author: Blair, J. Carpenter, J. Hooker, J.

text:
    BLICKLEY v. LUCE’S ESTATE.
    1.Landlord and Tenant — Collapse oe Building — Liability oe Landlord.
    Where a tenant’s property is destroyed by the collapse of the building caused by the negligent making of alterations by another tenant under permission of the landlord, the landlord is liable for the damages.
    2.Same — Negligence—Evidence.
    The collapse of a building during the making of repairs and alterations is, as to a tenant whose property is destroyed by such collapse, prima facie evidence of negligence on the part of the landlord.
    3. Trial — Order oe Prooe — Discretionary Rulings — Review.
    The order of proofs, and the permitting of testimony on rebuttal which is part of the original case, are, to a certain extent, matters of discretion, and do not justify reversal, except where such course deprives the complaining party of a fair trial or occasions a miscarriage of justice.
    4. Witnesses — Credibility—Impeachment—Evidence.
    In an action by a tenant against his landlord for damages for the destruction of property caused by the fall of the building followed by fire, the fact that he has brought suit against insurance companies on the theory that fire caused the fall, has no bearing on his credibility as a witness, it appearing that the question whether the fall was occasioned by negligence or fire was one respecting which he had no personal knowledge, and that it was necessary to bring suit to preserve his rights against the insurance companies in the event that the evidence should prove that the loss was due to fire. Per Mc-Alvay, C. J., and Carpenter, Blair, and Moore, JJ.
    5. Landlord and Tenant — Collapse oe Building — Liability oe Landlord — Negligence—Evidence.
    In an action by a tenant against his landlord for damages for the destruction of property caused by the collapse of the building during reconstruction, the fact that the work was entered upon without obtaining a permit as required by ordinance may be considered with the other evidence on the question of the landlord’s negligence.

      Error to Kent; Wolcott, J.
    Submitted February 18, 1907.
    (Docket No. 81.)
    Decided April 30, 1907.
    ■ Christian Blickley presented a claim against the estate of Ransom C. Luce, deceased, for damages to a stock of merchandise caused by the collapse and burning of decedent’s building. The claim was disallowed in the probate court, and claimant appealed to the circuit court. There was judgment for claimant, and contestants bring error.
    Affirmed.

      J. H. Tatem and G. A. Wolf (Jacob Kleinhans, of counsel), for appellants.

      William H. Eastman and Albert Grane (Myron H. Walker, of counsel), for appellee.
   Blair, J.

Claimant was a tenant of decedent under written lease of a portion of the Luce Block in Grand Rapids. His stock of crockery and glassware was destroyed by the destruction of the block during the night of July 17, 1901, due, as was alleged by claimant, to the collapse of the building, caused by the negligent making of repairs directed or permitted by decedent, followed by fire occasioned by the fall of the building.

Ransom C. Luce having died, claimant, in September, 1902, filed a claim for damages against his estate in the probate court, where it was disallowed. On appeal to the circuit court, a jury trial was had, resulting in a verdict for claimant for $24,940.32, substantially the value of the stock as shown by claimant’s testimony. The record comes to us for review upon writ of error.

No issue was framed or pleading of any kind filed by contestants. The principal question of fact litigated was whether the building collapsed and caused the fire, as asserted by claimant; or whether the fire preceded and caused the collapse, as claimed by contestants. The repairs in question were being made for the benefit of N. & M. Friedman Company, who were also tenants of the block and desired more room. Certain changes having been made by Mr. Luce, the Friedman Company requested other and further changes. Contestants allege, and there was evidence tending to prove, that Mr. Luce refused to make, any further changes, but said that the company could have it done at its own expense, provided Mr. Robinson, the architect, said it was all right, and good men were employed.

The negligence alleged was as stated briefly by the circuit judge:

‘ ‘ That, in the making and suffering to be made of said alterations and changes, said Luce was negligent in that said alterations were made without the advice of competent architects, without proper plans and specifications, and without complying with the building ordinance of the city of Grand Rapids. That incompetent and unskillful contractors and workmen were employed; that the work was done in an unworkmanlike and unskillful manner. That the materials used in and about said work were too weak and insufficient for the purpose for which they were used, and were subjected to greater strains and weights than they were designed to bear, or reasonably could have borne. That the building was not properly shored up or supported during the removal of portions of it. That Luce, having notice of the weakened condition of the building before it fell, neglected to use proper efforts to support it. That the weights in the building were redis-. tributed by these alterations so that the partition wall between 70 and 72 Monroe street became overloaded, and that the weights on the structure were increased to an undue extent by said alterations and changes. * * * That by reason of these alterations made as alleged, the building, as early as July 16, 1901, became dangerous. It fell on the morning of July 18th. That Luce knew it, and claimant did not. That Luce should have warned claimant of such dangerous condition, and did not. That if such warning had been given, claimant could and would have removed his goods and saved much of the loss subsequently incurred.”

