text:
      In re SHEPARD.
    1. Attorneys at Law—Disbarment—Jurisdiction.
    The court may, in its discretion, entertain proceedings to disbar an attorney upon charges verified on information and belief only.
    2. Same—Jury Trial. .
    In disbarment proceedings, respondent is not entitled to a trial by jury.
    3. Same—Sufficiency or Charges.
    Charges that an attorney at law, under circumstances showing that he was acting as attorney for one who was suspected of being instrumental in causing an abortion, was present at the bedside of the girl suffering from the effects thereof, for the purpose of preventing her from making an ante mortem statement concerning the affair, that he directed who should care for her, and forbade that any person should be alone with her, and further directed her attendant not to permit her to make any statement concerning herself, her condition, or the cause thereof, and which state, as a conclusion from the facts alleged, that respondent “was guilty of unlawful and unprofessional conduct in that he attempted to stifle evidence of the commission of a crime, by preventing an ante mortem statement,” are sufficiently specific, and, if sustained, constitute a legal ground for disbarment.
    4. Same—Validity or Judgment.
    The charges in such case will support a finding that “respondent has been, and is, guilty of the several acts of misconduct, in stifling evidence, with which he is charged.”
    5. Same—Entry Nunc pro Tuno.
    A clerk cannot render void the proceedings disbarring an attorney by omitting to enter the judgment of disbarment; and it is competent for the judge to cause a record to be made of his judgment nunc pro tune, when its omission is discovered.

      Certiorari to Hillsdale; Lane, J.
    Submitted May 1, 1896.
    Decided June 30, 1896.

      Charles A. Shepard was disbarred from practicing as an attorney at law, and brings certiorari.

    Affirmed.

      Charles A. Shepard, in pro. per.

      Guy M. Chester, James S. Galloway, and Frank A. Lyons, committee for bar of Hillsdale county.
   Hooker, J.

The defendant was a practicing lawyer in Hillsdale county, and was disbarred by a judgment of the Hillsdale circuit court, upon charges filed by the prosecuting attorney. The legal questions presented are:

1. Had the court jurisdiction?

2. Were the charges sufficient?

3. Was the defendant denied sufficient time in which to prepare for trial?

4. Was he entitled to a jury trial?

5. Was there evidence warranting the judgment?

6. Were the proceedings rendered void by the failure of the clerk to enter judgment at once, and had the court power to cause the entry to be made nunc pro tunc, in a blank space left for the entry in the proceedings of the day upon which the decision was announced, when the omission was brought to his attention?

The charges filed in the case were quite explicit, being signed, and verified upon information and belief, by the prosecuting attorney. The defendant contends that charges against an attorney must be verified, and that it is not sufficient if they be stated or appear to be upon information and belief. In criminal proceedings and proceedings by capias ad respondendum, it is generally considered necessary that the circumstances upon which the magistrate issues his warrant should be shown by the testimony of those conversant with them. In such cases the defendant may be deprived of his liberty; but in other proceedings, where neither the person nor property is subject to interference or seizure, verification is not usual. Even in garnishment and attachment it is sufficient to state certain material facts upon information and belief. It is a proper, and perhaps the most natural, practice, that charges be presented by petition, which, under the ordinary course of practice, would be verified, or by motion supported by affidavit. Upon these an order to show cause issues,, which brings the defendant before the court, and gives him the opportunity to answer. Weeks on Attorneys at Law (page 180) says that “the proper practice in applications to strike an attorney’s name from the rolls is to apply to the court, and support the application by affidavits, setting forth, directly, positively, and specifically, the misconduct complained of.” In Ex parte Burr, 9 Wheat. 529, Chief Justice Marshall expressed the opinion (not necessary to a decision of the case, however, and not controverted, but admitted in that case) that charges in a regular complaint against an attorney ought not to be received and acted upon unless made on oath; but this falls short of the proposition that they can be made and verified only by those having personal knowledge of the facts. That is more than is required in bills of complaint and ordinary petitions, the rules of court prescribing a form which recognizes verification upon information and belief. We are cited to a number of cases in support of the contention, but they appear to be criminal cases, capias, or fraudulent-debtor proceedings, or cases where statutory requirements are involved.

While a court may properly hesitate to issue an order to show cause upon the bare statement of charges, and inquire verified charges, we are not aware of any prohibition. It is a matter of judicial discretion, and may be exercised upon any information that moves such discretion. Weeks asserts that—

“ It is the duty of the court to cause charges to be preferred against an attorney whenever it is satisfied, * * * from any satisfactory proof, that a case exists where the public good and the ends of justice require it.” Weeks, Attys. at Law, 179.

Such course has been followed repeatedly. In Ex parte Wall, 107 U. S. 265, the order was issued upon information to the judge by an eyewitness of the act charged, and a motion to dismiss was denied. In Randall v. Brigham, 7 Wall. 523, the order was issued upon a letter addressed to the grand jury. An unanimous court, speaking through Mr. Justice Field, said:

“It is not necessary that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause, or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit, and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

See, also, Ex parte Steinman, 95 Pa. St. 220, where the court said:

“We entertain no doubt that a court has jurisdiction, without any formal complaint or petition, upon its own motion, to strike the name of an attorney from the roll in a proper case, provided he has had reasonable notice and been afforded an opportunity to be heard in his own defense.”

In re Wool, 36 Mich. 299, is a case where this court, acting upon information derived from a cause heard before it, issued an order to show cause, and disbarred the defendant; thus recognizing the rule that the court may issue its order whenever it satisfactorily appears that justice requires it. The proceeding is a summary one, and the essential requirements are that the defendant-have reasonable notice and an opportunity to be heard in his defense. This is not a proceeding by way of punishment, though the deprivation of the privileges of an attorney may be a matter of serious importance to a practitioner. It is a measure necessary to the protection of the public, who have a right to expect that courts will be vigilant in withholding, and, if already given, withdrawing, their certificates of qualification and character, upon which the public rely. Attorneys are officers in a sense; they must possess such qualifications as the law prescribes, sanctioned by the certificate of the courts, or they may not enjoy the privileges of the office. As said by Mr. Justice Whipple, in Re Mills, 1 Mich. 395:

“Should this court, after being officially advised that one of its officers has forfeited the good name he possessed when permitted to assume the duties of his office, still hold him out to the world as worthy of confidence, they would, in my opinion, fail in the performance of a duty cast upon them by the law. . It is a duty they owe to themselves, to the bar, and the public, to see that a power which may be wielded for good or for evil is not intrusted to incompetent or dishonest hands. The extreme judgment of expulsion is not intended as a punishment inflicted upon the individual, but as a measure necessary to the protection of the public, who have a right to demand of us that no person shall be permitted to aid in the administration of justice whose character is tainted with corruption.”

In the case before us, a petition was filed by the prosecuting attorney of the county, setting up minutely the acts with which defendant was charged, and appending a verification that he had been informed of and believed -the statements made. This was a sufficient charge to satisfy the circuit judge, and he issued his order to show cause, requiring an answer within two days after personal service. A motion to dismiss for want of jurisdiction was denied, and thereupon an answer was filed. This was upon January 20th, and the return shows that February 1st was fixed as a day of hearing, without objection by the defendant. No motion or showing was made for a continuance after the answer was filed, and, had there been, we do not discover that the discretion of the circuit court was abused.

We think it unnecessary to discuss the defendant’s claim to a right of trial by jury. The control of admission to the bar is confined to courts, and juries have nothing to do with it. It has been the uniform practice for the judge to dispose of such matters.

The charges upon which the defendant was tried related to the death of a girl from an abortion, and it was charged that the defendant was with her for a time before her death, for the purpose of preventing her making an ante mortem statement concerning the affair; that he directed who should care for her, and forbade that any person should be with her alone, and directed her attendant (one Wright) not to permit her to make any statement concerning herself, or her condition, or the cause thereof. This was under circumstances showing that he was acting as attorney for one who was suspected of being instrumental in causing the abortion. The complaint states, as a conclusion from the facts alleged, among other things, that defendant “was guilty of unlawful and unprofessional conduct in that he attempted to stifle evidence of the commission of a crime, by preventing an ante mortem statement of said Yiola Stevens.” Counsel contend that these charges were not sufficiently specific, and that they do not constitute a legal ground for the disbarment of the defendant; but we think they obviously do.

The judgment entered, after the formal parts, continued as follows: “It appearing to the said court now here that the said Charles A. Shepard hath been, and is, guilty of the several acts of misconduct, in stifling evidence, with which he is charged, it is thereupon ordered,” etc. This was substantially finding that his acts in and about stifling evidence,—attempted or successful,—as charged, were found to have been proved; and the distinction between the attempt to stifle evidence and the stifling of evidence is overnice.

The clerk could not render the proceedings void by omitting to enter the judgment; and it was competent for the circuit judge to cause the record to be made of his judgment nunc pro time, when its omission was discovered.

We find no error in the proceedings, and the judgment is affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    MILLER v. JURCZYK.
    1. Contract—Evidence—Probabilities.
    Upon an issue as to whether defendant’s promise to pay plaintiff for any lumber furnished to defendant’s son was confined to lumber for a house defendant was about to build, evidence that the title to the lots upon which were erected the other buildings for which material was furnished was not in defendant, but in the son and a third party, is admissible.
    2. Appeal—Harmless- Error.
    The exclusion of cumulative testimony upon an undisputed point is not prejudicial.
    3. Trial—Impeachment op Witness.
    Where the proper foundation is laid for impeaching testimony, and the testimony is confined to contradicting the witness sought to be impeached on a point covered by his testimony, the form of the question, if not leading, is not prejudicial.
    Error to Wayne; Erazer, J.
    Submitted April 10,1896.
    Decided June 30, 1896.

