage could be enforced nowhere else. In such a case the law of this State governs, the rate of interest being fixed in accordance with the laws of this State.’ ‘ ‘ The doctrine which Dr. Wharton announces seems to us just and reasonable. It has been repeatedly held that such transactions would constitute ‘ doing business ’ in this State, so as to subject the foreign money lender thus conducting himself to a license tax. Murfree, Foreign Corp. §§ 65, 69, and cases cited. The contention of the defendant corporation seems to us to amount to this: That it must he allowed to do business in North Carolina in total disregard of North Carolina’s statutes and the decisions of her courts; that it shall be allowed to take mortgages on North Carolina land, from a resident owner, for money loaned to the resident, to be used here, and foreclose them in North Carolina courts, where alone jurisdiction for foreclosure could reside, and where alone it must have contemplated enforcing its rights, if a resort to courts should be necessary, not by North Carolina statutes and the decisions of her courts, but by Georgia statutes and the decisions of its courts; in fine, that it shall be allowed to override, in the courts of this State, the laws of this State, and its well-settled policy as to the borrowing and lending of money. We cannot accede to this-proposition, but, instead, we choose to adopt the doctrine announced by Wharton, quoted above, which seems to us more reasonable, and which he assures us is sustained by the authorities.” In Freie v. Savings Union, 166 Ill. 128 (46 N. E. 784, 57 Am. St. Rep. 123), the following language is used: “ But it is insisted that a foreign corporation organized as a building and loan association cannot contract for premiums and fines in addition to interest without violating the statutes against usury. The rule as to foreign corporations is that such a corporation created in another State may, upon the principle of comity, exercise within this State the powers conferred by its charter, if not inconsistent with the public laws or policy of this State. Stevens v. Pratt, 101 Ill. 206; Santa Clara Female Academy v. Sullivan, 116 Ill. 375 (6 N. E. 183, 56 Am. Rep. 776); Barnes v. Suddard, 117 Ill. 237 (7 N. E. 477). By the statute of Indiana, under which complainant was organized, it had power to enter into the contract in this case, and it was not contrary to the laws or policy of this State, which permit the organization of like corporations with the same powers.” To the same effect is Rhodes v. Loan Co., 173 Ill. 621 (50 N. E. 998, 42 L. R. A. 93). See, also, Lindsay v. Loan Ass’n, 120 Ala. 156 (24 South. 171, 42 L. R. A. 783); Interstate Sav. & Loan Ass’n v. Strine, 58 Neb. 133 (78 N. W. 377); National Mut. Bldg. & Loan Ass’n v. Keeney, 57 Neb. 94 (77 N. W. 442); Falls v. Building Co., 97 Ala. 417 (13 South. 25, 24 L. R. A. 174, 38 Am. St. Rep. 194); Cotton States Bldg. Co. v. Reily, (Tex. Civ. App.) 50 S. W. 961. These cases are not in conflict with Russell v. Pierce, 121 Mich. 208 (80 N. W. 118), or Phelps v. Loan Ass’n, 121 Mich. 343 (80 N. W. 120). It does not appear in either of those cases that what was done would be in violation of our law if done by a Michigan building and loan association. In 1895 the legislature passed a law making it unlawful for a building and loan association, organized outside of the State of Michigan to conduct or engage in business in this State without filing with the secretary of state a copy of its articles of incorporation, and paying at the same time a franchise fee. % Comp. Laws 1897, § 7592 et seq. The record discloses this company never complied with this provision of the law. The question is now raised as to whether it can resort to our courts to enforce contracts, even though they were made before this law was enacted,—counsel citing People’s Mut. Ben. Soc. v. Lester, 105 Mich. 716 (63 N. W. 977); Equitable Loan & Investment Ass’n v. Peed, 153 Ind. 697 (52 N. E. 201); Seamans v. Temple Co., 105 Mich. 400 (63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457). The record does not disclose that the jurisdiction of the court was questioned in the court below. The defendants did not appeal from the decree. We decline to enter upon a discussion of that branch of the case. The taxes of 1892 upon the mortgaged- land were not paid. The defendant Thorpe obtained a tax title thereon. The bill charges a conspiracy between Mr. Burch and Mr. Thorpe to allow this land to be sold for the purpose of cutting off the lien of the mortgage. The circuit judge dismissed the bill as to Mr. Thorpe. We think the conspiracy is not shown. The decree of the court below is affirmed. The other Justices concurred.

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Moore, J. The plaintiff sued defendants in an action of trover, and recovered a judgment against them, for the conversion of personal property which she claimed to own. The record does not purport to contain all of the testimony offered in the case. The plea of the defendants was simply the general issue. Upon the trial they were allowed to amend their plea by giving notice that they would show that plaintiff was not the owner of the goods, but that they were conveyed to her by her husband in fraud of defendant the Northern Michigan Building & Loan Association, and that, as to said defendants, Theophile Grenier is still the owner of said goods. On the trial of the case plaintiff offered in evidence a lease of the property in question, made between her and Charles Gamache. It is said that this is error, because it allowed plaintiff to make testimony in her own interest. It was the claim of plaintiff that she owned the property in question, that she leased it to Charles Gamache, and that, while it was in his possession as her tenant, it was wrongfully taken from him by defendants, and converted to their own use. As one link in her chain of testimony, we think it was not error to permit the receipt of the lease in evidence. It was claimed by defendants that plaintiff stood by and saw a conversion of this property without claiming to be the owner. On the cross-examination of a witness upon that phase of the case, the following occurred: “Q. She made the remark that they were being robbed by the building and loan association ? “A. No; I don’t think she did. “Q. They took it very quietly, of course; didn’t manifest any anger ? “A. Took it with as good grace as could be expected. “ Q. They took it in about the same way that any other person would that was being crucified, did they not? (To which counsel for the defendants then and there objected to the style of examination, and to the word ‘crucified’ being used by the plaintiff’s counsel.) “ The Court: The jury will pay no attention to that word ‘crucified.’ And Mr. Mapes should not use such language, and must refrain from it.” This is said to be reversible error. If counsel are right, few cases come to this court which would not be reversed. The circuit judge at once instructed the jury that they were not to consider the objectionable word, and reprimanded the attorney. The court refused to give a request reading as follows: “It appearing from the undisputed testimony that the plaintiff was informed, had fpll knowledge, of the levy, and was present part of the time of the levy, and had full knowledge of the time of the sale, and all the acts done under the execution, and was given a chance to select her exemptions, and that she did not at any time disclose the fact that she claimed ownership of the goods taken, she is now estopped from claiming any ownership in the goods levied upon, and I charge you to render a verdict for the defendants.” This is said to be error. There was no notice given that defendants would seek to justify the taking of the property by virtue of any process of court. While some of the witnesses in their oral testimony spoke of a levy having been made, there is nothing in the record to show any judgment; of any court, nor any execution issued by reason of such a judgment, nor any levy by virtue of any execution. So far as the record discloses, the defendants took the property without any right whatever to do so, and there was no legal evidence upon which to base the request. The judge refused to give the following request: “ If you find from the evidence that the plaintiff’s husband conveyed the goods sought to be recovered in this case to the plaintiff in fraud of creditors, she has no such title as would enable her to bring this action, and you will render a verdict for the defendants.” His refusal is said to be error; counsel citing Stephenson v. Little, 10 Mich. 439; Parkhurst v. Jacobs, 17 Mich. 302; Pierce v. Hill, 35 Mich. 199 (24 Am. Rep. 541). We have already spoken of the condition of the pleadings and of the record. The cases cited by counsel are not in favor of their contention. In this case the plaintiff says the property belongs to her. Her husband is not contesting her right to it, but, on the contrary, says it is hers. So far as the case of Parkhurst v. Jacobs is applicable, it is in favor of the position of the plaintiff. In Pierce v. Hill a judgment creditor was seeking to question the transaction. He had shown a valid judgment, a valid execution, and a valid levy. In this case defendants had shown neither. The case of Fry v. Soper, 39 Mich. 727, is in point, and is against the contention of defendants. See, also, Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834). The judgment is affirmed. The other Justices concurred.

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Moore, J. The plaintiff sued the defendant to recover for injuries- received by him, caused by the explosion of the boiler upon a dredge owned by defendant. The cir. cuit judge directed a verdict for the defendant. The case is brought here by writ of error. The defendant owned a dredge with which he was performing a contract he had with the government to do dredging in Black river. The plaintiff was an inspector looking after the work on the part of the government. He had nothing to do with the management of the dredge. He went aboard the dredge on the morning of May 25th. After the dredge had been in operation for a little time, some of the machinery gave trouble, making it necessary to stop the work for a little time. It is the claim of the plaintiff that the work was heavy, requiring the operation of powerful machinery, and the use of a high pressure of steam in the boiler to operate the machinery. His claim is that, when the machinery was stopped, no steps were taken to check the fire under the boiler, but the fireman went to the forward part of the boat, 40 or 50 feet away from the place of his duties, and remained away 30 to 40 minutes, and that, as a result of the neglect of the persons in charge of the boiler, the steam was raised in the boiler beyond its capacity to resist the pressure, and that the boiler exploded, throwing the plaintiff 25 or 30 feet into the river, and injuring him severely. The plaintiff offered testimony tending to support his theory that the explosion was caused by the negligence of the persons in charge of the boiler. No proof was offered upon the part of the defendant. Plaintiff requested the court to charge the jury, in substance : “1. That, under the circumstances, the bursting of the boiler vras prima facie evidence of negligence. “2. That if you should find that the dredge was being operated under an ordinary working pressure of steam, and with an ordinary working fire in the furnace, and that the furnace doors were closed and the back damper or backboard closed, and that the machinery was thereupon stopped for repairs, and that the fireman in charge of the boiler thereupon went to the forward part of the dredge, and left the boiler without checking the draughts, whereby the steam pressure would be likely to dangerously increase, and if you find that he so remained away from his place Of duty for 15 or 20 minutes, and that, while he was so absent from Ms post, the steam pressure did so increase as to blow out the crown sheet of said boiler and injure the plaintiff, then such acts of the fireman would constitute, negligence, for which the defendant would be liable.” The court declined to give either of these requests, and stated to the jury that plaintiff had failed to establish by proof, with reasonable certainty, the negligence which was the proximate cause of the injury, and directed a verdict for the defendant. The counsel for the plaintiff do not insist in their brief that under the ruling in the case of Voight v. Car Co., 112 Mich. 504 (70 N. W. 1103), they were entitled to have the first request given, but they do say the testimony offered by them was of such a character that the jury might very properly draw from it that the negligence of the persons in charge of the boiler caused the injury, and whether such an inference should be drawn or not was a question for the jury. Notwithstanding the diligence and ability of the counsel employed in the case upon both sides, they have cited us to but few authorities that aid in the solution of the questions involved. The case most in point is the case of Davis v. Railway Co., 58 Wis. 646 (17 N. W. 406, 15 Am. & Eng. R. Cas. 424, 46 Am. Rep. 667). In that case it was claimed thé absence of the persons in charge of the boiler caused the explosion. The court, in disposing of the case, used the following language : “The evidence in the case at bar tends to prove that the persons in charge of the boiler and pile-driver were culpably negligent in leaving it unattended for more than half an hour in the condition the evidence tends to show it was. Hayward, the defendant’s witness, and who was competent to give an opinion on the subject, testified that, if the boiler was left with such a fire in the fire-box as the plaintiff claimed the evidence showed there was, an improper amount of steam would be generated in the boiler. He firrther said: ‘ It is not safe and proper to leave a boiler and engine unattended, with a large fire in the fire-box. It is very unsafe and improper to do it, with a large fire.’ It was certainly for the jury, and not for the court, to say, upon the whole evidence, whether this act of negligence was the cause of the explosion; and it was also for the jury to say whether it was a want of ordinary care on the part of those in charge to leave so dangerous an engine unattended in the immediate vicinity of a place where they knew people would be passing and repassing. This court cannot say, as a matter of law, that the explosion was the result of causes which' were unforeseen, and that such ex plosion would have occurred at the same time and in the same way, and produce the same injury, if the men in charge had remained there during the half hour they absented themselves. These are questions for the jury. We do not say that the plaintiff could recover in this action if the jury should find as a fact that the explosion of the boiler was the result of a defect in the iron of which it was originally made, or because of defects arising out of its use, and which were unknown to the persons in charge at the time of the accident, and were not discoverable by the ordinary inspection given to it. An explosion occurring from such causes might be said to be one of the risks incident to the business, and that all such risks the licensee assumes when he avails himself of the privilege granted by the company; but if they find that the explosion occurred by reason of the negligence of those in charge in permitting the steam to be raised to an unsafe pressure in the boiler, and that the explosion occurred from that cause, then we think the clear'weight of authority is in favor of the plaintiff’s right to recover. Upon the first theory the want of attendance at the time would not be the cause of the explosion, and on the second theory it would be, or might well be found to be. ” It has repeatedly been held by this court, in negligence cases, that it is not the province of the court to pass upon the weight of the evidence, and the effect to be given to it, but that those are questions for the jury; that it is only where there is not sufficient legal evidence, if it is believed, to establish a case for the plaintiff, that the court would be justified in directing a verdict for the defendant. See Carver v. Plank-Road Co., 61 Mich. 584 (28 N. W. 721), where there is a full collation of the authorities. We think, under the proofs, the plaintiff was entitled to have his case, under proper instructions, submitted to the jury. Judgment is reversed, and new trial ordered. The other Justices concurred.

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Moore, J. The respondent was convicted of the offense charged in an information reading, in the material part thereof, as follows: “That George Jones, late of the township of Portage, in the county of Houghton, heretofore, to wit, on the 29th day of May in the year 1899, at the township of Portage, in tho county of Houghton, aforesaid, did feloniously and knowingly have in his possession certain tools and implements, — that is to say, one skeleton key, one clipper, and one key adapted and designed for the forcing and breaking open of buildings, rooms, vaults, and safes, in order feloniously to steal, take, and carry away therefrom such money and other property capable of being stolen as might be found therein; he, the said George Jones, then and there feloniously knowing the such tools and implements to be adapted and designed for the purpose aforesaid, intending to use and employ them for the purpose aforesaid, contrary to the form of the statute,” etc. A good many errors are assigned. We shall discuss only such of them as we deem important. It is claimed the information did not charge an offense. It is said the information should charge, and the people should prove, “beyond a reasonable doubt, that the respondent had a fixed intention, at the time said implements were found in his possession, to use or employ said tools or implements for the purpose’ of forcing or breaking open a building, room, vault, safe, or other depository in Houghton county, in order to steal therefrom money or some other valuable thing; for, if his intention was merely a general one to employ said tools or implements some time, or in some other county, he would not be guilty. In other words, the intent must be to use the tools or implements, for some of the purposes mentioned in the statute, in the county where the prosecution is instituted.” The language of this information is substantially the same as that employed in Com. v. Day, 138 Mass. 186, where the conviction was affirmed. The statute under which this information was filed is section 11589, 3 Comp. Laws 1897. It was construed in the case of People v. Edwards, 93 Mich. 636 (53 N. W. 778). The same principle was contended for in that case as the one urged here. The opinion contains a full discussion of the question. It is so recent in date, we do not deem it necessary to do more, than refer to it. It decides this case against the contention of respondent. Just before his arrest, respondent was engaged in a fight at one of the docks; having a revolver, which he used by striking his antagonist on the head with the butt end of it. When arrested, the officer was unable to find the revolver upon the person of the respondent, but it was afterwards found. On the way to the jail the accused attempted to drop a skeleton key. At the jail there were found upon his person an ordinary key, a lock-pick, and a pair of nippers, such as are used by burglars for turning a key then in the lock, by inserting the nippers in the keyhole from the outside. These nippers, were concealed in respondent’s stocking. Upon the trial the people were allowed to show for what purpose these tools could be used. This is said to be error. Counsel says, “The implements were in court, and the proper course would have been to identify them as the implements found in the respondent’s possession, introduce them in evidence, and submit them to the jury, and let the jury draw their own inference from them.” This proposition does not call for much discussion. Suppose an innocent-looking stick of dynamite had been found upon the- person of the accused; could the position of counsel then be sustained? Jurors are not supposed to be familiar with the tools and methods employed by burglars. It was very proper they should be informed, by persons who had knowledge, for what purpose the implements were used. The other assignments of error do not call for discussion. Judgment is affirmed. The other Justices concurred.

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Christianoy J.: In reply to the first question propounded, we think it is well settled, both upon principle and authority, that one partner, after dissolution of the firm, can not, by his admission or contract, create a new partnership liability; nor, for a like reason, can he, by his admission, revive a claim against the firm which has been barred by the statute of limitations, since this is equivalent to a new contract. On the other hand, with the exception of claims barred by the statute of limitations, and others coming within a similar reason, we think it equally clear in principle, that the admission of one partner, made after such dissolution having reference to previous actual partnership dealings or transactions, stands upon the same ground, and is evidence against the firm in like manner, as if made before such dissolution. The dissolution can not destroy the joint liability of the partners, nor alter their relations to third persons in respect to contracts made or transactions which occurred before the dissolution. The dissolution operates upon future, not upon past transactions. As to persons whose claims have been contracted on the credit 'of the firm, the partnership, for all substantial purposes, continues till such claims have been satisfied. And persons who have had dealings with the firm during- its continu•ance, are, as to all matters touching .such dealings, entitled to the same benefit from the admissions of a single partner, whether made before or after the dissolution, unless •■shown to be false or. fraudulent in fact: — See Wood v. Braddick, 1 Taunt. 103; Lacy v. McNeale, 4 D. & R. 7; Cady v. Shepherd, 11 Pick. 400; Vinal v. Burrill, 16 Pick. 401; Col. on Part. (Perkins Ed. of 1848) § 546 and cases cited; Story on Part. § 328: see also Mann v. Locke, 11 N. H. 246, where the principles upon which such admissions are receivable are very clearly and ably presented. But it is objected that the power of a single partner, in such case, to make an admission of a ^previously existing liability, involves the power of creating a new liability where there had been no previous dealings with the firm, and no such prior liability existed in fact. It was doubtless this supposed difficulty which led the courts of New York, and a few others which have followed their authority, to take the broad ground excluding such admissions altogether. -But the rule which entirely excludes such •admissions, leads to another inconsistency, no less obvious than that which is sought to be avoided by it. Thus, the ■same courts which deny all power of one partner-, after dissolution, to bind his former partners by the admission •of a previous liability, yet hold that he may liquidate a previous account: — -(McPherson v. Rathbone, 11 Wend. 96, 99), and that “if there he no agreement to the contrary, it may be presumed that each partner still has authority to dispose of the partnership property, to collect, adjust and pay debts, and to give proper acquittances — (Per Bronson J. in Van Keuren v. Parmelee, 2 Comst. 525). Now the power to liquidate a previous account against the firm, to adjust and pay debts, and to give acquittances, would seem necessarily to involve, if not to rest upon, the power to make an admission of the correctness of the account liquidated, and the amount of the debt paid or adjusted. And where (as is generally the case), there are mutual accounts in favor of and against the firm, the power to adjust, and to give a valid acquittance, or receipt for the amount found due the firm, necessarily, we think, rests upon the power to state an account, and to admit the claims against the firm. If he has power to state an account, and to agree upon a balance when that balance is in favor of the firm, upon the same principle he must have the like power when the balance happens to be against it. Without the power to admit a prevk ous liability against the firm, we can see no principle on which a receipt or acquittance, in such case, could be admissible evidence against the firm. But the admission by a single partner, after dissolution, of a pre-existing partnership liability, must be confined to cases where there have been, in fact, previous partnership dealings with the plaintiff, or some transaction of the firm out of which a liability to the plaintiff might have originated; and the fact that there have been such dealings, or such transaction, must be shown by some general evidence at least, outside of the admission itself; otherwise the objection that the power to admit a previous liability involves the power to create a new one, would be insurmountable. But if such evidence be given, it lays a proper foundation for the admission, as it brings the subject matter within the power of the single partner to make an admission in respect to a liability which may have grown out of such ¡Previous dealings or transaction, and the balance that may have resulted .therefrom. The admission is thus shown to have reference to transactions which took place during the existence of the firm, and as to which the dissolution could not ■ alter the relations of the parties. We think this very clear in principle, though we have been referred to no authorities, and none have come under our observation, directly in point for a case like the present. See however, for an analogous rule, 3 Kent Com. (3d Ed.) 50, and oases there citedj especially Smith v. Ludlow, 6 Johns. 267, and Cady v. Shepherd, above cited. In the case before us, there does not appear to have been any evidence, aside from, the admission of one of the surviving partners, tending to show any partnership dealing or transaction with the plaintiff during the existence of the firm. The first question propounded must therefore, as it applies to the present case, be answered in the negative. This, in our view, disposes of the ease, and the second question propounded becomes abstract or hypothetical, and requires no answer. The other Justices concurred.

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Christiancy J.: The evidence offered by the plaintiff was improjjerly refused by the court. It appeared inferentially from the evidence which had already been given, that the defendant had accepted and recognized the power of attorney, and that he had, in effect, assumed to act as the agent of the plaintiff; and the plaintiff offered to show that he had fully and in fact recognized the agency, and induced the plaintiff to place confidence in him, as such. In that confidential relation he was bound to the utmost degree of good faith, - and had no right, while professing to act in that capacity, to make himself the agent of other parties for the purchase of the lands he was authorized by the plaintiff to sell; nor to take any advantage of the confidence his position inspired, to obtain the title himself. Nor could he make a valid purchase from his principal, while that confidential relation existed, without fully and fairly disclosing to his principal all the propositions he had received, and all the facts and circumstances within his knowledge, in any way calculated to enable his principal to judge of the propriety of such sale. By his agreement with Wilkins and others in London, which appears to have been read in evidence without objection, it clearly appears that the defendant violated his duty to the plaintiff, or that he would be compelled to prove recreant to them: he had undertaken to act in two inconsistent capacities. For, while recognizing and referring to the power of attorney, he assumes the position of a joint purchaser, to some extent, of the same lands, with the three London parties, and undertakes to act as their agent, in a manner wholly inconsistent with his duties to the plaintiff. Prima faeie, this agreement is indicative of an intent to defraud the plaintiff, his principal. There was but one way in which it could be reconciled with good faith and honesty of purpose, and that was by laying the whole transaction, every fact and inducement connected with, or bearing upon it, fully and frankly before his principal; and if he then chose to ratify it, or to continue further to avail himself of the defendant’s agency in the sale, the transaction would have been fair and honorable towards the plaintiff at least. Whether he did this or not, this court have no means of knowing except from the offer of the plaintiff to prove the contrary; and for the purpose of disposing of this case in this court, we are under the necessity of considering the evidence offered and rejected as true. The .further evidence offered by the plaintiff and rejected by the court, would, if it had fully met the offer as made^ have tended strongly to show, and would have authorized the court or a jury to find, substantially, that the defendant, on his return from London, in accordance with a previous understanding with his associates there, fraudulently concealed from the plaintiff all knowledge of the agreement in question, falsely representing to the plaintiff that he had sold the land to certain parties in London, not naming them, for only twenty-two thousand dollars, which he represented to be the highest sum he could ob tain for them; of which he had received two thousand dollars down, which he was ready to pay over: and by the fraudulent concealment of all the real facts of the case, as well as by various false and fraudulent repre sentations and pretences (particularly set forth in the bill of exceptions) induced the plaintiff to believe such sale had been made, and though the power of attorney had been exceeded, to consent to the sale thus fraudulently represented to have been made; and that the defendant, still professing to be acting as the agent and for the interest of the plaintiff, who still reposed confidence in him as such, induced the plaintiff to receive the two thousand dollars, as part of the supposed purchase price; and that by equally false and fraudulent representations, and, as he led the plaintiff to believe, for the purpose, and as a necessary or convenient means, of carrying into effect his agency in completing the sale to the London parties, he induced the plaintiff to execute to him a deed of the property, taking back a mortgage from the defendant without any personal liability on his part, for the supposed balance of twenty thousand dollars in six months; the defendant representing to the plaintiff that if this sum should not be paid by the purchasers within the time, he would reconvey to the plaintiff, and the two thousand dollars would be forfeited to him. In short, such evidence would have shown that the defendant ¡rurposely took advantage of the confidence which he knew the plaintiff reposed in him as his agent, and obtained the deed from him by a gross and deliberate fraud; a fraud not depending upon the subsequent non-performance of a parol promise, but an actually preconceived and deliberate intention to cheat and defraud the plaintiff, accompanying and forming part of the transaction itself. The deed being thus obtained, the land in equity and good conscience, as between the plaintiff and the defendant, still belonged to the plaintiff; or, to express the same idea in the more formal and technical language of a court of equity, the effect of the transaction was to place these lands in the hands of the defendant, subject to a trust in favor of the plaintiff, by operation of law; such being the legal effect which a court of equity would give to the whole transaction: — See Lloyd v. Spillet, 2 Atk. 250 ; Rutherford v. Ruff, 4 Desaus. 350; 1 Paige, 147; 2 Bouv. Inst. 327. This species of trust may always be proved by parol, notwithstanding the statute of frauds. Ii this could not be done, the statute, which was intended to prevent fraud, would itself become the most efficient protection to fraud ever contrived by human ingenuity: — See Hill on Trustees, 166; 1 Hovenden on Frauds, 471, and cases cited; Jenkins v. Eldredge, 3 Story, 181; Cox v. Cox, 5 Rich. Eq. R. 365. But the plaintiff is not here seeking strictly to enforce a trust, and I refer to this doctrine of trusts only for the purpose of showing that the land in equity and good conscience still belonged to the plaintiff, after the execution of the deed; and if so, the money which the defendant afterwards received on the sale of it must also belong to him ex equo et hono. But the plaintiff, to sustain his count for money had •and received, and to show that money had come to the hands of the defendant which, of right, belonged to the plaintiff, further offered to show that the London parties, having failed to carry out their written agreement with the defendant, he, the defendant, in August, 1853, with, out the knowledge or consent of the plaintiff, actually sold these lands to one Henry Weld Fuller, subject to the mortgage from defendant to plaintiff, for the sum of fifteen thousand dollars in cash, which was 'paid to the defendant; the purchaser undertaking to pay off the plaintiff’s mortgage of twenty thousand dollars; thus making the real purchase price thirty - five thousand dollars, of which, -putting the transaction upon the ground of an agency on the part of the defendant, the plaintiff had received two thousand, and a mortgage for twenty thousand, leaving a balance due him of thirteen thousand dollars. This deed to Fuller being properly recorded, the plaintiff was, of course, precluded from disaffirming the sale and recovering the lands, or from enforcing a trust against the grantee, without proving actual notice to the purchaser of defendant’s fraud in obtaining the deed. Such notice can not be presumed without proof, and, as there appears to-have been no pretence of any such notice, Fuller, so far as. the present case is concerned, must be considered a purchaser in good faith without notice. As the plaintiff, therefore, could not avoid the sale by a bill in chancery, and as his only remedy there, upon the facts offered to be shown, must be confined to the purchase money, he brings his action for money had and received for the balance of the purchase money, thirteen thousand dollars, in the hands of the defendant; thus affirming the deed to Fuller, the defendant’s agency in the sale, and- his own deed to the defendant. But this no more affirms or admits that the money received for the property belongs to the defendant, than a plaintiff admits the same thing in the ordinary case of waiving a tort and suing for the proceeds of the property wrongfully sold. The plaintiff, therefore, does not seek to show the fraud of the defendant for the purpose of avoiding any deed: and the cases cited from New York and some other states, to the effect that fraud of this kind can not be shoAvn at law to avoid a deed — a doctrine which I think may well be doubted under our statute (Comp. L. §4327; see 2 Pars. on Cont. 280) — have no application to the present case. The plaintiff does not sue upon any parol contract required by the statute to be in Avriting, nor upon any express contract whatever; but upon one which the law implies from the equities of the whole case; or rather, upon a duty on the part of the defendant, which the law recognizes as springing from the whole transaction. Nor is the action brought to recover back the consideration paid on a contract rescinded; and the plaintiff is no more bound to tender back what he had received upon his land, than the principal, in an ordinary action against his agent for money received in the course of his agency, would be bound to return to the agent the amount he had already received from him, before he could recover for the balance. The plaintiff sues for a part of the price of his land, fraudulently received by the defendant as his agent. Neither the provisions of the statute relied upon, nor any provision of the statute of frauds, any more conflict with such an action than if it had been brought for the price of goods wrongfully sold. The statute relied upon, and which requires certain estates and interests in lands, and express trusts relating thereto, to be created or declared by deed, was fully complied with in the present case: — Van Alstine v. Wimple, 5 Cow. 162. This statute has no reference to an action brought for the price of land, nor does it in any way operate to exclude parol evidence in support of such action, which may still be maintained by such evidence, though the deed acknowledge the receipt of the consideration : it is in this respect but a receipt, and only prima facie proof of payment of the consideration: — 1 Phil. Ev. by Cowen, Hill & Edwards, 477, n. 131, and cases cited. The legal effect of the deed as a conveyance, which is its real purpose, is not altered by parol proof in such cases; nor is it any more altered or- affected by the like proof in the case before us. We must consider this case, upon the evidence offered by the plaintiff, as falling substantially within the ordinary rules applicable to actions brought by a principal against his agent for money received by him on the sale of his principal’s property. To hold otherwise would be to sanction the doctrine that an agent may, at any time, get rid of his obligations to his principal by his own fraud, and that he may set up this fraud in bar of his principal’s right to the proceeds of his own property. Bat it is objected that the plaintiff’s remedy is in equity, and that this is an attempt to convert the action of assumpsit into a, bill in equity. We do not mean to say that the plaintiff could not have sustained a bill in equity upon the facts of this case. A court of equity might sustain such a bill for the purchase money, as founded upon the notion of a trust; and the plaintiff might be entitled to a discovery. In respect to the discovery, such a bill might, perhaps, hi some cases of the kind, be a more advantageous remedy. But if, for want of such discovery, this action is less advantageous to the plaintiff, that can be no ground of complaint on the part of the defendant. The plaintiff may waive his right to discovery, and take upon himself the risk of being able to prove his case without it. We understand the law to be well settled, that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties; and if it appear, from the whole case, that the defendant has in his hands money which, according to the rules of equity and good conscience, belongs, or ought to be paid, to the plaintiff, he is entitled to recover. And that, as a general rule, where money has been received by a defendant under any state of facts which would, in a 'court of equity, entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action. We do not mean to say there are no exceptions to this rule, standing upon some rule of policy or strict law, in peculiar cases; such as money wrongfully recovered upon a judgment which remains unreversed (as in the case of Moses v. Macpherlan, 2 Burr. 1005), or where there is a special agreement still open and unperformed. But we are aware of no such exception applicable to a case like the present: nor can we discover any plausible reason why it is not just as competent to inquire into such a fraud, in a case like the present, in a court of law as in a court of equity. The view we have taken of the nature of this action for money had and received has, we think, been the well settled legal view of the action, at least since the case of Scott v. Surman, Willes, 404, 405, (in the year 1742) long previous to the case of Moses v. Macpherlan. ‘The opinion of Lord Mansfield in the latter case, as to the general nature of the action, has not, that we are aware, ever been overruled by any respectable authority; though it has been overruled as applied to some of the facts of that case. That such is still held to bo the equitable nature of this action, might be shown by a very long list of authorities both in England and in this country; but we cite only the following as illustrating what may be considered an almost unbroken series of judicial decisions: — Abbotts v. Barry, 2 B. & B. 369; Hill v. Perrott, 3 Taunt. 274; Kelley v. Solari, 9 M. & W. 54; Wiseman v. Lyman, 7 Mass; 288, 289, (where the nature of the action is very fully explained) Hess v. Fox, 10 Wend. 436; Eddy v. Smith, 13 Wend. 488; Mowatt v. Wright, 1 Wend. 360 (which like Hess v. Fox, confirms Moses v. Macpherlan as to the equitable nature of the action); Weeks v. Hunt, 13 Vt. 144; Scott v. Williamson, 11 Shep. 343; Beardslee v. Horton, 3 Mich. 560. That this action lies, and all these equitable considerations apply, as well where the money has been obtained by fraud as by other means, see Litt v. Martindale, 36 E. L. & Eq. 424, and Abbotts v. Barry, above cited: and even where money has been received, as here, by the fraudulent procurement of a deed, which is affirmed by the action: — Bliss v. Thompson, 4 Mass. 488; and see Penemore v. United States, 3 Dall. 357. And the same equitable considerations apply to any defense set up in this action: — Eddy v. Smith, ut supra. In Wright v. Butler, 6 Wend. 284, it is expressly held that “actions of assumpsit on the money counts are resorted to as a substitute for bills in chancery, and are encouraged wherever the law affords no other remedy, and where a court of equity would compel a defendant to repay the plaintiff a sum of money which the latter had been compelled to pay for his benefit.’’ Substantially the same view as to the count for money had and received was held in Scott v. Surman, Willes, 404, and by the Supreme Court of Massachusetts in Peabody v. Tarbell, 2 Cush. 226; and see Gangwer v. Fry, 17 Pa. St. R. 491. We think all the evidence offered by the plaintiff was clearly admissible. The judgment of the Circuit Court must therefore be reversed, and a new trial granted. Martin Cii. J., and Manning J., concurred. Campbell J., did not sit, having been counsel for one of the parties.

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Long, J. William Jenkinson died in January, 1900, leaving a last will and testament, which has been duly admitted to probate. An appraisal of his estate showed about $14,000 in real estate and $15,000 in personalty. Commissioners on claims were appointed, and claims to the amount of $5,800 were presented. The deceased left surviving him a widow and several adult children of a former wife. The will contains the following clause: “I give and devise unto my wife, Patience Jenkinson, of the village of Vicksburg, for and during her natural life, all the real estate that I may own at the time of my death. The foregoing devise is in lieu of all other rights, claims, and demands which the said Patience Jenkinson may have in or against my estate.” On December 29, 1900, the widow filed with the probate court the following election: “In the matter of the estate of William Jenkinson, deceased: Now comes Patience Jenkinson, widow of said deceased, and elects to take under the provisions of the last will and testament of said deceased, said will having been executed on the 31st day of December, 1899, and duly admitted to probate in this court on the 24th day of April, 1900. [Signed] “ Patience Jenkinson.” On March 15, 1901, the widow filed a petition in the probate court, praying a weekly allowance to her out of the personal estate of said deceased for the support of herself and family during the progress of the administration and settlement of the estate, as provided by law, and alleged therein that her family consisted of herself only. She prayed an allowance of $25 per week, and sho was awarded by the court $15 per week, to date from the issuing of letters testamentary, and to continue for one year. An application was made to the circuit court of Kalamazoo county by the executor for a writ of mandamus to compel the judge of probate to vacate and set aside this order, on the ground that the probate court had no jurisdiction to make the order, as the widow, by accepting the conditions and provisions made for her in the will, had waived her right to such an allowance. The circuit court denied the writ, and the case comes into this court by writ of certiorari. Section 9289, 3 Comp. Laws, provides: “All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts and the expenses of administering his estate; and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.” We think there can be no question but that it was entirely within the discretion of the probate court to fix an allowance, under this statute, for the widow, which sum does not seem to be excessive, and this court has no power to disturb it. Bacon v. Kent Probate Judge, 100 Mich. 183 (58 N. W. 835); Pulling v. Wayne Probate Judge, 85 Mich. 34 (48 N. W. 48). The order below must be affirmed. The other Justices concurred.