Several suits involving the cause of the destruction of this building have been before the courts, where it has been determined that the original cause of the destruction was fire. N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212; Phenix Ins. Co. v. Luce, 123 Fed. 257; Liverpool, etc., Ins. Co. v. N. & M. Friedman Co., 133 Fed. 713; Greenwich Ins. Co. v. N. & M. Friedman Co., 142 Fed. 944, 200 U. S. 621. In July, 1903, claimant sued several insurance companies on policies covering his stock to the amount of $7,000, which suits are still pending. At the close of claimant’s main case, contestants demurred to the evidence, for two reasons:

“1. Because it appeared that the work at the time of the accident was done by a co-tenant of claimant through an independent contractor and therefore the owner cannot be liable.
“3. Because there is no evidence of express negligence on the part of Mr. Luce.” n

A motion for a new trial was presented, and the following grounds specially relied on: First. Because the court erred in charging the jury as follows:

“As a general rule, in such case, the employer is not answerable for the negligence of the contractor in such case; but in this case, however, it appears that Mr. R. C. Luce was the owner of the block in which the reconstruction work was going on, and was the landlord of Mr. Blickley, who had a store in the same block. Under these circumstances, if you find by a fair preponderance of the evidence that this work was negligently planned, or negligently done, so that it left the structure or the wall where the work was being done in so weak or unsafe a condition that the building fell by reason thereof, then the owner of the building could not relieve himself of liability for the negligence of the contractor or his workmen.
“ In other words, I instruct you that, where the relation of landlord and tenant is shown to exist, the landlord, during the continuance of that relation, owes to his tenant the duty of so handling the leased premises and the landlord’s other adjoining premises, as that the tenant shall not without the tenant’s knowledge and consent, by any act of the landlord’s agents or others acting under the landlord’s permission or authority, be evicted or disturbed in his possession of the leased premises, or his property therein damaged or destroyed.
“ So, in this case, I instruct you as a matter of law that Mr. R. C. Luce, being the owner of the block and the landlord of Mr. Blickley, a tenant of the same block, his estate would be liable for the negligence of the contractor and the workmen, if there were negligence in doing this reconstruction work, both that work which Mr. Luce himself procured to be done, and also whatever further work was done by the Friedmans with Mr. Luce’s knowledge, permission, and consent, if it was; provided you find from the evidence that there was negligence, either in the plan of doing this reconstruction work, or in the manner of doing it, or both, and that by reason of such negligence the building was rendered unsafe and insecure, causing it to fall on the night of July 17, 1901, and causing the destruction of claimant’s property.”

Second. Because the court erred in charging the jury as follows:

“His [Mr. Luce’s] liability for unsafe and improper work, if there was any, and for overloading the walls, girders, and posts, if they were overloaded, is the same as though he had employed the men and personally superintended the work, if the same constituted negligence and the claimant’s stock was destroyed thereby.”

Third. Because the court erred in refusing to give defendant’s sixth and seventh requests to charge.

Fourth. Because the court erred in stating the claimant’s theory in certain respects and in not giving contestants’ twenty-first, twenty-second, and twenty-eighth requests relating thereto.

Fifth. Because the court erred in charging the jury as follows:

“But that fact that he [Mr. Blickley] has brought suit against the insurance company, which suit is pending, is not a matter for your consideration in arriving at a verdict in this case. You have no responsibility for any case but this, and should not consider any other.”

Sixth. Because the court erred in permitting the claimant on rebuttal to retry his principal case on the question of fire by recalling and re-examining his witnesses, Hammond, G-undry, Le Moine, Wells, Dean, Campbell, and others*

Eighth. Because the claimant and his counsel pursued an improper and prejudicial course to defendants’ rights in the conduct of the trial by giving before the jury inadmissible testimony under the guise of an alleged rebuttal and impeachment in connection with the matters referred to in grounds 6 and 7 of this motion, etc.