      Assumpsit by William A. O. Miller against Joseph Jurczyk for lumber sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George Cox and Henry Orhns, for appellant.

      Fred H. Warren, for appellee.
   Montgomery, J.

Plaintiff is a dealer in lumber, and sued defendant to recover a sum of $1,000 or thereabouts, claimed to be a balance due for lumber furnished him during the year 1893. The testimony on the part of the plaintiff tended to show that the defendant came to the plaintiff’s place of business in the spring of 1893, accompanied by his son Bernard; that the plaintiff then made a price to defendant for the material to be used in building a house, and that defendant then said to the plaintiff that he intended to build a number of houses during the season, and that his son was going to look after the business for him, and that whatever his son ordered might be charged to him. Plaintiff’s foreman, in answer to the question, “Can you tell how much lumber went into Joseph Jurczyk’s house?” answered: “He built several houses. I don’t know which one you have reference to. They are all supposed to be his houses.” Defendant denied this contract as claimed, and testified that he simply contracted for the material in one house, which he was building. The circuit judge charged the jury, at the request of the defendant:

“If you find that Joseph and Bernard first went to plaintiff’s office in regard to the lumber, and that Joseph only talked about material for his own house, and had in mind and made reference to material for no other building than his own when he told plaintiff to let Bernard have anything he called for, defendant would be liable only for the material furnished by plaintiff to Bernard for defendant’s said building.”

The plaintiff recovered judgment, and defendant brings error. The assignments of error are numerous. Those relating to the remarks of the court,, we think, are not well founded, and the others may be treated under two heads: First. Was.there prejudicial error in excluding proof as to the title of the lots other than the one upon which the first house was constructed ? And, second, was error committed in receiving impeaching testimony?

Defendant offered to show that the title to the lots other than the first was not in defendant, but in Bernard and another. This was excluded. We think this testimony was admissible as corroborative of the theory of defendant, but we are also of the opinion that the exclusion of the testimony was not prejudicial to the defendant. The testimony of defendant and his son was admitted to show that defendant built but one house during the season, and that Bernard (his son) built a house for one Ignatius Beginofski, and one for Slerkovski, and that defendant was not the owner or contractor of that lot; that he built a house on Hancock avenue, and that defendant was not the contractor. The subject appears to have been covered by this testimony. This testimony was substantially undisputed, and, furthermore, the charge above quoted assumes the fact to be that the defendant was only interested in one house. The jury could not, therefore, have been misled as to the interest of defendant in the several houses. As the case went to the jury, the question upon which defendant’s liability turned was whether defendant had engaged to pay for the material furnished to Bernard.

The objection as to the introduction of impeaching testimony is directed to the form of the question simply. The proper foundation was laid, and the testimony adduced was confined to contradicting the witness sought to be impeached upon a point covered by his testimony; and, as this is so, the form of the question, so long as it was not objectionable as leading, could not have prejudiced defendant.

Judgment affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


author: Grant, J.

text:
    LYNCH v. JOHNSON.
    1. Trial—Motion for Nonsuit—Waiver.
    By putting in proofs after the. denial of his motion for a nonsuit, defendant waives all rights under the motion.
    2. Infancy—Burden of Proof.
    One who relies upon infancy as a defense has the burden of proving the fact.
    3. Trial—Pact not in Dispute — Failure to Request Instructions.
    An objection that the court erred in submitting to the jury a question as to which the testimony was undisputed will not be considered, where no request for an instruction upon that subject was presented.
    4. Infants—Necessaries—What Constitutes.
    Clothes furnished to an infant are within the class known as “necessaries; ” but whether they were in fact necessary in the particular case is a question for the jury.
    5. Same—Burden of Proof.
    In an action for the purchase price of goods within the class known as “necessaries,” furnished to the defendant while an infant, and while he was living apart from his parents, the burden of proof is upon him to show that they were not in fact necessaries, and that he was supplied with all such necessaries by his parents.
    6. Same—Voidable Contract—Ratification.
    The voidable contract of an infant is ratified where, on coming of age, he makes a distinct acknowledgment of it, and indicates an intention to be bound by it; but mere silence is not enough, where the doctrine of estoppel is not applicable.
    7. Same—Question for Jury.
    Where, in an action for the purchase price of goods sold to the defendant while an infant, it appears that, after attaining his majority, he recognized the debt, and promised to pay it in full if he could get an extension of time, and that he did not plead infancy when the account was presented to him, or on the return day of the summons by which the suit was commenced, the question whether the contract was ratified by him is for the jury.

      Error to Ingham; Person, J.
    Submitted April 29, 1896.
    Decided June 30, 1896.

      Assumpsit by James H. Lynch against Holmes W. Johnson for goods sold and delivered. Prom a judgment for plaintiff, defendant brings error..
    Affirmed.
    This suit originated in justice’s court, to recover the price of a suit of clothes sold by the plaintiff to the defendant in 1890. Plaintiff had verdict and judgment in both the justice’s and circuit courts, and defendant now brings the case to this court on writ of error. According to the testimony of defendant’s father, the only witness sworn in his behalf, the defendant, at the time of the purchase, was a little more than 19 years old. His father lived in Lansing. Defendant was employed as stenographer and clerk for the Detroit Stove Works, in Detroit, where plaintiff lived and conducted his business. He soon after left Detroit, and went to Cincinnati, Ohio, where he secured employment. He finally returned to Lansing, and went into business with his father. He failed to pay the account, and the bill was sent by plaintiff to Lansing for collection. When it was presented he made no claim of infancy. After the claim was presented to him, and before suit was brought, he wrote to the plaintiff the following letter:
    “Dear Sir: I have two propositions to make to you in regard to settling the account which you claim I owe you, to wit: I will send you a check at once for $35, upon advice that you will give me a receipt in full to date, or I will agree to send you a check for $5 per month until the face of the account is paid. Your attorneys have threatened suit against me, and probably have already begun it, and, though the account ought to have been paid, I presume I should be able to show some good reasons why it had not had attention. If you wish to accept either one of these propositions, advise me by return mail, and I will do exactly as I say. If you wish to let your attorneys settle it on this basis, I will give them 10 papers, due 30 days apart, and pay one now. But, if you wish to take judgment, I shall have to allow you to do so. I could not raise money enough to pay it, and I am sorry to say I am not worth it, though I do not wish any judgment standing against me, if you will give me a fair chance to pay it now.”
    On the return day of the summons his father appeared, and entered a plea of the general issue. On the adjourned day his father again appeared, and amended the plea by giving notice of infancy.
    Upon the trial, plaintiff proved that defendant ordered the suit of clothes at his place of business in Detroit, the delivery and the value, and rested. Defendant then moved that the plaintiff be nonsuited, and the case dismissed, because plaintiff had not shown that the clothes were necessaries, or that the contract had been ratified. This was denied, and the father was then introduced as a witness for the defendant, and testified to his age. On cross-examination he testified that his son left home in 1889, and that he always furnished his son with everything in the way of clothing that he asked for.

      William W. Osborn, for appellant.

      Thomas & Oollingwood, for appellee.
   Grant, J.

(after stating the facts).

When the motion was made, defendant had not rested, and, after its denial, proceeded to introduce testimony. He thereby waived all rights under the motion. Totten v. Burhans, 103 Mich. 6, and cases cited; Morley v. Insurance Co., 85 Mich. 210. The motion, however, was properly denied. The burden of proof to show infancy was on the defendant. Simmons v. Simmons, 8 Mich. 318; Stewart v. Ashley, 34 Mich. 183.

The only evidence of defendant’s age was the testimony of his father, and it is now urged that the court erred in submitting this question to the jury. It is a sufficient reply to this contention that the defendant did not request the court to so instruct the jury. We need not, therefore, determine the question whether defendant’s age was conclusively proven.

These clothes were within the class known as-“necessaries.” The burden of proof was then upon the defendant to show that they were not necessaries, and that he was supplied with all such necessaries by his father. Tyler, Inf. §§ 74, 75. * If defendant had been living at home with his parents, a different rule would obtain. .Schouler says, “An infant, when absent from home, and not under the care of his parents, is usually liable for his own necessaries.” Schouler, Dom. Rel. § 413; 1 Add. Cont. 124; 10 Am. & Eng. Enc. Law, 664. The question whether these clothes were necessaries was properly submitted to the jury.

Was the question of ratification properly submitted to the jury ? The contracts of infants are divided-'by the authorities into three classes: (1) Those, absolutely void, which are, as a matter of law, disadvantageous to the infant, and under no circumstances for his benefit; (2) voidable contracts,—those which may or may not be for his benefit; (3) binding contracts,—that is, contracts for necessaries. If the jury found that the defendant was of age at the time the contract was made, or that the clothes were necessaries, it would be unnecessary to consider the question of ratification. The verdict, however, was a general one, and may have been based upon ratification. Upon this question there appears to be a hopeless confusion in the decisions. It was early very generally held that these contracts were absolutely void, and that there must be an independent and express promise, after coming of age, to pay for them. This strict rule has been relaxed by the modern decisions, and while mere silence is not enough, where the doctrine of estoppel is not applicable, courts have adopted the more reasonable rule that where the party, on coming of age, has made a distinct acknowledgment of the contract, and has indicated an intention to be bound by it, he will be held to have ratified it. This is usually a question of fact, for the jury. Silence and acquiescence have been held sufficient where it would be inequitable to permit the defense of infancy. Terry v. McClintock, 41 Mich. 492; Langdon v. Clayson, 75 Mich. 204.