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K. F. KELLY, J. Defendant appeals as of right an order denying her motion brought under the Revocation of Paternity Act (RPA), MCL 722.1431 et seq., wherein defendant requested that the trial court terminate plaintiffs legal and physical custody of the minor child, declare that the child was born out of wedlock, set aside a prior divorce judgment, and enter an order of filiation decreeing that her current husband, David Achinger, is the child’s father. Finding no errors requiring reversal, we affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Plaintiff and defendant were married on June 12, 2004; the minor child was born while the parties were still married. Plaintiff sought a divorce in March 2011. The parties eventually entered into a consent judgment of divorce on June 14, 2011, sharing joint legal and physical custody of the child. On April 8, 2013, defendant filed a motion requesting the court to terminate plaintiffs legal and physical custody of the child, make a determination that the child was born out of wedlock, and set aside the custody provision of the divorce judgment. Defendant privately obtained a paternity test, which revealed that Achinger, and not plaintiff, was the child’s biological father. Defendant alleged that she, plaintiff, and Achinger had at some point mutually and openly acknowledged the biological relationship between Achinger and the child. Except for the DNA test results, defendant attached no other exhibits or evidence to her motion. In response to defendant’s motion, plaintiff filed a motion for sole legal and physical custody of the child. Plaintiff denied that he ever acknowledged the biological relationship between Achinger and the child. In fact, plaintiff asserted that he had only recently discovered he was not the child’s biological father and that defendant never identified Achinger as the child’s father. Plaintiff attached to his motion an e-mail exchange between plaintiff and defendant dated March 13, 2013: in response to defendant’s statement that she did not expect further financial help from plaintiff given that he was no longer the child’s father, plaintiff replied, “I am [the minor child’s] father.” Plaintiff argued that defendant had failed to establish entitlement to relief under the RPA in the absence of a mutual and open acknowledgment of a biological relationship between Achinger and the child. Plaintiff also argued that setting aside the divorce judgment would not be in the child’s best interests. On May 6, 2013, the trial court held a hearing on plaintiffs motion, but did not receive testimony or evidence from either party. Defense counsel explained that defendant married Achinger in August 2012 and, as time passed, defendant noticed that the child increasingly resembled Achinger, leading her to obtain a DNA test in December 2012. Defense counsel argued that plaintiff openly acknowledged the biological relationship between the child and Achinger in three ways: (1) plaintiff spoke to his attorney about whether he was the child’s father, (2) plaintiff indicated to defendant’s sister that he had doubts about whether he was the child’s father, and (3) plaintiff told his parents that Achinger was the child’s father after learning of the paternity test. Plaintiffs counsel denied that plaintiff had mutually and openly acknowledged the biological relationship between the child and Achinger and asserted that, to the contrary, plaintiff had steadfastly held himself out as the child’s father. On July 31, 2013, the trial court issued a written opinion and order denying defendant’s motion, stating: The Court is satisfied that Defendant cannot prove entitlement to relief under ... MCL 722.1441(l)(a). In order to establish that she is entitled to relief, Defendant must show that she, the alleged father, and the presumed father [Plaintiff] “mutually and openly acknowledged a biological relationship between the alleged father and the child.” Defendant has failed to establish Plaintiff has openly acknowledged the alleged biological relationship. In fact, Plaintiff has asserted that the minor child is his son, thereby refuting the “mutual” and “open” “acknowledgement” requirement. [Alteration in original.] The court also held that, even if defendant could establish entitlement to relief under the RPA, setting aside the paternity determination would not be in the child’s best interests, citing the factors listed in MCL 722.1443(4). The trial court also denied plaintiffs motion for a change in custody, finding that defendant’s unilateral action in taking the child for genetic testing without plaintiffs knowledge did not constitute sufficient proper cause to request a change in the custody arrangement. Defendant now appeals as of right, arguing that the trial court erred by denying her motion under the RPA without first conducting an evidentiary hearing to determine whether plaintiff, defendant, and Achinger mutually and openly acknowledged the biological relationship between Achinger and the child and whether the equitable factors under the RPA weighed in favor of setting aside the parties’ divorce judgment. II. ANALYSIS A. STANDARDS OF REVIEW The Revocation of Paternity Act does not provide a standard by which this Court should review the trial court’s decision. Generally, this Court reviews for clear error the trial court’s factual findings in proceedings involving the rights of children, and reviews de novo issues of statutory interpretation and application. The trial court has committed clear error when this Court is definitely and firmly convinced that it made a mistake. [In re Moiles, 303 Mich App 59, 65-66; 840 NW2d 790 (2013) (citations omitted).] “We review de novo issues of statutory interpretation.” In re Townsend Conservatorship, 293 Mich App 182, 186; 809 NW2d 424 (2011). When interpreting a statute, a court must give effect the Legislature’s intent. Tellin v Forsyth Twp, 291 Mich App 692, 700; 806 NW2d 359 (2011). We first look to the language of the statute itself in determining the Legislature’s intent. Id. at 700-701. “This Court gives the words of the statutes their plain and ordinary meaning and will look outside the statutory language only if it is ambiguous.” Id. at 701. “ ‘[W]here 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.’ ” Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005) (citation omitted). B. THE REVOCATION OF PATERNITY ACT “The Revocation of Paternity Act was added by way of 2012 PA 159, and took effect on June 12, 2012. Among other things, the Revocation of Paternity Act ‘governs actions to determine that a presumed father is not a child’s father ....’” Grimes v Van Hook-Williams, 302 Mich App 521, 527; 839 NW2d 237 (2013), quoting In re Daniels Estate, 301 Mich App 450, 458-459; 837 NW2d 1 (2013). The RPA “allows the trial court to (1) revoke an acknowledgment of parentage, (2) set aside an order of filiation, (3) determine that a child was born out of wedlock, or (4) make a determination of paternity and enter an order of filiation.” Moiles, 303 Mich App at 66; see MCL 722.1443(2). Relevant to this case, MCL 722.1441 is the statute that “governs an action to determine that a presumed father is not a child’s father.” MCL 722.1435(3). MCL 722.1433(4) defines a “presumed father” as “a man who is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth.” MCL 722.1441(1) provides, in relevant part: (1) If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed hy the child’s mother and either of the following applies: (a) All of the following apply: (i) The mother identifies the alleged father hy name in the complaint or motion commencing the action. (ii) The presumed father, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child. (Hi) The action is filed within 3 years after the child’s birth. The requirement that an action be filed within 3 years after the child’s birth does not apply to an action filed on or before 1 year after the effective date of this act. [Emphasis added.] MCL 722.1441(l)(a)(ii) thus requires that the presumed father, the alleged father, and the child’s mother must at some time have mutually and openly acknowledged a biological relationship between the alleged father and the child. C. APPLICATION OF THE LAW TO THE FACTS Defendant argues that the trial court erred by failing to first conduct an evidentiary hearing to determine whether there was a mutual and open acknowledgment of the biological relationship between Achinger and the child. We disagree. The RPA does not indicate whether an evidentiary hearing is necessary in order to establish whether the child was born out of wedlock. In fact, the term “hearing” is not found in the RPA. We hold that an evidentiary hearing is not always required under MCL 722.1441(l)(a). Rather, a trial court may conduct such a hearing at its discretion when there are contested factual issues and a hearing would assist the trial court in making an informed decision on the issue. We consider MCR 3.210(C)(8) for comparison; it provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion. In the context of the Child Custody Act, MCL 722.21 et seq., a trial court is not required to conduct an evidentiary hearing when determining whether the moving party has proved that either proper cause or a change of circumstances exists absent a “threshold” showing. See Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003). Similarly, we conclude that a trial court is not obligated to hold an evidentiary hearing under MCL 722.1441(l)(a) absent a threshold showing that there are contested factual issues that must be resolved in order for the trial court to make an informed decision. Defendant has failed to meet that threshold requirement. As previously stated, MCL 722.1441(l)(a)(ii) requires that the presumed father (plaintiff), the alleged father (Achinger), and the child’s mother (defendant) must have, at some time, mutually and openly acknowledged the biological relationship between the alleged father and the child. Defendant’s motion was devoid of any indication of how she intended to prove that plaintiff acknowledged such a relationship. Rather, she only attached the DNA test as an exhibit. At the hearing on defendant’s motion, defense counsel argued: We believe that David Parks, the presumed father during the marriage, has acknowledged, has openly acknowledged that there is a relationship with the biological father. He had indicated previously that he had talked to his attorney previously, this is when my client told him that she had had a test done, that he had indicated previously that I had spoken to attorneys about whether I was the father - that he was the father. But, he had previously told my client’s sister he had doubts about whether he was the father. He certainly knew. In fact, the reason he filed for divorce, was because of the relationship between David Achinger during the marriage, and my client. That is why he filed for the divorce. So, we believe that based upon that, and he’s also indicated when my client had told him that she wants [the child] to be living with his father, David Achinger, he had told her at some point, that yes, I have told my parents about this. So, we believe that he has openly acknowledged, and again, openly acknowledged is not denied in the statute anywhere. Plaintiffs counsel denied that plaintiff mutually and openly acknowledged the biological relationship between the child and Achinger: None of these people [plaintiff, defendant, or Achinger] have ever had this mutual, open acknowledgment. [Plaintiff] finds out on March 3rd, [defendant] goes and does a test illegally back in December without even consulting the joint legal custodian that she is going to have a DNA test. She plots this whole thing out, she knew all along that there is a possibility of this whole thing, defrauds him. When she talked to him on March 3rd, his response was, I am [the child’s] father. End of story. He has never, ever even looked at the DNA test, because he says, a DNA test means nothing, it’s a piece of paper. This is my son. There is no open mutual acknowledgment. Plaintiff also attached an e-mail communication to his response to defendant’s motion, wherein he continued to maintain that he was the child’s father. Defendant’s allegations do not even come close to meeting the “mutual and open acknowledgment” requirement under the RPA. First, defendant fails to demonstrate how any of the alleged statements would be admissible, given that all three instances involve hearsay. Plaintiffs communications with his attorney are protected by the attorney-client privilege, and there is no indication that plaintiff has waived the privilege. See Augustine v Allstate Ins Co, 292 Mich App 408, 420; 807 NW2d 77 (2011). Defendant offers no explanation of how plaintiffs alleged statements to his sister-in-law or his parents are admissible. And although defendant argues that there is no temporal requirement under the RPA and that an acknowledgment may be made at any time, it would be preposterous to suggest that plaintiffs statement to his parents advising them of what was happening was somehow an acknowledgment of the relationship between Achinger and the child. Additionally, in none of plaintiffs alleged statements does plaintiff acknowledge Achinger as the child’s biological father. Instead it would seem that plaintiff simply questioned his own paternity. Questioning paternity does not equate with acknowledging Achinger as the child’s biological child. “Acknowledge” is defined as “1. to admit to be real or true; recognize the existence, truth, or fact of.... 2. to show or express recognition or realization of.... 3. to recognize the authority, validity, or claims of. .. .” The Random House Dictionary of the English Language, Second Edition Unabridged. At no time did plaintiff admit that Achinger was or recognize Achinger as the child’s biological father. Moreover, the record is silent regarding mutuality. “Mutual” is defined as “1. possessed, experienced, performed, etc., by each of two or more with respect to the other; reciprocal.... 2. having the same relation each toward the other .... 3. of or pertaining to each of two or more; held in common; shared....” Id. The RPA, therefore, requires that all three individuals — the al leged father, the presumed father, and the mother— mutually acknowledge that the alleged father is the child’s biological father. It was not enough that Achinger and the mother acknowledged the relationship. Plaintiff also had to acknowledge it, but refused to do so. Thus, it is clear to us, as it was to the trial court, that defendant’s allegations failed to meet the threshold requirement that would have potentially entitled her to an evidentiary hearing. There were no disputed facts before the court. Even if the trial court accepted as true all of plaintiffs alleged statements, the statements themselves failed to raise a question regarding whether there was a mutual acknowledgment of Achinger’s biological relationship to the child. Affirmed. JANSEN, PJ., and SERVITTO, J., concurred with K. F. Kelly, J. Because we conclude that defendant’s motion failed to meet the minimum requirements under the RPA, we decline to address the issue of whether the trial court erred by concluding that the child’s best interests were served by denying the motion. We also fail to see the need to address plaintiffs alternative arguments for affirmance.

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BOONSTRA, J. Intervenor-Appellant Arlie D. Murdock Revocable Living Trust (Murdock Trust) appeals as of right the July 29, 2013 order of the Michigan Public Service Commission (PSC) approving petitionerappellee International Transmission Company’s (ITC) proposed modification of an approved route over Murdock Trust’s land to accommodate a transmission line. We affirm. I. PERTINENT FACTS AND PROCEDURAL HISTORY This case arises from ITC’s proposed modification of an approved route obtained as part of the construction, operation, and maintenance of a 140-mile-long, double-circuit, 345,000-volt transmission line (the “Thumb Loop Project”). ITC’s project is subject to the Clean, Renewable, and Efficient Energy Act, MCL 460.1001 et seq., which 2008 PA 295 added to the Customer Choice and Electricity Reliability Act, MCL 460.10 et seq. MCL 460.1001(2) announces the legislative purpose of promoting “the development of clean energy, renewable energy, and energy optimization,” the diversification of the resources used to meet the state’s energy needs, the use of indigenous energy resources, private investment in renewable energy and energy efficiency, and improved air quality. MCL 460.1149(1) allows the PSC to issue an expedited siting certificate for a transmission line to an independent transmission company. MCL 460.1153(1) and (2) call for notice to affected landowners and for a contested case to be conducted on the application. MCL 460.1153(4) provides that the PSC’s decision on these applications overrides local codes and ordinances. MCL 460.1153(5) states that an expedited siting certificate is “conclusive and binding as to the public convenience and necessity for that transmission line and its compatibility with the public health and safety or any zoning or land use requirements in effect when the application was filed” for purposes of any attendant eminent domain proceedings. The Thumb Loop Project is being constructed to transmit energy generated from wind power. The transmission route that ITC initially proposed forms a loop that begins just north of Frankenmuth, runs northeast through Tuscola and Huron Counties, loops around the north side of Bad Axe, and runs south through Sanilac and St. Clair Counties. On February 25, 2011, over the objections of various intervenors, the PSC issued an order approving ITC’s proposed route for the Thumb Loop Project and granting an expedited siting certificate for it. That decision is not the subject of the instant appeal, inasmuch as it was affirmed in an earlier appeal to this Court. Sometime after that order was issued, a wind turbine was constructed on Murdock Trust’s property in the path of the approved route. ITC determined that the route would need to be modified to allow for the turbine. However, the parties were unable to agree on a modification of the route. On February 8, 2013, ITC brought a condemnation action against Murdock Trust in Sanilac County Circuit Court, seeking an easement across Murdock Trust’s property. Murdock Trust moved the circuit court for summary disposition; ITC moved for a stay of proceedings in the circuit court based on the primary jurisdiction of the PSC. The circuit court granted the motion to stay the proceedings, and the parties proceeded before the PSC. On April 23, 2013, ITC filed with the PSC a motion for clarification of the February 25, 2011 order and a request for ex parte relief, or, alternatively, immediate consideration of its motion. The basis for the motion was ITC’s decision to modify the route to allow for the turbine. Murdock Trust raised no objections to the route across its land as originally proposed, but the day after ITC moved for clarification and ex parte relief, Murdock Trust petitioned to intervene out of time in response to ITC’s plan to change the location of the route. According to the application to intervene, the original route for the transmission line “was to be placed on the far west side of Landowner’s primary parcel, such that the full 200 foot width of the easement would not be entirely placed on Landowner’s parcel,” and “ITC’s originally-proposed occupation of Landowner’s parcel in question was . . . expected to amount to approximately 9 acres,” but “[t]he materially-altered centerline route change just now requested by ITC would divide Landowner’s primary parcel in two, increase the distance traversed across the parcel, . . . cut the distance between the high voltage line and a house on the parcel by almost one-half, and ... increase the number of acres that would be taken to over 13 acres.” The PSC granted Murdock Trust’s motion to intervene. The PSC, in later approving the requested modification of the route, held as follows: ITC’s proposed adjustment to the route is no greater than 700 feet at its widest, results in a line that is considerably shorter than the approved line on the Trust’s property, and avoids the necessity of cutting a 200-foot swath through a large stand of trees on the Trust’s property.... The adjusted route remains on cropland, and remains on the parcel that would have hosted the approved route (but avoids the adjacent treed parcel that was affected by the approved route). Finally, the adjusted route does not cross the property of any landowner that did not receive notice of this proceeding. In sum, the adjustment facilitates the delivery of wind power and is relatively narrow; and the adjusted route remains with the same landowner, affects the same type of land, and runs over the same parcel as the approved route. Accordingly, the PSC concluded that “the route adjustment proposed by ITC is within the scope of minor adjustments contemplated by the February 25 order,” issued an order to that effect on July 29, 2013, and thus approved the modified route as proposed by ITC. This appeal followed. On September 27, 2013, this Court granted ITC’s motion to expedite this appeal. II. NOTICE Murdock Trust argues that the notice provided to it (in 2010) pursuant to MCL 460.1153(1) was constitutionally defective, because the notice did not provide a map of proposed or alternate routes or state that the route might subsequently be altered by ITC. Further, Murdock Trust argues that recipients of the notice were given only a week to sift through hundreds of pages of documents to ascertain whether their parcels would be affected, and to seek intervention. We disagree. Murdock Trust made only cursory reference to this issue in a footnote to its initial trial brief before the PSC. There is no indication that Murdock Trust actu ally made this argument to the PSC or that the PSC considered it in making its decision. The purposes of preservation requirements include encouraging parties to give the trial tribunal the opportunity to make the correct decision. See Napier v Jacobs, 429 Mich 222, 228-229; 414 NW2d 862 (1987). In this case, the footnote in Murdock Trust’s brief did not call for a decision or otherwise challenge the propriety of past or present proceedings, nor did it invoke constitutional due process. Therefore, we deem this issue to be unpreserved. Unpreserved claims of constitutional error are reviewed for plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000). MCL 460.1153(1) provides: Upon applying for a certificate, an electric utility, affiliated transmission company, or independent transmission company shall give public notice in the manner and form the commission prescribes of an opportunity to comment on and participate in a contested case with respect to the application. Notice shall be published in a newspaper of general circulation in the relevant wind energy resource zone within a reasonable time period after an application is provided to the commission and shall be sent to each affected municipality, electric utility, affiliated transmission company, and independent transmission company and each affected landowner on whose property a portion of the proposed transmission line will be constructed. The notice shall be written in plain, nontechnical, and easily understood terms and shall contain a title that includes the name of the electric utility, affiliated transmission company, or independent transmission company and the words “Notice of Intent to Construct a Transmission Line to Serve a Wind Energy Resource Zone.” Murdock Trust concedes that the notices provided to the affected landowners in this case “appear to comply with the legislative requirements of MCL 460.1153(1).” However, Murdock Trust now argues for the first time that the lack of additional information renders the notice constitutionally deficient and denies Murdock Trust due process of law. See US Const, Am XI\£ § 1; Const 1963, art 1, § 17. To satisfy the demands of due process, if notice is due, the “ ‘means employed must be such as one desirous of actually informing the [party in interest] might reasonably adopt to accomplish it[.]’ ” Jones v Flowers, 547 US 220, 229; 126 S Ct 1708; 164 L Ed 2d 415 (2006), quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 315; 70 S Ct 652; 94 L Ed 865 (1950). Actual notice need not necessarily be achieved, but due process requires notice “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Jones, 547 US at 226, quoting Mullane, 339 US at 314. In this case, Murdock Trust, while pointing out alleged deficiencies in the notice provided to affected landowners as this case originally got underway, does not suggest that its failure to intervene before ITC’s proposed modification was due to a lack of notice. Further, as discussed later in this opinion, it appears that Murdock Trust had sufficient actual notice of ITC’s intention to deviate 700 feet from the approved route over Murdock Trust’s land to participate in eminent domain proceedings in the circuit court, and to intervene in this case. Normally, if timely actual notice has been achieved, defects in how it was served are rendered harmless. See In re Forfeiture of $109,901, 210 Mich App 191, 198; 533 NW2d 328 (1995), and In re Lee, 282 Mich App 90, 99-100; 761 NW2d 432 (2009). Because Murdock Trust has not asserted, let alone proved, that some failure of notice put it at some unfair disad vantage, Murdock Trust is in no position to seek a judicial determination that minimal compliance with the notice requirements of the applicable statute has nonetheless failed to satisfy the demands of due process. See In re RFF, 242 Mich App 188, 205; 617 NW2d 745 (2000) (“Statutes are presumed to be constitutional and must be construed as such unless it is clearly apparent that the statute is unconstitutional.”), and Rinaldi v Civil Serv Comm, 69 Mich App 58, 69; 244 NW2d 609 (1976) (“We will not undertake a constitutional analysis when we can avoid it.”). III. JURISDICTIONAL CHALLENGES Murdock Trust next argues that the PSC lacked subject-matter jurisdiction over the matter in controversy and that the PSC acted unreasonably in exercising its jurisdiction. We disagree. 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, a party must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999). The existence of subject-matter jurisdiction is a question of law that this Court reviews de novo. Adams v Adams (On Reconsideration), 276 Mich App 704, 708-709; 742 NW2d 399 (2007). Likewise, the “applicability of a legal doctrine is a question of law,” calling for review de novo. James v Alberts, 464 Mich 12, 14; 626 NW2d 158 (2001). In the instant case, the Sanilac County Circuit Court issued an order staying the condemnation action before it because the PSC had primary jurisdiction over issues concerning the route of the transmission line. Murdock Trust argues that the PSC lacked the subject-matter jurisdiction to revisit its previous order approving ITC’s route and that the circuit court erred by deferring to the PSC under the doctrine of primary jurisdiction. A. SUBJECT-MATTER JURISDICTION The PSC possesses no authority beyond what the Legislature has granted it. Consumers Power Co v Pub Serv Comm, 460 Mich 148, 155; 596 NW2d 126 (1999). Authority must be granted by clear and unmistakable language. Id. at 155-156. The February 25, 2011 order, in which the PSC approved ITC’s proposed route and granted an expedited siting certificate for the Thumb Loop Project, included the statement, “The Commission reserves jurisdiction and may issue further orders as necessary.” Then, in its order granting Murdock Trust’s motion to intervene, and responding to the circuit court’s “remand” in deference to its primary jurisdiction, the PSC invited briefing, affidavits, and exhibits in order that it might “determine whether the proposed route deviation is within ITC’s authority under the February 25 order,” and again announced that it was reserving jurisdiction and might issue further orders. However, the PSC cannot expand its jurisdiction through its own orders. See York v Detroit (After Remand), 438 Mich 744, 767; 475 NW2d 346 (1991). Accordingly, although the PSC reserved jurisdiction in the two orders that preceded the one from which this appeal is taken, those reservations remain limited to the PSC’s statutorily granted powers. MCL 460.1149(2) states that “[a]n. .. independent transmission company may apply to the commission for an expedited siting certificate.” MCL 460.1153(2) di rects the PSC to “conduct a proceeding on the application for an expedited siting certificate as a contested case[.]” MCL 460.1153(3) sets forth criteria for granting an expedited siting certificate, and MCL 460.1153(6) allows the PSC “a maximum of 180 days to grant or deny an expedited siting certificate under this section.” MCL 460.1159(2) states that “[i]n administering this part, the commission has only those powers and duties granted to the commission under this part.” It is undisputed that the PSC was empowered to decide ITC’s application for an expedited siting certificate, including whether to approve a proposed route for the transmission line. Murdock Trust argued in its petition to intervene that the PSC had completed its statutory task when it issued the expedited siting certificate, and was thus “without jurisdiction to ‘clarify’ an Order where ITC’s Application never requested the authority to make post-Order changes in the centerline ....” The issue thus becomes whether — more than two years after issuing an order approving a transmission line route for the Thumb Loop Project that was subsequently affirmed in the appellate process — the PSC had jurisdiction to adjudicate as it did the disagreement that arose between Murdock Trust and ITC concerning the latter’s wish to deviate from the approved route by up to 700 feet in order to accommodate a wind turbine that had been placed in the path of the route as originally proposed and approved. This Court has distinguished the question of the existence of the PSC’s subject-matter jurisdiction over a controversy from the question whether the PSC properly exercised its subject-matter jurisdiction in a particular instance: Subject-matter jurisdiction concerns a body’s abstract power to hear a case of the kind or character of the one pending, and is not dependent on the particular facts of the case. Subject-matter jurisdiction is determined only by reference to the allegations listed in the complaint. If it is apparent from the allegations that the matter alleged is within the class of cases over which the body has power to act, then subject-matter jurisdiction exists. Any subsequent error in the proceedings amounts to error in the exercise of jurisdiction. The erroneous exercise of jurisdiction does not void a body’s jurisdiction, but may be challenged ... on direct appeal. [In re Complaint of Pelland against Ameritech Mich, 254 Mich App 675, 682-683; 658 NW2d 849 (2003) (citations omitted).] In this case, Murdock Trust’s challenge is not to the PSC’s abstract authority to decide the particulars involved with an application for an expedited siting certificate, including what route the transmission line might cover, but instead is to the PSC’s exercise of that jurisdiction by adjudicating a siting dispute between Murdock Trust and ITC by ostensibly clarifying its earlier final order in the matter after allowing Murdock Trust minimal procedural opportunities to make its case. We thus conclude that the PSC had subject-matter jurisdiction over the dispute and that Murdock Trust’s challenge relates to the proper exercise of that jurisdiction. B. PRIMARY JURISDICTION The doctrine of primary jurisdiction comes into play when a court and an administrative agency have concurrent original subject-matter jurisdiction regarding a disputed issue. Attorney General v Blue Cross Blue Shield of Mich, 291 Mich App 64, 85; 810 NW2d 603 (2010). Primary jurisdiction “does not involve jurisdiction in the technical sense, but it is a doctrine predicated on an attitude of judicial self-restraint and is applied when the court feels that the dispute should be handled by an administrative agency created by the legislature to deal with such problems.” Black’s Law Dictionary (6th ed), p 1191. There is no fixed formula, but there are several factors to consider in determining whether an administrative agency has primary jurisdiction over a dispute: (1) whether the matter falls within the agency’s specialized knowledge, (2) whether the court would interfere with the uniform resolution of similar issues, and (3) whether the court would upset the regulatory scheme of the agency. [City of Taylor v Detroit Edison Co, 475 Mich 109, 122; 715 NW2d 28 (2006).] Murdock Trust cites no authority for the proposition that, when a court invites an administrative agency to exercise primary jurisdiction over a matter, the agency is not entitled to rely on the court’s determination in that regard but must instead consider anew whether the doctrine applies. As appellees note, this appeal is not the proper avenue through which to attack the circuit court’s decision to defer to the PSC on the basis of primary jurisdiction. If Murdock Trust had wished for appellate vindication of such a challenge, it should have sought leave in this Court for an interlocutory appeal from the circuit court’s decision in that regard. See MCR 7.203(B)(1). Given the circuit court’s unchallenged determination that the PSC had primary jurisdiction in this case, at issue now is not that the PSC acted on that determination, but rather how it did so. Therefore, we decline to hold that the PSC lacked jurisdiction over the matter at issue, and proceed to Murdock Trust’s challenge to the exercise of that jurisdiction. IV THE PSC’S DECISION Murdock Trust argues that the PSC erred by failing to open a new contested case and to afford it “full contested case protections such as the right to conduct discovery,” and therefore erred by modifying the approved route upon ITC’s request for clarification of its previous order. Murdock Trust further argues that the PSC improperly delegated legislative siting authority to ITC by allowing ITC the power to deviate from the approved transmission line route. 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 party must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich at 427. This Court reviews a trial court’s interpretation of administrative rules de novo, as a question of law. Aaronson v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 270; 597 NW2d 227 (1999). It reviews the interpretation of court rules under the same stan dard. St George Greek Orthodox Church v Laupmanis Assoc, PC, 204 Mich App 278, 282; 514 NW2d 516 (1994). In arguing that the PSC decided this case in violation of applicable rules, Murdock Trust directs this Court to MCR 7.208(A) (staying trial proceedings while an appeal is pending), Mich Admin Code, R 460.17403 (authorizing motions for rehearing), and Mich Admin Code, R 460.17401 (authorizing motions to reopen proceedings for further evidence). We hold that none of these rules applies to invalidate the PSC’s July 29, 2013 order. Generally, the PSC “in any proceeding which may now be pending before it or which shall hereafter be brought before it, shall have full power and authority to grant rehearings and to alter, amend or modify its findings and orders.” MCL 460.351. As discussed earlier, the PSC did not err by acting on the circuit court’s request that it exercise its primary jurisdiction for purposes of clarifying whether the 700-foot deviation in the Thumb Loop Project’s transmission line route fell within the implied expectation in the order approving the route that minor adjustments would be required. Of course, in exercising its jurisdiction, the PSC was still obliged to do so in accord with pertinent statutes and other authority, including its own rules. See Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81, 82; 141 NW2d 722 (1966) (“[w]hen an administrative agency promulgates a rule for the benefit of litigants and then deprives a litigant of this right, it is a violation of. .. due process”), citing Const 1963, art 1, § 17. We accordingly address the rules that Murdock Trust argues are preclusive of the PSC’s July 29, 2013 order. MCR 7.208(A) states that after a claim of appeal has been filed or leave to appeal has been granted, the trial-level tribunal “may not set aside or amend the judgment or order appealed from” except by order of this Court, by stipulation of the parties, after the grant of a preliminary injunction, or as otherwise provided by law. Murdock Trust suggests that the beginning of the appeal process thus forever cuts off the original tribunal’s authority to take action in the case, except as noted. We disagree, because MCR 7.208 only applies during the pendency of an appeal and does not bar postappellate action. See Hill v City of Warren, 276 Mich App 299, 307; 740 NW2d 706 (2007) (“[FJiling a claim of appeal only prevents the trial court from amending its orders while the appeal is pending, not after remand.”), in turn citing Wilson v Gen Motors Corp, 183 Mich App 21, 41-42; 454 NW2d 405 (1990); see also Bass v Combs, 238 Mich App 16, 24-25; 604 NW2d 727 (1999), overruled in part on other grounds Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 628; 752 NW2d 37 (2008). We therefore hold that MCR 7.208 does not preclude the PSC from taking the actions set forth in its July 29, 2013 order. Next, Rule 460.17403 authorizes a petition for rehearing after a decision or order of the PSC, but only “within 30 days after service of the decision or order .. . unless otherwise specified by statute.” To the extent that this rule operates as a vehicle for the PSC to clarify one of its orders, it obviously could not do so here because the 30-day limitation was long expired before the instant controversy arose. However, the PSC did not rely on this rule in rendering its decision clarifying its original order. Moreover, the unavailability of this rule because of its time limitation does not itself deprive the PSC of authority where it otherwise may exist. Finally, Rule 460.17401(1) states that a “proceeding may be reopened for the purpose of receiving further evidence when a reopening is necessary for the development of a full and complete record or there has been a change in conditions of fact or law such that the public interest requires the reopening of the proceeding.” According to subrule (2), such action may be taken by “the presiding officer, upon his or her own motion or upon motion of any party,” but only “before the date for the filing of exceptions to a proposal for decision or, if provided for, replies to exceptions.” After that date, “the commission may reopen a proceeding upon its own motion or motion of any party,” but only “until the expiration of the statutory time period for filing a petition for rehearing[.]” Id. Thus, because the time for filing exceptions (or replies to exceptions) and petitioning for rehearing had passed, it appears that this rule was not available to permit the PSC to reopen the contested case. Indeed, no party invoked this rule or otherwise asked the PSC to reopen the previous proceeding concerning the siting certificate. ITC initially sought an ex parte clarification from the PSC of its February 25, 2011 order’s provision for minor deviation in the transmission line route. Murdock Trust disputed the PSC’s authority to address the issue short of opening a new contested case. Murdock Trust further contends that in the context of a new contested case it would have been subject to all the procedural protections, including discovery, applicable to an adversarial proceeding. Indeed, Murdock Trust served discovery demands on ITC in May 2013, to which ITC objected on the ground that the case remained closed. Murdock Trust then moved the PSC to suspend briefing to await discovery. The PSC in its July 29, 2013 order declared the motion to suspend briefing moot, thus signaling that it was satisfied to decide the controversy at hand without recourse to the additional procedure requested by Murdock Trust. Even assuming that a new contested case should have been opened, Murdock Trust has not specified to this Court how the lack of further discovery in this matter prejudiced its position before the PSC and constituted a denial of due process. We note that “[i]t is well settled that parties to judicial or quasi-judicial proceedings, including administrative proceedings, are not entitled to discovery as a matter of constitutional right.” In re Del Rio, 400 Mich 665, 687 n 7; 256 NW2d 727 (1977) (emphasis omitted). We further hold that the PSC was not obligated to open a new contested case. Rather, a contested case proceeding “shall be held when required by statute and may be held when the commission so directs.” Mich Admin Code, R 460.17301(1). The PSC “shall conduct a proceeding on the application for an expedited siting certificate as a contested case . . . .” MCL 460.1153(2) (emphasis added). Thus, the PSC was not statutorily obligated to open a new contested case in response to a motion made in relation to its order in a previous contested case concerning a previously approved expedited siting certificate. Giving due deference to the PSC, we therefore conclude that the PSC did not abuse its discretion in deciding the matter before it without opening a new contested case. In re MCI Telecom Complaint, 460 Mich at 427. The PSC allowed the parties to submit briefs, affidavits, and exhibits. The PSC also stated in an order that it would allow oral arguments if it determined that further development of the record was necessary. Within its discretion, it subsequently determined that oral arguments were unnecessary. The above-cited rules do not divest the PSC of the authority to interpret its February 25, 2011 order. See, e.g., Mich Admin Code, R 460.17103(1) (“In areas not addressed by these rules, the presiding officer may rely on appropriate provisions of the currently effective Michigan court rules.”); see also MCR 2.612(A)(1) (“Clerical mistakes in . . . orders . . . and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it.”). Further, the PSC, “in any proceeding which may now be pending before it or which shall hereafter be brought before it, shall have full power and authority to grant rehearings and to alter, amend or modify its findings and orders.” MCL 460.351. On the record before this Court, we also find no abuse of discretion in the PSC’s interpretation of its February 25, 2011 order, which noted the project manager’s caveat that “descriptions of the proposed and alternate routes are expected to be subject to minor revisions as engineering, design economist surveys, utility locates, and land owner negotiations proceed.” The PSC specifically ruled in its July 29, 2013 order that ITC’s proposed modification of the easement was “within the scope of minor adjustments allowed for in the February 25, 2011 order in this proceeding.” The PSC has thus determined that the adjustment is “minor” in the context of the overall 140-mile transmission route, within the meaning of the February 25, 2011 order. Murdock Trust does not contest the merits of the PSC’s holding. We accordingly find no error. Finally, we do not find persuasive Murdock Trust’s argument that the PSC has impermissibly delegated legislative authority to ITC. Specifically, Murdock Trust argues that whereas the PSC’s February 25, 2011 order “was not clear” about whether ITC could modify to the approved route, the PSC’s July 29, 2013 order “unequivocally determined” that ITC could make modifications if ITC deemed them “minor,” and thereby impermissibly delegated legislative authority to ITC. We conclude, to the contrary, that the PSC’s February 25, 2011 order approving the proposed route expressly contemplated that it would be subject to “minor revisions.” Moreover, the PSC’s July 29, 2013 order does not authorize ITC to deviate whenever and to whatever extent it wishes; it merely approves ITC’s proposed deviation in this instance. Nothing in the July 29, 2013 PSC order grants ITC authority beyond that which may be reflected in the PSC’s February 25, 2011 order, nor does its approval of the particular deviation at issue in this case constitute a determination regarding any other or future deviation, nor does it preclude such a deviation from becoming the subject of future proceedings before the PSC or the circuit court. V CONCLUSION We hold that Murdock Trust has failed to demonstrate that the notice provided to landowners (which Murdock Trust concedes satisfies the pertinent statutory requirements) denied it due process of law or otherwise caused it to suffer prejudice in the proceedings below. We further hold that the PSC had jurisdiction over the matter in controversy, and properly acted pursuant to the circuit court’s request to exercise primary jurisdiction in this case. Further, we hold that the PSC did not err in issuing its July 29, 2013 order, thereby modifying the previously approved transmission line route for the Thumb Loop Project as set forth therein. Finally, we hold that the PSC’s July 29, 2013 order was not an impermissible delegation of legislative authority. Affirmed. SERVITTO, PJ., and SAWYER, J., concurred with BOONSTRA, J. This Court affirmed the PSC’s approval, hut held that the PSC erred by deeming the siting certificate itself to also function as a construction permit. In re Application of Int’l Transmission Co for Expedited Siting Certificate, 298 Mich App 338, 343; 827 NW2d 385 (2012). Our Supreme Court, in lieu of granting leave to appeal, reversed this Court’s decision in part and declared that a siting certificate does indeed constitute a construction permit, but otherwise denied leave to appeal. In re Application of Int’l Transmission Co for Expedited Siting Certificate, 493 Mich 947 (2013). The latter order thus restored the PSC’s decision to full effect and closed the case. In re Application of Int’l Transmission Co for Expedited Siting Certificate, unpublished order of the Court of Appeals, entered September 27, 2013 (Docket No. 317798). Murdock Trust makes much ado about the statutory requirement to rule on a request for an expedited siting certificate within 180 days. This requirement reflects only the Legislature’s desire for expeditious action on such requests, not an intention to cut off all authority in the matter once that period has expired. It would be anomalous if the PSC required 179 days to reach a decision but was then deemed stripped of authority to entertain a meritorious postdecision motion, e.g., one for rehearing, raised a few days later, given that, in general, the authority to decide such postdecision motions inheres in the authority to make the initial decision. See Ewing v Bolden, 194 Mich App 95, 101; 486 NW2d 96 (1992) (“Any subsequent action based on the original judgment, even if brought pursuant to a new complaint, is deemed to be a continuation of the original action so that jurisdiction is proper in the court that rendered the original judgment.”). We note that the PSC has interpreted this rule as barring motions for reopening a contested proceeding pursuant to Rule 460.17401(1) if they are untimely under Rule 460.17401(2). See, e.g., In re Consumers Energy Co, unpublished order of the Michigan Public Service Commission, entered October 24, 2006 (Case No. U-14150); In re Application for a Certificate of Public Convenience and Necessity to Construct and Operate the DeWitt Tie-Line, unpublished order of the Michigan Public Service Commission, entered May 20, 2008 (Case No. U-14421). While not binding on this Court, an administrative agency’s interpretation of its own rule is entitled to deference. In re Complaint of Consumers Energy Co, 255 Mich App 496, 503-504; 660 NW2d 785 (2003).