Ninth. Because defendants were prejudiced by improper evidence offered by claimant by the witnesses, Hauser, C. W. Davidson, and others, as to alleged poor work in the original construction of the Luce building and the Puritan building, so-called, and because no charge was given to the jury on the subject.

Tenth. Because the court erred in permitting the claimant’s witness, Adolph Leitelt, to testify that castings were ordered by Gulliford & Richens, without any evidence or proof that they were ordered by or for Mr. Luce; and that the court erred in denying defendants’ motion to strike out the testimony so given.

Eleventh. That the claimant did not prove by a fair preponderance of the testimony that either the fall or the fire was caused by the negligence of Mr. Luce.

Twelfth. That the evidence as to the value of the stock of goods did not authorize a verdict for the amount found, and the verdict is largely excessive, and. the defendants have discovered new evidence on the question of value.

Thirteenth, Sixteenth. That the verdict is against the weight of evidence, etc.

At the beginning of their argument, counsel for contestants say:

‘ ‘ The errors assigned, and which will be argued here, are the points above stated as furnishing the grounds for the motion for new trial, and one or two rulings on requests and evidence.”'

Counsel for contestants have distributed their argument in their principal brief under the following heads:

(1) Decedent’s liability for Friedman’s alleged negligence with respect to alterations made by the latter.
(2) Prejudicial conduct of claimant.
(3) Retrial of main case on rebuttal.
(!) Preventing attack on claimant’s credibility.
(5) Specifications and building ordinance.
(6) Erroneous rulings on evidence.
(7) Excessive verdict.

Counsel argue under this head that:

“ (a) Decedent was not affirmatively shown to have been guilty of negligence with respect to the work done by Friedman.
‘ ‘ (6) In the absence of proof of negligence on the part of decedent, he is not liable for' any negligence of Friedman or of the latter’s contractors or workmen.
‘ ‘ (c) The testimony shows beyond dispute that the architects and contractors employed by the Friedman Company were competent and experienced.
“(d) The relation between Gulliford & Richens to Mr. Luce was that of independent contractors. And the like relation existed between the Friedman Company and Gulliford & Richens. The entire work and the method of carrying it out was left entirely to the judgment of the contractors. .
“(e) Decedent had no knowledge of any alleged acts of negligence of Friedman’s contractors or the latter’s employes. '
(f) There is no evidence of any negligence on the part of either Mr. Luce or Mr. Friedman in their personal conduct.”

This is not a suit by one tenant against a landlord for damages suffered because of the negligence of another tenant of the same building in making the usual repairs of his part of the premises in consequence of the duty resting upon him to make them; nor for damages in consequence of the wrongful use of his part of the premises; nor for acts unknown to the landlord. This record presents a case of altering and reconstructing premises, work which the tenant had no right to perform at all without the permission of the landlord, which the landlord alone could do or authorize. In the first instance, the landlord took charge of the -making of the alterations in the building himself. Having made such alterations as were at first contemplated, he turned over to the tenant the making of the additional changes which he desired. The additional changes were as much made by authority of the landlord as the original changes. If the landlord had directed the tenant to make the repairs at the landlord’s expense, in whole or in part, the men who carried out the work would have represented the landlord, whether they were independent contractors or not. The duty to so reconstruct the building as not to injure the plaintiff would be an absolute duty, resting upon the landlord, which he could not delegate to another, and thereby escape liability. Wilkinson v. Spring Works, 73 Mich. 405; Peerless Manfg. Co. v. Bagley, 126 Mich. 225; Lauer v. Palms, 129 Mich. 671 (58 L. R. A. 67); Riley v. Simpson, 83 Cal. 217 (7 L. R. A. 622); Case v. Minot, 158 Mass. 577 (22 L. R. A. 536). Whatever the rule might be as to a stranger, it can make no difference in principle as to plaintiff, who occupied under a covenant for quiet enjoyment, whether the expense of reconstruction was borne by the landlord or another acting by his authority. In. either event, the invasion of plaintiff’s possession would be due to the authority of the landlord, who had agreed to protect it, and, in either event, the landlord should be held liable for the negligent execution of the work, the result of which, directly attributable to the authority of the landlord, was an eviction of the tenant. Coulter v. Norton, 100 Mich. 389. Excluding fire as a cause for the fall of the building, such fall, under the oircumstances of this case, was prima facie evidence of negligence. Barnowsky v. Helson, 89 Mich. 523 (15 L. R. A. 33); Huggard v. Refining Co. (Iowa), 109 N. W. 475. Apart from the inference which might properly be drawn from the collapse of the building in process of reconstruction, there was abundant evidence of negligence for the consideration of the jury.