This was not a void, but a voidable, contract. Defendant was absent from home, at work for himself. There was nothing to indicate to plaintiff that he was not of age. The clothes were furnished, and defendant had the use of them. He did not plead infancy when the account was presented, nor on the return day of the summons, nor in the letter. There is no claim of unfair dealing, fraud, or overreaching. The letter was a plain recognition of the debt, and a promise to pay it in full if he could get an extension of time. We think the court committed no error in leaving the question of ratification to the jury. Upon this question the case of Henry v. Root, 33 N. Y. 526, is a leading and exhaustive case. The authorities are there cited and commented upon, and the history and growth of the jurisprudence upon this subject are stated. See, also, Bay v. Gunn, 1 Denio, 108.

The judgment is affirmed.

Moore, J., concurred with Grant, J. Montgomery and Hooker, JJ., concurred in the result. Long, C. J., did not sit.


text:
    KEEFER v. BOARD OF SUPERVISORS OF HILLSDALE COUNTY.
    1. Local Option Law — Submission to Voters — Construction op Statute.
    The provisions of the local option law (Act No. 207, Pub. Acts 1889, §§ 9, 13) -to the effect that the proposition to prohibit the manufacture and sale of liquors, having been once submitted and decided, shall not be again submitted within a period of two years thereafter, do not operate to require that the action of voters in preparing petitions for a resubmission of the question, or of the board of supervisors in calling an election, must await the lapse of two years.
    2. Same—Board op Supervisors—Duty to Call Election.
    It is not within the discretion of the board of supervisors to refuse to call an election for a resubmission of the question, upon presentation of a petition answering the requirements of the statute.

      Certiorari to Hillsdale; Lane, J.
    Submitted May 1, 1896.
    Decided June 30, 1896.

      Mandamus by Charles E. Keefer and another to compel the board of supervisors of Hillsdale county to call an election and submit to the voters the question of a continuance of local option in said county. From an order denying the writ, relators bring certiorari.

    Reversed.

      F. H. Stone and W. J. Sampson, for relators.

      Guy M. Chester, Prosecuting Attorney, for respondent.
   Montgomery, J.

This is certiorari to review the decision of the circuit court on an application for mandamus to compel the board of supervisors to submit to the voters of the county a proposition to repeal a prohibitory resolution, adopted March 7,1892. The question was again submitted to the voters, and an election had, May 14, 1894, the people again declaring in favor of prohibition. On March 23, 1896, petitions were filed with the clerk in due form, asking that an election be called to vote upon the question in May, at a date after the lapse of two years. The board declined to call an election, on the ground that' the action of the board calling an election cannot be had within two years after a previous vote on the question, even though the time fixed-for the vote of the people be more than two years after ■ the previous vote. The question depends upon the construction of two provisions of the statute. Pub. Acts 1889, Act No. 207, § 9, contains a provision as follows:

“Provided, however, that such proposition having been once submitted and decided either way by a majority of the votes of the qualified electors in any county in this State, voting thereon, the same shall not be again submitted in such county within a period of two years next thereafter, but may, at any time after the expiration of such period, upon a like petition and action, be again submitted, and so on, at the expiration of not less than two years after every such election.”

In section 13 is found the following:

“Such resolution of prohibition shall take full effect within such county on the first day of May next following its adoption, and shall not be subject to repeal by the board of supervisors within two years next thereafter, after the expiration of which period the board may again, by a majority vote of all the members elect, act as in the first instance, and repeal such resolution of prohibition, but not unless a majority of the electors of the county, voting on such proposition, at a subsequent election duly called and held in accordance with the provisions of this act, shall have declared against the prohibition of the manufacture of liquors and of the traffic therein.”

We construe these provisions to mean that the question shall not be again submitted to a vote of the people, after a former vote is taken, within two years. We do not think that action by the voters in preparing petitions, and presenting them to the board, or [the order of the board calling an election, must wait the lapse of two years.

It is suggested that the purpose of this act is to provide for prohibition, and that a construction should be adopted to give effect to that intention, and best serve its object, namely, prohibiting the manufacture and sale of intoxicating liquors. But the answer to this is that the purpose of the act is to prohibit the traffic only in case the people of the county so decide, and that the predominant feature of the act is to confer upon the people of the county the right to decide whether they will or will not have prohibition ; and it is with reference to this intent and purpose that the act must be construed. Having in mind this intent and purpose, we do not think it was the purpose to leave the question of calling an election to the discretion of the board. The proviso in section 9 means that the people, upon a petition answering the requirements of the statute, may have the question submitted.

Writ of mandamus will issue, but without costs.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


author: Long, C. J.

text:
    STEELE v. KENT CIRCUIT JUDGE.
    1. Mortgage—Foreclosure—Parties.
    An indorser on a note secured by a mortgage may be made a party to a bill to foreclose, under 2 How. Stat.'f 6704, providing that, if a mortgage debt be secured by the obligation of any person besides the mortgagor, such person may be made a party to the bill, but the provision of the statute is not mandatory.
    2. Same—Suspension of Right to Sue at Law.
    The purpose of the statute (2 How. Stat. § 6703) in suspending the right, during the pendency of foreclosure proceedings, to bring an action at law, unless authorized by the court, to recover the debt secured by the mortgage, is not to limit the remedy of the creditor, but to avoid unnecessary litigation; and, when a suit is brought without leave in a court of law, the proceedings therein will not be restrained unless substantial rights are affected.
    3. Same—Deficiency—Leave to Sue—When Granted.
    Leave is properly granted to a creditor to bring an action at law against one of two indorsers upon a note secured by a mortgage, for a deficiency remaining after the foreclosure of the same, although no execution has issued for such deficiency where the maker of the note and the other indorser, who were alone made parties to the foreclosure proceedings, are shown to be insolvent. Shields v. Riopelle, 63 Mich. 458, distinguished.
    4. Trial—Parties—Discontinuance.
    In an action against several defendants who were severally liable, an order of discontinuance as to one of them not served, entered upon the common-rule book, though inadvertently not signed by the attorney at the time of the entry, is nevertheless valid, and operates to discontinue the action as to such defendant.
    5. Mortgage—Foreclosure—Leave to Sue for Deficiency-Extent of Authority Conferred.
    An order granting permission to sue at law for the deficiency arising upon the foreclosure of a mortgage has not expended its force, so as to preclude an action in another county, when suit is brought in one county and is afterwards discontinued, if there is in the order itself no limitation upon the right granted.
    6. Same—Entry Nunc pro Tunc—Statute of Limitations.
    An order granting such right, entered mine pro tunc, is not objectionable, in that it deprives defendant of the right to plead the statute of limitations, when it appears that the suit was in fact commenced in time.

      Mandamus by William Steele to compel William E. Grove, circuit judge of Kent county, to set aside an order, entered April 11, 1896, as of February 27, 1895, granting leave to the First National Bank of Traverse City to bring a suit at law upon a mortgage note during the pendency of foreclosure proceedings.
    Submitted May 5, 1896.
    Writ denied June 30, 1896.

      Vernon H. Smith, for relator.

      Gr. A. Wolf, for respondent.
   Long, C. J.

June 12, 1889, the William Steele Packing & Provision Company made its note for $3,000 to the First National Bank of Traverse City, and the same was indorsed by William Dunham and William Steele. This note was subsequently renewed, and on August 28, 1889, the packing and provision company made a mortgage to secure it and renewals of the same. The mortgage ran to William Dunham as trustee for the Traverse City Bank and others. In 1892, Dunham, as trustee, filed his bill to foreclose the mortgage in the Kent circuit court in. chancery, making all the beneficiaries parties, and a decree was entered therein September 22, 1893. The case was appealed to this court, and the decree modified and affirmed. 100 Mich. 75. Afterwards, a commissioner of Kent county sold the land under the decree, and reported a deficiency. The sale was confirmed, and no execution was ever asked for or obtained to collect the deficiency. The commissioner’s report of sale bears date July 5, 1894.

February 27, 1895, the Traverse City Bank began a suit at law in the Kent circuit court on the same note against the packing and -provision company, Dunham, and Steele. Before bringing this suit, the bank presented to the Kent circuit court in chancery a petition asking leave to withdraw the note from the files for the purpose of bringing action thereon, and on February 27, 1895, respondent, as circuit judge, granted such leave. Afterwards, and on March 28, 1895, the bank, by its attorney, entered an order of discontinuance of said cause as to Steele in the common-rule book of said court, though the attorney for the bank, Mr. Wolf, failed to sign his name to such order of discontinuance. Treating this as an order of discontinuance of the suit, on October 14, 1895, the bank began a suit at law upon the same note in the circuit court for Ionia county by declaration, and a plea was filed in the cause.

It appears that Steele was not made a party defendant in the foreclosure proceedings; that, on some of the notes secured by said mortgage, Dunham and Steele were indorsers, and were, indorsers upon the note in question; that, on other notes secured by the mortgage, Dunham was indorser alone, and on other notes Steele was indorser alone, while on one note there was no indorser. It also appears that, while the suit at law in the Kent circuit upon this note was brought against the packing and provision company and Dunham and Steele, yet no service was made upon Steele of any process in that case, and, according to Steele’s affidavit, he never had knowledge that such suit had been brought.