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PER CURIAM. Plaintiff, Glenna Bryan, appeals as of right an order granting summary disposition in favor of defendant, JPMorgan Chase Bank, in this quiet title action. Finding no errors warranting reversal, we affirm. I. BASIC FACTS The trial court’s order granting summary disposition for defendant set forth the background facts of this case, none of which is in dispute: This lawsuit arises from the foreclosure of a house located in Bloomfield Hills. Plaintiff defaulted on her mortgage payments and Defendant foreclosed by advertisement. On January 26, 2010, the property was sold at a Sheriffs Sale. Defendant was the purchaser and the Sheriffs Deed was recorded on February 2, 2010. The redemption period expired on June 26, 2010. A Judgment of Possession was entered by the District Court on August 11, 2010. On August 31, 2010, Plaintiff filed a Claim of Appeal and a Chapter 7 Bankruptcy Petition. The Bankruptcy case was dismissed on November 29, 2010. On April 11, 2011, Plaintiff filed a second Chapter 7 Bankruptcy Petition. On August 23, 2011, the Bankruptcy Court entered an Order discharging Plaintiff. The Appeal case was reopened on February 7, 2012 and this Court granted the motion to allow immediate execution of the Order of Eviction. The District Court denied Plaintiffs motion to set aside the Judgment of Possession on February 14, 2012. A Delayed Application for Leave to Appeal was filed and dismissed by this Court on March 8, 2012. Plaintiff filed this lawsuit on January 31, 2012, seeking to quiet title and alleging unjust enrichment, deceptive/unfair practice and wrongful foreclosure. Plaintiffs complaint alleged, inter alia, that defendant was not the owner of the indebtedness secured by the mortgage nor the servicing agent of the mortgage as required in MCL 600.3204(l)(d). Specifically, plaintiff alleged that defendant acquired its interest in the property from the Federal Deposit Insurance Corporation (FDIC) as receiver when the original mortgagee, Washington Mutual Bank, was closed. However, defendant failed to record its interest in the property before the sheriffs sale. Plaintiff alleged that the sheriffs sale was, therefore, void ab initio. The parties filed competing motions for summary disposition. Plaintiff admitted that the redemption period had expired, but argued that she still had standing to sue because of “fraud or irregularity” in the foreclosure process, specifically defendant’s failure to record its mortgage interest before the sale, as required by MCL 600.3204(3) and Kim v JPMorgan Chase Bank, NA, 295 Mich App 200; 813 NW2d 778 (2012). Plaintiff did not believe that her claim was barred by res judicata or collateral estoppel because, although the district court had determined that defendant was entitled to possession, that decision was being appealed. Additionally, Kim was not decided until January 2012 and, therefore, the issue of whether the foreclosure was void ab initio was never fully addressed or resolved. Defendant argued that plaintiffs claim was barred by the doctrines of res judicata and collateral estoppel. Defendant further argued that, even if res judicata and collateral estoppel did not apply, plaintiff had no standing to challenge the foreclosure when the redemption period had expired and plaintiff had failed to redeem the property. The trial court issued a written order granting defendant’s motion for summary disposition and denying plaintiffs motion for summary disposition: The Court finds that Defendant is entitled to summary disposition. Res Judicata and collateral estoppel bar Plaintiff from challenging the foreclosure proceedings. There is no legal support for Plaintiffs argument that Kim v JP Morgan Chase, 295 Mich App 200 (2012) has retroactive effect that exempts Plaintiff from res judicata and collateral estoppel. Because the redemption period has expired, Plaintiff does not have standing to assert any interest in the subject property. The Court finds that Plaintiff has failed to state any claims upon which relief can be granted. Plaintiffs motion for reconsideration was denied on October 19, 2012. She now appeals as of right. II. ANALYSIS The trial court granted defendant summary disposition pursuant to MCR 2.116(C)(8). “MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. The motion must be granted if no factual development could justify the plaintiffs’ claim for relief.” Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). This Court reviews de novo a trial court’s decision on a motion for summary disposition. Coblentz v Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). “The applicability of res judicata is a question of law that is reviewed de novo on appeal.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 10; 672 NW2d 351 (2003). Defendant argues that plaintiff lacked standing to bring this action because the statutory period of redemption had expired and plaintiff made no effort to redeem the property. We agree. Pursuant to MCL 600.3240, after a sheriffs sale is completed, a mortgagor may redeem the property by paying the requisite amount within the prescribed time limit, which here was six months. “Unless the premises described in such deed shall be redeemed within the time limited for such redemption as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee therein named, his heirs or assigns, all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter. . . .” MCL 600.3236. If a mortgagor fails to avail him or herself of the right of redemption, all the mortgagor’s rights in and to the property are extinguished. Piotrowski v State Land Office Bd, 302 Mich 179, 187; 4 NW2d 514 (1942). We have reached this conclusion in a number of unpublished cases and, while unpublished cases are not precedentially binding, MCR 7.215(C)(1), we find the analysis and reasoning in each of the following cases to be compelling. Accordingly, we adopt their reasoning as our own. See Overton v Mtg Electronic Registration Sys, unpublished opinion per curiam of the Court of Appeals, issued May 28, 2009 (Docket No. 284950), p 2 (“The law in Michigan does not allow an equitable extension of the period to redeem from a statutory foreclosure sale in connection with a mortgage foreclosed by advertisement and posting of notice in the absence of a clear showing of fraud, or irregularity. Once the redemption period expired, all of plaintiffs rights in and title to the property were extinguished.”) (citation and quotation marks omitted); Hardwick v HSBC Bank USA, unpublished opinion per curiam of the Court of Appeals, issued July 23, 2013 (Docket No. 310191), p 2 (“Plaintiffs lost all interest in the subject property when the redemption period expired.... Moreover, it does not matter that plaintiffs actually filed this action one week before the redemption period ended. The filing of this action was insufficient to toll the redemption period. . . . Once the redemption period expired, all plaintiffs’ rights in the subject property were extinguished.”); BAC Home Loans Servicing, LP v Lundin, unpublished opinion per curiam of the Court of Appeals, issued May 23, 2013 (Docket No. 309048), p 4 (“[Ojnce the redemption period expired, [plaintiffs] rights in and to the property were extinguished. ... Because [plaintiff] had no interest in the subject matter of the controversy [by virtue of MCL 600.3236], he lacked standing to assert his claims challenging the foreclosure sale.”); Awad v Gen Motors Acceptance Corp, unpublished opinion per curiam of the Court of Appeals, issued April 24, 2012 (Docket No. 302692), pp 5-6 (“Although she filed suit before expiration of the redemption period, [plaintiff] made no attempt to stay or otherwise challenge the foreclosure and redemption sale. Upon the expiration of the redemption period, all of [plaintiffs] rights in and title to the property were extinguished, and she no longer had a legal cause of action to establish standing.”). We hold that by failing to redeem the property within the applicable time, plaintiff lost standing to bring her claim. Plaintiffs claims were also barred by the principles of res judicata and collateral estoppel. “The doctrine of res judicata is intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to foster the finality of litigation.” Begin v Mich Bell Tel Co, 284 Mich App 581, 599; 773 NW2d 271 (2009), overruled on other grounds by Admire v Auto-Owners Ins, Co, 494 Mich 10 (2013). Res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical. A second action is barred when (1) the first action was decided on the merits, (2) the matter contested in the second action was or could have been resolved in the first, and (3) both actions involve the same parties or their privies. Michigan courts have broadly applied the doctrine of res judicata. They have barred, not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. [Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999) (citations omitted).] Similarly, Collateral estoppel bars relitigation of an issue in a new action arising between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. The doctrine bars relitigation of issues when the parties had a full and fair opportunity to litigate those issues in an earlier action. A decision is final when all appeals have been exhausted or when the time available for an appeal has passed. [Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006) (citations omitted).] In this case, the prior eviction involved the same parties as the present case, the case was decided on its merits, and plaintiff raised the argument that the foreclosure was void ab initio-, therefore, res judicata and collateral estoppel precluded plaintiff from bringing this quiet title action. Moreover, even if plaintiff had standing to sue and even if the principles of res judicata and collateral estoppel did not prevent plaintiff from bringing her claim, defendant was nevertheless entitled to summary disposition because plaintiff failed to demonstrate prejudice as a result of the foreclosure irregularity. MCL 600.3204(3) provides that “[i]f the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale under [MCL 600.3216] evidencing the assignment of the mortgage to the party foreclosing the mortgage.” In Kim, 295 Mich App 200, the defendant was not the original mortgagee and, like defendant here, acquired its interest in the mortgage by assignment from the FDIC, who was the receiver for the failed bank. The defendant argued that it was relieved of recording its interest in the mortgage because it acquired that interest “by operation of law.” Id. at 202-203, 205. This Court disagreed and held: [P]ursuant to the plain language of MCL 600.3204(3), defendant was required to record its mortgage interest before the sheriffs sale. Because defendant failed to do so, it was not statutorily authorized to proceed with the sale. See MCL 600.3204(3) (“If the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale ....”[)] (emphasis added); see also Davenport v HSBC Bank USA, 275 Mich App 344, 347-348; 739 NW2d 383 (2007) (“Because defendant lacked the statutory authority to foreclose, the foreclosure proceedings were void ab initio.”). Accordingly, the trial court erred by granting summary disposition for defendant and denying summary disposition for plaintiffs when they were entitled to set aside the sheriffs deed. [Kim, 295 Mich App at 208.] In the trial court, plaintiffs counsel argued that “[t]he only issue that’s really before the Court is whether res judicata and collateral estoppel is a defense to the Kim case.” Counsel further argued: “So, if Kim says what happened in this case is void ab initio, then does that apply retroactively to res judicata and to collateral estoppel? And, we say of course it does, because... if it’s void ab initio, that means it didn’t happen. And if it didn’t happen, then you can’t say, well, res judicata applies.” Plaintiffs counsel went on to state: “The question is does it apply to the District Court. And, what I would state to the Court [is] that on January the 30th of this year in the District Court. .. we specifically raised Kim versus JP Morgan. So, without question it has been preserved, it should be given retroactive effect, and collateral estoppel and res judicata should not be a defense to the Kim case.” However, our Supreme Court subsequently reversed that portion of the Kim case that held an irregularity in recording a mortgage interest rendered a foreclosure void ab initio. In Kim v JPMorgan Chase Bank, NA, 493 Mich 98, 115-116; 825 NW 329 (2012), our Supreme Court explained: [W]e hold that defects or irregularities in a foreclosure proceeding result in a foreclosure that is voidable, not void ab initio. Because the Court of Appeals erred by holding to the contrary, we reverse that portion of its decision. We leave to the trial court the determination of whether, under the facts presented, the foreclosure sale of plaintiffs’ property is voidable. In this regard, to set aside the foreclosure sale, plaintiffs must show that they were prejudiced by defendant’s failure to comply with MCL 600.3204. To demonstrate such prejudice, they must show that they would have been in a better position to preserve their interest in the property absent defendant’s noncompliance with the statute. Plaintiff fails to acknowledge our Supreme Court’s decision and does not even cite it on appeal. Additionally, plaintiff makes no argument that she was prejudiced as a result of defendant’s failure to record its interest. As such, she is not entitled to relief. Plaintiffs remaining argument — that defendant’s conduct resulted in a “deceptive act and/or an unfair practice” — is deemed abandoned. Although plaintiff complains that there was robo-signing, she submits no evidence to support her claim. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) (stating that when a party fails to brief the merits of an issue or cite supporting authority, the issue is deemed abandoned). Affirmed. As the prevailing party, defendant may tax costs. MCR 7.219. BORRELLO, EJ., and WHITBECK and K. F. KELLY, JJ., concurred. As discussed later in this opinion, Kim was subsequently reversed in part.

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Per Curiam. Plaintiffs, Tim Nichols and his father, Donald Nichols, appeal as of right from an order of the circuit court granting defendants’ motion for summary judgment. Plaintiff Tim Nichols, had been a student in defendant Farmington Public Schools during all of his formal education. As a result of a severe hearing impairment, plaintiff is considered to be handicapped as that term applies to the Michigan Handicappers Civil Rights Act. MCL 37.1101 et seq.; MSA 3.550(101) et seq. Plaintiff was placed in special education classes until 1976, when he was "mainstreamed” into regular education classes as required by the civil rights act. When the mainstreaming took place, plaintiff was placed in a grade one level below that which his age would normally suggest. Plaintiff claims that this placement was never discussed with his parents and that the ramifications of this decision were not made clear. Problems with the placement did not arise until plaintiff’s senior year, when he was declared ineligible to compete in the varsity basketball program due to a rule of the Michigan High School Athletic Association (MHSAA), which excludes from participation in interscholastic athletics those students who have reached their 19th birthday before September 1 of the academic year in question. Plaintiff turned nineteen on August 16, 1984, thus rendering him ineligible for varsity basketball during his senior year. On July 25, 1984, plaintiffs filed a complaint alleging that the enforcement of the age rule in this case would violate plaintiff’s constitutional rights. They further sought to enjoin defendant Farmington Public Schools from enforcing the MHSAA’s age rule. Defendants filed a motion for summary judgment under GCR 1963, 117.2(1), contending that plaintiffs had failed to plead a constitutionally protected right and failed to plead facts which would support a claim that the age rule deprived plaintiff of equal protection or due process. In an opinion and order filed October 30, 1984, the trial court granted defendants’ motion. On appeal, plaintiffs present two issues. First, they claim that they were denied due process as a result of defendant school system’s failure to provide a hearing in regards to the initial placement decision. We find no merit to the argument. Under the Michigan Administrative Code, plaintiff’s parents had a right to request a hearing if they in fact objected to his placement one level below that suggested by his age. 1979 AC, R 340.1724. Since there is no indication that plaintiffs sought to exercise their right to a hearing, they cannot claim a denial of due process on this basis. Plaintiffs also claim a denial of due process as a result of the failure of defendant MHSAA to provide an exception to the age rule in the instant case. Again, we find that plaintiffs’ claim is without merit since they failed to follow the procedures available to them. According to defendant MHSAA, it will consider applications for exceptions to its rules when a school system formally presents a request for a waiver to its representation council. Plaintiffs do not contend that they ever requested that the school system file for such a waiver. Furthermore, plaintiffs have presented no argument which would support their contention that the age rule has a "discriminatory effect”. As noted in an affidavit submitted with defendants’ brief in support of the motion for summary judgment, the age rule serves the following purposes: "The 'age rule’ is one of the basic rules of eligibility of interscholastic athletics throughout the nation. It has many purposes, and among them are the following: "1. It treats all students equally regardless of race, creed, origin, sex, gifted, or handicapped. "2. It encourages athletes to complete four years of high school between the ages of 15 and 18. "3. It reduces the opportunity to hold students back (red shirt) for athletic purposes. "4. The rule is consistent with the philosophy of interscholastic athletics in that a student’s primary purpose in attending high school is to obtain an education, with participation in athletics secondary. "5. It tends to create equal competition with established age limitations. "6. It tends to decrease the opportunity for one team to have several 'older’ students competing against opponents with younger athletes. "7. There tends to be great maturity differences between students age 15 or 16 and those going on age 20. "8. It tends to reduce the opportunity for mismatches in competition. For example, a 15-year-old ninth or tenth grader could be competing against a student going on age 20, 21, etc. "9. It reduces the chances for litigation due to mismatches in competition. "10. It reduces the opportunity for a student who would normally be out of high school to take the position of a younger student who is progressing through high school at a normal rate. "11. A September 1, deadline, as indicated by the MHSAA HANDBOOK, could be considered arbitrary. However, if the date was changed to August 1, it would also be arbitrary and there would be students turning 19 years of age July 30, who would want the age limit changed to July 1.” We note that even plaintiffs agree that the age rule has a rational basis. Since plaintiffs have failed to present a basis for reversing the trial court’s order granting the motion for summary judgment, we must affirm that order. Affirmed.

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Per Curiam. Defendant was convicted by a jury of escaping from prison without lawful discharge, MCL 750.193; MSA 28.390. Thereafter he pled guilty to being a sixth-felony offender, MCL 769.13; MSA 28.1085, and was sentenced to from 15 to 50 years in prison. He appeals as of right. We reverse and remand for a new trial. Defendant entered the Bay City Corrections Center to serve the remainder of a 5- to 20-year sentence on a prior conviction. He was given a weekend furlough on June 10, 1983. There were two conditions to defendant’s furlough: (1) defendant was required to return to the corrections center by 5:30 p.m. on June 12, 1983, and (2) he was not to leave his placement at his mother’s home between 9:00 p.m. and 7:30 a.m. on June 10 and 11, 1983. On June 11, 1983, a corrections center employee made a spot check to determine whether defendant was complying with his weekend furlough and found that defendant was not at his mother’s home where he was supposed to be. Defendant failed to return on June 12, 1983, to the corrections center as required. Later, in October 1983, defendant was apprehended and returned to jail. Defendant has raised ten claims of error on appeal. We will first discuss the claim which requires reversal, then briefly dispose of the remaining issues. I Defendant claims that the trial judge abused his discretion in refusing to dismiss a juror for cause after the juror expressed a general bias against black people. During voir dire, the trial judge asked Juror Terry Powers if there was anything else he had to say and Powers replied, "Not really, just that I don’t care for colored people.” Then, the following exchange took place: "The Court: Okay. Does that mean that if a person is black that therefore you would not accept his testimony? "Juror Powers: Not really, no. ’’The Court: Would you take — Would it take more for a black person to convince you of the accuracy of his testimony than it would take someone else? On a one to one basis. I’m not talking about groups now, I’m talking about one person. Juror Powers: I guess not. "The Court: Do you believe that if you did serve, you could do so fairly and impartially to both sides? ’’Juror Powers: Yes. "The Court: Mr. Jacobs? "Mr. Jacobs: Yes, your Honor. "Mr. Powers, if a black woman is dating a white man and that black woman takes the stand and gives some sort of testimony, is the fact that she’s black and the fact that she’s dating a person who’s white, is that going to affect your decision? ’’Juror Powers: I don’t think so. "Mr. Jacobs: Are you going to have any problems with that? "Juror Powers: (no response) "Mr. Jacobs: You’re going to have to speak up now. ’’Juror Powers: No. "Mr. Jacobs: No? ’’Juror Powers: No. "Mr. Jacobs: No problems? That you could listen to the testimony and regardless of someone’s relationship render a fair and impartial decision? ’’Juror Powers: Yeah, I guess so. "Mr. Jacobs: Well T guess so’, that kind of scares me a little bit. Yes, you can? ’’Juror Powers: Well, I already said I didn’t care for them because I’ve had some dealings with them already and they’ve said some stuff to people and I don’t care for 'em, so — But not all people is like that.” As two of defendant’s witnesses were black, his girlfriend and her mother, defense counsel asked to excuse the juror for cause. The trial judge did not believe that it had been established that Powers’s opinions might influence his verdict, and refused to excuse him. This, defendant asserts, was an abuse of discretion requiring reversal. We agree. We will reverse the trial court’s finding that a juror has the ability to render an impartial verdict or that a juror is biased or prejudiced where we find a clear abuse of discretion. People v Johnson, 103 Mich App 825, 830; 303 NW2d 908 (1981), lv den 417 Mich 962 (1983). A juror who expresses an opinion referring to some circumstance of the case which is not positive in character, but swears he can render an impartial verdict, may not be challengéd for cause. People v Jenkins, 10 Mich App 257, 261; 159 NW2d 225 (1968), lv den 381 Mich 757 (1968), MCL 768.10; MSA 28.1033. The challenging party bears the burden of showing bias or prejudice. Rice v Winkleman Bros Apparel, Inc, 13 Mich App 281, 287; 164 NW2d 417 (1968), lv den 381 Mich 798 (1969). We are of the opinion that the burden has been met here, notwithstanding the trial judge’s superior ability to evaluate the demeanor and credibility of a juror who asserts he can render a fair and impartial verdict. Johnson, supra, p 830. The juror’s bias against black people was aptly demonstrated. Twice he stated he did not care for black people. We recognize that he answered in the affirmative to the court’s inquiries about whether he could serve fairly and impartially to both sides. However, he equivocated and gave qualified answers to other questions put to him by both the court and defense counsel about whether he would have problems believing the testimony of a black woman. It was only upon answering the trial court’s carefully framed questions that the juror conceded he would try to take each witness at face value. We cannot say with certainty that his plainly stated bias was not diluted by the court’s interrogation. As the indicia of the juror’s impartiality did not outweigh his stated bias, we find that the trial judge abused his discretion in declining to excuse the juror for cause. On this basis, we reverse and remand for a new trial. II Defendant also argues that the trial court erred by not allowing him 20 peremptory challenges at the time of jury selection on the principal offense of prison escape, which is punishable by a term of not more than five years, because defendant had also been charged as an habitual offender, which carries a possible sentence of life in prison. Based upon our review of the record, we do not perceive any such error. Prior to trial on the principal offense, the trial judge informed defendant that he could choose to be tried by a different jury on the habitual offender charge. After defendant was found guilty on the principal offense, but before the jury was dismissed, defendant was presented with the option of having a jury trial on the habitual offender charge, either with the same jury or a new one. Defendant instead pled guilty and waived his right to a jury trial. Had he exercised his option to be tried by a jury on the habitual offender charge, defendant would have been entitled to 20 peremptory challenges at that time. People v Van Auker, 111 Mich App 478, 487; 314 NW2d 657 (1981), rev’d on other grounds 419 Mich 918 (1984). As the trial judge complied with his duty to allow defendant, if he chose, to be tried by a new jury and given 20 peremptory challenges at that time, People v Helzer, 404 Mich 410, 427; 273 NW2d 44 (1978), we find no error. We also find no merit to defendant’s challenge of the sufficiency of the information, which he asserts did not adequately inform him that the people intended to claim that his violation of furlough was part of the charge against him. The information stated: "[Defendant,] being a person imprisoned in a prison of the State of Michigan at the above location, [did] escape or leave the prison without being discharged by due process of law; contrary to MCLA 760.193;” The language in the information tracked that contained in the prison escape statute, which is sufficient. People v Mast, 126 Mich App 658, 661-662; 337 NW2d 619 (1983), (On Rehearing) 128 Mich App 613; 341 NW2d 117 (1983). The information put defendant on notice that he was being charged with escape from prison without lawful discharge. It is not required that evidentiary facts in support of the charge be stated in the information. 42 CJS, Indictments and Informations, § 90, pp 957-960. Therefore, we affirm the trial judge’s finding that the information was sufficient to inform defendant of the offense charged. Defendant also claims that the trial judge erroneously allowed him to be prosecuted under the prison escape statute, when MCL 791.265a; MSA 28.2325(1) provides that the Department of Corrections can implement rules to deal with a prisoner’s failure to return to a facility. We think that a plain reading of MCL 791.265a(3); MSA 28.2325(1)(3) indicates that the Legislature intended to allow the Department of Corrections to promulgate rules to address prison escape situations and intended that the state prosecute individuals who fail to remain within the extended limits of their confinement under the prison escape statute. Cf., People v Bookmeyer, 127 Mich App 69; 338 NW2d 557 (1983), lv den 419 Mich 854 (1984). As we conclude that both the state and the Department of Corrections have joint authority to implement the prison escape statute, MCL 750.193; MSA 28.390, the trial court did not err in allowing the jury to hear testimony about defendant’s furlough violation. Next, we turn to defendant’s claim of error based on the trial court’s refusal to admit into evidence the testimony of Loretta Lowe that defendant told her on June 11, 1983, that he was "trying to find money”. We find no abuse of discretion in the trial judge’s ruling that the testimony was hearsay and that, even if it were not hearsay, it was irrelevant. The statement was offered to prove that defendant was trying to find money, i.e., "the truth of thie matter asserted” under MRE 801(c). It was offered to buttress defendant’s duress defense in which he wanted to show that he was so afraid another inmate might harm him that he did not want to return to the correction facility. Defense counsel admitted that he was trying to show that defendant was trying to find money. Further, the statement was not excepted by MRE 803(3), which allows a statement of a declarant’s state of mind to be admitted where state of mind is an issue in the case. People v White, 401 Mich 482, 503; 257 NW2d 912 (1977). In the general form this statement was offered, it had no probative value as to defendant’s state of mind and was properly excluded by the trial judge. Defendant also argues that the statement could have been introduced as evidence of a prior consistent statement to rebut a charge of recent fabrication. As this claim was not properly raised at trial, we need not entertain it. We also reject defendant’s claim that the trial judge abused his discretion by allowing the people to introduce evidence of his prior convictions in cross-examining a character witness who testified regarding defendant’s good character. Defendant placed his general reputation at issue when he introduced the testimony of Michael Jensen, Food Service Director for the Riverside Corrections Faciltiy. Defense counsel admitted that he wanted to introduce general good character and reputation testimony about defendant. The people’s subsequent cross-examination of this character witness about defendant’s prior convictions was done to test the credibility of the character witness by ascertaining his good faith, information or accuracy. People v Fields, 93 Mich App 702, 707-708; 287 NW2d 325 (1979), lv den 408 Mich 945 (1980). This is equally true where the witness has been questioned as to other offenses allegedly committed by defendant, as here. People v Rosa, 268 Mich 462, 464; 256 NW 483 (1934). Additionally, any prejudice resulting from the people’s questioning of the witness was cured by the trial judge’s instruction to the jury that they were not to use evidence of defendant’s prior convictions as substantive evidence, but rather should use it as evidence of his credibility as a witness. Defendant also urges that the trial judge breached his obligation to be impartial when he raised defendant’s furlough violation on June 10 to 11, 1983, as possible grounds for establishing a charge for prison escape, and by cautioning the jury with respect to the proper use of defendant’s prior convictions. We find no error requiring reversal in the complained-of comments. We do not think that the comments unduly influenced the jury or deprived defendant of a fair trial. People v Pawelczak, 125 Mich App 231, 237-238; 336 NW2d 453 (1983). We realize that a judge is not authorized to usurp the attorney’s role or to blatantly exhibit partiality. People v Frank, 31 Mich App 378, 380-381; 188 NW2d 95 (1971), lv den 386 Mich 755 (1971). But the court’s comments about the furlough violation were made to clarify the testimony about the furlough violation, or were made in response to defendant’s arguments that testimony about defendant’s furlough restrictions was irrelevant. The comments did not usurp the role of either attorney. Nor did the judge excessively caution the jury about use of defendant’s prior convictions. Therefore, we find that defendant was not prejudiced by these statements. Defendant next argues that the trial judge improperly instructed the jury with respect to the factors to be considered in establishing a duress defense and on the instructions regarding the proper allocation of the burden of proof. We have reviewed the instructions in their entirety. People v Seabrooks, 135 Mich App 442, 452; 354 NW2d 374 (1984). The trial judge satisfactorily informed the jury of the elements of a duress defense as set forth in People v Luther, 394 Mich 619, 623; 232 NW2d 184 (1975). Although he deviated somewhat from CJI 7:5:02(3), his expansion of the jury instruction was fully consistent with the requirement of Luther, supra. We also find no merit to defendant’s claim that the trial judge was required to follow the duress defense instruction immediately with the burden of proof instruction. The trial judge also complied with the requirement of People v Field, 28 Mich App 476, 478; 184 NW2d 551 (1970), and informed the jury that the people bore the burden to show that the elements of duress were not present. Therefore, reversal is not required. Defendant also contends that the jury verdict form was unduly suggestive because it failed to include a reference to defendant’s duress defense. This issue presents no grounds for reversal. The jury was adequately instructed that if the jury found that the duress defense had been established, it should find defendant not guilty. As the duress defense was properly given, we find no error. Finally, defendant claims his prison sentence of from 15 to 50 years imprisonment constitutes cruel and unusual punishment, or, alternatively, shocks the conscience of this Court. We think the sentence was not cruel and unusual punishment, as it was within the statutory limits of the habitual offender statute, MCL 769.12; MSA 28.1084. People v Banks, 116 Mich App 446, 451; 323 NW2d 436 (1982). Nor do we agree that his sentence is shocking to our conscience under People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The court articulated its reasons for sentencing defendant according to Coles, considering the protection of society and the disciplining of the wrongdoer. Given that defendant could have been sentenced to life in prison, the sentence does not shock our conscience. Reversed and remanded._ It was also appropriate for the verdict form to include the option of finding defendant guilty of prison escape due to failure to remain at his mother’s home according to the requirements of his furlough, since MCL 791.265a; MSA 28.2325(1) specifically states that such conduct shall be deemed to be an escape from custody as provided in MCL 750.193; MSA 28.390, the prison escape statute.

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M. J. Kelly, P.J. Plaintiff appeals by leave granted from a decision of the circuit court awarding defendants a new trial on the basis of juror misconduct. We reverse and remand for further proceedings consistent with this opinion. Plaintiff filed this action against the City of Detroit and Detroit Police Officer Carwell Williams on November 18, 1980, alleging police misconduct. According to plaintiff, he was attempting to break up a fight at Joe Louis Arena in the City of Detroit on August 2, 1980, when defendant Williams overreacted, struck him in the face and otherwise insulted him. Plaintiff alleged that the injuries suffered in this fracas resulted in residual permanent physical impairments, including temporal mandibular joint syndrome, left lower lip numbness, teeth insensitivity and denervation, scarring and headaches. Plaintiff further alleged that he suffered emotional damage, anxiety and trauma. Following a jury trial in July of 1984, a unanimous verdict was returned in favor of plaintiff in the amount of $350,000. Defendants subsequently moved for a new trial or, in the alternative, remittitur. One of the grounds asserted by defendants in support of their motion for a new trial was that one of the jurors failed to disclose his personal bias against the Detroit Police Department during jury voir dire. A hearing was conducted on the motion and an order was eventually entered granting defendants a new trial. The trial court then certified a concise statement of facts and proceedings and further certified its order granting a new trial as involving a controlling question of law of major significance to the jurisprudence of this state. This Court granted leave to appeal by order dated April 26, 1985. The issue presented is whether a motion for a new trial may be granted on the basis of affidavits asserting hearsay statements of a juror which indicate possible bias. We hold that a jury verdict may not be set aside on the basis of hearsay statements presented by way of affidavit, particularly where, as here, the juror unequivocally refutes the allegation of bias. Attached to defendants’ motion for a new trial were two affidavits submitted by defendant Car-well Williams and Wayne County Deputy Sheriff William Wensko. Both stated that after the conclusion of trial, defendants’ attorney spoke with juror Larry Bowlson and inquired about the factors he considered in arriving at the verdict. Bowlson allegedly responded that his cousin had been involved in a similar incident with members of the Detroit Police Department. Plaintiff, however, subsequently submitted juror Bowlson’s affidavit to the effect that while he did engage in conversation with defendants’ attorney after the trial, he recalled explaining that the city had failed to present sufficient evidence to convince him of the truth of defendant Williams’s position. Bowlson recalled being asked whether he "had anything against police officers”, to which he responded " 'No, even though my cousin had a little trouble with them’ ”. Bowlson further stated: "I never told anyone that my cousin or anyone else that I personally know was ever beaten by the Detroit police. I do remember my cousin telling me about six years ago that he was at Ted’s Restaurant on Woodward and got into an argument with two off duty officers. He was not hurt bad and nothing came of it. I don’t know if they were police officers or not. I don’t know if they worked for the City of Detroit. I consider myself as a fair juror and only made a decision based upon the evidence that I heard and saw. Nothing else influenced me.” GCR 1963, 527.1(2), now MCR 2.611(A)(1)(b), authorizes motions for new trial on the basis of jury bias or misconduct. Whether a new trial should be awarded on the ground that a juror was biased in favor of or against a particular party is discretionary with the trial court and this Court reviews such a decision only for an abuse of that very broad discretion. Gustafson v Morrison, 57 Mich App 655, 662; 226 NW2d 681 (1975), lv den 394 Mich 755 (1975). We conclude that this case is governed by the Supreme Court’s opinion in Mandjiak v Meijer’s Super Markets, Inc, 364 Mich 456, 459-461; 110 NW2d 802 (1961). There, the plaintiffs attorney filed an affidavit to the effect that he had overheard remarks made by the jury foreman which indicated bias in favor of the defendant. The defendant responded with an affidavit of the jury foreman in which the jury foreman "categorically denied” the assertions made in the attorney’s affidavit. The Supreme Court held that the trial court properly denied the plaintiffs motion for a new trial on the basis of jury misconduct: "It is well established that the affidavits of jurors regarding their own misconduct are not admissible for the purpose of impeaching their verdict. In re Merriman’s Appeal, 108 Mich 454; People v Nick, 360 Mich 219. This conclusion would appear to apply a fortiori where the information concerning the juror’s alleged misconduct is contained in an unsupported affidavit of the losing party or his attorney and the allegations of misconduct, such as they are, are categorically denied in an answering affidavit of a juror.” 364 Mich 460-461. The rationale for the general rule that a jury verdict may not be impeached even by a juror’s affidavit as to his or her own misconduct has more recently been explained by this Court in Brillhart v Mullins, 128 Mich App 140, 148-149; 339 NW2d 722 (1983): "The general rule is that jurors may not impeach their verdicts by oral testimony or affidavits. This rule serves the purpose of foreclosing jurors from impeach ing their findings by asserting their own misconduct. Other reasons for disallowing the impeachment of verdicts are: (1) to prevent tampering with the jury subsequent to the discharge of the jury, (2) to avoid undermining the finality and certainty attached to judgments, and (3) to discourage the invasion of mental processes used to arrive at verdicts. "It is a wise policy that seeks to insulate jurors from the troublesome and unhealthy pressures of litigants, lawyers, and the media.” (Footnotes omitted.) We are persuaded that the same rationale applies where the affidavit alleging juror bias is submitted by a nonjuror and is based on hearsay. See also 58 Am Jur 2d, New Trial, § 204, p 423 and 6 Callaghan’s Michigan Pleading and Practice, New Trials and Rehearing, § 41.28, p 397. We emphasize that we do not view this case as one involving a juror’s untruthful response to questions asked on voir dire. See Gustafson v Morrison, supra, and Grist v Upjohn Co, 16 Mich App 452, 471; 168 NW2d 389 (1969), lv den 382 Mich 768 (1969). In both Gustafson v Morrison and Grist v Upjohn, nonhearsay evidence was presented to prove the fact of untruthful responses. In Gustafson, the juror testified at a posttrial evidentiary hearing regarding his previous litigation experiences and regarding his prior conviction for speeding. In Grist, the affidavit of a former co-employee of the juror asserted that the juror had been terminated from his employment, contrary to the information provided by the juror on voir dire. In the instant case, all that is presented are the hearsay affidavits of the losing party and the court bailiff, which are "categorically denied” by the juror. We hold that it is an abuse of discretion for a trial court to grant a new jury trial on the basis of juror bias where the motion is supported solely on the basis of hearsay affidavits which are refuted by the juror involved. The trial court’s order granting a new trial in the instant case is reversed. The case is remanded for consideration of defendants’ alternative motion for remittitur and any other motions which were pending before the trial court and never decided in light of the court’s disposition of the motion for a new trial. Reversed and remanded. Jurisdiction is not retained.