The only occurrences during the trial, lasting from October 3d to November 3d, which might form the basis of a charge of prejudicial conduct on the part of claimant, are wholly unsupported by exceptions taken on the trial, and generally without formal objections. The argument for a reversal is predicated upon exceptions to the refusal to grant a new trial. Even if we disagreed with the circuit judge in his conclusion that these occurrences were not prejudicial to contestants, which we do not, we should not be inclined to overrule his exercise of his discretion under such circumstances. The order of proofs and the permitting of testimony on rebuttal which was part of the original case are, to a certain extent, matters of discretion, and do not justify a reversal, except where such course deprives the complaining party of a fair trial or occasions a miscarriage of justice. We think that contestants were afforded an eminently fair trial and have no just cause for complaint.

It is said under this head:

“One of the most palpable errors of the court was in refusing to give contestants’ request No. 27, and removing from the consideration of the jury the action of claimant in suing the insurance companies.”

Request No. 27 was as follows: .

“ And you may also in considering Mr. Blickley’s testimony take into account the fact that he has sued the insurance companies, claiming that the building was destroyed by fire.”

Claimant testified:

“I commenced suit simply to protect my interests. * * * I found the policies stated that if there was any fire loss the companies must be notified within 60 days and I so notified them. At that time I did not know what I found out later.
Q. Now, further than that, there is a provision in your policies that suit must be brought within one year.
“A. To keep the policy alive; yes, sir. That was the main reason for commencing suit.”

Counsel say in their argument:

“ The question of valuation was a difficult one to meet, under the circumstances, and we were entitled to question claimant’s credibility by all fair means. * * *
‘ ‘ The insurance suits by third persons were not proper to be considered here, and as far as the charge of the court covered those cases, it was no doubt correct. But the court went further and took from the jury’s consideration the action of claimant in suing his companies and assuming an inconsistent position. * * *
“ The court had admitted evidence of the suits to be introduced and claimant himself attempted to explain his reasons therefor. We had the right to question Mr. Blickley’s credibility both on account of his interest, and on account of his inconsistent position. The following had taken place when claimant testified on his main case:
“ ‘Redirect: Q. Why did you commence suits against the insurance companies when you did ?
“ ‘ Mr. Totem: That is objected to.
“ ‘ The Court: I rather think the whole matter is immaterial. In what way do you claim it is material to show that any suits were begun ?
“ ‘ Mr. Wolf: To show the inconsistent position.
“ ‘ Mr. Totem: To show that he proceeded against the fire companies on the supposition that there was a fire in the building and that the companies would be liable. If the building collapsed, they would not be liable. Now, there is the act of the party to this suit, and everything he says or does is admitted. Now, we claim that at that time he was looking to the fire companies for his damage.
‘ ‘ ‘ The Court: If it is material at all, the inference that is sought to be drawn from it, I think the question now asked by the claimant is proper, if the other is to stand. I am inclined to let the testimony stand under the claim of counsel, what they olaim for it.’
“After warning the jury about considering the results of the insurance cases, the court below called attention to the amount of claimant’s insurance. And in that connection he made the following charge:
‘ ‘ ‘ You may consider the amount of the claimant’s insurance as bearing upon the value of his stock of merchandise. But that fact that he [claimant] has brought suit against the insurance company, which suit is pending, is not a matter for your consideration in arriving at a verdict in this case. You have no responsibility for any case but this, and should not consider any other.' .
“We submit this error in refusing to give this request was harmful to contestants and entitles them to a new trial.”

The insurance policies were not put in evidence, nor any proofs of loss on the part of claimant, nor the files in the suits against the companies. All that appeared was that claimant had sued some insurance companies on policies aggregating $7,000, which was the total amount of insurance. In the absence of evidence as to the proofs of loss and declarations in the suits, the jury could not be instructed to infer, from the fact that a standard form of policy is prescribed by statute, that the proofs of loss and declarations contained appropriate charges to enforce liability on such a policy and, therefore, might be considered as bearing upon the consistency of claimant’s conduct and the credibility of his testimony. We, therefore, are of the opinion that the request was properly refused.