On February 14, 1896, a motion was entered by the attorney of- Mr. Steele in the suit at law in the Ionia circuit to stay proceedings because no sufficient leave to bring the suit had been obtained. On March 24, 1896, the respondent, sitting as circuit judge in that circuit, made an order staying the suit at law in the Ionia circuit until leave was obtained from the chancery court of Kent county. That order recites that—•

“The defendant having moved the court that all proceedings herein be stayed, and that the said cause be dismissed, for the reason that a suit in equity had been begun and was still pending in the circuit court for Kent county, in chancery, to foreclose a mortgage given by the W. Steele Packing & Provision Company to secure the same debt for which this suit is brought to recover, and that defendant be permitted to file an affidavit of merits in said cause; and it appearing to the court that no sufficient leave was ever obtained of the circuit court for Kent county, in chancery, to bring this suit, or any suit at law on the note sued upon in this cause; and it also appearing that a decree was rendered in said chancery cause in the circuit court for Kent county, in chancery, and a sale had of the mortgaged premises described in the mortgage given to secure the same debt sued for in this cause, and a report made by the circuit court commissioner who made the sale showing a deficiency in said cause, all of which occurred before this suit was begun; and, further, that no execution was ever issued in said chancery cause, and no application ever made therein for an execution,—it is therefore ordered:
‘ ‘ (1) That defendant be permitted to file an affidavit of merits in said cause, and that the affidavit now filed in said cause, in the motion on which this order is made, stand as the affidavit of merits in said cause on behalf of said defendant.
“ (2) It is further ordered by the court that this cause be, and the same is hereby, stayed, and all proceedings therein are stayed, until leave is obtained from the circuit court for Kent "county, in chancery, to bring suit on the note, a copy of which is indorsed on the declaration in this cause, and until the further order of this court.”

After the making of this order, the bank presented a petition to the circuit court of Kent county, in chancery, for leave to sue at law on this note, and praying that the former order granting leave might be amended nunc pro time, permitting the suit at law in the Ionia circuit court to proceed. An order to show cause was issued, and Steele, in answer thereto, filed affidavits' showing the condition of the chancery cause, and the condition of the suit in the Kent circuit court, when the suit at law was-begun in Ionia county. On April 11, 1896, the respondent made an order granting leave to the bank to sue at law on said note against Steele, and ordered that such order should take effect as of February 27, 1895, being the date when the first order was made to withdraw the note from the files, and being a date prior to the commencement of the suit in the Ionia circuit.

The relator now asks a mandamus from this court to compel the respondent to set aside the order granting leave to sue upon the note, and claims:

1. That, in the condition of the chancery cause after the sale and report by the commissioner, no order properly could be made granting leave to sue at law until execution had been issued and returned unsatisfied by that court.

2. That the order made February 27, 1895, is of no force, and was not amendable.

3. That the suit at law then pending in the Kent circuit court could not be discontinued, because (a) the order of discontinuance was not signed by the attorney, and (5) no discontinuance could be entered against Steele, there being other parties to the suit.

4. That if the order made February 27, 1895, ever gave ■ permission to sue at law, its force was expended when suit was brought in Kent county, and it did not give authority to sue in Ionia county.

5. That the suit at law in Kent county is still pending for the same debt against Steele, and the chancery cause is still pending against the other parties, and no execution ever issued in the chancery cause.

6. That this order cannot be antedated, and deprive Steele of the right to interpose the defense of the statute of limitations.

In response to an order to show cause, the respondent substantially admits all the questions of fact stated. He returns, however, that the sale of the mortgaged premises was open and fair, and that they brought their cash value at the time of said sale, and no cause was shown why plaintiff could not recover for any deficiency that might exist in its-favor. The court further returns that, in the suit at law in the Kent circuit court, service was made upon the company and upon Mr. Dunham, but no service could be obtained upon Mr. Steele; that he resided in Ionia county, and was out of the jurisdiction of the court; that no objection was made by said company and Dun-ham to the right of plaintiff to bring the suit, and the action proceeded to judgment against them. The court further returns that the order was entered in the common-rule book, discontinuing that suit as against Steele; that while plaintiff’s attorney neglected to sign his name to the order of discontinuance at the time, yet he wrote his name in the body of the- order at the time he entered it,, and has since signed the same, and that, after the entry~ of the order, the action was treated as dismissed as to; said Steele; that his name does not appear in the title of the judgment entry, nor in the subsequent proceedings, and the court never obtained jurisdiction in the action as. to him; that the parties were severally liable on the note,, and the action could be dismissed as to any defendant; that execution was issued and returned unsatisfied, in the law case in the Kent circuit court against the company and Dunham, before the action was begun in the Ionia circuit, and before the order nunc pro tunc was made; that the records show, in the chancery case, as well as from the petition of the plaintiff for the order nunc pro tunc and the affidavits filed in support thereof, that the packing and provision company and Dunham are and have been insolvent for years.

The court also returns that the action sought to be stayed or dismissed by this application for mandamus was begun before the statute of limitations had run, and, as the question of leave to sue, if necessary at all, is not jurisdictional, the fact that the statute had run before the defendant made this motion to stay the proceedings is no equitable ground for refusing the order to permit the action on the note to proceed; that the action against the relator in the Ionia circuit was begun October 14, 1895, and on November 9, 1895, relator pleaded the general issue; that on December 10, 1895, notice of the trial and inquest was served on relator’s attorney, and on Febru-, ary 14, 1896, after the case was on the trial calendar, the relator made a motion to stay proceedings.

We will discuss the questions raised by counsel for relator in the order in which they are stated.

The relator was not a party to the foreclosure suit. It is true that he might have been made a party under the provisions of section 6704, 2 How. Stat., so that an execution for deficiency might have been issued against him, as well as the mortgagor, for any balance of the debt remaining unsatisfied after a sale of the mortgaged premises. This section of the statute does not make it mandatory upon the complainant to make one who is a mere indorser upon the note a party defendant in the mortgage foreclosure. The statute is simply permissive. Under the original equity jurisdiction, there was no power to take personal decree against even the mortgagor himself;* but this is a statutory innovation, as is also the enforcement in the foreclosure suit of the collateral obligations of third persons, and the jurisdiction by the statute over this latter class of persons is permissive only, and not obligatory. Johnson v. Shepard, 35 Mich. 115. It is true that, upon foreclosure, where one is not primarily liable upon the mortgage debt, no personal liability can be enforced against him until the land is sold and the deficiency reported. Howe v. Lemon, 37 Mich. 164. Section 6703, 2 How. Stat., provides that—

“After such bill shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.”

It appears in the present case, by the' return of the circuit judge, that the packing and provision company was, and had been for many years, insolvent. No execution issued against it out of the chancery court would avail the plaintiff in collecting its judgment for deficiency. Leave was asked of the court to bring suit upon this note against Steele, and upon which he was the indorser. The right to bring action on the claim, whether for the amount of the note or for the deficiency on the mortgage foreclosure, exists at common law, and the object of the suspension of the right by the equity court is, not to limit the remedy, but to avoid unnecessary litigation and oppression; and when the suit at law is brought without an order granting leave, it is usually no more than a mere irregularity; and when nothing of substance is to be gained by restraining the proceedings in the law court, it will not be granted. As was said in Culver v. Judge of Superior Court, 57 Mich. 30: “ It is difficult to see upon what ground a stay of proceedings can be properly justified,”—citing Goodrich v. White, 39 Mich. 490; Innes v. Stewart, 36 Mich. 285. We are ¡satisfied, under the circumstances here shown, that the court did not exceed its jurisdiction in refusing to stay the proceedings under the reasons set out by the relator in his first contention.

Counsel for relator relies upon the case of Shields v. Riopelle, 63 Mich. 458. In that case an application was made to the chancery court for leave to issue execution for a deficiency after the sale of the real estate upon the decree. The motion was denied, and the court granted an order for leave to the plaintiff to bring suit at law upon the note to recover the deficiency after such mortgage sale; and Mr. Justice Sherwood, in writing the opinion, laid down the rule that the legislature did not intend, by sections 6702 and 6703, 2 'How. Stat., to leave it to the discretion of the equity court to authorize an action to be brought, after the sale of the mortgaged premises, for a deficiency, until execution had been issued therefor under the order of the chancery court, and returned unsatisfied in whole or in part. In that case the mortgagor executing the note was a party defendant to the foreclosure proceedings, and execution could have been issued against him for the deficiency from the chancery court. In the present case, Mr. Steele, the surety on the note, was not made a party defendant to the chancery suit, and the maker and the other surety on the note were wholly insolvent, so that an execution issued against them from the chancery court would have been of no avail; and we are satisfied that, under such circumstances, the court properly granted leave to sue the relator at law.

The court below found that the suit at law commenced in the Kent circuit court had been discontinued as to Mr. Steele, and, we think, properly. The note was made by the packing and provision company, and indorsed by Dunham and Steele; and the plaintiff could, under section 7347, 2 How. Stat., proceed to judgment against some one or more of the defendants.

The contention that the order of February 27, 1895, giving permission to sue at law, had expended its force when suit was brought in the Kent circuit court, we think, cannot be sustained. There was no limitation in the order upon the right to bring suit.