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T. Roumell, J. The receiver of the F. Yeager Bridge and Culvert Company appeals as of right from the December 17, 1984, order of the St. Clair County Circuit Court in claims by Walter Toebe & Company against the assets of the insolvent corporation. Four issues are raised, three of which are without merit. We affirm the trial court’s award of damages for Projects #1 and #2. We reduce the trial court’s award of damages for Project #8, and vacate the award for Projects #3, #4 & 5, #6, and #9. The receiver did not challenge the award for Project #7, thus we do not review it. On July 17, 1974, F. Yeager Bridge and Culvert Company, a supplier of fabricated structural steel, filed a complaint in the circuit court for voluntary dissolution because of insolvency. Yeager asserted that the federal government’s removal of price controls on steel in 1974 caused a substantial price increase which Yeager was unable to pay, thus resulting in insolvency. On September 9, 1974, the circuit court ordered dissolution and appointed James Goerlich as receiver. Before the dissolution proceedings were initiated, Yeager had entered into contracts with Toebe and five other construction companies to supply fabricated structural steel. Each of these companies had contracted to construct various bridges and highways for the Michigan State Highway Commission. Each of the companies filed a claim against the Yeager assets. We note that proceedings on the claims of the remaining five claimants, each of which is similarly situated with respect to the material issues of this appeal, have been adjourned pending resolution of this appeal. On September 13, 1974, the six claimants filed suit in Ingham County Circuit Court against the State of Michigan and the Michigan Department of State Highways and Transportation. The complaint alleged that Yeager was a subcontractor of the claimants and had been prequalified by the state. It further alleged that Yeager’s inability to perform as a result of its insolvency caused their own performance to become impossible for practical reasons in light of the then current economic conditions. On October 22, 1974, the Ingham County Circuit Court ordered that the claimants’ prime contracts with the state and their subcontracts with other prime contractors be reformed by deleting all language concerning the furnishing of fabricated structural steel. The state undertook responsibility for providing the structural steel. In December, 1974, the six claimants filed claims with the receiver, totaling approximately $1,554,138, for damages due to delay and lost profits caused by Yeager’s breach of contract. The receiver counterclaimed against four of the claimants for approximately $431,396. The proof of claim filed by Toebe was in the amount of $857,255.07 and represented Toebe’s estimated damages for the period between January 1, 1974, and December 31, 1975. The receiver filed an objection dated July 10, 1975, alleging that Toebe sustained no damages. The receiver filed a counter claim dated July 12, 1976, seeking $20,199.75 for work completed by Yeager under three contracts with Toebe. In 1977, Toebe filed suit against the state in the court of claims for damages based on the same facts as those presented in this case. That lawsuit was still pending when trial on the merits of this case was held. On February 10, 1977, the receiver filed against each of the six claimants the following affirmative defenses: (1) that the damage claims were barred by the prior Ingham County Circuit Court judgment; (2) that the claims were barred by the doctrine of equitable estoppel; and (3) that the claims were barred by the doctrine of election of remedies. The receiver moved for summary judgment under GCR 1963, 117.3, and the motion was granted. Toebe appealed. This Court peremptorily reversed the order of summary judgment. Docket No. 77-02321, order of December 22, 1977. On December 8, 1980, the circuit court ordered that the receiver’s affirmative defenses be stricken because they had not been included in the receiver’s responsive pleadings as required by GCR 1963, 111.3. The circuit court further gave the receiver 30 days in which to file for leave to amend the pleadings. On April 20, 1982, the receiver’s motion for leave to amend was granted. The receiver subsequently moved for summary judgment against the six claimants, but that motion was denied. Following a bench trial in July, 1983, the circuit court rendered an opinion on August 3, 1984, awarding $90,292.75 to Toebe and $20,199.72 to the receiver. The award to Toebe was later modified in a judgment of December 17, 1984, resulting in a sum of $87,888.40. On appeal the receiver argues that Toebe is equitably estopped from seeking damages against Yeager for breach of contract. He claims that Toebe’s obligation under the prime contracts to furnish fabricated steel was excused by the reformation of the contracts between Toebe and the state as a result of the litigation in the Ingham County Circuit Court in 1974. In the 1974 lawsuit, Toebe argued that its obligation to supply fabricated structural steel to the state was excused due to commercial impossibility (i.e., its inability to perform resulted from Yeager’s insolvency). In the instant litigation, Toebe characterizes the 1974 litigation as an effort to mitigate damages. The receiver argues that Toebe’s claim in the instant litigation necessarily assumed that Toebe’s obligation to the state was valid. According to the receiver, the inconsistent positions advocated by Toebe in these lawsuits give rise to the application of the doctrine of equitable estoppel. He claims it was not necessary that Yeager show reliance upon Toebe’s position in the earlier litigation in order to invoke equitable estoppel, because estoppel rests upon broad principles of justice. Here justice demands that Toebe be estopped from asserting its claim against Yeager. Equitable estoppel rests upon broad principles of justice. Mertz v Mertz, 311 Mich 46; 18 NW2d 271 (1945). The doctrine of equitable estoppel has been refined to include the following elements: " '(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts.’ Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984).” Yahrling v Belle Lake Ass’n, Inc, 145 Mich App 620, 627; 378 NW2d 772 (1985). Equitable estoppel has been invoked to preclude a party who has successfully maintained one position in a lawsuit from taking an inconsistent position in a subsequent lawsuit on the same factual issues. Burgess v Holder, 362 Mich 53; 106 NW2d 379 (1960); Mertz v Mertz, supra. The assertion of inconsistent positions on factual issues in successive lawsuits may come within this doctrine, although in some circumstances collateral estoppel may be a more appropriate defense. See Stolaruk v Dep’t of Transportation, 114 Mich App 357, 361-363; 319 NW2d 581 (1982). We reject the receiver’s argument because the doctrine of equitable estoppel has no application to the facts presented. Although Toebe was excused from its obligation to furnish fabricated structural steel, its other contractual obligations remained. In this litigation, the trial court properly held that the consequences of the litigation between Toebe and the state are relevant only to the issue of damages, since Toebe had a duty to mitigate its damages. Lorenz Supply Co v American Standard, Inc, 100 Mich App 600, 610-611; 300 NW2d 335 (1980), aff'd 419 Mich 610; 358 NW2d 845 (1984). In this case, Toebe seeks damages due to delay and lost profits caused by Yeager’s breach of the subcontracts between Toebe and Yeager. The fact that Yeager’s performance is related to the contracts between Toebe and the state does not bring equitable estoppel into play, because Yeager’s own undisputed breach of contract caused Toebe to seek relief through reformation of its contracts with the state. Justice does not demand that the doctrine of equitable estoppel be applied to this case. The receiver next argues that Toebe is precluded from recovering damages for breach of contract after having prevailed in its litigation with the state and having successfully reformed the con tracts. According to the receiver, this constitutes an election of remedies. Toebe counters that the election-of-remedies doctrine is merely an extension of equitable estoppel and has no application to the facts of this case. The doctrine of election of remedies is a procedural rule which bars a party to whom there are available two inconsistent remedies from pursuing both. The doctrine’s purpose is to prevent double redress for a single injury. The essential elements are: (1) the existence of two or more remedies; (2) an inconsistency between the remedies; and (3) a choice of one of them. Riverview Cooperative, Inc v The First National Bank & Trust Co of Michigan, 417 Mich 307, 313; 337 NW2d 225 (1983). In our view the doctrine of election of remedies does not apply here. Toebe’s litigation with the state and Toebe’s litigation with Yeager involved separate contracts. The remedies sought by Toebe, while concurrent, are consistent. As noted above Toebe had a duty to mitigate damages and successfully discharged that duty through its litigation with the state. Its suit for damages for Yeager’s breach of contract raises no inconsistency. Instead, the appropriate question which we address infra is whether the damage award was correctly computed. The receiver next claims that the trial court improperly denied its motion to amend its claim of affirmative defenses. The receiver sought to amend its pleadings to include a claim of the affirmative defense of commercial impracticability. The receiver made the motion to amend three days after trial started and over eight years after the receiver had filed his objection to Toebe’s claim. The trial court denied the motion on the basis of laches. According to the receiver, he was entitled by leave of the circuit court to file his supplemental affirmative defense. GCR 1963, 118.1, now MCR 2.118(A), provides that a party may amend a pleading once as a matter of course within certain limits and, thereafter, may amend a pleading only by leave of the court or by written consent of the adverse party. It further provides that leave shall be freely given when justice requires. The decision to grant or to deny leave is within a trial court’s discretion. Welke v Kuzilla, 140 Mich App 658; 365 NW2d 205 (1985). This Court will not reverse that decision absent an abuse of discretion. Harvey v Security Services, Inc, 148 Mich App 260; 384 NW 2d 414 (1986). Ordinarily, such a motion should be granted and should be denied only for specific reasons such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party and the like. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973). In this case the trial court denied the receiver’s motion by applying the doctrine of laches. The trial court observed that the receiver’s initial position, reflected in his July 10, 1975, objection to Toebe’s claim, was that Toebe did not sustain any damages from the breach of contract. The trial court then observed that if the receiver felt that his defense to the claim rested upon commercial impracticability then he should have asserted that defense in the intervening eight years. In Rofe v Robinson (On Second Remand), 126 Mich App 151, 154; 336 NW2d 778 (1983), the principles related to laches were summarized: "In determining whether a party is guilty of laches, each case must be determined on its own particular facts. Edgewood Park Ass’n v Pernar, 350 Mich App 204, 209; 86 NW2d 269 (1957). The doctrine of laches was explained in In re Crawford Estate, 115 Mich App 19, 25-26; 320 NW2d 276 (1982), as follows: " 'Laches is an affirmative defense which depends not merely upon the lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to the dilatory plaintiff. * * * For one to successfully assert the defense of laches, it must be shown that there was a passage of time combined with some prejudice to the party asserting the defense of laches. * * * Laches is concerned mainly with the question of the inequity of permitting a claim to be enforced and depends on whether the plaintiff has been wanting in due diligence. * * *’ (Citations omitted.) ''See also Lothian v Detroit, 414 Mich 160, 168-169; 324 NW2d 9 (1982); City of Hancock v Hueter, 118 Mich App 811, 817-818; 325 NW2d 591 (1982).” The trial court could properly find that laches barred the motion. A substantial passage of time, specifically the intervening eight years, and the lack of diligence would result in prejudice to Toebe. Contrary to the receiver’s argument, the facts underlying the claimed defense of commercial impracticability are not the exact same facts as those underlying Toebe’s litigation with the state, i.e., the prohibitive cost of steel and Toebe’s inability to find a substitute subcontractor. In Toebe’s litigation with the state, Toebe’s claim of impossibility was ostensibly grounded upon common-law principles, under which mere changes in marketing conditions which render performance unprofitable do not justify releasing a party from its obligation to perform. Milligan v Haggerty, 296 Mich 62, 71; 295 NW 560 (1941). See also Cleveland-Cliffs Iron Co v Chicago & North Western Transportation Co, 581 F Supp 1144, 1151 (WD Mich, 1984). In contrast, Yeager’s defense of commercial impracticability is based upon a broader test found in MCL 440.2615; MSA 19.2615, in which a change in market conditions may excuse a party’s performance if the unforeseen market condition alters the essential nature of the performance. See UCC § 2-615, Official Comment No. 4. Moreover, MCL 440.2615(b); MSA 19.2615(b) requires a seller to allocate deliveries among customers in a fair and reasonable manner. In this case Yeager admittedly had already surpassed its steel quota when the subcontracts were negotiated. Yeager assumed a risk that steel would be available at the approximate price quoted to Toebe. Although a review of Toebe’s prime contracts with the state and Toebe’s subcontracts with Yeager suggests that they are comparable with respect to the required performance, the trial court would have had to resolve specific fact issues in the present litigation which had not been resolved in Toebe’s litigation with the state. The fact issues include a determination of the business risk assumed by Yeager, a determination of whether the nonoccurrence of the price increase was a basic assumption of the subcontract, and, potentially, a determination whether Yeager had fairly allocated its available structural steel supply amongst its customers. We conclude that the trial court properly found that the eight-year delay in the assertion of the affirmative defense would result in prejudice to Toebe. The delay would harm Toebe’s ability to present evidence on these fact issues. The trial court did not abuse its discretion by applying the doctrine of laches and properly denied leave to amend the receiver’s affirmative defenses. We reject the receiver’s argument that the trial court failed to act in an even-handed manner when it allowed Toebe to introduce evidence which went beyond the proof of claim which Toebe had filed. The proof of claim, dated December 5, 1974, contained estimated damages for the years 1974 and 1975, but did not expressly state that it was an estimate. At trial, the trial court admitted evidence of 1976 damages over the receiver’s objection. Although the trial court was critical of the introduction of these proofs, it permitted them because Toebe’s pleadings gave adequate notice of the intended proofs. An amendment to conform the pleadings to the evidence is permitted if it would not prejudice the objecting party. GCR 1963, 118.3, now MCR 2.118(C). Because the pleadings gave adequate notice of the nature of damages sought by Toebe, no prejudice accrued to the receiver by the admission of proofs of damages into 1976. Finally, the receiver claims that any recovery is barred by the doctrine of election of remedies and that if recovery is not completely barred then the trial court made clearly erroneous fact findings when calculating the amount of damages. Having rejected the election of remedies argument, we examine the findings on damages after a brief review of the relevant contract principles. Fact findings rendered by a trial court will not be set aside on appeal unless clearly erroneous. GCR 1963, 517.1, now MCR 2.613(C). When a party claims that the evidence does not support the trial court’s findings, an appellate court will not reverse unless, on the entire record, the appellate court is left with a firm and definite conviction that a mistake has been made. Sweetman v State Highway Dep’t, 137 Mich App 14, 20; 357 NW2d 783 (1984). The subcontracts between Toebe and Yeager concerned a sale of goods, i.e., the sale of structural steel at a certain quantity and price, and thus come under MCL 440.2105; MSA 19.2105, and MCL 440.2201; MSA 19.2201. The rules for incidental and consequential damages are contained in MCL 440.2715; MSA 19.2715. Those rules are supplemented by basic common-law principles described in Walter Toebe & Co v Dep’t of State Highways, 144 Mich App 21; 373 NW2d 233 (1985), an unrelated case. Because a reasonable delay is foreseeable, liability must be grounded upon an unreasonable delay. Walter Toebe, supra, pp 29-31. The specification of a completion date or an estimated completion date in a contract does not alone constitute an affirmative representation or warranty that the project will be completed on time. The surrounding circumstances and the realities and expectations of the parties must be considered. Walter Toebe, supra, pp 31-33, citing American Ship Building Co v United States, 228 Ct Cl 220; 654 F2d 75 (1981). A party to a contract who is injured by another’s breach may recover only those damages which are the direct, natural and proximate result of the breach. Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957). The party asserting a breach of contract has the burden to prove its damages with reasonable certainty. Walter Toebe, supra, p 38. Toebe demanded a total of $911,519.50 in damages, an amount which included lost profits and other items. The trial court generally disallowed the following for lack of adequate proof: (1) an 8% increase in labor costs; (2) a 10% increase in equipment costs; (3) overhead costs calculated at 11.9% of the labor, materials, and equipment cost increases; and (4) lost profits. The trial court awarded damages for cost increases of materials and several miscellaneous items. On November 8, 1984, Toebe moved for entry of judgment in an amount of $90,962.70, less two stipulated adjustments of $1,959.30 (Carlo Project #46) and $1,115 (Edison-Forsberg Project #47), leaving a revised award of $87,888.40. It is unclear why Toebe moved for judgment in an amount of $90,962.70, an increase of $669.95 from the damage award authorized in the trial court’s August 3, 1984, opinion of $90,292.75. We find no explanation for the $669.95 discrepancy. Thus, we reduce the actual judgment by that amount, leaving the sum of $87,218.45. The receiver challenges the fact' findings on all of the projects except Project #7 (6-8 Mile Road #46). We address each project seriatim. Project #1 (Thompson, McCulley #32, Belleville) The trial court awarded damages of $2,010.00 for costs incurred in correcting fabrication errors in the structural steel actually supplied by Yeager for this project. The trial court relied upon the testimony of Vasile Ciofu, Toebe’s accountant, and that of Richard Wells, Toebe’s president. We find no clear error, and affirm the award. Project #2 (Middlebelt #43, Livonia) The trial court awarded damages of $15,342.11 caused by errors in fabrication. Although conflicting testimony concerning the existence of fabrication errors was presented, the trial court weighed the credibility of the witnesses and decided that Yeager was responsible for the fabrication errors. We are not left with a definite and firm conviction that a mistake was made, and affirm the award of $15,342.11. Project #3 (Carlo #46, Livonia) The trial court awarded damages of $6,556.98 which represented the increased cost of concrete ($1,115.00) and the increased "resteel costs” ($5,441.98). "Resteel costs” refer to the cost of reinforcing steel bars. This award was reduced by $1,959.30 by stipulation of the parties to $4,597.68. The stipulated amount of reduction reflects an award to Toebe in an unrelated litigation which reflected the increased cost of concrete for this project. Because the trial court’s award for the increased cost of concrete ($1,115.00) was substantially less than the parties’ stipulated reduction ($1,959.30) for that cost, it is only the increased resteel costs which are at issue. The purchase order authorized a $1.32/cwt ($.0132/lb) price increase for reinforcing steel bars shipped six months after the date of the project proposal. 412,271 pounds were shipped between March 20, 1974, and August 13, 1974. The August 13, 1974, shipment of 225,352 pounds was the only one charged with the price increase. Therefore, the maximum increased resteel costs supported by record evidence is $2,974.65 ($.0132/lb X 225,352). Richard Wells, Toebe’s president, testified that the state’s substituted delivery of structural steel was not due until August, 1975. Yeager’s delivery under its subcontract and the critical path network (CPN) was not due until November, 1974. The CPN provided the earliest and the latest dates of performance deemed acceptable by the state in which to complete the project on time. All contracts provided that time was of the essence. When a contract contained a CPN, the CPN dates were expressly incorporated into the subcontract. Wells testified that Yeager’s actual delivery date, apparently established by oral agreement, was set for late July or August, 1974. The earlier delivery date was apparently established to accommodate Toebe’s interest in completing the project earlier than required in order to reap greater profits for Toebe. In contrast, Neil Davis, Yeager’s president, indicated that Yeager would not fabricate steel until October, 1974, for all its subcontracts. The vendor invoice for the August 13, 1974, resteel shipment indicates that the price increase took effect after July 18, 1974. Because the August 13, 1974, resteel shipment clearly preceded Yeager’s time for performance under the CPN and because the price increase preceded Yeager’s time for performance under the alleged oral agreement, the trial court clearly erred by awarding damages for delay to Toebe. Toebe’s proofs generally showed that resteel-related deliveries preceded structural steel deliveries. A significant causation question is presented by holding Yeager liable for increased resteel costs, especially when actual resteel deliveries preceded Yeager’s time for performance under the CPN, because Toebe exercised full control over the timing of the placement of resteel orders. The resteel orders apparently did not depend upon receipt of the structural steel. Although a subsequent delay in delivery of structural steel would reasonably be expected to result in additional costs, such as storage, the issue is whether increased resteel costs are causally connected with Yeager’s breach of contract. In contrast, delays in the delivery of concrete have a clearer causal connection, since concrete was not to be poured until after structural steel was erected. In short, we conclude that no award of damages should have been made to Toebe for this project. We are left with a firm and definite conviction that the trial court erred. Combined Projects #4 & #5 (Edison-Forsberg #47, Saginaw County) The trial court made an award of $17,761.64, $7,761.64 of which was awarded for the increased cost of materials, and $10,000.00 of which represented traffic-maintenance costs. The parties subsequently stipulated to a reduction of $1,1Í5. Toebe’s original claim for these combined projects was $168,904.78, which included $7,761.64 for the increased cost of materials. At trial, Toebe reduced its claim by $83,511.10, a figure which included elimination of the increased cost of materials. Toebe concedes this in its brief on appeal. Therefore, the trial court’s award of $7,761.64 for the increased cost of materials is clearly erroneous. Toebe’s original claim for traffic-maintenance costs was $62,635.70. We conclude that the award is clearly erroneous from the proofs presented, and vacate the $10,000 award in its entirety. These combined projects took place in the 1-75— Cass River area. Barricades and signs were erected to direct traffic around the construction area. In the Forsberg Project, the CPN showed that structural steel was to be delivered by September, 1974. It was actually delivered through a substitute supplier in October, 1975. Richard Wells stated that the project would have been completed in November, 1974, if the structural steel had been timely delivered in August, 1974. Delivery in September, 1974, would have resulted in completion by April, 1975, according to his testimony. It is a reasonable inference from this testimony that Wells foresaw a very short time interval before winter weather conditions would interfere and delay the project. Generally, seasonal suspensions of work were anticipated. The project was completed in June, 1976. The Edison Project showed a CPN delivery date scheduled for November, 1974, but structural steel was not delivered until Au gust, 1975, and the job was completed in June, 1976. Toebe’s claim of $62,635.70 for traffic-maintenance costs is apparently made up of the costs for the period from January 1, 1975, to June 1, 1976, for the Edison Project in an amount of $47,072.42, and the costs for the period from June 12, 1975, to November 20, 1975, for the Forsberg Project in an amount of $15,563.28. Richard Wells testified that the winter season caused damage and delay when motor vehicles struck and damaged many flashers. Toebe’s claim appears to be contradicted however by its 1976 published financial statement which showed $18,362 attributable to direct costs of traffic maintenance for the entire combined project, excluding labor. This amount included all invoiced expenses. Although the trial court noted that the proofs of traffic maintenance damages were unsatisfactory, it awarded $10,000 because some delay was evident and had occurred. In our view Toebe has not proved its damages with reasonable certainty because no invoices showing actual rental costs, the rental periods, or the actual traffic-maintenance costs compared with the expected costs are provided in the exhibits. Toebe’s accountant was unable to fully explain the discrepancy between Toebe’s published financial statements and the summary of extra traffic-maintenance costs contained in the Project #5 binder under the "damages” tab. In our view, Toebe failed to demonstrate that any portion of its traffic-maintenance costs was attributable to Yeager’s breach of contract. We conclude that the trial court’s finding was clearly erroneous. Project #6 (Schoolcraft #49, Livonia) The trial court awarded $18,450.08, representing the increased cost of materials. This award reflects increased costs for resteel ($12,083.83) and concrete ($6,366.25) and was made on Toebe’s claim of delay damages. After reviewing the record evidence, we conclude that the claim is without merit and that the trial court clearly erred by making an award on this claim. Twelve bridges were constructed. Delivery of structural steel was scheduled for May, 1975. Although a CPN computer printout is not included in the Project #6 binder, a flow chart shows how the project was scheduled to progress. It is unclear from the flow chart whether structural steel for all 12 bridges was deliverable in May, 1975. Actual delivery of the structural steel was made by a substitute supplier between May 13, 1975, and March 30, 1976. The increased cost of concrete was based upon an annual estimated price increase of $1.25/cwt. Vendor invoices show that concrete deliveries occurred between July 8, 1975, and November 24, 1975. Since concrete deliveries could not have become necessary until structural steel was erected and such was scheduled for May, 1975, the trial court clearly erred by holding Yeager accountable for the cement price increase for 1975. Resteel orders preceded structural steel deliveries. Vendor invoices show resteel shipment dates between July 18, 1974, and May 9, 1975. Since resteel delivery dates and price increases preceded Yeager’s scheduled time for performance in May, 1975, Toebe’s claim for delay damages is without merit. Project #8 (Michigan Avenue #50, Wayne County) The trial court awarded damages of $7,945.80 for this project, $4,646.25 of which represents the increased cost of concrete and $3,299.55 of which represents increased resteel costs. For reasons explained below, the trial court clearly erred by making an award for the increased cost of concrete, but did not clearly err by maing an award for increased resteel costs. Six bridges were constructed. Bridges designated as "B-01”, "B-05”, "S-05”, and "S-ll” required structural steel. The CPN scheduled delivery date for bridges "S-05”, and "S-ll” was December 9, 1974. This late delivery date created a risk of seasonal suspension of work. Bridges "B-01” and "B-05” had an August 30, 1974, delivery date. Deliveries of structural steel were actually made by a substitute supplier between October 17, 1975, and January 20, 1976. The project was completed on April 22, 1976. Vendor invoices show that concrete deliveries occurred in 1975. Bridge "B-01” was the only bridge which was scheduled for an early start date for deck work in April, 1974. Presumably, deck work refers to pouring cement after the erection of structural steel. The earliest "finish” scheduled date for bridge "B-01” was May 6, 1975. Bridges "S-05”, "S-ll”, and "B-05” had deck work scheduled entirely in 1975. Since 1975 was the year in which the cement would have become necessary in the normal course of the project, the trial court clearly erred in finding Yeager liable for price increases occurring between 1974 and 1975. Whether Toebe could have completed the project earlier, and thereby could have made additional profit through cost-savings, is too speculative to be attributable to Yeager’s breach of contract. Resteel shipments occurred in April and May, 1975, and were subject to the $1.25/cwt price increase which became effective January 1, 1975. Although Toebe’s need for the reinforcing steel bars apparently preceded its need for structural steel as we have noted in our discussion under the analysis of Project #3, we are not left with a firm and definite conviction that the trial court clearly erred by awarding damages for delays which resulted in increases in resteel costs. This is because resteel shipments were actually delayed until after Yeager’s scheduled time for performance in 1974. Project #9 (Sibley #51, Wayne County) The trial court awarded $18,962.70, representing the increased cost of materials. Specifically, the increased cost of concrete was $4,753.75 and the increased cost of resteel was $14,208.95. We find that the trial court clearly erred by making this award, because a substitution of another supplier, Apollo, for Yeager constituted a novation which released Yeager from liability. In April, 1974, Toebe asked Yeager if Yeager would agree to give the Sibley job to Apollo. Yeager consented to the substitution. Yeager’s performance under the CPN had been scheduled for December, 1974. Structural steel was delivered in March and April, 1975, primarily by Apollo. The project was completed in September, 1975, which was within the CPN. The trial court premised its damage award upon testimony that a June, 1975, completion date would have been possible if delivery had been timely. The trial court characterized the substitution of Apollo as an effort by Toebe to mitigate damages. The trial court’s characterization is clearly erroneous. The substitution of Apollo was agreed upon before Yeager declared in June, 1974, that it would be unable to fulfill the subcontracts. In April, 1974, there was no basis on which to justify Toebe’s insecurity concerning Yeager’s ability to perform. Toebe was merely trying to fix an acceptable delivery date for the structural steel. A novation requires: (1) parties Capable of contracting; (2) a valid obligation to be displaced; (3) consent of all parties to the substitution based upon sufficient consideration; and (4) the extinction of the old obligation and the creation of a valid new one. Macklin v Brown, 111 Mich App 110, 112; 314 NW2d 538 (1981). The parties’ consent does not have to be in writing, but may be implied from the facts and circumstances of the transaction. Keppen v Rice, 257 Mich 299; 241 NW 156 (1932). The elements of a novation are met by the facts and circumstances of this case. The record provides evidence that all parties consented to the substitution of Apollo for Yeager. Sufficient consideration was furnished by the parties’ mutual agreement to discharge Yeager from its obligation to perform and to substitute Apollo in order to provide Toebe with a fixed delivery date. Early delivery dates were critical to Toebe’s profit objectives, even though they were not essential to the completion of Toebe’s contract with the state. From these facts and circumstances, we may reasonably infer that Yeager’s obligation was extinguished and replaced by an obligation to perform owed by Apollo. Even if a novation was not effectuated, the trial court clearly erred by holding Yeager liable for the increased cost of concrete between 1974 and 1975. Cement deliveries took place between June 2, 1975, and November 21, 1975. Cement is poured after structural steel is erected. Because Toebe and Yeager never agreed upon a separate delivery date and the CPN did not require structural steel delivery until December, 1974, it is reasonable to conclude that no cement would have been required until 1975. The CPN indicated that all "deck” work was scheduled for 1975. In light of this time frame, we conclude that the award for the in creased cost of concrete between 1974 and 1975 was clearly erroneous. We would also find that the award of $14,208.95 for increased resteel costs was clearly erroneous. Resteel shipments occurred between July 24, 1974, and November 21, 1974, and again between January 10, 1975, and March 3, 1975. This preceded Apollo’s actual delivery of structural steel. At most, it would be appropriate to hold Yeager liable for the 1975 resteel price increase of $1.25/cwt effective with the January 1, 1975, shipments. According to the invoices, a total of 792,515 pounds of steel was shipped between January 15, 1975, and March 3, 1975. Accordingly, approximately $9,906 in damages for increased resteel costs would be appropriate if a novation had not been effectuated. However, we find that a novation occurred, and no damages are appropriate for this project. Summary of Damages The following table presents an overview of the damages awarded by the trial court and of the revisions described in this opinion. Project Binder No. Actual Project Title & Number Award Revised Award By Court of Appeals 1 Thompson, McCulley #32 (Belleville) $ 2,010.00 $ 2,010.00 2 Middlebelt #43 (Livonia) $15,342.11 $15,342.11 3 Carlo #46 (Livonia) $ 4,597.68(1) $ 0 4 & 5 Edison-Forsberg #47 (Saginaw) $16,646.64(1) $ 0 6 Schoolcraft #49 (Livonia) $18,450.08 $ 0 7 6-8 Mile Road #46 (Livonia) $ 3,263.44 $ 3,263.44 8 Michigan Avenue $ 7,945.80 #50 (Wayne County) $ 3,299.55 9 Sibley #51 (Huron and $18,962.70 Romulus Twps) - $ 0 TOTAL $87,218.45 $23,915.10 Unexplained Increase $ 669.95 Damage award per Order of 12/17/84 $87,888.40 (1) Includes the $1,959.30 stipulated reduction for Project 3 and the $1,115 stipulated reduction for combined Projects 4 & 5. The judgment of the trial court is affirmed in part and reversed in part. The damages provisions for Project Nos. 3, 4 & 5, 6, 8, and 9 are reduced in an amount described by this opinion. No costs allowed, neither side having prevailed in full.

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Per Curiam. Plaintiff appeals as of right from a November 4, 1984, order of accelerated judgment granted under GCR 1963, 116.1(5), now MCR 2.116(C)(7). The question presented on appeal is whether actions for tortious interference with a contract are governed by the three-year period of limitation as provided under MCL 600.5805(8); MSA 27A.5805(8) or by the six-year period of limitation as provided under MCL 600.5813; MSA 27A.5813. We hold that the applicable limitation period is three years and we affirm the order of accelerated judgment entered in this case. According to the complaint, plaintiff entered into a buy-sell agreement on May 8, 1977, whereby he agreed to buy a parcel of real property owned by Jean Cope and located in Kent County. On the previous day, Cope had listed the property for sale with defendants but the listing agreement included a reservation clause which relieved Cope of the obligation to pay a commission if the property were sold to plaintiff within one week of the listing agreement. According to plaintiff, when defendant Logee was informed of the purchase agreement, she convinced Cope that the purchase price of $65,000 was inadequate, tore up the original listing agreement and substituted it with a new agreement which did not include the reservation clause. Cope then attempted to rescind the buy-sell agreement with plaintiff but plaintiff filed a suit for specific performance and the dispute was ultimately settled. Plaintiff obtained the property in February of 1978. Plaintiff filed the instant action against defendants on July 8, 1980, alleging that defendants had knowingly and wilfully interfered with his contractual relationship with Cope: (1) by criticizing the terms of the buy-sell agreement, (2) by falsely representing the value of the property, (3) by convincing Cope to cancel the buy-sell agreement, and (4) by drawing up a new listing agreement. Defendants responded with a motion for accelerated judgment based on the three-year period of limitation and the motion was eventually decided in defendants’ favor. Prior to December 20, 1982, this Court held on at least two occasions that the three-year period of limitation provided under the forerunner of MCL 600.5805(8); MSA 27A.5805(8) applied to actions for tortious interference with advantageous business relationships. See Joba Construction Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 625-626; 329 NW2d 760 (1982), and Wilkerson v Carlo, 101 Mich App 629, 634; 300 NW2d 658 (1980), lv den 411 Mich 984 (1981). In those cases, the question was whether plaintiffs cause of action truly sounded in libel or slander and the competing periods of limitation were one year, as now provided under MCL 600.5805(7); MSA 27A.5805(7), and three years, as now provided under MCL 600.5805(8); MSA 27A.5805(8). On December 20, 1982, the Supreme Court decided Citizens for Pretrial Justice v Goldfarb, 415 Mich 255, 268-270; 327 NW2d 910 (1982), where it clearly and unequivocally held that § 5805(7), now § 5805(8), of the Revised Judicature Act "applies to traditional, primarily common-law torts”. Just as clearly, the complaint filed by plaintiff in this case describes the essential elements of tortious interference with a contract and specifically names that tort as the cause of action asserted. Interference with a contract is a traditional, common-law tort. See Trepel v Pontiac Osteopathic Hospital, 135 Mich App 361, 373-375; 354 NW2d 341 (1984), lv den 422 Mich 853 (1985), and cases cited therein. Plaintiffs arguments regarding the type of damages sought is irrelevant to our consideration of the applicable limitation period. Citizens v Goldfarb, supra, p 268. We hold that the applicable period of limitation for actions for tortious interference with a contract is that provided in MCL 600.5805(8); MSA 27A.5805(8). The trial court did not err in granting defendants’ motion for accelerated judgment on this basis, since the cause of action accrued in May of 1977 and plaintiff did not file his complaint until July of 1980. Plaintiff secondly argues that, even if the three-year period of limitation applies, that period was tolled during the pendency of the arbitration proceedings before the Grand Rapids Board of Realtors. We disagree. Jurisdiction over the defendants was not "otherwise acquired”, MCL 600.5856(2); MSA 27A.5856(2), through defendants’ participation in nonjudicial proceedings before the Board of Realtors. See Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 (1984); Ray v Organization of School Administrators & Supervisors, Local 28, AFL-CIO, 141 Mich App 708, 711; 367 NW2d 438 (1985), and Varga v Heritage Hospital, 139 Mich App 358, 360; 362 NW2d 282 (1984). Moreover, defendants’ participation in the arbitration proceedings could not reasonably have induced plaintiff to forego filing his action at law. See Lothian v Detroit, 414 Mich 160, 176-177; 324 NW2d 9 (1982). Affirmed.