Contestants’ twenty-first, twenty-second, and twenty-eighth requests, which were refused, were as follows:

“ (21) The fact that no formal written building permit was issued by the building inspector for the second work is no evidence of negligence. The question to be determined is whether there was in fact negligence on the part of Mr. Luce.
. ‘ ‘ (22) The fact that no new plans were made for the second girder construction, is in itself no evidence of negligence. The question as before stated being whether in fact there was negligence on the part of Mr. Luce.
(28) The evidence shews that no further specifications for the changes in question were necessary in this instance than was had here, and therefore you cannot find Mr. Luce guilty of negligence in this respect.”

Section 2 of the building ordinance is as follows:

‘ ‘ Seo. 2. When any person or corporation shall be desirous of erecting, constructing, or repairing any building or buildings within the fire limits of said city, or any public building, public hall, concert room, theatre, church, schoolhouse, lodge room, armory, factory or warehouse, or any building where people habitually convene for religious worship or amusement, he or they shall make application at the office of the building inspector for a permit for that purpose, and shall be required to furnish and deposit permanently in the office of said inspector a written statement of the proposed location and the estimated cost and the contract time for the completion of the work, together with a ‘ blue print ’ copy of the plans, and general drawings of the structure, and also a true copy of the specifications. After the inspection of the proposed location and the plans and specifications, the building inspector shall issue within ten days from the time of the receipt of the same to said' applicant or applicants a permit for the erection of the proposed structure, providing everything relating to said structure is in compliance with the provisions of this and other existing ordinances.”

The violation of the ordinance was not in itself negligence which would justify a recovery or upon which an action could be based. Cook v. Johnston, 58 Mich. 437; Flater v. Fey, 70 Mich. 644; Sterling v. City of Detroit, 134 Mich. 22; Taylor v. Railroad Co., 45 Mich. 74.

But it does not follow that the violation of the ordinance under the circumstances of the case was no evidence at all of negligence. The parties engaged in the work of reconstruction understood about the ordinance and a permit had been secured for doing the first part of the work, and plans and specifications filed as required. The fact that no attempt was made to comply with the provisions of the ordinance in entering upon the execution of the second part of the work might properly be considered with the other evidence in determining the question of negligence. But even if violation of the ordinance was no evidence of negligence, the request was too broad, since it required the court to charge that the inquiry as to negligence was limited to the personal negligence of Mr. Luce. This consideration applies also to the other two requests. We think, also, that, under the charge of the court, contestants could not have been prejudiced by the failure of the court to give these requests. The court repeatedly stated what facts would constitute negligence, and at no time did he specifically mention the failure to obtain a permit or to file plans and specifications as among such facts.

We have examined the alleged erroneous rulings, and are satisfied that no reversible errors were committed in the respects claimed.

In giving his reasons for denying the motion for a new trial, on the ground of excessive damages and newly-discovered evidence, the circuit judge assigned as such reasons the following:

“ Because in the judgment of the court the evidence as to value of stock of goods authorized the verdict found, and the same is not largely excessive, as specified in reason numbered twelve of said motion; and because the alleged newly discovered evidence of the contestant upon the question of value is not clear and definite, or of sufficient importance and materiality to warrant a new trial, nor has the contestant shown reasonable diligence in discovering and presenting the same.”

We concur in this finding. The value of the stock was proved by an inventory, supported by the testimony of claimant and his clerks, and was substantially undisputed. The showing of diligence was not sufficient. Canfield v. City of Jackson, 112 Mich. 120.

We also agree with the finding of the circuit judge that the verdict was not against the weight of the evidence.

The judgment is affirmed.

Carpenter, J.

I am not satisfied with the reasoning of Justice Blair, in the fourth subdivision of his opinion. I agree with him, however, that the circumstance that claimant had sued the insurance companies had no bearing upon his credibility .t. My reasons for that conclusion are these: The question of whether the fall of the building was occasioned by negligence or by fire was one respecting which claimant had no personal knowledge. As shown by the opinion in N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212, there were facts which warranted either inference. Under these circumstances, it was simply prudent conduct for the claimant to preserve his rights against the insurance company in the event that the evidence should prove that his loss was due, not to negligence, but to fire. To preserve those rights he was compelled, as shown by the opinion of Justice Blair, to sue the insurance companies. I see no legitimate reason for saying that that circumstance affects his credibility.