The last contention is that the supplemental order, dated April 11, 1896, deprived the relator of the right to plead the statute of limitations, and therefore cut off a substantial right, and for that reason the court was in error in granting it. It will be noticed that the note in controversy was dated November 15, 1889, due 90 days from its date. The action upon the note against the relator was commenced in the Ionia circuit court October 14, 1895, which was some four months prior to the time when the statute of limitations would have barred action upon it. We think the court was not in error in granting leave, on April 11, 1896, to bring suit on the note, if such order had been necessary. The bringing of the suit at law without the order first made was a mere irregularity. Culver v. Judge of Superior Court, 57 Mich. 30, and cases there cited. An order had been made, February 27, 1895, authorizing the bringing of a suit at law upon the note. At that time the statute of limitations had not run against the note, and the suit was commenced in October following, which was before the note was barred by the statute.

The writ of mandamus must be denied.

The other Justices concurred.


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    TALBOT PAVING CO. v. CITY OF DETROIT.
    Municipal Corporations—Public Contract—Rejection op Bid —Liability to Bidder.
    The fact that a municipal contract is awarded to one other than the lowest bidder thereon does not give to the latter a right of action at law to recover profits which he might have made had his bid been accepted, although the charter of the municipality requires that such contracts be let to the lowest responsible bidder.

    Error to Wayne; Hosmer, J.
    Submitted May 6, 1896.
    Decided June 30, 1896.
    Case by tbe Talbot Paving Company against tbe city of Detroit for failure to award to tbe plaintiff a paving contract for wbicb it was tbe lowest bidder. Prom a judgment for defendant on verdict directed by tbe court, (plaintiff brings error.
    Affirmed.

      Brennan, Donnelly & Van DeMark (Atkinson & Wolcott, of counsel), for appellant.

      John J. Speed, for appellee.

       On the question of the right of the lowest bidder on a public contract, the cases are found in a note to Anderson v. Board of Public Schools, (Mo.) 26 L. R. A. 707.

   Long, C. J.

By a resolution adopted May 5, 1891, the common council of tbe city of Detroit directed tbe board of public works of said city to advertise for proposals to pave Griswold street, from Jefferson avenue to Grand River avenue, with brick. Pursuant to such direction, tbe board advertised for bids for tbe paving of such street, according to tbe specifications adopted by tbe common council and estimates by the city engineer. A bid was put in by the plaintiff company for $26,498.11, the next higher bid being that of John A. Stewart, for $26,528.16. The plaintiff furnished the bidding and contract bonds required by law, and the board of public works thereupon executed a contract with the plaintiff in due form, approved in writing by the city counselor. All the bids and the contract were then referred to the common council, with the request for confirmation of the contract made with the plaintiff. The council referred the matter to one of its committees, which committee subsequently decided that the bid of plaintiff was the lowest, that it was responsible, and that adequate security had been given, but reported further to the council that the bid was informal, without stating what the informality was, and thereupon recommended that John A. Stewart’s bid be accepted. The common council then accepted the report of its committee. In pursuance of the direction of the common council, the board of public works, against the protest of the plaintiff, entered into a contract with Stewart- to do the paving. Before the making of this contract, the plaintiff notified the council of its claim to the contract, but without avail. The plaintiff then filed a petition in this court for a mandamus to compel the council to confirm its bid. The defendant answered, raised an issue of fact, which issue was sent’ to the Wayne circuit court for trial, and was finally settled in favor of plaintiff’s contention. In the meantime Stewart had paved the street, and had been paid from the general paving fund. On that account solely, this court refused the writ of mandamus. Talbot Paving Co. v. Common Council of City of Detroit, 91 Mich. 262. The plaintiff then brought this action against the city of Detroit to recover damages sustained, by reason of the refusal of the council to let the contract to it, the plaintiff having first presented a verified claim to the council for its damages resulting from such action. On the trial' in the court below, verdict and judgment were directed in favor of the defendant, and plaintiff brings error.

The facts are all admitted. The contention of the city here is that, while the contract to Stewart may have been void by reason of his not being the lowest bidder, yet no case can be found holding the lowest bidder, whose bid has been rejected, to have a right to an action at law to recover his profits; that, whenever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that ‘the duty was imposed for his benefit, but that, where the duty was created or imposed for the benefit of another, and the advantage to be derived to the party by its performance is merely incidental, and no part of the design of the statute, no such right is created as forms the subject of an action; that the plaintiff did not suffer any injury directly by the act of the council; that, though it may have lost profits which it might have made, yet such damages are consequential, and it is no part of the object of the statute to prevent losses of that kind. It is further contended by the city that, if the plaintiff had a right of action, it should have proceeded by injunction to prevent the doing of the work under the Stewart contract, or enforced its own right to the contract; that it could not lie by, and, after the work had been done and paid for, ask for profits which it might have made if it had been permitted to perform its contract. On the other hand, it is contended by counsel for the plaintiff that, had the common council refused to accept any of the bids, the city would not have been liable, but, instead of refusing to accept any and all bids, it rejected the lowest bid, without any reason or cause whatever, and accepted a higher bid; and such being the case, the lowest bidder having suffered damages, the city is liable for the damages sustained.

It was settled in the mandamus proceeding (Talbot Paving Co. v. Common Council of City of Detroit, 91 Mich. 262) that the objection made by the respondent was purely technical and without foundation, and that justly, if not legally, the plaintiff may have been entitled to have its contract approved, as the respondent had made no change in the plans or specifications of the work, and was proceeding to make a contract under its original resolution; but as the contract had been already let, and the work done, no relief could be granted by the writ of mandamus. The question was left open whether, under the circumstances shown, the relator had a right'of action for its damages. The proposition here is whether the lowest bidder, under a contract proposed to be let by a municipal corporation, whose bid has been rejected, has a right of action at law to recover profits which he might have made had his bid been accepted.

While it is true that there are many cases in which an injunction has been ordered because of the rejection of the lowest bid, and acceptance of a higher bid, under the same notice of letting the contract (Times Pub. Co. v. City of Everett, 9 Wash. 518, and cases there cited), yet we find no cases, except as referred to hereafter, where a party has been permitted under such circumstances to bring and maintain an action at law for loss of profits. There are also cases which hold that the local assessment is void if the contract is not awarded to the lowest bidder. Twiss v. City of Port Huron, 63 Mich. 528. While, under the charter of Detroit, it was the duty of the city to let the contract to the lowest responsible bidder, yet this charter provision was not passed for the benefit of the bidder, but as a protection to the public. We. think the rule as stated in Strong v. Campbell, 11 Barb. 138, is the true one, and the one which has always been adhered to by the courts. It is there stated as follows:

“Wherever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the advantage to be derived to the party prosecuting, by its performance, is, merely incidental, and no part of the design of the statute, no such right is created as forms the subject of an action.”

The learned judge writing the opinion in that case cites, in support of this rule, the cases of Bank of Rome v. Mott, 17 Wend. 556; Martin v. Mayor, etc., of Brooklyn, 1 Hill, 545; 19 Vin. Abr. 518; Ashby v. White, 1 Salk. 19, 6 Mod. 51.

The court, in Strong v. Campbell, supra, said:

“ It is unquestionably the duty of every officer to perform every duty imposed'upon him by law in the manner and to the extent prescribed, and he may be punished for every violation to the injury of the public or that of individuals. But it does not follow that some one has a right of action against him for every neglect or violation of duty, to recover private damages.”

Mr. Justice Selden, in the case of Hickok v. Trustees of the Village of Plattsburgh, 16 N. Y. 161, note, filed an opinion written by him in the case of Weet v. Trustees of the Village of Brockport, which was adopted by the court as decisive of the Plattsburgh Case. The learned justice reviews at great length the various cases, both English and American, upon the subject. He says:

“We see, from the two classes of cases, that there is an important distinction between the obligations assumed by private individuals for a consideration received from the government or sovereign power of the State, and those assumed by public officers. * * * The reason for the distinction appears to be that intimated by Gould, J., in Lane v. Cotton, 1 Ld. Raym. 646, viz., that the duties in the one case are imposed upon the officer for public purposes only, while in the other they are voluntarily assumed with a view to private advantage. The cases which have been cited show that, in respect to this distinction, corporations have been placed upon the same footing as private individuals.”

Continuing, Mr. Justice Selden says that he has been able to find only one case in this country or in England opposed to those views, and that is the case of Adsit v. Brady, 4 Hill, 630 (40 Am. Dec. 305).

In view of this rule, what is the position of the city of Detroit towards the plaintiff ? It owed no duty to the plaintiff. The charter provision which required the acceptance of the lowest responsible bid had no reference to any interest which the bidders might have in the premises, but was passed to protect the interest of the citizens of the city. Though the act accepting the second bid may have been against the interest of the citizens, certainly the plaintiff could have no action to redress that wrong and injury. It may have been, and evidently was, under the facts shown, a neglect of duty, and the plaintiff undoubtedly was injured by it. The case of Adsit v. Brady, supra, was decided upon the theory that, when a public officer acts or omits to act, contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of his case. But, as we have seen, that rule is not sustained, except in cases where the act performed or omitted to be performed was with a view to some private advantage.

But, it is contended, this rule would be a great burden upon the public, and lead to great frauds in municipal affairs. It may be said in answer to this proposition: First, that the public are not here complaining; and, second, that the plaintiff is not in a position to take advantage of the act, as the charter was not adopted for its individual benefit. Again, it is apparent that, if frauds may be perpetrated in that way, there is a remedy by injunction to prevent the making of a' contract with the next higher bidder.