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Per Curiam. On September 11, 1984, defendant was convicted by a jury of inciting another to commit arson, MCL 750.157b; MSA 28.354(2), and of burning insured property, MCL 750.75; MSA 28.270. She was sentenced to five years’ probation, with the first six months to be served in the county jail, and ordered to pay a $200 fine and $1,000 in court cost. She appeals from both convic tions. We reverse her conviction of inciting another to commit arson, and affirm her conviction of burning insured property. On April 25, 1983, defendant’s home, located on Melita Road in Arenac County, was burned. An investigation by authorities revealed that the fire originated from four separate points, leading to a conclusion that the fire was intentionally set. Defendant asserted an alibi defense and presented expert testimony that a defective electrical system caused the fire. Defendant raises twelve claims of error, only four of which merit discussion. First, we reverse defendant’s conviction for inciting her son, Patrick Shelson, to commit arson because there is insufficient evidence that her statements resulted in the commission of an offense by Patrick. MCL 750.157b; MSA 28.354(2) provides: "Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted.” An accused is not subject to criminal responsibility for exhortations or utterances which do not result in the commission of the offense sought to be committed. People v Rehkopf, 422 Mich 198, 205; 370 NW2d 296 (1985). A person who merely makes statements seeking the commission of an offense may be subject to liability only for the common-law offense of solicitation. Rehkopf, supra. This recent clarification of the statute by our Supreme Court adopts a view which is contrary to that held by panels of this Court in People v Salazar, 140 Mich App 137, 143; 362 NW2d 913 (1985), and in People v Dennis, 128 Mich App 235; 340 NW2d 81 (1983), rev’d 422 Mich 966; 374 NW2d 419 (1985). In this case, defendant was bound over to circuit court on a charge of inciting her son to commit arson based upon her son’s testimony and upon evidence that the fire had been intentionally set. Patrick testified that defendant has asked him to burn the house down for her "a couple hundred thousand time at least in the past five years”, making the request "at least three times a week”. According to Patrick, she was unhappy about the high electric bills which ran approximately $250-$300 per month, the breakdown of the furnace, and other system failures. Patrick heard defendant make the same request to his three other brothers and two sisters. No one took defendant’s statements seriously. They simply discounted her remarks, even though she had offered Patrick money to burn the house. According to Patrick, two weeks before the fire, defendant had stated that she would buy him and his sister a car if she received any money from the insurance company. Patrick testified that he absolutely refused to have anything to do with such a scheme because it was a stupid idea. At the time of the fire, Patrick was not living in the home. He had removed several household appliances at his mother’s request one week before the fire. There is no evidence that Patrick actually burned the home. It appears from the record that, after being questioned by authorities, he was not a suspect; At trial, Detective Draper testified that he believed Patrick had nothing to do with the burning. There is no evidence that defendant’s constant wish that the house would burn, a wish she communicated to all of her children, resulted in the commission of arson. Thus, under Rehkopf, supra, we reverse her conviction. Further, defendant’s remarks to her children did not urge the type of immediate or imminent action which is required to support a conviction. See, People v Chapman, 80 Mich App 583, 588; 264 NW2d 69 (1978). Defendant next contends that the trial court erred when it concluded, after a Walker hearing, that her post-polygraph confession was voluntary. Approximately a month or more before submitting to the polygraph test, defendant discussed the advisability of taking the test with Jack W. Scully, an attorney who had represented her in a divorce action. Defendant had stopped by Scully’s office to make a payment on her outstanding account, and brought the matter up. Scully was a prosecuting attorney, in addition to his private practice, a fact of which defendant was aware. At the Walker hearing, Scully testified that he had told defendant, "Mrs. Shelson, if you didn’t do this you probably have nothing to lose by taking it [the polygraph test]”. Scully testified that he did not represent her at the time this conversation occurred. In contrast, defendant testified that Scully "just indicated that if I didn’t do it to take the test”. A trial court’s ruling on the voluntariness of a confession or statement is reviewed by the standard described in People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972): "The determination of voluntariness is a matter of fact — the ruling of law on the authority of the cases cited is that voluntary statements etc. are admissible and involuntary statements etc. are not. "In any event the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. The role of reviewing court is accurately stated in People v Summers, 15 Mich App 346, 348 (1968): " 'On this appeal we are required to "examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v North Carolina (1966), 384 US 737, 741, 742 (86 S Ct 1761, 1764, 16 L Ed 2d 895, 898).’ ” We must affirm the trial court’s findings unless we are left with a firm and definite conviction that a mistake has been made. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). Defendant argues that her statements were involuntary, because they were induced by the misleading and ineffective advice of her attorney Scully. There was conflicting evidence at the Walker hearing as to whether Scully was acting as defendant’s attorney and whether he actually advised her to take the test. Where the evidence is conflicting, and the determination of voluntariness largely depends upon credibility, we defer to the findings of the lower court since it is in a better position to evaluate credibility. People v Smith, 124 Mich App 723, 725; 335 NW2d 137 (1983). The trial court gave greater weight to Scully’s testimony and concluded that he did not advise defendant to take the polygraph test. We are not left with a firm and definite conviction that a mistake has been made. Defendant next argues that her statements were involuntary because they were induced by a promise of leniency, i.e., probation, offered by Officer Draper. It is improper to induce a confession by a promise of leniency. People v Conte, 421 Mich 704; 365 NW2d 648 (1984). At trial, defendant testified that Officer Draper had promised her probation if she would confess, but that point was not pursued by her attorney or rebutted by the prosecution, and no such evidence was presented at the Walker hearing. Thus we find no error in the trial court’s finding of voluntariness. Defendant also contends that her statements were involuntary because they were induced by Detective Lowthian’s statement that she could not give money and keys to her son Patrick, who was meeting with other detectives. At the Walker hearing, defendant testified that the statement caused her to worry about Patrick. Defendant apparently inferred from the statement that Patrick was detained for the purpose of arrest. After reviewing the relevant factors used to determine voluntariness, such as the duration and conditions of detention, the attitude of the police towards the accused, the physical and mental state of the accused, and the diverse pressures which sapped or sustained the accused’s powers of resistance or self-control, we conclude that defendant’s statements were voluntary. See People v Allen, 8 Mich App 408, 412; 154 NW2d 570 (1967). She was not questioned for an inordinately long period of time and she felt that the officers treated her courteously. At the Walker hearing, she testified that her Miranda rights were read to her, that she had waived them, and had voluntarily given a statement. We find no error. In her third claim of error, defendant argues that it was against public policy, as embodied in MCL 776.14; MSA 28.1271, for Scully to advise her to take the polygraph test and then to prosecute her. We are not persuaded by the claim. As noted earlier, the trial court properly concluded that Scully did not act as her attorney and did not advise her to take the test. Defendant delayed more than a month before taking the test and had an opportunity to consult other counsel but did not do so. As a fourth claim of error, defendant argues that the eight-month delay between the fire and her arrest deprived her of an opportunity to establish an adequate defense because her alibi witness, a boyfriend named Orville, died in that intervening period. She further argues that an investigation of the fire scene for defense purposes was impaired by the delay. In People v Bisard, 114 Mich App 784, 791; 319 NW2d 670 (1982), this Court reevaluated the prevailing test of prejudicial delay described by People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968), in light of subsequent federal decisions, and adopted a balancing test: "Accordingly, we hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end.” See, also, People v Vargo, 139 Mich App 573, 579; 362 NW2d 840 (1984). Defendant made a pretrial motion to dismiss, raising these grounds. After a hearing, the trial court denied the motion, finding an absence of negligence or intentional delay on the part of the police. We find no prejudice resulting from the unavailability of her alibi witness Orville, since her whereabouts at the time of the fire was not material. The people’s theory of the case was not that defendant had burned her home, but that she had incited another to burn it for her. Moreover, several witnesses, including her son, daughter and brother, were able to testify about the sentimental attachment defendant had to the personal and household items destroyed by the fire. Orville’s testimony would only have been cumulative on this point. Defendant may have shown prejudice by the effect the delay had on her efforts to investigate the fire scene. Defendant’s investigator inspected the site on March 10, 1984, almost one year after the fire, but only four months after defendant had been charged in December of 1984. At trial, the fire investigator for defendant’s insurance company testified that he did not take any samples from the site because tests performed on those samples would not be accurate in light of their exposure to the elements. Assuming arguendo that defendant has shown prejudice, the people have satisfied the burden of persuasion that the delay was not deliberately intended to prejudice her. We affirm the trial court’s denial of the motion to dismiss. We have reviewed the remaining allegations of error and find them to be without merit. Affirmed in part and reversed in part. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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Per Curiam. Does § 1612 of 1982 PA 333, MCL 380.1612; MSA 15.41612, empower a township, by adopting a resolution prior to January 1, 1983, to establish itself as the exclusive collection agent for a school district’s summer taxes? The trial court answered this question "No”. Defendants claim the answer should be "Yes” and appeal as of right. What constitutes "negotiate” as that term is used in § 1613 of the same statute? The trial court held that plaintiffs had negotiated in good faith with defendant township as required by § 1613(1). Defendants claim the negotiations were insufficient and appeal as of right. The above questions come to us on plaintiffs’ complaint filed June 28, 1984. Plaintiffs allege that in 1983, each of the three plaintiff school districts resolved separately to impose a summer property tax levy in Raisin Township in 1984 and subsequent years. Prior to January 1, 1984, each plaintiff requested Raisin Township to collect their 1984 summer taxes. Plaintiffs further allege:_ "30. Pursuant to the provisions of MCLA 380.1613(1); MSA 15.41613(1), Plaintiffs proceeded to negotiate with Raisin Township with respect to the reasonable expenses for collection of the Plaintiffs’ 1984 summer property tax levy that the Township might bill under MCLA 380.1612; MSA 15.41612. "31. Despite continued negotiations with Raisin Township, no agreement was reached with respect to the reasonable expenses for collection of Plaintiffs’ 1984 summer, property tax levy that Raisin Township could bill under MCLA 380.1612; MSA 15.41612 for the reason that the Township demanded in excess of $3.76 per parcel for the service.” According to plaintiffs, they next proceeded under § 1613(2) to negotiate with the Lenawee County Treasurer. Plaintiffs alleged that the county treasurer agreed to collect their summer taxes for $2.45 per parcel. It appears that, in reality, the county treasurer agreed to collect the taxes for a flat fee, each school district agreeing, to pay part of the total fee. Plaintiffs alleged that on April 5, 1984, they notified Raisin Township of this agreement, giving Raisin Township its statutory right to agree to collect the summer taxes for reasonable expenses not to exceed the amount agreed upon with the county treasurer. Defendant Louis Rebottaro (Supervisor and Assessing Officer of Raisin Township) advised plaintiffs that Raisin Township regarded itself as the only entity entitled to collect the summer taxes, based on a resolution passed by the township board on December 30, 1982, in conformity with § 1612, and advised plaintiffs that legal action would be taken if the county treasurer attempted to collect the taxes. Rebottaro estimated the collection cost would be approximately $3.17 per parcel, having reduced his initial estimate. Plaintiffs further alleged that defendants re fused to give them certified copies of the township assessment rolls despite proper requests under § 1613. As a result, plaintiffs alleged that the county equalization director would not prepare summer tax bills and the county treasurer was unable to collect summer taxes in Raisin Township. Plaintiffs’ complaint had four counts. Count I sought mandamus to compel Rebottaro to deliver a certified copy of the assessment roll to plaintiffs. Count II sought the assessment roll under the Freedom of Information Act. Count III sought a return of funds paid to the county for improvement of the county’s computer system to permit collection of summer taxes, on the theory that the computer was not then being used for that purpose. Count IV sought to enjoin Rebottaro from sending summer tax bills, allowing Raisin Township to collect the taxes. Following the grant of plaintiffs’ motion to show cause, the trial court heard arguments on July 2, 1984. Upon realizing that the summer tax billings were already more than a week late and that the summer docket was overcrowded, the trial court and all counsel agreed to permit the county to collect the 1984 summer taxes pending the trial court’s decision, at which time damages to any party flowing from the agreement with the county could be determined. The township’s agreement was described as reluctant. Arguments were again heard on October 1, 1984. At that time, counsel for the township asserted that the county treasurer’s bid was inadequate, failing to take into account overhead and the cost of sending deferred statements in the fall. As a result, these indirect costs were borne by taxpayers throughout the county rather than just those within the school district. Defendants also alluded to the existence of a contract between Lenawee County and Raisin Township in which the county agreed not to collect local taxes. If the trial court found that Raisin Township was not the exclusive collection agent by virtue of its December 20, 1982, resolution, defendants asked to amend their pleadings to set forth these claims and an additional claim alleging negotiations in bad faith by plaintiffs. The trial court issued an opinion on November 28, 1984. After analyzing the legislative history of §§ 1612 and 1613, the court found that the Legislature intended (1) to remedy serious cash flow problems of school districts operating by law on a fiscal year basis not corresponding with usual tax collection times, (2) to provide an orderly, cost-effective method of collecting summer property taxes, and (3) to protect small cities and townships from an undue burden for the cost of collecting taxes at times other than the normal tax collection dates. The trial court found that the Legislature did not intend to secure for townships the absolute right to collect summer taxes but, rather intended that townships not be compelled to collect school taxes but be allowed to do so if the costs were not a burden. To ensure that the costs of collection were not an undue burden upon the school districts, the Legislature gave the districts the opportunity to find other sources of collection at more advantageous rates. The trial court entered an order on February 19, 1985, approving collection of plaintiffs’ summer taxes by the Lenawee County Treasurer. Judgment was entered on March 14, 1985, providing that Raisin Township was not the sole collection agent for summer property taxes, despite its December 30, 1982, resolution; approving plaintiffs’ contract with the Lenawee County Treasurer, find ing that the negotiations between plaintiffs and defendants complied with §§ 1612 and 1613; and dismissing the suit as to the county equalization director, county treasurer, and Count II of plaintiffs’ complaint, without prejudice. Defendants appeal from this judgment as of right. The central issue raised on appeal is whether a township may establish itself as the exclusive summer tax collection agent of school taxes by the simple device of adopting a township board resolution prior to January 1, 1983, approving summer tax collection of school taxes. The Raisin Township Board adopted such a resolution on December 30, 1982. Relying mainly on the following emphasized language at the beginning of § 1612, and the legislative history of §§ 1612 and 1613, defendants argue that two mechanisms are available to permit summer tax collection by a township. The first is formal approval of summer tax collection adopted by a township board before January 1, 1983. Adoption of such a resolution, as was enacted in the instant case, preserves a township’s status as exclusive tax collecting agent. The second alternative (not in issue here) is with regard to townships which did not give approval before January 1, 1983, but which elect to collect summer taxes. "(1) Upon the approval of a township board before January 1, 1983, the board of a school district or intermediate school district may certify either the total or Vi of the levy of school property taxes on the township portion of the school district or intermediate school district. If certiñed, or if approval of the township board is not given before January 1, 1983 and pursuant to section 1613 a township elects or agrees to collect either the total or Vi of the total school taxes of a school district or intermediate school district located in the township, the township supervisor before June 30 of each year shall prepare the assessment and tax rolls and furnish these rolls to each affected township treasurer with the supervisor’s collection warrant attached thereto.” (Emphasis added.) MCL 380.1612(1); MSA 15.41612(1). Plaintiffs rely on the legislative history of §§ 1612 and 1613 for a contrary interpretation. According to plaintiffs, the Legislature went to considerable lengths to establish a negotiated summer tax collection so that school districts might have not only the benefit of summer collections but also have the benefit of more efficient collection methods from the county. Under plaintiffs’ interpretation, school districts should not be required to pay a township’s actual collection expenses if summer tax collections can be more economically done by the county treasurer or by the school district itself. In Harper Creek School Dist v LeRoy Twp, 146 Mich App 515; 382 NW2d 172 (1985), an opinion released after briefs were filed in the instant case, this Court was presented with an issue identical to that raised here. Addressing whether townships could become the exclusive summer tax collection agents by adopting a resolution approving summer tax collection prior to January 1, 1983, this Court found that they could not. Three reasons were offered. First, the primary purpose of the amendment was to eliminate the veto which townships had on summer tax collection: "If, a rural township, by so simple a device as the adoption of a resolution in the two week period between the adoption of the act and January 1, 1983, could remain the exclusive tax collection agency, the main purpose for the bill’s enactment would be thwarted. Certainly, that was not what the Legislature intended. "Second, there is no language in the statute which states that the township or city would retain its status as exclusive agent for tax collection. Surely, if that were the legislative intention, language to such effect would be included. However, no language either directly or indirectly, so states. "Third, neither the House nor Senate bill analysis interpret the statute as finally enacted as granting a township or city exclusive tax collection status. In our opinion § 1612 and § 1613 should be read together. Section 1613 provides for delineated procedures for the summer tax collection by the school board. Sections 1612 and 1611 provide for summer school tax collection by a school district if approved by the city or township before January 1, 1983, and also provide for tax collection if approval is not given prior to January 1, 1983, and, if pursuant to § 1613, a city or township agrees to collect the summer taxes. Accordingly, we find that the trial court did not err on this issue.” Harper Creek, supra, pp 549-550. We agree with Harper Creek. Standing alone, § 1612, particularly its emphasized language above, is confusing. Where an ambiguity exists, legislative intent must be looked to. Treasury Dep’t v Campbell, 107 Mich App 561, 568; 309 NW2d 668 (1981), lv den 413 Mich 935 (1982). The history of the bill, particularly in the Senate, where major modifications were adopted and eventually approved by the House, clearly evidences a legislative intent to ensure cost-effective summer tax collection. For this reason, negotiation requirements were added and the townships were given reconsideration rights limited by the costs school districts negotiated with others. It makes no sense for the Legislature to enact a scheme whereby school districts can negotiate for the best possible price, if that scheme can be circumvented by a one sentence resolution passed before January 1, 1983. While the townships can only bill "reasonable” collection costs, that will not always be the same as the best available price, as for example where a county treasurer is geared to do a more efficient job during the summer. A reasonable construction must be given to statutory language of doubtful meaning, looking to the purpose served. Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948). Construction of the statute to allow yearly negotiations of collection expenses (conduct prohibited under defendant’s interpretation) best effectuates the legislative intent as reflected by the Senate amendments. As summarized by the trial court: "As can be seen, the amendments did not compel the township to collect taxes at a price they could not afford. Neither did the amendment require the school district to pay a higher price for the collection of its taxes than could be obtained elsewhere.” For the foregoing reasons we conclude that the proper answer to the first question raised in the opening sentence of this opinion is "No”. The second question raised is one of first impression and concerns the meaning of the word "negotiate” as it twice appears in the following emphasized language of § 1613(1) and 1613(2). "Sec 1613(1) By adoption of a resolution of its board before February 1, 1983, or before January 1 in any year thereafter, a school district or intermediate school district may determine to impose a summer property tax levy, which resolution by its terms may be applicable until revoked by the board of the school district or intermediate school district or for levies in any year specified therein. For each year such a resolution applies the school district or intermediate school district that has adopted the resolution shall request, before February 1, 1983 or before January 1 in any year thereafter, each city and township in which it is located to agree to collect the summer levy in that year of either the total or V2, as specified in the resolution of the school property taxes. * * * Upon receipt of the request, the governing body of the city or township shall negotiate the reasonable expenses for collection of the school district’s or intermediate school district’s summer property tax levy that the city or township may bill under section 1611 or 1612. If a city or township and the school district or intermediate school district reach an agreement within 30 days of the receipt of the district’s request for the collection of the district’s summer property tax levy, including an agreement to the amount of reasonable expenses that the city or township may bill under section 1611 or 1612, section 1611 shall govern the other terms of a city’s agreement and section 1612 shall govern the other terms of a township’s agreement. "(2) If a city or township and the school district or intermediate school district fail to reach an agreement pursuant to subsection (1) for the collection of the summer property tax levy of a school district or intermediate school district subject to subsection (3), the school district or intermediate school district then may negotiate, until April 1, a proposed agreement with the county treasurer to collect its summer property tax levy as against property located in that city or township. If a proposed agreement with the county treasurer has not been reached by April 1, the school district or intermediate school district may determine to serve as the property tax collecting unit and collect its own property tax levy against property in that city or township.” (Emphasis added.) Defendants contend that plaintiff school districts did no more than obtain a quick quote following "a one-shop meeting with the township presenting its estimated actual costs” of $3.76 per parcel. Having obtained this figure plaintiffs conducted no further negotiations with the township. According to defendants this was not the "continued negotiations” which defendants claim is required under the statute. Defendants further contend that plaintiffs’ alleged negotiations were in bad faith. In rebuttal, plaintiffs argue that the issue was not properly preserved since defendants’ answer to plaintiffs’ complaint admitted "negotiations” took place. As noted earlier, the trial court held that plaintiffs had negotiated in good faith. The issue of good faith and the extent of bargaining mandated by the term "negotiate” as it twice appears in § 1613 was not raised until well after the 1984 summer school taxes were collected. Thus, the issue is tardily raised. Further, assuming, arguendo, that error occurred, no evidence of how defendant township may have been damaged was presented. Consequently, remand for a hearing on how defendant township was damaged is denied. Further, we are unable to find evidence that plaintiffs acted in bad faith. After being informed by township representatives that the cost of collection was $3.76 per parcel, plaintiffs consulted with the treasurer of Lenawee County who stated collection could be made by the county for $2.45 per parcel. Plaintiffs then went back to Raisin Township, informing it of this fact, whereupon the township, instead of continuing the dialogue, responded that the issue was closed because the township by its resolution on December 30, 1982, had established itself as the exclusive collection agent for summer taxes. Given these circumstances, we are not persuaded that the trial court erred in ruling that plaintiffs had negotiated in good faith. Nevertheless, we believe that there is merit in defendant’s claim that "negotiate” requires more than the abbreviated exchange of collection costs per parcel, that occurred here. Section 1613(1) states that a township and school district "shall negotiate” without specifying how extensive nego tiations should be, except that 30 days are allowed after the school district’s request to collect taxes, which must be made before January 1 of any year. Section 1613(2) suggests that negotiations with the county treasurer should not be undertaken until the township and school district fail to agree. These negotiations are not to continue after April 1, at which point the school district can decide to collect on its own and the township may exercise its option to collect on those terms. The negotiations here seem to fall short of these standards. It appears that plaintiffs took a quote from defendants, and then went directly from that to negotiating with the county treasurer. We opine that something more than this is required if the purpose of the amendments made by the Senate and accepted by the House is to be fulfilled. While we find the omission not fatal or requiring reversal in the instant case, we strongly suggest that, in future proceedings under the statute, more extended and serious negotiations should take place. Affirmed. No costs, a question of public importance being involved.

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Per Curiam. In this no-fault action the trial court granted summary judgment in defendants’ favor, GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10), having concluded that plaintiff Roy Clark did not suffer a serious impairment of a body function and that plaintiff could not recover for loss of earning capacity without meeting that no-fault threshold, MCL 500.3135; MSA 24.13135. Plaintiffs appeal as of right and we affirm. The trial court also permitted plaintiff to amend the complaint to seek excess work loss, MCL 500.3135(2)(c); MSA 24.13135(2)(c), concluding that such damages may be recovered without meeting the no-fault threshold. Defendants cross-appeal from that determination and we affirm. Plaintiff was injured when his automobile was struck from the rear by a pickup truck owned by defendant Carol Brewer and driven by defendant Karl Brewer. Plaintiff claimed that the impact propelled him into the ceiling of his car, knocked his front seat into a reclining position and forced his car halfway down the next block. Defendant Karl Brewer described a much different accident; one so trifling that plaintiffs car was moved barely two feet and no one was thrown about in the car. Following the accident, plaintiff drove home and was driven to his family doctor by his wife. The doctor prescribed a muscle relaxant in response to plaintiffs complaints of head pain. Four days later, plaintiff consulted Dr. McCanse, a chiropractor. Dr. McCanse found a misalignment of the spine which he opined could have been caused or aggravated by the accident. (Plaintiff had suffered a back injury in 1959 for which he received chiropractic treatment.) Plaintiff continued treating with Dr. McCanse until just prior to trial in November, 1984. In June, 1982, Dr. Harshard Doshi, M.D., examined the plaintiff at the request of plaintiffs first-party insurer. The doctor found no muscle spasm and X-rays were normal. The plaintiff could perform all flexibility tests. Dr. Doshi concluded that plaintiff suffered from a stiff neck but could do any type of work. In July, 1982, Dr. Edward Westerbeke, M.D., examined the plaintiff. He found lower spine movement or flexibility at 50% of normal and opined that plaintiff probably suffered from a pinched nerve causing a sensory deficit in his ankle. Dr. Westerbeke also found some muscle spasm in the lower spine. These conditions were also diagnosed as being temporary and as disabling plaintiff from working in a body shop as he had done up to three months prior to the accident. In November, 1982, plaintiff was examined by Dr. Earl Heller, M.D., again at the request of plaintiffs first-party insurer. Dr. Heller found no spasm, tenderness or wasting of the muscles. Leg-raising tests were negative and X-rays were normal. Plaintiff had no difficulty walking or lifting himself onto the examining table. Dr. Heller concluded that plaintiff was suffering from a strain of his neck, cervical spine or lower back. The prognosis was that the condition would improve with time and the doctor believed that plaintiff could work. In April, 1983, plaintiff was seen by Dr. K. S. J. Murkowski, a chiropractor, who conducted a thermographic evaluation revealing dermatomal problems in plaintiff’s spine. Palpation resulted in reports of tenderness in the back and neck. The doctor concluded that plaintiff suffered from spinal rotation, vertebral rotation and disc wedging. In May, 1984, another thermogram was taken; this one by Dr. Richard Huff, D.O. The thermogram revealed no dermatomal problem in the upper body but did disclose some muscle irritation. Although dermatomal involvement was found in the lower spine, the doctor did not believe that this would impair plaintiffs ability to function in any significant manner. In October, 1984, Dr. Westerbeke found arthritis in plaintiffs neck. Prior to trial, defendants moved for summary judgment under GCR 1963, 117.2(3) now MCR 2.116(C)(10), contending that plaintiff had not suffered the serious impairment of body function which would serve as the threshold requirement for suing in tort under MCL 500.3135(1); MSA 24.13135(1). The trial court granted partial summary judgment on plaintiffs noneconomic claim, finding no dispute as to the nature and extent of the injury and that, as a matter of law, it failed to meet the threshold requirement. Later, defendants’ further motion for summary judgment based on GCR 1963, 117.2(1), now MCR 2.116(C)(8), was heard. Defendants claimed that plaintiff had failed to state a claim upon which relief could be granted because he sought damages for a loss of future earning capacity instead of the work-loss damages allowed by MCL 500.3135; MSA 24.13135. The trial court ruled that lost earning capacity may not be recovered in the tort action unless the plaintiff first meets the threshold requirement and, therefore, granted defendants’ motion. The trial court, however, allowed plaintiff to amend the complaint to allege damages for work loss instead of lost future earning capacity. Trial was then adjourned pending resolution of this appeal and cross-appeal. I The first issue is whether the trial court erred in granting partial summary judgment in favor of defendants on the ground that plaintiff’s injuries did not constitute a serious impairment of body function. Since the Michigan Supreme Court’s decision in Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), this Court and trial courts throughout the state have repeatedly grappled with the task of applying Cassidy’s general legal precepts to those specific and endlessly varied factual settings in which actual cases arise. In Cassidy v McGovern, supra, the Supreme Court held that, where there is no material factual dispute regarding the nature and extent of the plaintiff’s injuries, the existence of a serious impairment of a body function is a question of law to be decided by the court. In Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984), this Court suggested a three-step analysis to assist trial judges in making the legal determination of whether injuries constitute a serious impairment of a body function: "First, 'impairment of body function’ actually means 'impairment of important body functions’. Cassidy v McGovern, 415 Mich 504. Second, by its own terms, the statute requires that any impairment be 'serious’. MCL 500.3135(1); MSA 24.13135(1); McKendrick v Petrucci, 71 Mich App 200, 210; 247 NW2d 349 (1976). Third, the section applies only to 'objectively manifested injuries’. Cassidy v McGovern, 415 Mich 505.” (Emphasis omitted.) We agree with the trial court’s finding in this case that there is no material dispute as to the nature and extent of plaintiffs injuries. Although the parties of course disagree about the plaintiffs injuries and their effect upon him, the resolution of that disagreement would not be material in deciding the threshold question. In short, looking at the evidence in the light most favorable to the nonmoving parties, the moving parties are entitled to the legal finding they seek. See Franz v Woods, 145 Mich App 169, 172-173; 377 NW2d 373 (1985). In the present case, consideration of the second Williams factor is dispositive on the threshold question, i.e., the trial court correctly concluded that the injury was not "serious”. Whether an injury is serious must be considered in light of the other two alternative thresholds established in the no-fault act, i.e., death and permanent serious disfigurement. Cassidy v McGovern, supra, p 503. The plaintiff here complained of pain in his neck and lower back, which made doing household chores such as raking leaves difficult. He was able to walk, drive a car, visit friends and take care of himself while his wife was at work. Drs. Heller, Doshi and Westerbeke found that the plaintiff was able to work. Dr. Huff testified that plaintiff’s injuries were not impairing his ability to function in any significant manner. Plaintiff’s injuries consisted of soreness, stiffness, tenderness in the muscles, and pain in his back and leg. Flexibility in the spine area was only 50% at one time, however, plaintiff was able to perform leg raising and other flexibility tests. We have previously held that muscle spasms, tenderness and limited flexibility do not rise to the level of a "serious” impairment of a body function. Flemings v Jenkins, 138 Mich App 788; 360 NW2d 298 (1984). Our review of the lower court record satisfies us that the trial judge did not err in concluding that plaintiff did not suffer a serious impairment of a body function. II The second issue is whether the trial court erred in granting summary judgment in favor of defendants on the ground that loss of earning capacity is a noneconomic loss recoverable only if the tort threshold is met. In Ouellette v Kenealy, 424 Mich 83; 378 NW2d 470 (1985), the Supreme Court held that damages for loss of earning capacity are not recoverable at all under the no-fault act. Accordingly, the trial court, without the benefit of Ouellette, reached the correct result. III The third issue is whether plaintiff may recover economic loss damages for a period in excess of the three-year limitation contained in MCL 500.3107(b);. MSA 24.13107(b) even though plaintiff has not suffered a serious impairment of a body function. The trial court ruled that plaintiff may seek such excess economic loss damages without meeting the tort threshold. Most importantly, this ruling permits recovery of work-loss benefits for a period beyond three years. By way of cross-appeal, defendants argue that only excess economic loss accruing within three years of the accident is recoverable in this action. In Cochran v Myers, 146 Mich App 729; 381 NW2d 800 (1985), this Court rejected defendant’s assertion and held: (1) that work-loss benefits were recoverable for a period beyond three years, and (2) that such recovery does not require proof of death, serious impairment of a body function or serious permanent disfigurement. Recognizing that the Supreme Court in Ouellette, supra, p 88, declined to address "the applicable limitations period for recovery of excess work loss”, we elect to follow Cochran, supra. The trial court’s decision was therefore proper. Affirmed. No costs, neither party having prevailed in full.

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Per Curiam:. Following a bench trial in Detroit Recorder’s Court on October 31, 1984, defendant was convicted of breaking and entering an occupied dwelling with intent to commit unarmed robbery and criminal sexual conduct, MCL 750.110; MSA 28.305, unarmed robbery, MCL 750.530; MSA 28.798, and first-degree criminal sexual conduct, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). Defendant was sentenced on November 13, 1984, to a term of from 10 to 15 years for breaking and entering, from 10 to 15 years for unarmed robbery, and from 66 to 99 years for first-degree criminal sexual conduct. He now appeals. A recitation of the facts adduced at trial is instructive: Mary Dzik, a seventy-four-year-old single woman, testified that she was living alone in her home in Detroit on the evening of March 26, 1984. At about 11:00 p.m. that evening, she was awakened by the the barking of her dog. A man, the defendant, was standing on her front porch. He demanded to be let into the house. She refused to let him in, saying that she would call her husband if he did not leave. He replied that he knew she lived alone. She then went to her telephone to call the police, but the telephone was dead. It was later discovered that the telephone lines to her house had been cut. While Ms. Dzik went to her telephone, defendant began breaking the glass on her front door. He eventually broke through the first door and crawled between security bars to get to a second door. As Ms. Dzik attempted to hold the second door, defendant kicked at it until the door frame gave way. When defendant entered the victim’s home, he hit her on both sides of her face, knocking her to the floor. He then demanded all of her money. When she gave him her money, he began ripping at her underclothing. Defendant then took off his clothes, shoved Ms. Dzik onto a bed and pushed his penis into her vagina. The police arrived on the scene at about the same time. When the police entered the home, they found the front door kicked in and clothes lying about the floor. Defendant was found hiding under a bed, wearing only a pair of blue undershorts. Defendant testified that he did not commit any of the crimes of which he was convicted. Instead, defendant claimed that he had been minding his own business that evening, drinking wine and sharing some heroin with his friends. He further testified that he went to a store later in the evening to get another bottle of wine. There, according to defendant, he was seized by the police, taken to Ms. Dzik’s home and forced to lie on the kitchen floor, where the police then beat him into unconsciousness with their flashlights. Defendant raises two issues: (1) whether the trial court violated the state and federal constitutional prohibitions against double jeopardy by convicting and sentencing him on both the compound crime of first-degree criminal sexual conduct and the predicate crimes of breaking and entering an occupied dwelling and unarmed robbery; and (2) whether the trial court abused its discretion in sentencing defendant to a term of from 66 to 99 years for first-degree criminal sexual conduct when the guidelines specified from 10 to 20 years for the offense. Addressing defendant’s first issue, the court based the criminal sexual conduct conviction on the compound provisions of MCL 750.520b(1)(c); MSA 28.788(2)(1)(c) and the predicate crimes of unarmed robbery and breaking and entering. Defendant argues that the constitutional prohibition against double jeopardy precludes his conviction on both the compound crime of first-degree criminal sexual conduct and the predicate crimes of unarmed robbery or breaking and entering. This very issue has recently been determined by the Michigan Supreme Court against defendant’s position. People v Robideau, 419 Mich 458, 485, 487-489; 355 NW2d 592 (1984). We find no error as to this issue. We also note that, in this case, an independent ground exists for finding defendant guilty of first-degree criminal sexual conduct, which is causing personal injury to the victim and use of force or coercion to accomplish sexual penetration. MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). Turning to defendant’s second issue, we note first that it is within a sentencing court’s discretion to go outside the guidelines where (1) due to special circumstances or characteristics of a defendant, justice requires a sentence different than the one provided, or (2) regardless of special characteristics, the court feels that the sentencing range is inappropriate. People v McLeod, 143 Mich App 262; 372 NW2d 526 (1985). The discretionary power of a trial court is a necessary corollary to the principle that sentencing must be individualized and tailored to the particular circumstances of the case and the offender at the time of sentencing. People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980). Here, defendant diliberately chose an elderly, single woman as his victim, then cut the telephone wires of her home. He then proceeded to kick at her door until it ultimately gave way, even as she struggled to hold the door against him. When he gained entry, defendant struck the victim, knocking her to the floor, even before he demanded her money. He then took all of her money and proceeded to rape her. Defendant’s crimes were only interrupted by the arrival of the police on the scene. The record reflects that the judge’s sentencing decision was also based on the defendant’s unrepentant arrogance and lying in court. When the crime itself is this shocking, it is difficult to imagine a sentence which would shock the conscience of this court. People v Coles, 417 Mich 523, 550-551; 339 NW2d 440 (1983). This sentence certainly does not. Affirmed.