Except as above stated, I concur in the opinion of Justice Blair.

McAlvay, C. J., and Moore, J., concurred with Carpenter, J.

Hooker, J.

I concur in the opinion of Mr. Justice Blair, upon all points but one. In my opinion the court should have given defendant’s request numbered 27, and that he should not have said to. the jury that “ the fact that he [claimant] has brought suit against the insurance company, which suit is pending, is not a matter for your consideration in arriving at a verdict in this case.” It is highly improbable, however, that the result was any different than it would have been had the request been given, and the language quoted omitted.

I therefore concur in affirming the judgment.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    SEIFFERT v. SHERWOOD.
    Cancellation of Instruments — Deeds — Fraud — Evidence— Sufficiency.
    On a bill to set aside a deed on the ground that it was procured by duress and fraud, evidence examined, and held, to support a decree dismissing the bill.
    Appeal from Wayne; Mandell, J.
    Submitted February 21, 1907.
    (Docket No. 92.)
    Decided April 30, 1907.
    Bill by Clara A. Seiffert against Louis C. Sherwood and the Union National Bank of Detroit to set aside a deed on the grounds of fraud and duress. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Washington I. Robinson, for complainant.

      Orla B. Taylor and Charles F. Delbridge, for defendants.
   Carpenter, J.

Complainant, by a deed absolute in form, conveyed to the first-named defendant certain real estate situated in the city of Detroit. The purpose of this conveyance was to secure the repayment of certain moneys theretofore and to be thereafter advanced by said defendant bank to complainant’s husband, Anthony Seiffert. This suit was commenced, after said advances had been made, for the purpose of securing a reconveyance of said land, on the ground that complainant had been induced to transfer the same by fraud and duress. The trial judge, before whom the case was heard on testimony taken in open court, decided that no fraud or duress had been perpetrated, and made a decree dismissing complainant’s bill.

We dispose of all the contentions of complainant, who appeals from said decree, when we say that the trial judge correctly decided the issue of fact.

The decree is affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: McAlvay, C. J.

text:
    BURCHELL v. COLLIER.
    Cancellation of Instruments — Deeds — Fraud — Evidence— Sufficiency.
    On a bill to set aside a deed on the ground of undue influence and fraud, evidence examined, and held, not to make out a case for complainant and to disprove her claim that she did not know she was signing a deed.
    Appeal from Wayne; Hosmer, J.
    Submitted February 20, 1907.
    (Docket No. 25.)
    Decided April 30, 1907.
    Bill by Martha Burchell and Frederick Burchell against George X. M. Collier, Jennie Collier, Mary E. Fox, and James R. Neill, to set aside a deed for fraud, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      James H. Pound, for complainants.

      Gteorge X. M. Collier, for defendants Collier.

      Dohany & Dohany, for defendant Fox.
   McAlvay, C. J.

Complainant owned the fee to the property involved in this suit, in which her husband claimed an equitable interest. This property consisted of a lot in the city of Detroit, upon which the husband and wife built a house. The value of the property was $4,000 to $4,500. On February 39,1904, the house was partially destroyed by fire. At this time there was a mortgage of $1,800 and liens of $700 against the premises. The total insurance on the house and furniture was $5,200. The damage to the house by fire amounted to $1,400. Later complainants were arrested, charged with setting fire to the building for the purpose of defrauding the insurance companies. Mr. Mistersky was first employed to defend complainants against this charge. Defendant Collier was after-wards employed, and by an arrangement between complainants, their relatives, and these attorneys, a chattel mortgage of $100 was given to them to secure fees. Pending these criminal proceedings, on May 24, 1904, Mrs. Burchell, while in jail, executed and delivered to her attorney, Mr. Collier, a writing by which he was given authority to dispose of the premises, subject to the mortgage of $1,800, and pay over to her all the money realized, except $250, which was to be retained by him as payment in full for all legal services performed for her. On the same day she executed and delivered to him the deed of said premises, which was mentioned in the above writing. He found a purchaser, and on May 31st obtained the consent in writing of Mrs. Burchell to sell the property for $700, and to pay her $450, and retain $250 of the same. He made the transfer to defendant Mary E. Pox for the $700, received the money, and paid $450 to Mrs. Burchell, taking her receipt therefor, as follows:

“ $450.00 Detroit, Michigan, June 1st, 1904.
“Received of George X. M. Collier $450.00, being in full of my share of the $700 collected in the sale of the house as per agreement dated May 24th, 1904. And none of the $250 retained by Mr. Collier to apply on the chattel mortgage given by Mr. McLean to Mr. Collier and Mr. Mistersky for $100.00.
“Martha Burchell.”