We are of the opinion that the plaintiff cannot sustain this action. The judgment of the court below, therefore, is affirmed.

The other Justices concurred.


text:
    BEEBE v. BIRKETT.
    Deed—Mistake—Rescission. ■
    A creditor who accepts a deed of land in payment of his debt cannot rescind the contract on the ground that the land deeded was not the land which he had viewed and which he supposed he was to receive, where the mistake was due to his failure to exercise ordinary care in the matter, and neither the debtor nor his authorized agents were in any wise responsible therefor.
    Appeal from' Livingston; Dodds, J., presiding.
    Submitted May 6, 1896.
    Decided June 30, 1896.
    Bill by N. Maria Beebe against Thomas Birkett to compel the discharge of certain mortgages. From a decree for complainant, defendant appeals.
    Affirmed.

      Conely & Taylor, for complainant.

      D. Shields and Francis J. Shields (Thompson & Harriman, of counsel), for defendant.
   Long, C. J.

This bill was filed to compel the discharge of two mortgages upon the lands of the complainant. The bill alleges that complainant is the owner of certain lands in Livingston county, this State, and that on or about March 18, 1890, she mortgaged them to the defendant for $7,100. This mortgage was duly recorded. When it fell due, the defendant commenced foreclosure proceedings, and the complainant, being unable to raise the money necessary to redeem the mortgage, on May 1, 1893, gave to defendant another mortgage upon the same lands for $7,280. This last mortgage was given to pay the first one, together with the interest and the expenses of foreclosure. Defendant, on receiving the second mortgage, agreed to discharge the first one without delay. About December 7, 1894, for the purpose of freeing her lands from the burden of the second mortgage, and supposing the first had been discharged, complainant entered into an agreement with defendant to obtain for him a deed of certain property in Wayne county. In pursuance of this agreement, complainant procured such deed and had the same delivered to the defendant, who accepted it and had it duly recorded. There was a difference in favor of complainant between the Wayne county lands and the amount due on the mortgage, and this difference was paid by the defendant. Complainant claims to have performed every part of her agreement with defendant, but insists, by her bill, that he refuses to discharge either mortgage.

Defendant’s contention is that the second mortgage did not cover the cost of the foreclosure proceedings of the first mortgage, and that the complainant agreed to pay the same, amounting to $35, and has failed to comply' with that agreement. It is further contended by defendant that,—

“By the fraud of said complainant and her agents, the land so conveyed to him is not the land agreed to be conveyed by the said complainant, as alleged in said bill, but is land situated about two miles from the lands agreed to be conveyed, and two miles further out from the center of the city of Detroit, and has very much less value, being far beyond any settled or built-up part of the city of Detroit, and upon an open farm.”

Defendant also ayers that he tendered a conveyance of the land, and demanded from the complainant the sum of $4,200, the amount paid her, but that she did not accept the conveyance, and declined to pay the money demanded.

Proofs were taken in open court, and the court below • decreed that there was due, for the costs of foreclosure proceedings on the first mortgage, the sum of $37, and that, on the payment of that amount, the defendant should discharge said mortgage. As to the second mortgage, the court decreed that it was fully paid and satisfied, and the court directed that it be discharged of record. Neither party was awarded costs. From this decree the defendant appeals.

It is unnecessary to set out here the testimony relative .to the dealings between the parties in reference to the lands. The defendant, it appears, attempted to visit them, and was shown lands wh ich, in an indefinite way, were pointed out as being the lands, or lands situated near those, deeded to him, though defendant was informed by the party who went to show them to him that he was not certain where the lands were situate. We think, upon the whole testimony, that the defendant made no . such case as would entitle him to have the trade rescinded, and his money returned to him by the complainant. Had he exercised ordinary care, he could have at once discovered that the lands which he viewed were not the lands for which he was making the exchange, and we find nothing in the record which would warrant the assertion that the complainant or her authorized agents were responsible for his failing to discover the real situation of the lands deeded to him. The court below so found the fact to be, and, we think, very properly, under the evidence.

The decree of that court must be affirmed, with costs of this court in favor of the complainant.

The other Justices concurred.


author: Hooker, J.

text:
    BACKUS v. ARCHER.

    Bonds—Building Contract—Premature Payment—Release of Surety.
    A surety on a bond for the performance of a building contract which provides that payments shall be made at specified times as the work progresses is released from all liability if the owner, without his consent, makes advances to the principal in excess of the amount due by the terms of the contract.
    Error to Wayne; Donovan, J.
    Submitted June 3, 1896.
    Decided June 30, 1896.

      Assumpsit by Albert P. Backus against John Archer and another as sureties on a building contractor’s bond. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Gray & Gray, for appellant.

      Charles Flowers, for appellees.

       Rehearing denied July 8, 1896.

   Hooker, J.

The defendants executed a bond, as sureties, with and for one Margaret Depew, their principal, for the faithful performance by her of a building contract, and this action was brought upon the bond. Defendants were successful in their defense, and the plaintiff has appealed.

The contract bound Margaret Depew to furnish materials and to erect a dwelling for the plaintiff on or before December 1, 1892, in accordance with the plans and specifications and drawings made by George E. Depew (her husband), the architect of the building, subject to his supervision and entire approval. In consideration therefor she was to be paid by the plaintiff $3,648, at times therein specified, as the work progressed. The contract provided that if said work should not be completed on the 1st day of December, 1892, plaintiff might, at his option, employ others to furnish materials and do the whole or any part of the .work undone, and charge the cost to Margaret Depew, or leave the completion to her, and, if not completed on December 1, 1892, then she should pay to the plaintiff, as liquidated damages for nonperformance of the contract, the sum of $1.50 per day until completed. Margaret Depew died a short time after December 1, 1892, at which date the building was not completed. The work was abandoned by Depew.

It is conceded that, at the time work was stopped upon the building, the plaintiff had paid considerably more money than was due by the terms of the contract. The parties disagree about the amount; one claiming that the contract price was paid within $100 or thereabouts, and the other contending that it was at most between $400 and $500, but admitting that it was between $100 and $200. This, being in contravention of the terms of the contract, released the sureties, pro tanto at least. Did it release them from all liability?

In 1 Brandt on Suretyship (section 39?) it is said:

“A surety for the completion of work to be performed by the principal, where, by the terms of the contract, the principal is to be paid by installments, is discharged if the principal is paid faster than the contract provides. The surety is thereby deprived of the inducement which the principal would have to perform the contract in due time, * * * and it is no answer to say that it is for the advantage of the surety, or that he has sustained no prejudice.” Warre v. Calvert, 7 Adol. & E. 143; Calvert v. Dock Co., 2 Keen, 644.

In the latter case the court said of a premature payment :

“What the company did was perhaps calculated to make it easier for Streather to complete the work if he acted with prudence and good faith, but it also took away tnat particular sort of pressure which by the contract was intended to be applied to him.”

The question was again fully discussed, and the doctrine of Calvert v. Dock Co. affirmed, in General Steam Navigation Co. v. Rolt, 95 E. C. L. 550.

The American authorities are in harmony with the foregoing English cases. Clagett v. Salmon, 5 Gill & J. 314; Barns v. Barrow, 61 N. Y. 39 (19 Am. Rep. 247); Simonson v. Grant, 36 Minn. 439; Bragg v. Shain, 49 Cal. 135; Ryan v. Morton, 65 Tex. 258; Taylor v. Jeter, 23 Mo. 250; St. Mary’s College v. Meagher, (Ky.) 11 S. W. 608; Erickson v. Brandt, 53 Minn. 10; Board of Com’rs v. Branham, 57 Fed. 179; Bell v. Paul, 35 Neb. 240; Henricus v. Englert, (Sup.) 17 N. Y. Supp. 235. The case of Simonson v. Grant was a hard one. The premature payments were only such as were necessary to protect the house from liens, yet the court applied the rule, saying that, “In such cases the surety may be deprived of the inducement which the principals would have to perform the contract in due time, as the contract requires,” and that “the surety has a right to insist that he is bound to tho extent, in the manner, and under the circumstances pointed out in his obligation, and no-further.” And Mr. Justice Vanderburgh cites Miller v. Stewart, 9 Wheat. 680, 703, and other cases, to the proposition that—

“It is not sufficient that he may sustain no'injury by a change in the contract, or that it may even be for his-benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal.”

This is extreme ground, and we do not find it necessary to go so far in this case. See Preston v. Huntington, 67 Mich. 139. The case of Board of Com’rs v. Branham, supra, contains a lengthy discussion of the Ameri can cases, which it is unnecessary to repeat. This subject was alluded to in the case of Marquette Opera- House Building Co. v. Wilson, ante, 223, and applied to the extent of the necessities of that case.

The judgment of the circuit court is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    HELBER v. SCHANTZ.
    Gaming—Election Bet—Recovery of Winnings.
    The furnishing of money to another for betting purposes is a gaming transaction, and a suit for the winnings cannot be maintained.
    Error to Washtenaw; Kinne, J.
    Submitted June i, 1896.
    Decided June 30, 1896.

      Assumpsit by Eugene Helber against Martin Schantz. Erom a judgment for defendant on verdict directed by
    the'court, plaintiff brings error.
    Affirmed.

      E. B. Norris, for appellant.

      Arthur Brotan, for appellee.
   Moore, J.