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Per Curiam. Ford Motor Credit Company sued the defendant, Traffic Transport Engineering, Inc., after a deficiency resulted from the sale of collateral that secured several loans which the defendant had contractually guaranteed. The collateral was sold pursuant to an order of the United States Bankruptcy Court after the original debtor’s bankruptcy. Following a jury trial in Wayne County Circuit Court, a verdict was returned in favor of Ford Credit for $152,929.26, representing the amount of the unpaid balance due on the loans guaranteed by defendant. The jury rejected Ford Credit’s claim for earned but unpaid finance charges that had accrued on the unpaid balance from the time of the default by the original debtor to the commencement of the suit seeking to collect the deficiency. Defendant now appeals as of right, challenging a ruling by the trial court which prevented it from inquiring into the commercial reasonableness of the sales of the collateral and challenging the trial court’s exclusion of evidence of Ford Credit’s failure to seek relief from the automatic stay in a timely manner in order to comply with the tender requirements of the repurchase agreements, which formed the basis of defendant’s guarantee obliga tions. Ford Credit has filed a cross-appeal claiming that the trial court erred in failing to direct a verdict in its favor concerning its claim for earned but unpaid finance charges. Defendant first asserts that the trial court erred in ruling that under MCL 440.9507(2); MSA 19.9507(2) the defendant could not collaterally attack in state court the commercial reasonableness of the sales of the trailers that were made under the authority of the United States Bankruptcy Court. At trial, when defendant attempted to inquire into the method used by the trustee and Ford Credit to sell the trailers, the court ruled, based on §9507(2), that such inquiries were improper because all sales had been made pursuant to the authority of the United States Bankruptcy Court and were thereby conclusively presumed to be commercially reasonable and free from collateral attack. Further, the trial court instructed the jury that the sales of the trailers was not a subject for their consideration and that they were only to determine the amount of any deficiency to which Ford Credit was entitled if they found that defendant had breached its contractual obligations. Both parties to this appeal believe that the resolution of this issue turns on the proper application of § 9507(2). Section 9507(2) provides in part: "A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.” Initially we note that it could be argued that the provisions of the Uniform Commercial Code do not apply to the facts of this case. Section 9507 specifically refers to the sale of repossessed collateral by the secured party. See 7 ALR4th 308. The sales in the present case were not made by the secured party, Ford Credit, but by the trustee in bankruptcy, with Ford Credit acting as the trustee’s agent. Since the sales that the defendant complains of were made by the trustee, the defendant’s real dispute is with the trustee and not Ford Credit. Thus, the defense that the sales were not commercially reasonable was not properly asserted against Ford Credit. However, even if not directly applicable, we find that the conclusive presumption contained in 9507(2) is instructive to the resolution of this case. The conclusive presumption of reasonableness which attaches to judicially-approved sales was intended to further the general intent behind Article 9 of the Uniform Commerical Code, which attempts to impede the dishonest disposition of collateral without overly restricting honest transactions with unnecessarily cumbersome procedures. Bryant v American National Bank & Trust Co of Chicago, 407 F Supp 360 (ND Ill, 1976). If the judicial approval of a sale emanates from a full and fair hearing, the court which collaterally reviews the dispositions’ reasonableness should not attempt to further investigate the individual aspects of the sale. Section 9507(2) assumes that when there has been such a hearing all interests have had an opportunity to comment upon the arrangement for disposition of the collateral and that it is therefore reasonable to give such a sale a conclusive presumption of commercial reasonableness. In the present case, the subject trailers were sold pursuant to a plan developed by Ford Credit, agreed to and supervised by the bankruptcy trustee and authorized by the United States Bankruptcy Court. Notwithstanding Ford Credit’s power to negotiate sales for the trustee, all the sales were subject to the guidelines and procedural rules laid down by the trustee. Defendant was a party to the bankruptcy proceedings and should have challenged the sales during those proceedings if it felt that they were irregular. Therefore, we hold that the trial court was correct in ruling that the defendant could not collaterally attack the commercial reasonableness of the sales. The defendant next claims that the trial court erred by excluding evidence that Ford Credit did not comply with the terms of the repurchase agreements by failing to make a timely tender of the trailers. We do not agree. Under the terms of the repurchase agreements entered into by the parties, the defendant’s obligation to repurchase the trailers, in the event of default by the original debtor, was subject to Ford Credit’s tendering: (1) good title, (2) the trailer, and (3) the contract covering the trailer. At trial, when defendant initially attempted to inquire into why Ford Credit had not attempted to obtain an order modifying the automatic stay in bankruptcy to tender the trailers earlier than it did, the court ruled that such questions were irrelevant. Defendant argues that such evidence was relevant and should have been admitted. The problem with the defendant’s argument is that it is not fully supported by the record. The ruling which defendant refers to was made early in the proceedings. However, later in the trial, the court did not prevent the defendant from arguing to the jury that there had not been a proper tender under the repurchase agreements sufficient to give rise to the defendant’s obligation to repur chase. In addition, defendant was permitted to make an unlimited closing argument that Ford Credit had not made a proper tender under the repurchase agreements. The jury was properly instructed that they had to find that Ford Credit complied with the terms of the repurchase agreements in order to be entitled to a deficiency judgment. Therefore, we hold that the trial court did not effectively prevent the defendant from arguing that there had not been a proper tender. The issue was properly left to the jury to decide. Finally, Ford Credit asserts on cross-appeal that the trial court erred in refusing to grant it a directed verdict on its claim for earned but unpaid interest. Our review of the evidence leads us to the conclusion that no error occurred. Under the terms of the repurchase agreements, the defendant’s obligation to repurchase did not arise until Ford Credit made a tender of the trailers. The repurchase agreements do not state when Ford Credit was required to tender and whether interest was to continue to accrue in the event of bankruptcy proceedings involving the principal debtor. When a contract is open to construction as to a critical aspect, it is the duty of the trier of fact to determine, if possible, the true intent of the parties. Stroud v Glover, 120 Mich App 258; 327 NW2d 462 (1982). A review of the evidence in a light most favorable to the defendant, Holmes v Allstate Ins Co, 119 Mich App 710; 326 NW2d 616 (1982), lv den 417 Mich 1018 (1983), indicates that reasonable minds could differ on the issue of Ford Credit’s entitlement to earned but unpaid interest charges during the period prior to tender. Thus, the issue was for the jury to decide. Affirmed.

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Per Curiam. Yalda Acho appeals as of right from a Wayne County Circuit Court order which reversed a decision of the Michigan Liquor Control Commission granting him a specially designated distributor’s (SDD) liquor license. This case is before this Court for the second time. In Kassab v Acho, 125 Mich App 442; 336 NW2d 816 (1983), we reversed the circuit court’s decision affirming the commission’s grant of the SDD license, and remanded to the commission for further fact-finding and reconsideration. Khalid and Issam Kassab own a party store located on East Seven Mile Road in Detroit and hold an SDD liquor license. Acho also owns a party store on East Seven Mile Road, directly across the street from the Kassab’s store. On November 23, 1977, Acho applied for an SDD license, arguing that, because his store is separated from the Kassab’s store by East Seven Mile Road, he was eligible for a waiver of the rule requiring that SDD outlets be at least one-half mile apart. 1979 AC, R 436.1133(c). On October 15, 1979, the commission denied Acho a license, concluding that he was not eligible for a waiver of the one-half mile rule because East Seven Mile Road could not be considered a "major thoroughfare of not less than four lanes of traffic”, since it was a four-lane road consisting of two moving lanes and two parking lanes. Acho requested and received an appeal hearing pursuant to 1979 AC, R 436.1925(2). Since the Kassabs owned the nearest SDD outlet, they were sent a notice of hearing which offered them an opportunity to be heard. The evidence at the hearing held on December 20, 1979, established that the portion of East Seven Mile Road in question was a four-lane road, however, two of the four lanes were designated as 24-hour parking lanes. After the hearing, Detroit Police Chief William Hart wrote two letters to the commission advising it that the road was a major four-lane thoroughfare with all four lanes used for traffic and that 24-hour parking would be banned effective February 25, 1980. Relying on the letter submitted by Chief Hart, the commission granted defendant an SDD license on March 10, 1980. The Kassabs appealed to circuit court and petitioned the commission for reconsideration. The commission reinvestigated the matter and found that the parking ban was temporary and that parking on the two outside lanes had been restored. Evidence to this effect was presented at the May 14, 1981, circuit court hearing. Nevertheless, the circuit court af firmed the commission’s grant of the license, finding no abuse of discretion. We reversed and remanded the case to the commission for further fact-finding and reconsideration. Kassab v Acho, supra, p 448. On remand, the commission affirmed its prior decision granting defendant an SDD license. Acho appeals from the circuit court’s reversal of the commission’s decision. We must first determine the proper standard of review of a grant of a liquor license. In the prior appeal of this case, Kassab, supra, pp 449-453, this Court held that § 106 of the Administrative Procedures Act governed, since the licensing matter was a "contested case”, defined by MCL 24.203; MSA 3.560(103)(3) as: " '[A] proceeding, including but not limited to rate-making, price-fixing, and licensing, in which determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.’ ” The scope of review in the earlier opinion, how ever, conflicts with this Court’s decision in TDN Enterprises, Inc v Liquor Control Comm, 90 Mich App 437; 280 NW2d 622 (1979), lv den 407 Mich 907 (1979), where it was held that the APA provisions dealing with contested cases do not apply to licensing matters because the statute governing the issuance of SDD licenses, MCL 436.17; MSA 18.988, does not require that the selection of a licensee be preceded by notice and the opportunity for a hearing. See also Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 546-548; 231 NW2d 443 (1975). We agree with the panel in TDN Enterprises that the definition of "contested case” as applied to the initial grant of a liquor license renders the judicial review provisions of the APA inapplicable. Although commission rules provide for an appeal hearing after the initial decision by the commission, 1979 AC, R 436.1925, the procedure does not bring this matter within the statutory definition of a contested case. Inasmuch as the provisions of the APA are inapplicable and the Liquor Control Act only provides for judicial review of violations of the act, the scope of review provided by Const 1963, art 6, § 28 and the Revised Judicature Act, MCL 600.631; MSA 27A.631, applies when this Court reviews a decision of the commission granting a liquor license. Under that standard, this Court reviews the decision of the commission to determine whether it is authorized by law and supported by competent, material and substantial evidence. In the instant case, however, we are bound by the law of the case doctrine, CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981); Cicelski v Sears, Roebuck & Co, 132 Mich App 298; 348 NW2d 685 (1984), and must apply the standard of review relied on in the first appeal. Nevertheless, under either standard of review, the commission’s decision to grant the liquor license must be reversed. In the prior appeal, this Court concluded that the Kassabs were materially prejudiced when Chief Hart’s letters were received and considered by the commission without affording them notice and the opportunity to respond to the letters before the commission rendered its decision. Kassab, 125 Mich App 458. The letters addressed the main issue in the case, whether the exception to the one-half mile rule applied. On remand, the commission stated: "While it is now known that the commission’s approval of Acho’s SDD license was based upon incomplete facts, and while it is now known that the change in the parking on East Seven Mile Road was not done in a procedurally correct manner, and while it is now known that the parking ban was temporary, none of this information was available at the time the license was approved and it seems to the commission that this is the crucial point. If any of these matters had been known to the commission at the time, the commission would not have approved the license. "As to the question of whether Acho’s license should now be cancelled, the commission concludes that it should not. It has now been in excess of three and one-half years since Acho’s license was granted, and the commission is convinced that the matter of equity must also be addressed. While it is true that Kassab’s liquor purchases have declined somewhat since Acho’s license was issued, based upon the amount of liquor purchased from the commission, Kassab continues to make a gross profit in excess of $48,000 per year from the sale of spirits. At the same time Acho has apparently made a substantial investment in his business, in order to modernize the store and provide additional parking for his customers, based in part at least on the increased business generated by the availability of package liquor. To now remove the license because of the circumstances of its issuance, over which it is significant to note, Acho had no control would seem to the commission to be unfair.” (Emphasis supplied.) On appeal, the circuit court reversed, holding that this Court’s remand order required the commission to reconsider Acho’s application based on the facts which actually existed in March, 1980, not simply on the facts which were known in March, 1980. The circuit court concluded that, since East Seven Mile Road did not become a permanent four-lane major thoroughfare, the exception to the one-half mile rule did not apply and the commission lacked the authority to issue a SDD license to Acho. We agree with the circuit court’s reasoning. In our prior opinion, we reversed the commission because its decision was based on incomplete or inadequate facts. The commission was required to conduct further fact-finding and reconsider its decision. That fact-finding revealed that the exception to the one-half mile rule was inapplicable. The commission conceded that the evidence did not support its conclusion. Nevertheless, it refused to cancel or revoke Acho’s license. Its decision to continue Acho’s license is neither authorized by law nor supported by competent, material and substantial evidence. While it is true that the commission has complete control of liquor traffic, Const 1963, art 4, § 40; Mallchok v Liquor Control Comm, 72 Mich App 341, 343-345; 249 NW2d 415 (1976), its power is subject to statutory limitations. Mallchok, supra, p 344. The commission does not have the discretion to waive the rule unless one of the exceptions applies. Thus, applying the facts to the law, we conclude that the commission improperly issued the license since East Seven Mile Road is not a "major thoroughfare” and no other exception to the one-half mile rule applies. Acho argues that the commission has the authority to continue the license on the ground of manifest injustice. We disagree. As an agency, the commission has no inherent powers and, therefore, any authority must come from the Legislature. Blue Cross & Blue Shield of Michigan v Insurance Commr’s, 403 Mich 399, 424; 270 NW2d 845 (1978), reh den 405 Mich 1001 (1979); Pharris v Secretary of State, 117 Mich App 202; 323 NW2d 652 (1982). The commission’s plenary power to regulate liquor traffic is subject to statutory restraints. Mallchok, 72 Mich App 344. The commission’s rules and regulations, promulgated pursuant to the Liquor Control Act, MCL 436.7; MSA 18.977, prohibit the commission from issuing an SDD license in violation of the one-half mile rule. 1979 AC, R 436.1133. None of the exceptions to the rule applied and, thus, the commission had no discretion to waive the rule. Where a liquor license is issued in violation of a statute, it must be revoked. Gamble v Liquor Control Comm, 323 Mich 576, 578, 580; 36 NW2d 297 (1949); Elliott v Liquor Control Comm, 339 Mich 78; 62 NW2d 594 (1954). Manifest injustice is not a means by which the commission may avoid legislative mandate as well as its own regulations. We have reviewed Acho’s remaining arguments and find them without merit. Aifirmed. 1979 AC, R 436.1133 provides in part: "An application for a new specially designated distributor license or for the transfer of location of an existing specially designated distributor license shall not be approved by the commission if there is an existing specially designated distributor license located within 2,640 feet of the proposed site. * * * This rule may be waived by the commission for 1 of the following reasons: "(c) If the proposed location and the existing specially designated distributor’s licensed establishment are separated by a major thoroughfare of not less than 4 lanes of traffic.” MCL 24.306; MSA 3.560(206) provides: "(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following: "(a) In violation of the constitution or a statute. "(b) In excess of the statutory authority or jurisdiction of the agency. "(c) Made upon unlawful procedure resulting in material prejudice to a party. "(d) Not supported by competent, material and substantial evidence on the whole record. "(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. "(f) Affected by other substantial and material error of law. "(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.” But see Semaan v Liquor Control Comm, 136 Mich App 243; 355 NW2d 643 (1984), where this Court, without citing the APA, reviewed the commission’s decision for an abuse of discretion; and Allos v Liquor Control Comm, 97 Mich App 44; 294 NW2d 241 (1980), where the commission’s decision was reviewed under § 106 of the APA for an abuse of discretion. In Ron’s Last Chance, Inc v Liquor Control Comm, 124 Mich App 179; 333 NW2d 502 (1983), the APA’s scope of review was applicable because this Court was reviewing a commission decision to revoke a license, a contested case since due process requires a hearing before a decision is made. In the prior appeal, this Court held that the commission properly interpreted the term "major thoroughfare” as four traffic lanes excluding lanes for parking. Kassab, 125 Mich App 457. Thus, Acho’s arguments to the contrary are without merit, based on the law of the case doctrine. CAF Investment Co, supra; Cicelski, supra. The commission has formally adopted its definition of "major thoroughfare”. 1979 AC, R 436.1001.

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Per Curiam:. Defendants, Clarence Humphrey and Rosie E. Freeman, were arrested by officers of the Wayne County Sheriffs Department on October 12, 1984, during the course of the execution of a search warrant issued on October 11, 1984. After the arrests, defendant Humphrey was charged with possession of cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), possession with intent to deliver heroin, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), possesion of heroin, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), and felony-firearm, MCL 750.227b; MSA 28.424(2). Both defendants were charged with conspiracy to vio late the gambling laws, MCL 750.301 and 750.157a; MSA 28.533 and 28.354(1), and possession of gambling paraphernalia, MCL 750.306; MSA 28.538. After a preliminary examination was held, the defendants were bound over for trial on all counts. Defendants subsequently brought a motion to quash the search warrant and suppress the evidence. Through an opinion and order dated June 18, 1985, the trial court granted the motion after concluding that the affidavit was insufficient to establish the reliability of the information. The prosecutor brought the instant appeal of the lower court’s order as of right. The Michigan Supreme Court recently clarified the requirements which must be met before a search warrant based upon an affidavit may be issued in this state. In People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984), the Court construed MCL 780.653; MSA 28.1259(3) as setting forth three requirements, stated as follows: "The first is that the affidavit, when based on informant-supplied information, must contain affirmative allegations that the informant spoke with personal knowledge. The second is that the affidavit must set forth facts from which one may conclude that the informant is 'credible.’ * * * The third is that the information must be shown to be reliable. The Legislature has determined that probable cause is not established until all three requirements have been satisfied.” 421 Mich 509-510. As stated earlier, the trial court found the third requirement lacking in the affidavit here at issue. The relevant portions of that affidavit provided: "The affiant is a member of the Wayne County Federal Task Force and is working in conjunction with S/A Paul Lindsey of the F.B.I. relative to the trafficking of heroin and cocaine by a black male, who is known to a reliable informant of the F.B.I. as 'Big Daddy’ and also as 'Track’. The affiant and S/A Lindsey have worked with this informant in the past and information from this informant has resulted in the arrest of more than five persons for violations of the Michigan Controlled Substance Act. Cocaine, heroin, firearms and narcotic proceeds have been confiscated as a result of the same information. "This informant provided information to S/A Paul Lindsey which states that within the past 72 hours of the date of this search warrant this informant did observed [sic] controlled substances inside of the named location. The informant states that the informant knows the powder to be heroin and that the informant has observed the transfer of heroin and cocaine by 'Big Daddy’. That 'Big Daddy’ did obtain these controlled substances from inside the named location which is the home of 'Big Daddy’. The informant further states that 'Big Daddy’ has stated to the informant that he is never out of dope. The informant states that 'Big Daddy’ is a big numbers man and that proceeds from the numbers operation are stored at the named location. "An investigation conducted by the affiant shows that a vehicle parked within the curtilage of the location to have Michigan plate 765-KPX, to: Rosie E. Freeman at 12703 Broadstreet, Detroit 48238. "Based upon the information received by the affiant from S/A Paul Lindsey, it is believed that the information received from the informant is reliable and that the items named to be searched for are being stored inside of the named location, in violation of the Michigan Controlled Substance Act (Public Health Code).” In finding the affidavit insufficient to fulfill the "information reliability” requirement of MCL 780.653; MSA 28.1259(3), the trial court relied upon the absence of certain factors. For example, while the affidavit indicated that a vehicle belonging to defendant Freeman was parked on the premises, the court characterized this information as irrelevant since it was not accompanied by an allegation that Freeman was an occupant or frequenter of the house. Next, the court complained of the absence of a physical description of "Big Daddy” or "Track” because this prevented the affiant from verifying the suspect’s presence at the house. Finally, the court condemned the failure to note the observation of traffic to and from the house. We do not agree that the deficiencies noted by the trial court compel the conclusion that the information was not reliable. As noted by the prosecutor, the most obvious flaw in the trial court’s reasoning is that the affidavit refers to the "transfer”, rather than sales, of narcotics, indicating that the house was not a street distribution point but a packaging and cutting center. Assuming this to be the case, there would not have been any foot traffic to and from the house for the affiant to observe. Further, the affiant could not be faulted for failing to conduct a controlled "buy” since the operators of a packaging and cutting center would not likely assume the obvious risks of engaging in street sales and offering individual purchases from the home. Regarding the failure to include a reference to Freeman’s presence in the home, we consider such a detail to be so innocuous as to be of little help in assessing the reliability of the information. While we do agree that a physical description of "Track” would have been of assistance, its absence is not determinative. Rather, the reliability of the information is sufficiently established by other factors, including the detail of the information supplied and the fact that the informant’s knowledge that narcotics were on the premises and that the house was used for the transfer of narcotics was based upon the informant’s personal observa tions. Another factor pointing to the likely reliability of the information is that this particular informant has provided information in the past which has been of assistance to the affiant in enforcing the Michigan controlled substance act. MCL 333.7101 et seq.; MSA 14.15(7101) et seq. We conclude that the trial court erred in finding that the "reliable information” requirement of the statute governing the contents of affidavits was not satisfied. Although neither has filed a cross-appeal, defendants now argue that the trial court erred in finding the first two requirements under the statute satisfied. These arguments are patently merit-less. Since the affidavit contains allegations that the informant observed both the presence of narcotics inside the place to be searched and the transfer of such narcotics, the affidavit clearly contains sufficient information to allow the conclusion that the informant’s statements were based upon personal knowledge. The affidavit also contains facts from which one may conclude that the informant was credible. As noted by the trial court, the affidavit states that the informant previously worked with the affiant and the F.B.I., supplying information which resulted in the arrest of more than five persons and that various narcotics and firearms were confiscated. This was sufficient to find the second requirement satisfied. Sherbine, supra, p 510, fn 13. Contrary to the claims of defendants, the information need not have resulted in convictions to justify the conclusion that it was reliable. Obviously, many factors other than the reliability of informant-supplied information can result in the acquittal of a defendant on charges which have stemmed from such information. The defendants also argue that the information contained in the affidavit was stale since the observations occurred "in the past 72 hours”, thus offering no justification for concluding that the controlled substances were present at the time the warrant was issued. However, as noted in People v Osborn, 122 Mich App 63, 66; 329 NW2d 533 (1982): "A search warrant must be supported on probable cause existing at the time the warrant is issued. People v Chippewa Circuit Judge, 226 Mich 326; 197 NW 539 (1924); People v Gillam, 93 Mich App 548; 286 NW2d 890 (1979). Nevertheless, a lapse of time between the occurrence of the underlying facts and the issuance of the warrant does not automatically render the warrant stale. People v Gillam, supra, p 552. As a panel of this Court said in People v Gillam, supra, p 553: 'the measure of a search warrant’s staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises’.” We believe the informant’s observation of controlled substances and the transfer thereof within 72 hours before the issuance of the search warrant, when coupled with the statement of "Track” or "Big Daddy” to the informant that he was "never out of dope”, provided probable cause to believe that controlled substances remained on the premises. Finally, defendants argue that the search warrant was unlawfully executed because the officers did not provide the occupants with a reasonable time in which to respond to their demand for admittance, citing People v Harvey, 38 Mich App 39; 195 NW2d 773 (1972). The Harvey Court was asked to construe MCL 780.656; MSA 28.1259(6), which authorizes an officer executing a warrant to break the doors or windows of a house "if, after notice of his authority and purpose, he is refused admittance”. In Harvey, the Court stated that "[i]n a hard drug case, where the officer has knocked on the door leading to the living quarters, loudly announced the presence of a law enforcement agency with a search warrant, announced the purpose, a raid, waited long enough for the inhabitants to reach the door from the room farthest away, and then began to kick in the door, the statute is complied with”. 38 Mich App 43. We believe the requirements of the statute were satisfied here since, after announcing their presence and purpose, the officers executing the warrant waited 20 to 30 seconds before breaking down the door to the house and entering. See also United States v Gorman, 208 F Supp 747 (ED Mich, 1962), where a federal agent waited 25 to 30 seconds after knocking and announcing his purpose and identity before breaking in the door. The Court found a properly executed warrant. 208 F Supp 750. The final issue to be addressed is raised by the prosecutor and concerns that portion of the June 18, 1985, order of the Recorder’s Court directing the return of noncontraband items seized at the time of the execution of the search warrant. The prosecutor argues that the Recorder’s Court was without jurisdiction to issue such an order, and we agree. On October 29, 1984, the people filed a petition for forfeiture of the property seized during the execution of the warrant in the Wayne County Circuit Court. Therefore, pursuant to MCL 333.7523(2); MSA 14.15(7523X2), only the Wayne County Circuit Court had jurisdiction to enter an order regarding the property. Section 7523(2) provides, in pertinent part: "Property taken or detained under this article shall not be subject to an action to recover personal property, but is deemed to be in the custody of the seizing agency subject only to this section or an order and judgment of the court having jurisdiction over the forfeiture proceedings.” Therefore, the property at issue could only have been returned to defendant Humphrey by order of the Wayne County Circuit Court. The Detroit Recorder’s Court was without jurisdiction to do so. Reversed and remanded for trial.

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Per Curiam. Following a joint bench trial in the Wayne County Circuit Court, defendants Clark, Martin and King were convicted on three counts of armed robbery. MCL 750.529; MSA 28.797. Defendant Clark was convicted as an aider and abettor. MCL 767.39; MSA 28.279. Each defendant was sentenced to three concurrent 10 to 20 year prison terms for their convictions. Defendants Martin and King were also found guilty of criminal sexual conduct in the first degree, MCL 750.5206; MSA 28.788(2), and felony-firearm, MCL 750.227b; MSA 28.424(2), arising out of the same incident. Martin and King were each sentenced to 20 to 40 years in prison for their CSC-1 convictions and 2 additional years in prison for their felony-firearm convictions. All defendants now appeal as of right and the cases have been consolidated. Initially, defendant Clark asserts that there was insufficient evidence produced at his preliminary examination to bind him over on multiple counts of aiding and abetting armed robbery. We disagree. At the preliminary examination, the examining magistrate must determine whether a crime has been committed and whether there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931. The prosecutor, at the preliminary examination, must offer evidence as to each element of the charged offense, but is not required to prove the elements of the crime beyond a reasonable doubt. People v McManus, 121 Mich App 380, 385; 328 NW2d 636 (1982), lv den 417 Mich 1100.4 (1983). This Court will not disturb a magistrate’s determination at the preliminary examination unless a clear abuse of discretion is established. People v Shipp, 141 Mich App 610; 367 NW2d 430 (1985), lv den 422 Mich 932 (1985). There was certainly sufficient evidence offered at the preliminary examination to establish that several armed robberies were committed. The only question for the magistrate was whether defendant Clark was an aider and abettor to those crimes. To establish that one participated as an aider and abettor to armed robbery, the prosecutor must show that the defendant encouraged, counseled, or assisted another in the commission of an armed robbery with the intent of rendering such help and with knowledge that a criminal act was contemplated. People v Turner, 120 Mich App 23, 27; 328 NW2d 5 (1982). After reviewing the evidence offered at the preliminary examination we find no abuse of discre tion in the magistrate’s decision to bind the defendant over for trial. From the evidence offered it could be reasonably inferred that defendant Clark knowingly acted as the driver of the "get-away car”. Dennis Green testified that after he was robbed at gunpoint by defendants Martin and King, they ran to a nearby parked car that had its engine running. Green proceeded to chase the car in his truck, and when the car was eventually stopped by the police, defendant Clark was identified as the driver. When Clark was removed from the car he attempted to hide his face from Green, who testified that he had known Clark all of his life. On these facts, we find no error in the magistrate’s decision. Similarly, we find defendant Clark’s argument that there was insufficient evidence produced at trial to support his convictions also to be without merit. In addition to testimony similar to that offered at the preliminary examination, a letter allegedly written by defendant Clark to Green, asking him to drop the charges, was also offered into evidence. In the letter, defendant Clark essentially admits his participation in the robbery. Reviewing the evidence offered at trial in a light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). Therefore, the trial court did not err in refusing to grant defendant Clark a directed verdict of not guilty as to the armed robbery charges. Next, defendant Clark argues that the trial court abused its discretion in refusing to suppress evidence of all but one of his prior convictions. The record indicates that defendant Clark had been previously convicted of the following offenses: at tempted larceny by false pretenses, attempted carrying of a concealed weapon, possession of heroin, attempted larceny from an automobile, and armed robbery. The lower court suppressed evidence of the armed robbery conviction but ruled that defendant’s other convictions could be used if he decided to testify. Defendant Clark did not testify at trial. According to the defendant, because the court was informed that an adverse ruling on the admissibility of his prior convictions would keep him from testifying, the admission of evidence of the prior convictions constituted an abuse of discretion. The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v Wakeford, 418 Mich 95, 114; 341 NW2d 68 (1983). In People v Carpenter, 120 Mich App 574, 580-581; 327 NW2d 523 (1982), we stated: "Review of a trial court’s determination to admit evidence of prior convictions for impeachment purposes involves two considerations: (1) whether the trial judge recognized his discretion to decline to admit evidence of the convictions, and (2) whether the trial judge’s decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion. People v Worden, 91 Mich App 666, 674-676; 284 NW2d 159 (1979). The factors which the court must weigh in reaching a conclusion include: (1) the nature of the prior offense, (2) whether it was for substantially the same conduct for which defendant is on trial, and (3) the effect on the decisional process if the accused does not testify. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).” The record in the present case reveals that the trial judge recognized his discretion to admit or exclude evidence of defendant Clark’s prior convictions, and in fact found evidence of one such conviction inadmissible. However, the court determined that evidence of the defendant’s other prior convictions was more probative than prejudicial. We agree. Had the defendant chosen to testify the case would have turned on the defendant’s credibility. Thus, evidence of the prior convictions would have been very probative for impeachment purposes. Carpenter, supra, p 581. Further, since there is little indication in the record as to what the defendant’s testimony would have been, we are left to speculate as to how the decisional process may have been affected had defendant Clark testified. Having reviewed the record, we cannot conclude that the lower court’s decision to admit the evidence in the event defendant testified was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion and require reversal. The final argument raised by defendant Clark is that the trial court improperly admitted into evidence a letter purportedly written by him, because the letter was not properly authenticated and had no probative value. The letter at issue was written by a "Bass Clark” and sent to the complainant, Dennis Green, and indicates Clark’s involvement in the robbery and asks that Green consider dropping the charges. The decision whether a letter has been properly authenticated for admission into evidence is a matter within the sound discretion of the trial court. Champion v Champion, 368 Mich 84; 117 NW2d 107 (1962). MRE 901 requires identification or authentication of items by introduction of evidence "sufficient to support a finding that the matter in question is what its proponent claims”. The requirement of identification can be satisfied by a comparison by the trier of fact with handwriting specimens which have been authenticated, or by the distinctive characteristics contained in the letter itself, taken in conjunction with other circumstances. MRE 901(b)(3) and (4). In the present case, the court was able to compare the handwriting in the Clark letter with the handwriting on a statement given by defendant Clark to the police. The court noted that the writing in the letter and on the statement bore certain resemblances. Further, Dennis Green testified that Bass Clark was defendant Clark’s street name and that the "agent on Vinewood” mentioned in the letter referred to Pamela Morrison, defendant Clark’s girlfriend and Green’s cousin. The letter was also written during the time when Clark was incarcerated in the Wayne County Jail and the return address on the letter was the address of the jail. On this testimony, the lower court determined that the contents and distinctive characteristics of the letter provided the proper identification. We find no abuse of discretion in the court’s ruling. We also hold that the letter was relevant because it tended to establish the defendant’s active participation in and knowledge of the crimes committed. Therefore, the letter was properly admitted against defendant Clark. MRE 402. We now consider the arguments raised by the remaining defendants. Both defendants King and Martin assert that their convictions should be reversed because their waiver of their right to a jury trial was not knowing, intelligent and voluntary, in view of the admission of the "Bass Clark” letter at trial. Prior to trial, the admissibility of the "Bass Clark” letter was discussed. The trial judge refused to grant defendants’ motion to exclude the letter, but indicated that severance of the defendants’ trials might be required if the letter were admitted. The ruling that severance might be required was based on the understanding that each defendant desired a jury trial. The prosecutor indicated that he would probably not use the letter, and on that basis the court ruled severance was not required. However, just prior to trial each defendant waived his right to a jury trial and the cases proceeded as bench trials. The waivers had not been expected by the trial judge. Contrary to his statement prior to trial, during the trial the prosecutor did seek to introduce the "Bass Clark” letter into evidence against defendant Clark. The prosecutor argued that severance was no longer an issue since the defendants had unexpectedly agreed to bench trials. Defendants Martin and King objected to the admission of the letter stating that it created a potential Bruton [Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1967)] problem. The trial judge indicated that he would only consider the letter as evidence against Clark and thus saw no need for severance. Having thoroughly reviewed the record we find no support for the defendants’ argument that they waived their right to a jury trial based on the understanding that the Clark letter would not be admitted. The trial judge fully discussed the waiver on the record with each defendant. There is no indication that the waivers were anything but knowingly and voluntarily made or that they were conditioned on the fact that the "Bass Clark” letter would not be admitted. See People v Margoes, 141 Mich App 220; 366 NW2d 254 (1985). Further, The court was already aware of the contents of the letter from the defendants’ pretrial motions and stated that it would in no way consider the letter as evidence against Martin and King. The admission of the letter certainly did not prejudice either defendant King or Martin because it made no reference to them. On these facts, we find no reversible error. Even if the introduction of the letter would have been error in a jury trial, it certainly was not in a bench trial. People v McShan, 120 Mich App 496; 327 NW2d 509 (1982). Finally, we reject defendant King’s argument that the trial court committed reversible error by not informing him that he had a constitutional right not to testify before he voluntarily took the stand to testify on his own behalf. Defendant King does not maintain that he was in any manner compelled to testify. As we noted in People v Simmons, 140 Mich App 681, 684; 364 NW2d 783 (1985), lv den 422 Mich 961 (1985), an accused’s decision to testify or not to testify is a strategic decision best left to an accused and his counsel. The convictions of all three defendants are therefore affirmed.

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Per Curiam. In this action, plaintiffs sought to recover damages for breach of an employment contract, age and sex discrimination, and loss of consortium. The circuit court granted defendants’ motions for summary judgment pursuant to GCR 1963, 117.2(3), holding that there was no genuine dispute as to any material fact and that defendants were entitled to prevail as a matter of law. Plaintiffs appeal as of right. In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980), the Court said: "We hold that "1) a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term — the term is 'indefinite,’ and "2) such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s policy statements.” Here, Albert W. Eliel (hereinafter referred to singularly as plaintiff) acknowledges having signed a written application for employment with defendant Sears, Roebuck and Company. The application contained the following provision: "In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck, and Co., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no store manager or representative of Sears, Roebuck and Co., other than the President or Vice President of the Company, has any authority to enter into any agreement for employment for any specified period of time, or make any agreement contrary to the foregoing.” Plaintiff attempts to avoid the effect of this provision by contending that he signed the job application as a ruse in connection with his employment as an undercover agent for Pinkerton, Inc. Later, according to plaintiff, he was hired by defendant Sears by an oral agreement with a Sears store superintendent named Yates. However, plaintiff’s deposition testimony demonstrates that, whatever the circumstances under which he filled out the application, plaintiff knew that at the time he was hired by Sears his employment with Sears was governed by the terms of the application: "Q. So Yates comes to you and says, 'How would you like to work for Sears,’ right? "A. Yes. ”Q. And this is while you are already working undercover at Sears. « "A. Being paid by Pinkerton and Sears at the same time. Q. Okay. So then Yates says, what, 'Fill out an application’? "A. No. I had already filled out an application when I come in. "Q. [By defense counsel, continuing.] Did you fill this out before you met Yates or after you met Yates? "A. Before. That was the first day I walked into that store. ”Q. Then Yates told you to apply for a job, didn’t he? "A. He didn’t say 'apply for a job.’ He asked me if I would like to go to work for Sears. I said, 'Yes,’ and he said, 'You’re hired.’ He said, 'You made out an application already,’ blah, blah, blah, and so forth, and I said, 'Yes.’ ” Plaintiff claims that subsequent statements by representatives of Sears established a contract that plaintiff could not be discharged except for just cause. Plaintiff does not contend that any such statements were made by the president or vice-president of Sears. The express terms of the application show that plaintiffs contract of employment with Sears was terminable at will. See, for example, Summers v Sears, Roebuck & Co, 459 F Supp 1157, 1161 (ED Mich, 1982). Michigan courts have held that essential elements of a claim that a plaintiff was discharged due to age discrimination include: (1) that the plaintiff had skills, experience, background or qualifications comparable to other employees who were not discharged; and (2) that age was a determining factor in the discharge. See, for example, Bouwman v Chrysler Corp, 114 Mich App 670, 680; 319 NW2d 621 (1982). Plaintiff relies on his deposition testimony to show the existence of a genuine issue of material fact as to age discrimination. Plaintiff first points to testimony that a younger employee was not discharged even though plaintiff claims that he averaged more sales per hour than the younger employee. Because the younger employee worked only part-time, however, he was not a comparable employee to plaintiff. It is not disputed that plaintiff’s sales record was worse than that of any other full-time employee in his department. Plaintiff also relies on his testimony that Sears hired more young people than old people. As the court explained in Laugesen v Anaconda Co, 510 F2d 307, 313, fn 4 (CA 6, 1975), such a circumstance, without more, will not support a claim of age discrimination. A natural consequence of the aging process is that younger employees are constantly replacing older employees as younger persons enter the job market and older persons leave. The allegations of sex discrimination in plaintiff’s complaint were based on his transfer from the men’s shoe department to the carpet department. Plaintiff alleged that the transfer required him to compete with female coworkers in a department where, according to plaintiff, the customers were mostly women. In his deposition, however, plaintiff conceded that he had been transferred to the carpet department at his own request. Plaintiff subsequently relied on an assertion that he was given inadequate training for selling carpets. This assertion will not support a claim of sex discrimination, because plaintiff concedes that he had no evidence that his female coworkers received any more training than he received. See Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 376; 263 NW2d 376 (1977). Plaintiff also asserts that women are more likely to buy carpets from women than from men, but plaintiff produced no evidence to support this assertion, and we cannot see how this assertion, even if true, could support a claim against Sears for sex discrimination. The claim of Mrs. Eliel for loss of consortium is contingent upon her husband’s recovery. Jones v Slaughter, 54 Mich App 120; 220 NW2d 63 (1974). On this record, the circuit court did not err by granting summary judgment for defendants on all of plaintiffs’ claims. Affirmed.

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Per Curiam. Plaintiff appeals as of right from an order entered on October 4, 1984, in the Oakland County Circuit Court which granted defendant 12% interest on an overdue amount of money in the parties’ divorce judgment reserved for defendant by a lien. The parties’ judgment of divorce was entered on January 16, 1980, made nunc pro tunc to August 20, 1979. The order provided in pertinent part: "IT IS FURTHER ORDERED the defendant shall execute a quit claim deed conveying his interest in and to the above described property, but reserving unto himself a lien in the amount of Twenty-two Thousand Four Hundred Fifty ($22,450.00) Dollars, which lien shall be paid to him upon the first occurrence of the following: when the house is sold, when the house is vacated as the minor child’s full time residence, the remarriage of the plaintiff, or the plaintiffs cohabitation with a person of the opposite sex, or four (4) years from and after the date of the entry of the judgment of divorce. "IT IS FURTHER ORDERED AND ADJUDGED that the following property shall be awarded to the defendant free and clear of any right, claim or interest of the plaintiff except as noted herein: "1. A lien in the amount of Twenty-two Thousand Four Hundred Fifty ($22,450.00) Dollars on marital premises occupied by the plaintiff.” (Emphasis supplied.)_ Plaintiff failed to pay the lien to defendant by August 20, 1983, four years after entry of the judgment nunc pro tunc. Therefore, defendant moved for entry of a judgment against plaintiff for $22,450 plus 12% interest. In lieu of granting the requested relief and on stipulation of the parties, the circuit court entered an order on March 21, 1984, which gave plaintiff three months to sell the marital home before a receiver would be appointed to assume such duties and reserved the question of whether interest would be applied on the overdue amount. On June 14, 1984, the court granted plaintiff a 90-day extension to complete the sale of the marital home. Plaintiff apparently consummated the sale on August 28, 1984. Plaintiff filed a motion and affidavit on August 29, 1984, stating that defendant failed to pay her certain monies in accordance with the property settlement and seeking an order which would allow a deduction of $2,900 from the money owed to defendant pursuant to the lien. Defendant also filed a motion on August 29, 1984, seeking 12% interest on the $22,450 from August 20, 1979,. to August 28, 1984, pursuant to MCL 600.6013; MSA 27A.6013. At a hearing on September 12, 1984, plaintiff postponed argument on her motion. However, the court partially granted defendant’s motion at the hearing, awarding interest at the rate of 12% on the $22,450 from August 20, 1983, to August 29, 1984. It is from this order, entered on October 4, 1984, that plaintiff appeals as of right. Defendant requested interest for the period düring which payment of the lien was suspended (August 20, 1979, to August 20, 1983) and the period for which payment of the lien was overdue (August 20, 1983, to August 29, 1984). Defendant represented that the court could award interest pursuant to MCL 600.6013; MSA 27A.6013, which is the judgment interest statute. The court granted interest only for the period that payment was overdue, but did not specify whether the award was based on MCL 600.6013; MSA 27A.6013 or his power as chancellor in equity. We find that interest could not have been based upon the judgment interest statute but could properly be based on the court’s equitable powers. Accordingly, we affirm the lower court order. This Court recently held in Saber v Saber, 146 Mich App 108; 379 NW2d 478 (1985), that a sum of money awarded as part of the property distribution in a divorce action is not a "money judgment recovered in a civil action” for purposes of applying prejudgment interest under MCL 600.6013; MSA 27A.6013. In Saber, the plaintiff in a divorce action claimed that she was entitled to interest on a sum of money awarded to her in the divorce judgment, dating from the filing of the complaint to the date of satisfaction. This Court determined that the plaintiff was not entitled to prejudgment interest under the prejudgment interest statute cited above, but that the trial judge had the discretion to allow or withhold interest. We agree with the holding in Saber and believe that a judgment entered in a divorce action in order to effectuate a property division is. not a "money judgment recovered in a civil action” as contemplated by MCL 600.6013; MSA 27A.6013. Thus, in the instant case, the court could not have properly granted interest pursuant to the statute. This position may also be supported to some extent by Youmans v Youmans, 108 Mich App 597; 310 NW2d 809 (1981). In that case, the parties’ property settlement was similar to that in the judgment herein, in that the defendant was granted a lien on the marital home payable on the happening of various contingencies. The defendant argued that he was entitled to payment of interest pursuant to MCL 600.6013; MSA 27A.6013 for the period that payment of the lien was suspended, i.e., prior to the occurrence of one of the contingencies. This Court rejected the argument, stating: "MCL 600.6013; MSA 27A.6013 provides for interest on any money judgment recovered in a civil action. This Court finds that an equitable real estate lien pursuant to a judgment of divorce is not a money judgment as contemplated by MCL 600.6013; MSA 27A.6013. Therefore, the statute has no application to an equitable suspension of a domestic partner’s share, unless the chancellor so orders.” (Emphasis added.) 108 Mich App 599. To some extent, the Youmans Court may have focused solely on the fact that a "lien” was involved. However, we view the existence of a lien as being irrelevant. When a circuit court provides a lien on a marital home or other property, it impliedly grants money to one of the parties. A lien is a security interest and, unless some money or property is owed by one party to the other, the lien secures payment of nothing. It is only when the amount which is owed becomes due and is not paid that the lien may be enforced. We interpret the circuit court’s grant of a lien as implying that the court wished also to provide for money to be paid by one party to the other as a method of dividing the property. A divorce judgment which provides for money payments is subject to execution without bringing an independent action for a money judgment. Cf. Landy v Landy, 131 Mich App 519; 345 NW2d 720 (1984), lv den 419 Mich 937 (1984). A lien simply gives some additional assurance to the party that he or she will be paid. A lien or a provision calling for the payment of money in no way alters the nature of the judgment to something other than a divorce judgment. A divorce judgment providing for property distribution is not a money judgment in a civil action as contemplated by MCL 600.6013; MSA 27A.6013. In Youmans, this Court went on to indicate that, although interest was not statutorily required, the trial court in its discretion could award interest. The Youmans Court, however, found no abuse of discretion by the lower court in denying interest where it appeared that the denial was made in consideration of the welfare of the parties’ child. We do not reverse the order granted here because we find that the court could have properly exercised its equitable powers in granting the interest on the amounts granted in the divorce judgment. The power of the court to award interest on amounts granted in divorce judgments was recognized in Youmans, supra. Also, in McClure v McClure, 75 Mich App 715, 717; 255 NW2d 743 (1977), this Court stated that, "the awarding of interest on arrearage in a divorce action must be left to the sound discretion of the trial judge”. (Emphasis added.) This discretion also applies to awards of interest on amounts to be paid pursuant to a property division when such amounts are overdue. See Saber v Saber, supra, p 112. The court in the present case awarded interest dating from the due date until the date of satisfaction. There was no abuse of discretion. Affirmed. As noted in Saber, supra, in a divorce action the court does not compensate a party for loss, but rather seeks an equitable distribution of property. While a judgment is entered which may require one party to transfer money to the other, the money transfer is done only to effectuate the property division. Neither party "wins” or "loses”. See and compare Farley v Fischer, 137 Mich App 668; 358 NW2d 34 (1984), with Saber, supra. In Farley, the plaintiff husband brought a separate action on an amount overdue pursuant to a prior divorce judgment and obtained a money judgment from the court. This Court held that MCL 600.6013; MSA 27A.6013 was applicable to the money judgment. We express no comment on the validity of the separate action in Farley.

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Per Curiam. Plaintiffs appeal as of right from an order entered on February 28, 1985, granting defendants’ motion for summary judgment pursuant to GCR 1963, 117.2(3). Plaintiff Richard A. White was injured in an accident which occurred on June 8, 1982, while he was driving a tractor-trailer rig owned by defendant Central Transport. At the time of the accident, plaintiff was employed by L.R.P.D., Inc., which leased the services of White to Central Transport. Central Transport and L.R.P.D. entered into a written agreement whereby L.R.P.D. provided Central with temporary truck drivers, who were considered to be employees of L.R.P.D. and independent contractors with respect to Central Transport. Despite that arrangement, the trial court concluded that Central Transport was to be regarded as plaintiffs employer for purposes of the Worker’s Disability Compensation Act under the "economic realities” test. Lombard v Saga Food Service, Inc, 127 Mich App 262; 338 NW2d 207 (1983). The court then held that plaintiffs claim was barred by the exclusive remedy provision of the WDCA, MCL 418.131; MSA 17.237(131). Plaintiffs appeal as of right. Since the Supreme Court decision in Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959), the existence of an employer-employee relationship for purposes of the Worker’s Disability Compensation Act has been determined by examining the economic realities of the situation. Nichol v Billot, 406 Mich 284, 293-294; 279 NW2d 761 (1979); Lombard, supra, p 269. Four factors have been recognized as relevant in analyzing the nature of the relationship: (1) control of the worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976). According to the testimony of George Chambers, the president and sole stockholder of L.R.P.D., persons employed at Central Transport contacted him regarding the establishment of a company to lease drivers to their company. A business relationship evolved whereby L.R.P.D. recruited, tested, hired and certified licensed truck drivers to operate equipment at the pleasure and dispatch of Central Transport, which was the only customer of L.R.P.D. Central Transport was in control of the drivers’ daily assignments, routes, and scheduling through its dispatch office in Morenci, Michigan. Plaintiff also testified that Central Transport’s dispatchers were in control of his day-to-day activities and his immediate boss was Central Transport’s terminal manager. Based upon this evidence, the first "economic realities” factor, i.e., control, clearly supports the finding of an employer-employee relationship. The same conclusion must be drawn as to the second factor. For instance, plaintiff and the other truck drivers turned their log books over to Central Transport for accounting and payroll calculations. Although L.R.P.D. actually paid the truck drivers, it was reimbursed by Central Transport for the payroll cost, including withholding taxes and health and pension fund contributions. L.R.P.D. maintained workers’ compensation insurance, but was also reimbursed for this cost, as well as for the cost of pre-employment physical examinations for the truck drivers. L.R.P.D. received a percentage of the gross payroll as its compensation for providing the truck drivers. Regarding the third factor, ability to hire, fire and discipline employees, we believe that Central Transport’s retention of the power to designate any driver as unacceptable was tantamount to total control over this aspect of employment since L.R.P.D. had no other customers. The final factor also strongly supports the conclusion of the trial court. Since L.R.P.D.’s entire existence is dependent upon the needs of Central Transport, we must conclude that the two companies were "so integrally related that their common objectives [were] only realized by a combined business effort”. Farrell v Dearborn Manufacturing Co, 416 Mich 267, 277; 330 NW2d 397 (1982). In fact, L.R.P.D.’s relationship to Central Transport was so entirely parasitic that it is unlikely any distinct goals or objectives could be identified. We conclude that the evidence overwhelmingly supports the conclusion that Central Transport was the employer of this plaintiff, under the economic realities test. By application of the exclusive remedy provision of the WDCA, defendants’ motion for summary judgment was properly granted by the trial court. Affirmed.

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Per Curiam. Respondent, Penny O’Keefe, appeals as of right from the order of the probate court judge terminating her parental rights in her minor daughter, Kathy Pasco. Thomas Raymond Myers, the natural father, does not appeal the order terminating his parental rights. Respondent first alleges that the probate court erred by terminating her parental rights pursuant to MCL 712 A. 19a, subds (e) and (f); MSA 27.3178(598.19a), subds (e) and (f). That statute provides in relevant part: "Sec. 19a. Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following: "(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect. "(f) The child has been in foster care in the tempo-' rary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.” (Footnote omitted.) Parental rights may not be terminated unless it is established by clear and convincing evidence that termination is warranted. In the Matter of Harmon, 140 Mich App 479; 364 NW2d 354 (1985); In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). To justify termination of parental rights based on neglect, "real evidence of long-time neglect, or serious threats to the future welfare of the child” must be shown. Fritts v Krugh, 354 Mich 97, 116; 92 NW2d 604 (1958). We will affirm the probate court’s findings unless they are clearly erroneous. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985). Our review of the record reveals that there was clear and convincing evidence to support the order of termination. Kathy Pasco first came under the jurisdiction of the probate court after she was brought by respondent to Bixby Hospital. Kathy was diagnosed as having a fractured skull, anemia and failure to thrive. She was wearing a sleeper which was stained with day-old feces and mud-like marks. There was dirt in her ears and between her toes. Although Kathy was three and one-half months old, she weighed only eight pounds and twelve ounces. Shortly after Kathy’s admission to the hospital, respondent disappeared and her whereabouts remained unknown until just prior to the adjudication hearing in June, 1982. Kathy remained a temporary ward of the court until the termination hearing in July, 1985. At the hearing, evidence was presented that respondent had failed to complete the court-ordered counseling program or continue her education. Although respondent had been ordered to remain in regular contact with caseworkers in both Nebraska and Michigan, she had failed to do so. In fact, respondent’s last contact with her Nebraska caseworker was in October, 1984, when respondent indicated that she wished to relinquish her rights to her daughter. In addition, respondent had failed to visit Kathy since June, 1984, even though Kathy had been transferred to a foster home in Nebraska in order to facilitate visitation. The Nebraska caseworker further testified that respondent had not cooperated with efforts to improve herself as a mother or to prepare an environment for her child. She noted that respondent had had at least 15 addresses since her return to Nebraska. The worker expressed the opinion that there was no bonding between the mother and child and doubted that Kathy even knew respondent was her mother. Both caseworkers opined that the respondent’s parental rights should be terminated. Furthermore, respondent’s own attorney indicated on the record that respondent had not answered his requests for assistance in preparing for the termination hearing. We conclude that the above evidence amply supported the court’s finding of neglect. The quantum of neglect necessary to support termination of parental rights pursuant to MCL 712A.19a(e) is not capable of precise definition. In the Matter of Kantola, 139 Mich App 23, 27; 361 NW2d 20 (1984). While we recognize that respondent’s failure to comply with the court-ordered treatment plan does not, standing alone, justify termination, see, e.g., In the Matter of Mason, 140 Mich App 734; 364 NW2d 301 (1985); In the Matter of Moore, 134 Mich App 586; 351 NW2d 615 (1984), we believe that this factor in conjunction with the other evidence presented constitutes clear and convincing evidence of neglect. Here, in addition to respondent’s failure to comply with almost every element of the treatment plan, evidence was presented that the minor child entered the hospital in a physically neglected condition, that there was a total lack of bonding between mother and child, that respondent had expressed an interest in relinquishing her rights to her daughter and that respondent had not visited her daughter for the entire year preceding the termination hearing. When these factors are viewed together, we do not believe the court’s finding of neglect was clearly erroneous. Respondent places considerable reliance on her contention that the probate court failed to indicate that her failure to comply with the court-ordered treatment plan could result in termination of parental rights. However, at the July 1, 1982, hearing, respondent testified that she had been informed by the DSS caseworker that her child "might be taken away”. This indicates that respondent was informed of the seriousness of the hearings and the gravity of the consequences. Further, even if respondent was never specifically informed by the court that failure to comply with the plan might result in termination, this would not alter our decision. The focus of our inquiry remains whether the state presented clear and convincing evidence to justify termination. We are at a loss to see how the court’s failure to give this warning at the adjudication hearing could have affected either the sufficiency of the evidence presented or our resolution of the ultimate issue. Moreover, even if the evidence was insufficient to justify a finding of neglect, there was clear and convincing evidence to support the termination of parental rights pursuant to MCL 712A.19a(f); MSA 27.3178(598.19a)(f). Subsection (f) provides for termination if a parent fails to establish a reasonable probability that he or she will be able to establish a proper home for the child within the next 12 months. The burden of going forward with this evidence rests with the parent. In the Matter of LaFlure, supra. Respondent failed to present any evidence to meet this burden. Rather, evidence was presented that respondent had moved repeatedly, had made little attempt to improve her parenting skills and was unlikely to do so in the future. The trial court did not err in terminating respondent’s parental rights pursuant to subsection (f). Respondent next argues that the prosecutor’s failure to appear at the termination hearing constituted reversible error. She suggests that the guardian ad litem’s role as attorney for the child made it improper for him to act as prosecutor at the hearing. There is no support in case law for the proposition that a prosecutor must be present at the hearing and respondent has failed to demonstrate that any prejudice actually occurred as a result of his absence. In the absence of an affirmative showing of prejudice, we do not believe that the prosecutor’s failure to appear constituted reversible error. Respondent also claims that the probate court’s jurisdiction was improperly invoked because respondent had made arrangements to have Kathy placed with respondent’s mother at the time of the July 1, 1982, adjudicative hearing. The probate court must establish its jurisdiction before it may consider termination of parental rights. In the Matter of Taurus F, 415 Mich 512, 516-517; 330 . NW2d 33 (1982), reh den 417 Mich 1104 (1983), app dis 464 US 923 (1983). Jurisdiction is determined at the adjudicative hearing and is based upon the following provisions of MCL 712A.2(b); MSA 27.3178(598.2)(b): "(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county: "(1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical, or other care necessary for his or her health or morals, or who is deprived of emotional well-being, or who is abandoned by his or her parents, guardian, or other custodian, or who is otherwise without proper custody or guardianship. "(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in.” Respondent cites In the Matter of Taurus F, supra, for the proposition that a mother may properly give custody of her child to a relative without court intervention. However, the facts in the instant case are readily distinguishable from those in Taurus F. Here, respondent abandoned her seriously ill infant daughter in a hospital in Adrian, Michigan, following which respondent’s whereabouts remained unknown for several months. It was not until three months after respondent had left her daughter that she first suggested that her mother might care for Kathy. Moreover, our review of the record indicates that, unlike the permanent custody considered in Taurus F, respondent’s mother had only agreed to care for Kathy during the daytime while respondent attended school. Apparently, respondent would still remain the custodial parent and retain primary responsibility for the care of the child. In light of these facts, we do not believe the probate court erred in invoking jurisdiction. Respondent next argues that the probate court erred in denying her motion for change of venue. At the final review hearing on April 29, 1985, and following the guardian ad litem’s request that a termination hearing be set, respondent’s attorney-requested that the case be transferred to Nebraska, where respondent and her daughter were residing. The court denied the motion. Change of venue may- be granted "for the convenience of the parties and witnesses, for convenience of counsel, or if an impartial trial cannot be had in the county where the action is pending”. PCR 401; MCL 600.856(1); MSA 27A.856(1). The grant or denial of a motion for change of venue is discretionary and this Court will not reverse absent an abuse of discretion. Brown v Hillsdale County Road Comm, 126 Mich App 72, 78; 337 NW2d 318 (1983), lv den 418 Mich 898 (1983); Duyck v International Playtex, Inc, 144 Mich App 595; 375 NW2d 769 (1985) (change of venue in civil actions pursuant to GCR 1963, 403). We find no abuse of discretion in the court’s denial of the motion. The motion came over three years after the court assumed jurisdiction. The court was familiar with the case and the surrounding circumstances. Moreover, no evidence was presented that denial of the motion would prevent respondent from attending the terminaiton hearing or prevent an impartial trial. The probate court did not abuse its discretion in denying respondent’s motion for change of venue. Respondent’s final argument is that she was denied effective assistance of counsel during the probate proceedings. Although respondent acknowledges that on an individual basis each of her three appointed attorneys has effectively represented her interests, she contends that the frequent change in counsel combined with their inability to communicate with respondent resulted in overall ineffective assistance. The appropriate standard of representation which a parent is entitled to in a parental rights termination case has not been clearly delineated. Respondent suggests that the appropriate standard is that found in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977): counsel must perform at least as well as a lawyer with ordinary skill and training, unaffected by any conflict of interest. Even if we apply this standard, we do not believe that respondent was denied effective assistance of counsel. While it is true that respondent was represented by three different attorneys during the probate court proceedings, she is unable to point to a specific instance in which any of her appointed attorneys failed to protect her interests or acted with less than the ordinary level of skill and training. While she suggests that her first appointed counsel was provided little time for preparation and did not inform her that termination of parental rights could ultimately result, she does not demonstrate how either factor affected his representation of her interests. Neither has she demonstrated that the change in counsel in and of itself adversely affected the quality of representation she received. Finally, we note that the lack of communication and consultation between respondent and her attorneys can be attributed to respondent’s own unwillingness to cooperate with counsel. Her attorney at the termination hearing stated that, although he had repeatedly requested respondent’s assistance in preparation for the hearing, she had consistently failed to respond. It was respondent’s own unwillingness to cooperate with her appointed counsel which led to a lack of a persuasive presentation on her behalf and not the actions of her attorney. Respondent was not denied effective assistance of counsel. Affirmed.

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Per Curiam. Plaintiff appeals as of right from a December 5, 1984, order of the Saginaw County Circuit Court which denied plaintiff’s request for declaratory relief from MCL 435.251; MSA 9.2701, which prohibits the sale of automobiles on Sunday. Plaintiff is an automobile dealership, selling new and used automobiles, located on M-58 in Saginaw Township. Plaintiff has been operating this business since September 25, 1980, and employs over 125 people. Plaintiff claimed that other merchants located near plaintiff’s business, including motor home and motorcycle dealers, are allowed to sell their products on Sunday, while he was prohibited by statute._ On March 14, 1983, plaintiff filed a complaint seeking a judgment declaring MCL 435.251; MSA 9.2701 unconstitutional. The trial court determined that the statute was constitutional and refused to strike it down. On appeal, plaintiff challenges the court’s ruling. The defendant does not address the constitutional issue. Rather, defendant, as the prosecutor, asserts that the law must be enforced as it now stands. Preserving the separate functions of the executive, Legislature, and judiciary is fundamental to our system of government, and is embodied in the Michigan Constitution at Const 1963, art 3, § 2. It is a well established rule of law that, absent an infringement of a constitutional right, the judiciary may not inquire into the reasonableness of the policy the Legislature pursues in enacting a statute. Albert v Gibson, 141 Mich 698; 105 NW 19 (1905). Nor may the courts inquire into the knowledge, motives, or methods of the Legislature in passing legislation. C F Smith Co v Fitzgerald, 270 Mich 659; 259 NW 352 (1935), app dis 296 US 659 (1935). Therefore, if plaintiff uses "reasonableness” to connote the wisdom or propriety of a statute, the trial court was correct in refusing to consider the reasonableness of the statute. The courts may determine the "reasonableness” of legislative action only when it impinges upon a constitutional right. In that case, the courts have a duty to determine whether a statute is valid or void as unconstitutional by analyzing whether the legislative act bears a reasonable relationship to a legitimate legislative purpose. Carolene Products Co v Thomson, 276 Mich 172; 267 NW 608 (1936). Count I of plaintiff’s complaint alleges unconstitutionality by stating: "6. That there is no reasonable relationship between the remedy of prohibiting the sale of automobiles on Sunday and any alleged public purpose to be served by said Statute. "7. That said Statute is an invalid use of police power, for the reason that said Statue does not promote the public health, safety or welfare.” This requested the trial court to delve into the propriety of the Sunday closing law, which the court correctly refused to do. Count II of plaintiffs complaint alleged a violation of equal protection and due process, and the trial court addressed the issue of whether classifying auto dealers separately from other merchants bore a reasonable relationship to the underlying purpose of the Sunday closing law. It found the classification not wholly arbitrary or unreasonable and, therefore, valid. In summary, courts may determine the reasonableness of the relationship between a statute and the legislative purpose behind it when its constitutionality is challenged, but may not determine the reasonableness of the Legislature’s purpose. Plaintiff asserts that MCL 435.251; MSA 9.2701 is an invalid exercise of police power because it is not rationally related to any purpose. Plaintiff also contends that it is a violation of equal protection and unconstitutionally vague. Since this legislation affects only plaintiffs economic interest, a mere rational relationship to a legitimate legislative purpose is required to find the statute constitutional. See Michigan State Employees Ass’n v MESC, 94 Mich App 677; 290 NW2d 729 (1980). It is undisputed that the state has the power to regulate for the health, safety, and welfare of the public. Const 1963, art 4, § 51. The statute, along with its preamble, states: "CAR SALES "P.A. 1953, No. 66, Imd. Eff. May 12 "AN ACT to prohibit the opening of any retail or wholesale new and used car business on the first day of the week, commonly called Sunday, for the purpose of carrying on or engaging in the business of offering to buy, sell, exchange, trade or participate in the negotiation thereof of any type or kind of automobile, on the first day of the week, commonly called Sunday. "435.251 Motor vehicles; sale on Sunday unlawful; exception "Sec. 1. It shall be unlawful for any person, firm or corporation to engage in the business of buying, selling, trading or exchanging new, used or second-hand motor vehicles or offering to buy, sell, trade or exchange, or participate in the negotiation thereof, or attempt to buy, sell, trade or exchange any motor vehicle or interest therein, or of any written instrument pertaining thereto, on the first day of the week, commonly called Sunday.” The goal of the Legislature in enacting MCL 435.251; MSA 9.2701 is not revealed in the statute’s preamble. Plaintiff alleges that the purpose could not be to set aside Sunday as a day of rest because the Legislature has repealed other Sunday statutes. However, the Legislature may have intended that goal, and to inquire as to why it has not repealed MCL 435.251; MSA 9.2701, when it has repealed other Sunday statutes, is to improperly inquire into the Legislature’s motives. Further purposes of MCL 435.251; MSA 9.2701 were suggested by the trial court in its opinion: difficulty of ascertaining title and existence of liens, inability to obtain insurance and financing or secure mechanical services (with a greater possibility of driving defective automobiles), and the greater burden on police agencies due to potential auto theft. All of these may constitute purposes of the statute to which being closed on Sunday reasonably relates. The appropriate Michigan law for review of this matter is as follows: "Legislation challenged on a constitutional basis is 'clothed in a presumption of constitutionality.’ ” Johnson v Harnischfeger Corp, 414 Mich 102, 112; 323 NW2d 912 (1982); Shavers v Attorney General, 402 Mich 554, 612; 267 NW2d 72 (1978). "[E]very reasonable presumption * * * must be indulged in favor of [a statute’s] constitutionality.” Rohan v Detroit Racing Ass’n, 314 Mich 326, 342; 22 NW2d 433 (1946). It is a court’s duty to construe a statute as constitutional unless the contrary clearly appears. People v McLeod, 407 Mich 632, 657; 288 NW2d 909 (1980); Rohan, supra. The burden is on the individual challenging the statutory classification to show that the classification is without reasonable justification or basis. Eastway v Eisenga, 420 Mich 410, 420; 362 NW2d 684 (1984), reh den 421 Mich 1202 (1985); Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). The objector must show that the classification is arbitrary. Johnson v Harnischfeger Corp, supra, p 113. "The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective.” Shavers, supra, p 612. The test for an equal protection determination is "essentially the same”. Shavers, supra, pp 612-613. If "neither a suspect class nor a fundamental right is involved in the [legislative] classification, it will be upheld in the face of an equal protection challenge * * * if it rationally furthers the object of the legislation”. People v McLeod, 407 Mich 632, 663; 288 NW2d 909 (1980). In dealing with socioe conomic legislation, if there is no discernable fundamental right at stake or if a particular protected class is not affected by the classification, the test is whether the challenged legislative classification is rationally related to a legitimate state interest. Michigan State Employees Ass’n v MESC, 94 Mich App 677; 290 NW2d 729 (1980). Under the traditional equal protection analysis, if the classification is rationally related to a legitimate governmental interest, the legislative classification must be sustained. Shavers, supra, p 613. "A party attacking a statutory classification on equal protection grounds has the heavy burden of demonstrating that the classification lacks a reasonable basis.” Forest v Parmalee, 402 Mich 348, 356; 262 NW2d 653 (1978); Manistee Bank & Trust Co, supra, p 668. "[I]n the face of a due process or equal protection challenge 'where legislative judgment is drawn in question’, a court’s inquiry must be restricted to the issue whether any state of facts either known or which can reasonably be assumed affords support for it’.” Shavers, supra, pp 613-614. See also Eastway v Eisenga, supra, p 420; Manistee Bank, supra, p 668; McAvoy v HB Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977). We point out that: " '[T]he Equal Protection Clause does not require that a state must choose between attacking every aspect of a problem or not attacking the problem at all.’ ” Manistee Bank, supra, p 672. The appellate courts "do not sit 'as a superlegislature to judge the wisdom or desirablity of legislative policy determinations. We sit as a court to determine whether there is a rational basis for the Legislature’s judgment. If there is, then that judgment must be sustained.’ ” O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 543; 273 NW2d 829 (1979), app dis 444 US 803 (1979). Although the Legislature has repealed most other "Sunday” laws, the Legislature is not required "to deal with every aspect of a problem at the same time”. O’Donnell, supra, p 543. Under the constitutional tests as outlined above, we find that the classification in question violates neither due process nor equal protection guarantees. The classification, while it may appear harsh to automobile dealers, affects all members of that class equally and is not arbitrary as it stands. We cannot say that the government’s interest in regulating automobile sales on Sundays has no rational basis and we are not going to be tempted to open the floodgates to declare all regulatory legislation of Sunday sales unconstitutional. We, as did the court below, find no constitutional impediment to the effects of the statute, nor do we find it unreasonable or arbitrary. Affirmed.