Plaintiff furnished five dollars to defendant with which to make a bet upon the result of an election. The bet was made, and Schantz won the money. He paid plaintiff five dollars, and declined to pay over the balance. Plaintiff sued him in justice’s court, and recovered a judgment. The case was appealed to the circuit court. The trial judge directed a verdict for the defendant upon the ground that what occurred between the parties was a gaming transaction, and that the courts will not interfere in behalf of a party to such a transaction. The case is brought here by writ of error.

The trial judge made a proper disposition of the case. The judgment is affirmed.

The other Justices concurred.


text:
    DETROIT DRIVING CLUB v. FITZGERALD.
    1. Corporations—Purposes—How Determined.
    The purposes of a corporation are to be determined bv the statements contained in its articles of association.
    3. Same—Legality.
    The purposes of an incorporated club, which, as expressed in its articles of association, are “to promote social intercourse among the members, to provide a club house, pleasure grounds, and proper facilities for improving, training, and exhibiting horses at meetings to be held at stated times in each year,” are lawful.
    8. Same—Stockholders—Liability for Assessment—Estoppel.
    A subscriber to the stock of a corporation organized under Act No. 33, Pub. Acts 1888 (3 How. Stat. chap. 163 B), cannot defend an action to recover an assessment on his subscription, upon the ground that the improvements to pay for which the assessment was declared were made before all of the capital stock had been subscribed, and that the corporation issued bonds and mortgages to enable it to carry on the improvements, where, with knowledge of such facts, he participated in the purposes of the corporation, and availed himself of benefits to which stockholders alone were entitled.
    Error to Wayne; Carpenter, J.
    Submitted April 21, 1896.
    Decided June 30, 1896.

      Assumpsit by the Detroit Driving Club against William H. Fitzgerald to recover an unpaid subscription to the capital stock of the plaintiff corporation. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      E. T. Wood, for appellant.

      Moore & Moore (Otto Kirchner, of counsel), for appellee'.
   Moore, J.

The plaintiff was organized under Act No. 22, Pub. Acts 1883, and sued defendant to recover an unpaid subscription of stock. By direction of the court, the jury rendered a verdict in favor of the plaintiff. Defendant assigns error.

In July, 1893, D. J. Campau, after some talk with defendant, presented him with a paper reading as follows:

“ Whereas, it is proposed to organize a Corporation for the purpose of promoting good fellowship among its members, by providing a clubhouse and pleasure grounds for their entertainment, where at all times they may meet for social intercourse, and further to encourage, by providing the proper facilities, raising, improving, breeding, training horses, at meetings to be held at stated times in each year: Now, therefore, we, the undersigned, for the purpose of such organization, do hereby severally subscribe the sum set opposite ourS respective names, to its capital stock, and agree to pay the same to said corporation, in installments, as called for from time to time by the board of directors.”

The paper bore the signatures of 20 persons at $1,000 each, and one at $$,500. Mr. Fitzgerald signed for $2,-500. Mr. Campau claims that at this time he informed Mr. Fitzgerald that they had organized the Detroit Driving Club; that the corporation expected to have a capital stock of $150,000; that $68,000 was then subscribed; and that they were going ahead to acquire the grounds and buildings, and would not wait for the full subscription. Mr. Fitzgerald denied that he was told by Mr. Campau they were going ahead before .the capital stock was all subscribed. The club afterwards bought grounds, put up buildings, and spent a large sum of money. August 9, 1893, an assessment of 20 per cent, was made on all subscriptions to the capital stock. December 5, 1893, a further assessment of 80 per cent, was made; and the president was directed to let contracts for buildings, and to proceed with the work necessary to hold a race meeting,—the cost not to exceed $100,000. After the 20 per cent, assessment was made, Mr. Fitzgerald did not pay it on his subscription, and, in a conversation with Mr. Campau, said his money was tied up, and had some talk with him to the effect that he had subscribed for more stock than he could take care of, and a little later wrote a letter reading as follows:

“Detroit, Michigan, August 31, 1893. “D. J. Campau, Esq.,
“City.
“Dear Sir: I rather overreached myself when I subscribed for $2,500 of stock in the D. D., signed in this stringency. I was speaking to Mr. Vail today, and he thought I might reduce my subscription to $1,500, and then, after a while, when money is cheaper, subscribe for more stock, if I desire, and somebody else did not want it. If my subscription can be changed to the above amount, and' you will advise me of the same, I will send you a check at once for $300.
“William: H. Fitzgerald.”

Mr. Campau replied as follows:

“Dear Sir: In answer to your letter of recent date, in regard to reducing your stock subscription in the Detroit Driving Club to $1,500, would say, if you will send your check for $300, being 20 per cent, assessment made on the stock, I will see that the other 10 shares are placed elsewhere,
“Yours truly,
“D. J. Campau.”

Mr. Fitzgerald sent his check for $300, and a certificate was issued certifying that he had “subscribed for 15 shares of the capital stock of the Detroit Driving Club, at $100 per share, amounting to $1,500, for which certificates of stock will be issued upon the payment of the amount subscribed, and the surrender of this certificate. The assessments paid are indorsed hereon,”—and indorsed with the $300 payment.

Article 3 of the plaintiff’s articles of association reads as follows:

“The purpose or purposes of this corporation is to promote social intercourse amongst the members; to provide for them the convenience of a clubhouse, pleasure grQunds, and proper facilities for improving, training, and exhibiting horses at meetings to be held at stated times in each year. The- term of existence of this corporation is fixed at 30 years from the date hereof. ”

Among the by-laws adopted by the association were the following:

“ Every member of the club shall pay an initiation fee of $50, excepting subscribers for $500 ■ or more of the original capital stock of the corporation. All such subscribers, who take and pay for the stock thus subscribed for, will be exempt from the initiation fee for membership, so long as they continue to own and hold not less than $500 of said original capital stock in said corporation. A transfer or sale of any amount of said stock will not entitle the person to whom said stock be transferred or sold to membership. Stockholders will not be exempt from payment of annual dues.
“The annual dues shall be $25, payable in advance the first day of January. Members admitted after August 1st in any year shall pay $10 for the remainder of the current year.
“At all racing meetings, members and guests shalL wear their badges, so that the same may be readily seen by the officers of the club. Members shall be required, •on racing days, to exhibit their badges to the gate keeper at the club entrance, upon entering the club grounds. In case a member shall neglect to bring his badge with him, he may once, hut not oftener, during a racing meeting, obtain at the club entrance the temporary use of a badge; such badge to be returned the day following to the secretary, at the city office. No badge can be obtained at the public entrance to the racing grounds. Members without badges, entering at the public gates, must pay the regular entrance fee.”

July 2, 1894, the secretary of the club wrote Mr. Fitzgerald as follows:

“Dear Sir: Assuming that you desire membership in the club, I inclose bill for dues for 1894, and member’s equipment of tickets. Should you not care to become a member this year, you will return the tickets on or before July 10th.”

To‘which, under date of July 7th, Mr. Fitzgerald replied :

“I herewith return tickets sent me July 2d. I do not desire membership under your by-laws.”

The corporation acquired about 90 acres of land, with a circular race track a mile in length; with a large grand stand for spectators, a part of which was reserved for the use of members exclusively. In July, 1894, the plaintiff had a racing meeting on the grounds, which lasted for several days. Mr. Fitzgerald attended that meeting, with some of his friends, and occupied a place on the grand stand. With him was Mr. Knight, of Ft. Wayne. Mr. Knight wanted to become a member of the club. Mr. Fitzgerald explained to him how he could do so, and asked Mr. Lee, one of the directors of the club, to send Mr. Knight a membership equipment, and told Mr. Lee that he (Fitzgerald) would pay for it. He also said: “I have got so many friends here, that you might as well send me those season tickets, and I will send you $25 for them,” which he did. The tickets and badges were furnished to both of them, Mr. Fitzgerald paying for his,— no initiation fee, but simply the annual dues of $25,— and after this he occupied the part of the stand reserved exclusively for members.

Mr. Fitzgerald claims that when he paid the $300 assessment he did not know that the capital stock had not all been subscribed, or that the plaintiff proposed to issue bonds and a mortgage to enable it to carry on its improvements. The record discloses that he knew all these things when he procured the tickets, and occupied the part of the grand stand reserved exclusively for members. The defense is put upon several grounds. All the assignments of error have had our attention, bht we shall discuss only those that seem to be important.

It is claimed that the business carried on by the plaintiff is illegal,—is not within the scope of its charter, and not authorized by any law of the State. People v. Weithoff, 51 Mich. 203, and Schuetzen Bund v. Agitations Verein, 44 Mich. 313, are cited. Neither of these cases is in point. The first of these cases was a criminal case, where the respondent was charged with a violation of an express provision of the statute. The second case was one where there was no law authorizing the existence of the organization, and its purpose was to oppose the enforcement of a prima facie valid act of the legislature. The purposes of the corporation or association are to be determined by the statement in its articles of association. Attorney General v. Lorman, 59 Mich. 157. The purposes of this association were lawful. 2 How. Stat. § 9387; International Fair, etc., Association v. Walker, 83 Mich. 386.