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Per Curiam. Defendant appeals as of right from a permanent injunction in favor of plaintiff enjoining defendant from using its property for the disposal of solid waste from any county other than Saginaw County. We affirm. Defendant John Sexton Corporation of Michigan is engaged in the business of solid waste disposal and is the owner of a parcel of property located in James Township, Saginaw County. In late 1980 and early 1981, defendant developed this property as a landfill site for nonhazardous solid waste. The controversy presented in the instant case is whether Saginaw County’s solid waste management plan prohibits defendant from using the site for the disposal of solid waste generated in neighboring Bay County. An understanding of the facts and issues involved is facilitated by a review of the Solid Waste Management Act (Act 641), MCL 299.401 et seq.; MSA 13.29(1) et seq. Act 641 was enacted in 1978, effective January 11, 1979, and repealed the garbage and refuse disposal act, MCL 325.291 et seq.; MSA 14.435(1) et seq., which provided for the licensing and regulation of refuse disposal facilities but did not require local planning or long-term solid waste management. Delta County v Dep’t of Natural Resources, 118 Mich App 458, 463; 325 NW2d 455 (1982), lv den 414 Mich 954 (1982). The new act provided a comprehensive regulatory scheme imposing uniform, state-wide standards and procedures for solid waste disposal, transportation and planning and effectively preempted local control in this area, although significant opportunity for local involvement is built into the act. Southeastern Oakland County Incinerator Authority v Avon Twp, 144 Mich App 39, 45-46; 372 NW2d 678 (1985); House Legislative Analysis, HB 6314, January 11, 1979. Under the act, every Michigan county is required to prepare a 20-year solid waste management plan projecting the amount of solid waste that will be generated within that county and providing for its disposal at facilities in compliance with Act' 641 and with the administrative rules promulgated thereunder. MCL 299.425; MSA 13.29(25); South Haven Twp v Dep’t of Natural Resources, 132 Mich App 222, 227; 346 NW2d 923 (1984); Delta County v Dep’t of Natural Resources, supra, p 462. Each county’s solid waste management plan must be submitted to the director of the Department of Natural Resources for approval and, if approved, the local plan is incorporated as part of the state solid waste management plan. MCL 299.432(1); MSA 13.29(32)(1). The state di rectly regulates both the construction and operation of disposal sites and facilities in Michigan through the issuance of construction permits under MCL 299.410; MSA 13.29(10) and operator licenses under MCL 299.413; MSA 13.29(13). Pursuant to MCL 299.425(3); MSA 13.29(25)(3), plaintiff filed a notice of intent with the DNR in 1979, stating that it would prepare a county-wide solid waste management plan through its board of public works. Early in the planning stages, plaintiff contacted officials of both Bay and Midland counties in an effort to determine whether there was interest in joint solid waste management planning. Neither county responded. Plaintiff proceeded to develop a plan which was eventually approved by the specially appointed 13-member planning committee required under MCL 299.426; MSA 13.29(26), the Saginaw County Board of Commissioners and the individual municipalities located within Saginaw County. MCL 299.428; MSA 13.29(28). Plaintiff’s plan projected nine years of available landfill capacity in Saginaw County as of September 1982. One of the landfill sites reported in the plan was defendant’s James Township landfill, identified as a disposal site for Saginaw County waste only. This plan was approved by the DNR on June 26, 1984, following the requisite notices and hearings. MCL 299.427; MSA 13.29(27). In July of 1984, defendant commenced operating a facility which it had constructed in Bay County to collect solid waste material generated in that county for transfer to the James Township landfill. Defendant had obtained a permit from the DNR on June 30, 1983, to construct its Bay County facility but was denied a license to operate under MCL 299.413; MSA 13.29(13) because the DNR had not yet approved Bay County’s solid waste management plan. The Bay County plan identified defendant’s James Township landfill as a disposal site for Bay County waste, in direct conflict with plaintiffs solid waste management plan, already approved by the DNR and part of the state plan. Plaintiff formally objected to the Bay County plan and the DNR withheld its approval, in part because of the conflict over the use of defendant’s James Township landfill. Defendant, however, obtained a license to operate its transfer facility from Bay City and, in July of 1984, began transferring 70 to 75 tons of solid waste per day to its landfill in James Township. Plaintiff promptly filed this lawsuit for injunctive relief. After a hearing conducted on August 3, 1984, the circuit court issued a preliminary injunction limiting the amount of solid waste materials transferred from the Bay County facility to the James Township landfill to three trailer-loads per day. A bench trial was conducted on September 11, 1984. The director of public works for Saginaw County testified that the disposal of an additional 75 tons of solid waste per day in Saginaw County would reduce the county’s available landfill capacity from a nine-year to a five-year level. The director further pointed out that if the Bay County facility was allowed to operate at its maximum transfer capacity, plaintiff’s overall landfill space would be reduced by as much as 40%. The trial court rendered a decision in favor of plaintiff, holding that, although plaintiff’s solid waste management plan did not expressly prohibit the disposal in Saginaw County of solid waste from Bay County or any other county, the plan did identify defendant’s landfill for a specific and exclusive purpose and that defendant’s activities significantly interfered with the plan adopted by the county and approved by the state. The court concluded that defendant could not continue transferring solid waste materials from Bay County and issued its permanent injunction on September 24, 1984. Defendant’s principal arguments both at trial and on appeal are that Act 641 does not authorize a county to prohibit the intercounty flow of solid waste and that a county’s solid waste management plan need not identify a disposal area as serving another county before the private owner of that area is permitted to use the property for that purpose. We consider defendant’s second argument regarding the necessity of identifying an inter-county disposal site as such in both counties’ solid waste management plans. Act 641 specifically authorizes and requires the director of the Department of Natural Resources to promulgate administrative rules governing the content, form and submission of waste management plans. MCL 299.430(1); MSA 13.29(30)(1). Pursuant to this statutory mandate, 1982 AACS, R 299.4711 was promulgated, setting forth detailed and specific requirements governing the development of an acceptable waste management plan. A county is required to realistically evaluate its access to disposal areas for 5- and 20-year periods. 1982 AACS, R 299.4711(e)(i)(C). Moreover, the county must "identify specific sites for solid waste disposal areas for the 5-year period subsequent to plan approval or update”. 1982 AACS, R 299.4711(e)(iii)(A). The administrative rules specifically provide that intercounty transfers of solid waste materials must be identified in the plans of each county involved: "A site for a solid waste disposal area that is located in one county, but serves another county, shall be identified in both county solid waste management plans.” 1982 AACS, R 299.4711(e)(iii)(C). Defendant argues that this rule merely instructs county planning agencies to ensure that solid waste generated within its boundaries is delivered only to facilities in compliance with state law, even where that facility is outside the planning county. We disagree and instead interpret 1982 AACS, R 299.471l(e)(iii)(C) as requiring inter-county planning and cooperation where there is an intercounty flow of solid waste. In interpreting administrative rules and regulations, this Court assigns great deference to the interpretation provided by the administrative agency responsible for implementing them. Knauss v State Employees’ Retirement System, 143 Mich App 644, 648; 372 NW2d 643 (1985). It is clear that the DNR, the agency responsible for implementing the solid waste management rules and regulations, interprets 1982 AACS, R 299.4711(e)(iii)(C) as a requirement that intercounty waste disposal sites shall be designated as such in the involved counties’ solid waste management plans. The DNR refused to approve Bay County’s plan in part because defendant’s landfill designated as a disposal area for Bay County waste was not similarly designated in Saginaw County’s plan. We agree with the interpretation provided by the DNR and view it as the only reasonable interpretation consistent with the general purposes of Act 641. Southeastern Oakland County Incinerator Authority, supra. Defendant alternatively argues that the DNR acted beyond the scope of its authority in promulgating 1982 AACS, R 299.4711(e)(iii)(C) because Act 641 does not authorize county control of the intercounty flow of waste. This argument ignores the fact that a county solid waste management plan is not effective until approved by the state, at which time it becomes a part of the state solid waste management plan. Although the county plan originates with the county, the blueprints for that plan are provided by a host of statutory and administrative regulations. The real issue here is whether Act 641 authorizes the state to control the intercounty flow of solid waste material. An important goal of Act 641 is to provide for long-term planning in the area of solid waste management. To effectuate this goal, the Legislature required counties to adopt management plans which: "[S]hall include an enforceable program and process to assure that the nonhazardous solid waste generated or to be generated in the planning area for a 20-year period is collected and recovered, processed, or disposed of at facilities which comply with state law and rules promulgated by the department * * MCL 299.425(1); MSA 13.29(25)(1). While the specific requirements governing waste management plans were to be developed by the director of the DNR, the Legislature did instruct that the administrative rules include a provision directing counties to evaluate whether "the plan area has, and will have during the plan period, access to a sufficient amount of available and suitable land * * * to accommodate the development and operation of solid waste disposal areas”. MCL 299.430(l)(h); MSA 13.29(30)(l)(h). The Legislature has thus clearly indicated that a county’s reliance on a specific landfill site is to be identified in its waste management plan. If the state is to implement a workable solid waste management plan, then the individual county plans on which it is based must be reliable. A county plan which identifies a privately owned facility for the disposal of solid waste only from that county must be enforceable. Were we to construe Act 641 and the administrative rules promulgated thereunder to allow private businesses to operate their facilities in a manner inconsistent with a county waste management plan, we would frustrate the intent of the Legislature in enacting Act 641. While defendant correctly asserts that private sector involvement in the business of solid waste disposal is expressly encouraged by the Legislature, we emphasize that the Legislature conditioned its encouragement on compliance with county plans, MCL 299.430(l)(f); MSA 13.29(30)(l)(f), and on compliance with the minimum requirements of Act 641. MCL 299.435; MSA 13.29(35). Defendant is a business engaged in a highly regulated field. It is charged with constructive knowledge of the regulatory scheme governing its operations. Under that scheme, defendant had opportunity to review the Saginaw County solid waste management plan prior to its adoption and approval and register any dissatisfaction at a public hearing or with any of the various governmental bodies required to approve the plan. MCL 299.427(e), (f); MSA 13.29(27)(e), (f). We hold that because defendant’s James Township landfill is not identified in Saginaw County’s solid waste management plan as a disposal area for solid waste generated in Bay County, the trial court did not err in issuing a permanent injunction prohibiting defendant’s operation of the land fill site in a manner inconsistent with the Saginaw County plan. The remaining issues raised by defendant on appeal are without merit. Plaintiffs petition for a permanent injunction is not barred by the principles of estoppel or laches. Defendant’s decision to construct and operate a transfer facility in Bay County was independent of any actions on the part of Saginaw County and was governed by state regulation. Defendant was well aware of the legislative mándate requiring county-wide solid waste management plans and knew that the department had rejected the plan submitted by Bay County which identified its landfill as a disposal area. There is no act or omission on plaintiffs part which could reasonably have induced defendant to believe that the James Township landfill could be used for disposal of waste from Bay County. See Lumber Village, Inc v Siegler, 135 Mich App 685, 697; 355 NW2d 654 (1984). Moreover, plaintiff instituted this suit against defendant less than one month after defendant began transporting solid waste material from Bay County for disposal in Saginaw County. The affirmative defense of laches is therefore inapplicable. In re Crawford Estate, 115 Mich App 19, 25-26; 320 NW2d 276 (1982). The trial court did not abuse its discretion in excluding any evidence of the intent of the Saginaw County planning commission to omit general reference to the intercounty transfer of waste. The plan itself provided that some undetermined amount of solid waste was to be transferred from Saginaw County to other counties and that some undetermined amount of waste was to be transferred from other counties to Saginaw County. The evidence excluded was neither relevant nor material to the issue of whether Bay County waste could be deposited at the James Township landfill consistent with the Saginaw County solid waste management plan. Finally, we find that the Saginaw County Board of Commissioners properly authorized the commencement of this suit by resolution of August 14, 1984. The board’s decision to institute suit was based on a report prepared by a committee and that committee’s report constitutes the resolution. We see nothing improper in this procedure. Afiirmed. If a county refuses or declines to prepare its own solid waste management plan, Act 641 authorizes the director of the Department of Natural Resources to do so in its stead. MCL 299.425(6); MSA 13.29(25)(6). We do not know whether defendant objected to the designation given the James Township landfill in the Saginaw County plan prior to its approval. The license to operate issued by Bay City was in direct conflict with the provision of Act 641 which vests the DNR with the exclusive authority to issue operator licenses, MCL 299.413; MSA 13.29(13).

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Per Curiam. Defendant was convicted of violating the Precious Metal and Gem Dealer Act, MCL 445.484; MSA 19.720(4) and MCL 445.489; MSA 19.720(9). The conviction stems from defendant’s failure to record on a "record of transaction” form the details of his purchase of a ring from a Mr. Kopel. On October 26, 1983, Dennis Farmer, an off-duty Livonia police officer working as a security guard at the Livonia Mall, noticed several teenagers congregating in front of the defendant’s place of business. Three of the boys went inside and were seen talking with the defendant. Two of the boys rejoined the others and proceeded toward an exit, whereupon they were stopped by Officer Farmer and questioned. The fifth boy, Michael Andrews, was seen approaching the group, but he continued on past toward the exit. He was stopped and questioned by Officer Farmer, whereupon he informed the officer that he had sold a diamond ring to the defendant for $3. After radioing for assistance, Farmer was joined by Livonia Police Officer Sherman, and they proceeded to defendant’s shop with the Andrews boy to investigate the matter. Before arriving at defendant’s shop, Andrews changed his story and admitted that defendant declined to buy the ring, directing the boy to Michel’s Jewelry Store. Upon investigating the situation at Michel’s, it was learned that a Mr. Kopel gave the boy $10 for the ring, removed the diamond, and took the setting to defendant. Defendant allegedly paid Mr. Kopel $10. The officers then proceeded to the defendant’s shop and indicated to him that Mr. Kopel had informed them that he sold a ring to defendant for $10. Defendant admitted buying the ring, but claimed to have paid only three or four dollars, and stated "anything under five, I don’t have to record”. The officers had not asked to see his transaction records at that point. Defendant then turned the ring over to Officer Sherman pursuant to the officer’s request. On appeal, defendant first argues that his statements to Officer Sherman should have been suppressed by the trial court since defendant was not advised of his Miranda rights pior to questioning. We disagree. Although the officers were aware that Mr. Kopel sold defendant a gold ring for $10, no crime occurred unless defendant failed to record the transaction on a record of transaction form as required by MCL 445.484; MSA 19.720(4) and MCL 445.489; MSA 19.720(9). The questioning of the defendant was therefore intended to uncover whether in fact a crime had been committed. Even under the "focus” test for determining the applicability of Miranda, People v Wallach, 110 Mich App 37; 312 NW2d 387 (1981), we do not believe the defendant’s statements were inadmissible. Until it has been determined that a crime has actually occurred, a criminal investigation cannot truly focus upon any person for Miranda purposes. We find no error. People v Lobaito, 133 Mich App 547, 553-554; 351 NW2d 233 (1984). Defendant next argues that the gold ring should have been held inadmissible as evidence since it was seized without a warrant. We disagree, since we believe the seizure was proper under the "pervasively regulated industry” doctrine. People v Barnes, 146 Mich App 37; 379 NW2d 464 (1985). Under this doctrine, warrantless searches and seizures are not unreasonable per se in pervasively regulated industries if certain conditions are met. The application of this doctrine was described in Tallman v Dep’t of Natural Resources, 421 Mich 585, 617-618; 365 NW2d 724 (1984), as follows: "We conclude that conflicts arising under art 1, § 11 of the Michigan Constitution between the enforcement needs of governmental agencies and the privacy interests of régulated commercial actors should be resolved by balancing the following factors:_ "(1) the existence of express statutory authorization for search or seizure; "(2) the importance of the governmental interest at stake; "(3) the pervasiveness and longevity of industry regulation; "(4) the inclusion of reasonable limitations on searches in statutes and regulations; "(5) the government’s need for flexibility in the time, scope and frequency of inspections in order to achieve reasonable levels of compliance; "(6) the degree of intrusion occasioned by a particular regulatory search; and "(7) the degree to which a business person may be said to have impliedly consented to warrantless searches as a condition of doing business, so that the search does not infringe upon reasonable expectations of privacy.” (Footnotes omitted.) Applying these factors to the case at hand, we find the seizure of the ring to have been proper. Although the Precious Metal and Gem Dealer Act provides only for inspection, "any inspection implies a search and, by reasonable interpretation of legislative intent, a seizure”. Barnes, p 42. Further, the importance of the governmental interest is high. The purpose of the statute is to prevent the theft of precious jewelry for cash resale. Although the statute has only been in existence for a few years, the legislation is quite detailed and is designed to deal with a problem of a longstanding nature. Further, reasonable limitations are placed on the inspections: only police and court prosecutors may perform such searches and inspections must be conducted only during business hours. These warrantless inspections are necessary to fulfill the purpose of the regulations. Otherwise, as in Barnes, the dealer might not keep sufficient records and might be careless in his purchasing practices. Also, since the inspections are conducted during business hours, there is little intrusion. Finally, the statute provides that a dealer impliedly consents to the inspections as a condition of doing business. Therefore, in balancing each of the Tallman factors, we find that the seizure of the ring was valid and proper. Defendant next complains of the trial court’s instructions to the jury regarding certain exceptions to the class of "precious items” which are subject to the act, to wit: items purchased directly from a manufacturer, and items which do not have a jeweler’s identifying mark and which a dealer purchases for less than $5. MCL 445.482(h)(iii) and (vii); MSA 19.720(2)(h)(iii) and (vii). Although the trial court did indeed give confusing instructions on the second exception, as evidenced by the jury’s request for reinstruction on the subject, we find that the reinstruction was sufficient to clear up any confusion or misunderstanding. Reviewing the instructions as a whole, then, we conclude that they adequately informed the jury as to all the essential elements of the charged offense. People v Stewart, 126 Mich App 374, 377; 337 NW2d 68 (1983). Defendant also argues that the jury should only have been instructed regarding the manufacturer’s exception, without including the jeweler’s mark exception. Defendant contends that, since the ring did in fact have a Meyer Treasure Chest mark on it, the exception contained in § 482(h)(vii) was irrelevant. However, defendant fails to indicate any prejudice which may have resulted from the court’s inclusion of this exception in its instructions and we can find none. Since the exception which was in fact relevant in this case was properly presented to the jury, we find no error. Next, defendant points to the fact that one of the defense exhibits, an advertisement for Michel’s Jewelry Store, had not been given to the jury to use during their deliberations. Defense counsel moved for a judgment notwithstanding the verdict on this ground, which was denied without comment by the trial court. We are aware of no case which holds that every exhibit introduced at trial must be sent to the jury room, even where the jury does not request the exhibit, for a conviction to be upheld. We can see no reason for such a rule since the jury was exposed to and became aware of the exhibit when it was introduced by the defendant during trial. The issue is without merit. As his final claim of error on appeal, defendant points to several technical defects in the information. We find the issue waived on appeal due to defendant’s failure to raise a timely objection. Further, the defects were not of such magnitude as to mislead the jury or otherwise prejudice the defendant, and thus we find no error. People v Brady Smith, 108 Mich App 338, 345; 310 NW2d 235 (1981). Further, the lack of evidence regarding the atomic weight of the gold is not fatal since the testimony of Mr. Kopel indicated that the ring was in fact gold. The jury was entitled to presume from this evidence that the ring was gold within the meaning of the statute. Affirmed. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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Per Curiam. On December 21, 1984, following a remand from this Court, defendant was resentenced to a term of from 35 to 70 years. The present trial judge imposing the sentence is the successor in office to the trial judge who imposed the original sentence of from 35 to 70 years. Defendant appeals as of right. On April 7, 1981, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. In addition to defendant, two other persons were involved in a holdup of a drugstore. Defendant entered into a plea bargain providing that, in exchange for his plea of guilty to armed robbery and felony-firearm and for his providing the police with information regarding the theft of a police officer’s gun, he would not be prosecuted for theft of the gun and he would not be charged as an habitual offender provided he testified against one of the other persons involved in the armed robbery. A presentence report was submitted to the court with a sentence recommendation by the probation officer of from 10 to 25 years in prison. According to the presentence report, the police recommended a minimum sentence of from 8 years to a maximum of life. On May 29, 1981, defendant was sentenced to a term of from 35 to 70 years in prison. Defendant’s appeal of his conviction and sentence was as of right. On August 19, 1983, the Court of Appeals affirmed defendant’s conviction and also ruled that based on People v Burton, 396 Mich 238, 243; 240 NW2d 239 (1976), it was without authority to review the sentence. Leave to appeal was sought but the Supreme Court, in lieu of granting leave, remanded the case to the Court of Appeals on June 29, 1984, for the limited purpose of reconsideration in light of People v Coles, 417 Mich 523; 339 NW2d 440 (1983). On October 16, 1984, the Court of Appeals remanded the case to the trial court for reconsideration in light of People v Coles, supra. On December 21, 1984, the defendant appeared for resentencing before the trial judge who is the successor to the trial judge who initially imposed sentence but who has since retired. An updated presentence report was prepared and submitted by the probation department. The updated presentence report did not have an updated sentence recommendation. In addition to the probation officer’s recommendation of from 10 to 25 years, and the police officer’s recommendation of from 8 years to a maximum of life, the minimum sentence guideline range as filled out by the probation officer indicated the minimum sentence range of from 72 months to 120 months (from 6 to 10 years). The trial judge sentenced defendant to from 35 to 70 years. Although defendant raises a number of issues, consideration of one issue is sufficient for disposition of this appeal. Defendant contends that he is entitled to be resentenced because he was not afforded an opportunity to exercise his right of allocution before the sentence was determined by the trial judge. It is not disputed that a conference in chambers including the defendant, defense counsel, and the prosecutor took place. The trial judge is said to have stated that, irrespective of the range reflected by the sentencing guidelines, he intended to impose the same 35- to 70-year term originally imposed by the trial court. Following the conference, but prior to sentencing, defendant and defense counsel were offered the right of allocution. Defense counsel questioned the value of the opportunity to speak as the court had already determined the sentence before allocution. The trial judge responded by stating: "The Court: Well, I think if you want to, you should —I’m giving you that opportunity, to put on the record whatever you think is relevant as far as a resentence is concerned. I’m here to resentence him. I have told you in chambers that I do not have any intention of changing the sentence, and I expect to sometime this morning put on the record why I do not intend to do that, but you certainly have the opportunity to give me any reasons that you want as to why I should change the sentence.” Both the defendant and defense counsel, nevertheless, expressed their view of factors that weighed in their favor. In Michigan, the right of allocution is explicitly embodied in the General Court Rules, specifically GCR 1963, 785.8: . ".8 Sentencing. Before sentence is imposed the court shall: "(2) give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence * * *.” (Emphasis added.) The court rules admit no contrary argument. A defendant must be given the right of allocution. Michigan appellate courts have strictly enforced the right of allocution embodied in GCR 1963, 785.8 by remanding for resentencing in numerous cases. People v Dozier, 411 Mich 888 (1981); People v Mersino, 413 Mich 925 (1982); People v Berry, 409 Mich 774; 298 NW2d 434 (1980); People v Elijah Smith, 397 Mich 864; 245 NW2d 544 (1976); People v Morgan, 112 Mich App 90; 314 NW2d 806 (1981); People v Clements, 72 Mich App 500; 250 NW2d 100 (1976); People v Jack Crawford, 66 Mich App 738; 239 NW2d 734 (1976); People v Brewer, 60 Mich App 517, 522-523; 231 NW2d 375 (1975); People v Gonzales, 60 Mich App 450, 454; 231 NW2d 393 (1975). It is clear that a defendant must be allowed to exercise his right of allocution before sentence is imposed. In People v Brooks, 122 Mich App 39, 42-43; 329 NW2d 524 (1982), this Court ordered resentencing where allocution was offered to the defendant after sentence was announced: "Finally, we agree with defendant that he was denied his right of allocution even though the judge asked defendant if he had anything to say after sentence was imposed. We are compelled by the Supreme Court’s authority to hold that failure to comply with GCR 1963, 785.8(2), requires resentence. People v Berry, 409 Mich 774, 781; 298 NW2d 434 (1980). In Berry, the Supreme Court stated: " 'The rule requires strict compliance and should be understood in all cases to require the trial court to inquire specifically of the defendant separately whether he or she wishes to address the court before the sentence is imposed. Ordinarily the inquiry should come immediately before the sentence is pronounced and after the trial court has made such remarks as it deems appropriate concerning the offense involved, the presentence report, the defendant’s personal history, the needs of the community, and any other subject. " 'In the cases before us, it is evident from the records that the defendants were not separately and individually given a reasonable opportunity to address the court. Thus the defendants must be resentenced.’ ” The defendant in this case was denied his right of allocution. To afford the defendant an opportunity to speak after the court, in effect, announces it has no intention of changing the sentence renders the allocution meaningless. Accordingly, re-sentencing is required. This matter is hereby remanded for resentencing to be imposed by another judge to be assigned to this case. The presentence report is to be brought up to date and shall include a recommendation of the probation department on the sentence. We make it clear that we have not decided whether, in this case, a 35-year minimum sentence shocks our judicial conscience. In returning this case for resentencing by another judge, we anticipate the judge will exercise independent discretion, giving consideration to all of the factors properly involved in the imposition of a sentence. Specifically, we do not intend that the sentencing judge will be controlled by the previous sentence. We do not retain jurisdiction. Reversed and remanded.

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Per Curiam. Defendant was convicted following a jury trial of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). He was sentenced to prison for a term of incarceration of not less than 10 nor more than 15 years. Defendant appeals as of right. The victim of the sexual abuse was defendant’s wife’s eight-year-old daughter from a previous marriage. Defendant’s wife testified that she confronted the defendant after her daughter told her about the incident which gave rise to the instant charges. Defendant replied that he had made sexual advances towards the girl because she was willing to cuddle with him at a time when the mother refused to do so. This testimony was repeated. Defendant’s wife also testified that she told defendant’s sister that he admitted the act. On appeal, defendant claims that this testimony concerned marital communications and that it should have been excluded at trial pursuant to MCL 600.2162; MSA 27A.2162. We disagree. In Michigan, the two common-law husband-wife privileges are codified in MCL 600.2162; MSA 27A.2162, which provides in pertinent part: "A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except * * * in cases of prosecution for a crime committed against the child of either or both * * *; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage * * MCL 600.2162; MSA 27A.2162. This statutory language codifies the common-law "spousal privilege” and the "confidential communication privilege”. The "spousal privilege” applies to any testimony of a spouse without the consent of the other so long as the parties continue to be legally married at the time of the suit. It is, however, subject to those exceptions enumerated in the statute. On the other hand, the confidential communication privilege applies to confidential communications made within the marital relationship irrespective of the marital status of the parties at the time of the trial. People v Wadkins, 101 Mich App 272, 282; 300 NW2d 542 (1980). The trial court admitted defendant’s wife’s testimony concerning defendant’s communications to her based upon the exception in the statute for criminal prosecutions for crimes committed against the children of either spouse. The trial court’s decision was based upon People v Clarke, 366 Mich 209, 214; 114 NW2d 338 (1962), wherein the Supreme Court stated: "As a matter of public policy, it is clear the statute was designed to protect communications between husband and wife during marriage. The exception was designed to permit prosecution for crimes committed within the family unit. Such crimes normally would have no other witnesses and would go unpunished in the event the exception in the statute were not permitted to operate.” We note that the language relied upon by the trial court is dicta and we question whether this exception is applicable to the marital communications privilege. Nevertheless, we hold that the testimony was properly admitted. In People v Salisbury, 218 Mich 529, 532-533; 188 NW 340 (1922), our Supreme Court explained the purpose of this privilege: "The exclusion of such communications when made in confidence between persons occupying the intimate relation of husband and wife is predicated on the necessity of fostering such relation and the greater injury likely to result from permitting their disclosure than the benefit to be gained thereby. Confidence and secrecy are presumed to have been intended in such marital communications and the statute absolutely prohibits their divulgence by either of the parties as witnesses 'without the consent of both.’ ” At common law, "[t]he rule of necessity * * * created exceptions to the general rule making husband and wife incompetent witnesses in cases involving the other, such exceptions being partly for the protection of the wife in her life and liberty, and partly for the sake of public justice”. People v Zabijak, 285 Mich 164, 176; 280 NW2d 149 (1938). The Supreme Court also recognized that: "The privilege is in derogation of the general rule that all persons may be compelled to testify concerning facts inquired about in courts of justice. It should be made effective, but ought not to be extended by the courts to cases where there has been no injury to the relation of the parties by the betrayal of the confidence reposed.” People v Zabijak, supra, p 177. We note that in People v Salisbury, supra, the prosecutor sought to introduce on cross-examina tion of the defendant evidence of a statement that the defendant made to his wife wherein he admitted the act of sexual indecency upon his daughter. In that case, the Supreme Court found the admission of the statement to be in contravention of the husband-wife communication privilege as it was codified then and reversed the defendant’s conviction. We find the case herein distinguishable on two bases. First, unlike the statute controlling the case at bar, the privilege as codified in Salisbury did not provide for an exception to the spousal privilege for prosecutions concerning crimes against either spouse’s children, this exception not being added until 1939. The dicta in People v Clark, supra, relied upon by the instant trial court, is persuasive of the Legislature’s intent to make the exception applicable to the communications privilege. However, the dicta is not precedent, and we do not base our decision solely upon this distinction. The second basis for distinguishing Salisbury is that, in the instant case, defendant and his wife were in the process of divorce at the time of trial. Thus, strict adherence to the rule would not further its purpose of fostering the marital relationship. Further, necessity requires relaxation of the rule where no injury would result to the marital relationship and strict adherence to the rule would promote neither protection of the family members nor public justice. Based upon this latter distinction, we conclude that the testimony was properly admitted. Defendant next claims that his 10- to 15-year prison sentence exceeded that recommended by the sentencing guidelines and shocks the conscience of this Court. This claim is without merit. The trial court explained that it departed from the guidelines because of the high degree of callousness demonstrated by the defendant and the psychological harm that would inevitably be suffered by the child because of defendant’s misconduct. This was not an abuse of discretion nor is the sentence shocking. See People v Frank Johnson, 146 Mich App 429; 381 NW2d 740 (1985); People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Affirmed. D. E. Holbrook, Jr., P.J., concurs in the result only.

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Per Curiam. Following a jury trial in Bay County Circuit Court defendant was convicted of first-degree criminal sexual conduct, MCL 750.520(b)(1)(a); MSA 28.788(2)(1)(a). The victim in this case is defendant’s stepdaughter, Heidi, who was three years old at the time the charged oifense occurred. Defendant was sentenced to from 20 to 50 years and now appeals as of right. The trial court determined that Heidi was competent to testify. Anatomically correct dolls were used during the direct examination of Heidi. The prosecutor asked Heidi if defendant had hurt her and directed the child to point to the area on the doll. Heidi responded "yes” and pointed to the vaginal area. Defense counsel argued that the prosecutor had helped Heidi point to that area. The prosecutor denied that she helped the child. Heidi was then asked where defendant had hurt her and Heidi touched the penis and finger of the male doll. Heidi testified that defendant hurt her, she cried and said, "I bleeded”. On cross-examination Heidi stated that she had informed her mother and grandmother about defendant’s behavior. She also stated that her "pee-pee” itched sometimes and she scratched it. A rocking horse was shown to Heidi. She indicated that she had never had an accident on the rocking horse. Ms. Jalovaara, a master level psychologist, testified that she examined Heidi on September 29, 1983. She said that several tests were used in evaluating Heidi: (1) McCarthy Scales of Children’s Abilities, (2) Vineland Social Maturity Scales, (3) Extended Action Agent Vocabulary Tests, (4) Peabody Picture Vocabulary Test, and (5) Diagnostic Play Session. Jalovaara explained that these tests were generally recognized in the field of psychology as being methods of evaluating children in Heidi’s age range. According to Jalovaara, indicators of sexual abuse of children among Heidi’s age range were the ideation of the child’s play, masturbation, and fear of sexual matters. She testified that she observed Heidi spontaneously roll Play-doh into long cylindrical pieces and say "that’s my daddy’s pee-pee”. Heidi then used the Play-doh to imitate a sexual act. Jalovaara felt Heidi was overly preoccupied with sexual matters for a child of her age. She stated that Heidi told her, "He put his pee-pee in my pee-pee. That wasn’t nice.” Jalovaara opined that Heidi’s behavior was consistent with behavior of a child who had been sexually abused. After evaluating Heidi, Jalovaara concluded that Heidi believed that she had been sexually abused. Dr. Knobloch, Heidi’s pediatrician, testified that he examined the child on September 16, 1983. During the examination he found a quarter of an inch tear in Heidi’s hymen. He stated that this tear probably occurred approximately one week before the examination. Heidi was examined on August 25, 1983, for a urinary tract infection and Dr. Knobloch had not observed the tear at that time. The doctor stated that Heidi’s behavior during the September 16, 1983, examination was different from previous examinations in that she seemed fearful. Heidi was normally outgoing. The doctor opined that the tear in Heidi’s hymen was not self-induced and that the tear could have been caused by penetration with a finger. He further opined that it was not possible for an adult penis to penetrate the vagina of a child Heidi’s age. The doctor also thought that it was unlikely that the tear had resulted from some type of accident, such as a fall from a rocking horse, because accidents normally caused a tear in the labia rather than in the hymen. Janice Kiersey, age 16, lived with and babysat for defendant and his wife, Heidi’s mother. Kiersey testified on behalf of defendant and stated that in the summer of 1983 she saw Heidi fall on her rocking horse. When she subsequently gave Heidi a bath, she did not notice any bleeding. Approximately one month later she observed Heidi placing the tip of a pencil eraser in her vagina. Defendant testified that he never sexually abused Heidi. In rebuttal, the prosecution recalled Dr. Knob-loch. The doctor testified that it was not possible that a fall on the rocking horse caused Heidi’s injury. However, he stated that the hymen could have been torn by a child inserting a pencil in the vagina. Defendant raises six issues on appeal, none of which require reversal. First, defendant argues that the trial court erred in admitting evidence of statements made by Heidi to her physician on the basis that the evidence constituted hearsay. Heidi’s foster mother, Linda Fisher, testified concerning statements made by Heidi during a medical examination. She explained that as Dr. Knobloch proceeded to examine Heidi to determine the cause of redness and swelling around her vaginal area, Heidi screamed, "Don’t hurt me, don’t hurt me, Tim don’t hurt me; Daddy, don’t hurt me.” She further testified that when Dr. Knobloch examined Heidi’s rectum, he put cream on his glove and Heidi started to scream, "Daddy, don’t make me bleed.” Over defendant’s objection, the trial court ruled that the statements were not inadmissible hearsay because they came under the "excited utterance” and the medical treatment exceptions to the hearsay rule, MRE 803(2) and MRE 803(4). We believe that the trial court did not abuse its discretion in admitting these statements into evidence on the basis that under MRE 803(2) the statements fall within the excited utterance exception to the hearsay rule. Reversal is therefore not required on this point. See People v Petrella, 124 Mich App 745, 758; 336 NW2d 761 (1983). In People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979), our Supreme Court set forth the following criteria for the excited utterance exception to the hearsay rule: "To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion.” (Footnote omitted; citations omitted.) Defendant argues that the above-cited criteria were not met in this case. We disagree. The statements made and the actions taken by the three-year-old victim of the sex crime in this case were clearly the product of a startling event, the sexual abuse of the child by her stepfather. The statements were spontaneous, i.e., not prompted by any questioning. We believe that the event was sufficiently startling to have created excitement lasting for one week, the time which lapsed between the event and the medical examination of the child. The statements were therefore properly admitted under the excited utterance exception to the hearsay rule. People v Lovett, 85 Mich App 534; 272 NW2d 126 (1978); People v Cobb, 108 Mich App 573; 310 NW2d 798 (1981). Defendant argues that the trial court abused its discretion in admitting expert testimony. Jalovaara and Linda Butterfield, both psychologists, testified in this case. Prior to their testifying, the witnesses were questioned about their training and expertise. Each witness was qualified by the court as an expert witness and was permitted to testify about the characteristics that indicate that a child has been sexually abused. Defendant contends that the trial court abused its discretion in allowing the experts to testify on the indicators of a sexually abused child. Defendant asserts that under MRE 702 an insufficient foundation was laid concerning the recognized specialized knowledge in the diagnosis of a sexually abused child. MRE 702 provides: "If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The decision to allow expert testimony on a given issue is left to the trial court’s discretion and will not be reversed on appeal absent a clear abuse of discretion. Independence Twp v Skibowski, 136 Mich App 178; 355 NW2d 903 (1984), lv den 422 Mich 853 (1985); Strzelecki v Blaser’s Lakeside Industries of Rice Lake, Inc, 133 Mich App 191; 348 NW2d 311 (1984). Our review of the record in this case convinces us that the trial court did not abuse its discretion in admitting expert testimony on the matter of what indicators are used in the field of psychology to determine whether a child has been sexually abused. Both witnesses were questioned extensively about their training and experience, which was adequate to qualify them as experts in the field of psychology. Their testimony concerning the characteristics normally found in sexually abused children assisted the jury in understanding the evidence. Also, the practice of psychology is a field where knowledge belongs more to experts than to the common man. The challenged expert witness testimony was therefore properly admitted under MRE 702. Cook v City of Detroit, 125 Mich App 724, 735; 337 NW2d 277 (1983). Defendant argues that the trial court erred in finding that the three-year-old victim was competent to testify. Generally, every person is competent to be a witness in this state unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably. MRE 601. A trial court’s decision that a person is competent to testify is reviewable only to determine whether there was an abuse of discretion. Cobb, supra, p 575. The record in this case supports the trial court’s conclusion that the three-year-old victim was competent to testify. Hence, the trial court did not abuse its discretion. Defendant’s next argument involves the trial court’s refusal to instruct the jury on the cognate lesser-included offense of assault with intent to commit criminal sexual conduct, MCL 750.520g(1); MSA 28.788(7)(1). The defendant was entitled to a jury instruction on assault with intent to commit CSC only if the evidence introduced at trial would justify the jury in concluding that the lesser of fense, and not the greater charged offense, was committed. People v Adams, 416 Mich 53; 330 NW2d 634 (1982); People v Gregory Thomas, 38 Mich App 777, 779; 197 NW2d 97 (1972). Defendant requested a jury instruction on the lesser-included offense of assault with intent to commit CSC. Relying on Adams, supra, the trial court refused to give the requested jury instruction. Our review of the record convinces us that the trial judge acted properly. Defendant did not argue that he had attempted, but not completed, the criminal sexual conduct. Instead, defendant argued that he never engaged in any sexual conduct with Heidi. Defendant also argued that Heidi had been injured as a result of an accident where she fell off a rocking horse. The testimony of Dr. Knobloch, who examined Heidi after the alleged event, indicates that due to the child’s age the tear in her hymen probably did not occur as a result of defendant inserting his penis into the child. The doctor, however, also testified that the tear in Heidi’s hymen was not self-induced and probably resulted from the insertion of some object, such as a finger, into the child’s vagina. Defendant argues that the trial court improperly considered defendant’s refusal to admit guilt in imposing sentence in this case. It is well settled in Michigan that the defendant’s refusal to admit guilt of the crime charged, either before or after conviction, is not a proper factor in setting sentence. People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972). The proper criteria for determining an appropriate sentence were set forth by our Supreme Court in People v Snow, 386 Mich 586; 194 NW2d 314 (1972). The trial court in this case discussed each of the Snow-criteria before imposing sentence. The court concluded that, because defendant posed a threat to society, the need to protect society was great. The court also concluded that defendant should be sentenced to a long prison term so that others would know that similar criminal behavior would not be tolerated. Hence, the trial court imposed the sentence to deter others from committing like offenses. The court noted that the sexual crime perpetrated by defendant had a serious and longlasting effect on Heidi. Hence, it is apparent that the trial court imposed sentence to punish defendant for his wrongdoing. The trial court also concluded that the potential for reformation or rehabilitation of defendant was doubtful. The court’s conclusion was based on the fact that defendant failed to accept responsibility for his criminal conduct. Relying on the court’s statements concerning accepting responsibility, defendant contends that the trial court essentially considered his refusal to admit guilt as a factor in imposing sentence. The trial court never stated that defendant would get a lighter sentence if he admitted that he was guilty. The trial court stated on the record that it recognized defendant’s right to maintain his innocence throughout the trial and "forever”. We conclude that the trial court did not consider defendant’s failure to admit guilt in imposing sentence in this case. Defendant contends that resentencing is required in this case because the trial court departed from the sentencing guidelines and failed to give substantial reasons for the departure. The sentence imposed in this case will not be reversed absent an abuse of discretion to the extent that the sentence shocks the judicial conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The trial court’s stated reasons for imposing sentence in this case, discussed above, were adequate and the sentence does not shock the judicial conscience. Defendant is therefore not entitled to resentencing. Affirmed.

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