Another defense, and the only one necessary to be considered, is that the capital stock Was not all subscribed. It is suggested that the act under which plaintiff organized (Act No. 22, Pub. Acts 1883) does not require the corporation to have any capital stock, and that it is unlike Act No. 6, Pub. Acts 1889, under which the fair association just referred to organized. We do not need to pass upon that question, for it appears clearly in this case that after the defendant knew the capital stock was not all subscribed, and after he knew all of the assessments upon the capital stock were made, and knew the purposes of the organization and the provisions of its by-laws, and the character of what it was doing, and what it had done in the way of acquiring property and expending money, he participated in its purposes, accepted membership tickets and badges without paying a mem-' bership fee,—paying simply annual dues,—and availed himself of the benefit of being a stockholder to a greater amount than $500. , We know of no authority that will allow him, with full knowledge of the facts, to take the benefits and escape the burdens of the position in which he has placed himself. International Fair, etc., Association v. Walker, supra; Id., 97 Mich. 159; 1 Cook, Stock, Stockh. & Corp. Law, § 52. Upon this question there was no conflicting testimony. It was competent for the court to instruct the jury that upon the conceded facts the plaintiff should recover. Cobbs v. Fire Association, 68 Mich. 466.

The judgment is affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., did not sit.


text:
    HAMMOND v. SCHOOL BOARD OF CITY OF MUSKEGON.
    1. Schools and School Districts—Teachers’ Institutes—Collection oe Fees erom Teachers.
    3 How. Stat. § 5187, in relation to teachers’ institutes, providing that all boards or officers authorized to examine applicants for certificates of qualification as teachers shall collect from each male applicant an annual fee of $1, and from each female applicant an annual fee of 50 cents, and that the director and secretary of any school board that shall employ any teacher who has not paid the fee shall collect the same at the time of making the contract, is not subject to the objection that it is defective, incomplete, and ineffectual. The imposition upon the school officers of the duty to collect the fee, by implication, creates a corresponding duty on the part of the teacher to pay the same; and this obligation to pay can be readily enforced as a condition to examination or employment, as the case may be.

      2. Same—Constitutional Law—Specific Taxes—Uniformity of Taxation.
    The statute is not unconstitutional on the ground that it . attempts to apply specific State taxes to a purpose other than that permitted by section 1, art. 14, Const., since the moneys derived thereunder are to be used to defray the expenses of local teachers’ institutes; nor does it contravene the provision of section 11, art. 14, that taxation shall be uniform.

      Certiorari to Muskegon; Bussell, J.
    Submitted April 30, 1896.
    Decided June 30, 1896.

      Mandamus by Jason E. Hammond, deputy superintendent of public instruction, to compel the school board of the city of Muskegon to collect an annual institute fee from the teachers in the city schools. From an order denying the writ, relator brings certiorari.

    Beversed.

      Fred A. Maynard, Attorney General, for relator.

      William Carpenter, for respondent.
   Moore, J.

This is a case to test the constitutionality of section 5187, 3 How. Stat., commonly known as the “Teachers’ Institute Law.” Section 5187 reads as follows:

“That all boards or officers authorized by law to examine applicants for certificates of qualification as teachers shall collect, at the time of examination, from each male applicant for a certificate an annual fee of one dollar, and from each female applicant for a certificate an annual fee of fifty cents; and the director and secretary of any school board that shall employ any teacher who has not paid the fee hereinbefore provided shall collect, at the time of making contract, from each male teacher so employed an annual fee of one dollar, and from each female teacher so employed an annual fee of fifty cents. All persons paying a fee as required by this section shall be given a receipt for the same, and no person shall be required to pay said fee more than once in any school year.”

Other sections of the law provide that the money derived from these fees shall be expended towards defraying the expenses of holding county teachers’ institutes.

The school officers of the city of Muskegon have for several years refused to collect these fees. The relator petitioned the circuit court for Muskegon county asking that the respondent be compelled by mandamus to collect these fees. The circuit court refused to make the order, and the proceeding is brought here by certiorari.

It is urged by respondent that section 5187 is defective, incomplete, and ineffectual. We do not think so. The language is simple, and easy to be understood. If it is the duty of the board to collect, it would follow naturally that it is the duty of the teacher to pay, the fee, as a condition of receiving the examination or employment, as the case may be. It ought not to be difficult for the board of education to say to an applicant for a license to teach, or to an applicant for a teacher’s position, that the applicant must comply with the law before the examination proceeds or the contract is made.

It is also urged that the law violates the provisions of section 1, art. 14, of the Constitution, because the fees are specific taxes, and must be applied according to the provisions of the section just cited. It is urged that the fees are not uniform, and for that reason the statute is unconstitutional. We think none of these positions well taken. The principles involved are so ably discussed by Justice Cooley, in Youngblood v. Sexton, 32 Mich. 413, that it is not necessary to continue the discussion here. See State v. French, 17 Mont. 54.

The writ of mandamus should issue as prayed for by the relator, but without costs.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., did not sit.


text:
    SOUKUP v. VAN DYKE.
    Constitutional Law—Title of Aot—Amendatory Statute— Jurisdiction of Justices of the Peace.
    The title to Act No. 306, Local Acts 1893, namely, “An act relative to justices’ courts in the city of Grand Rapids, to reduce the number thereof, and to fix the compensation of such justices, and provide a clerk and offices therefor,” was sufficient to authorize the incorporation into the act, by Act No. 274, Local Acts 1895, of a provision conferring upon said justices exclusive jurisdiction of all actions between residents of the city, within the limits of a justice’s jurisdiction.

      Certiorari to Kent; Adsit, J.
    Submitted April 29, 1896.
    Decided June 30, 1896.
    Joseph Soukup recovered a judgment against Adrian Van Dyke before a justice of the peace of the township of Grand Rapids, in an action on the case. Both parties were residents of the city of Grand Rapids. A body execution was issued on said judgment, and, in default of goods and chattels, the body of the defendant was taken thereon. Defendant thereupon sued out a writ of habeas corpus, contending that the justice was without jurisdiction, under Act No. 274, Local Acts 1895; and, upon the hearing, the court entered an order declaring the proceedings void, and discharging the defendant from custody. Plaintiff brings certiorari to review this action of the court.
    Affirmed.

      Hatch & Wilson, for appellant.

      Nathan P. Allen, for appellee.
   Montgomery, J.

Act No. 306 of the Local Acts of 1893 was entitled “An act relative to justices’ courts in the city of Grand Rapids, to reduce the number thereof, and to fix the compensation of such justices, and provide a clerk and offices therefor.” This act, in addition to the provision reducing the number of justices, and fixing their compensation and providing a clerk, contained provisions regulating fees to be paid by suitors, and relating to transfer of causes for trial from one justice to another. Act No. 274, Local Acts 1895, is entitled “An act to amend an act entitled, ‘An act relative to justices’ courts in the city of Grand Rapids, to reduce the number thereof, and to fix the compensation of such justices, and provide a clerk and offices therefor.’” By this amendatory act, justices of the peace of the city of Grand Rapids are given exclusive jurisdiction of all actions, within the limits of a justice’s jurisdiction, where both parties are residents of the city. The sole question in this case is whether the amendatory provision is sufficiently within the title. It is said that the object of the amendatory act must be embraced within that expressed in the title to the act amended. Where the title to the amendatory act reads as this one does, there can be no doubt that the amendment must be by introducing matter which would have been proper in the original act. Eaton v. Walker, 76 Mich. 579. The question, therefore, is, could this provision limiting jurisdiction have been introduced in the first act, or would the attempt to do so have violated section 20, art. 4, of the Constitution, which provides that a statute shall embrace but one object, which shall be expressed in its title ?

We do not understand counsel to contend that a provision of this nature, together with such as were in fact incorporated in Act No. 306 of 1893, would not have been admissible under one title, or that they relate to more than one general object. The contention is that this object was not expressed in the title. In furtherance of this contention, counsel read the title of Act No. 306 of 1893 as restricted to the purpose of—First, reducing the number of justices; and, second, fixing their compensation; and, third, providing a clerk and offices. We do not so construe this title. We think the general words, “An act relative to justices’ courts in the city of Grand Rapids,” are used to indicate the general purpose of the legislation. The fact that it was thought proper to insert in the title reference to certain of the special features of the act does not render the title more restricted. The question is, then, is this general title sufficient? The question is of importance, as the Detroit justices’ court was established under a title precisely the same as the general words of this title.

The provision requiring the object to be expressed in its title has not received a construction which renders it necessary to set out in detail the purposes of the act. To place such a construction on it would make it necessary that the title be as full as the act itself. On the contrary, the rule is universal, as expressed in Cooley, Const. Lim. (6th Ed.) 172, that “the generality of the title is no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which, by no fair intendment, can be considered as having a necessary or proper connection.” People v. Mahaney, 13 Mich. 481. The title is sufficient if it fairly and reasonably announces the object, and that is a single one. If this requirement be observed, the legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title, in defining it. Cooley, Const. Lim. (6th Ed.) 173. Accordingly, it has been held that a title reading, “An act in relation to certain State roads therein named,” sufficiently expressed the purpose of an act which vacated such roads, and established others. State v. County Judge, 2 Iowa, 280. In People v. Kelly, 99 Mich. 82, it was held that a title, “An act relative to disorderly persons, and to repeal,” etc., sufficiently expressed the purpose of the act defining who are disorderly persons, and providing for their punishment. See, also, Canal Street Gravel-Road Co. v. Paas, 95 Mich. 379; Van Husan v. Heames, 96 Mich. 507.

We think the circuit judge was right in sustaining this legislation, and the judgment is affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, O. J., did not sit.