Complainants were tried separately. The husband was tried and acquitted May 19, 1904, and Mrs. Burchell was tried on August 1st following, with the same result.

On January 10, 1905, complainants filed the bill of complaint in this suit against Collier and wife, James R. Neill, and Mary E. Pox (now wife of James R. Neill), praying that the said property be decreed to belong to complainants, that defendant Collier account to them for the full value thereof, and for general relief. In said bill complainants’ material allegations are: That the attorneys Collier and Mistersky agreed to defend them for $100; that Mr. Collier as her attorney deceived and defrauded Mrs. Burchell, and was guilty of bad faith toward her; that he obtained the deed from her by the use of fraud and undue influence; that she did not know that she was signing a deed, and did not learn of that fact until two months after she was released from jail; that the transfer to Mary E. Fox was fraudulent and colorable; that her husband, Neill, was a former employé of Collier, and the title of the property, though held by Mrs. Neill,.is so held for defendant Collier; that the actual value of complainants’ interest in the property sold was about $3,000. Issue was joined upon the several answers of the defendants. Upon the hearing a decree was entered denying relief to complainants and dismissing the bill of complaint.

There is no question of law in the case. Complainants contend that the weight of the evidence clearly supports the allegations of the bill of complaint, and that the learned circuit judge did not arrive at a correct conclusion in the case, and upon appeal to this court ask that the decree be reversed and a decree entered in accordance with the prayer of the bill of complaint. The record of the evidence taken on the hearing is quite voluminous. A careful examination and consideration of all of it satisfies us that the circuit judge was correct in his conclusion that complainants had not made out a case. While there was conduct on the part of Mrs. Burchell, after she was released "from jail, in paying $175 on the mortgage on the premises, and in paying taxes, which of itself would not indicate that she knew that she had sold these premises, yet the testimony of the notary, and other witnesses who were present and knew of the writings signed by her, and who afterwards talked with her, together with her admissions to her relatives, indicate clearly that she had full knowledge of the entire transaction. The long letter she wrote to Judge Murphy of her own accord, urging a speedy disposition of her case, and relating her troubles, contains the following words: “Mr. Collier collected his pay out of the price of the place when he sold it, so I don’t see what the delay is for.” This was about one month after the sale had been made, and cannot be explained to harmonize with her denial of any knowledge that she had given a deed or authorized a sale.

It appears that the total amount received by Mr. Collier as attorney’s fees, including the $100 sectored by chattel mortgage, which he claims was given to secure a retainer, was the sum of $868.50, of which $184.25, or one-half, was paid to Mr. Mister sky. The contract Mrs. Burchell signed and the receipt she gave both show that the $100 was not understood by her to be the entire charge for defending these cases. The record also shows that $700, received from the sale of the premises, was a fair value for the interest of complainants therein at the time. No fraudulent conduct on the part of Mr. Collier or the other defendants has been shown, or can be inferred from the record.

The decree of the circuit court is affirmed, with costs to defendants.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    HENDERSON v. AGON.
    1. Assault and Battery — Damages—Instructions.
    Where, in an action for assault and battery, it appears that defendant, in the presence of others, rudely and insolently laid his hands on plaintiff, a clerk in his store, under circumstances implying an accusation of dishonesty, and led her by the hand through his store and to the basement, and there took from her a sum of money which he said he would keep until she proved it was hers, an instruction that the damages must be compensatory, and if the assault was committed under circumstances of peculiar indignity and humiliation, the jury might consider the wounded feelings of plaintiff, and the humiliation and disgrace, is proper.
    2. Same — Matter eor Jury.
    Plaintiff is entitled to lay the whole matter before the jury, and the jury is properly permitted to consider the actions and words of the defendant to1 determine the character of the assault and battery, and the court cannot properly instruct, as a matter of law, that the loss of the money was not damage flowing from the assault.
    3. Appeal and Error — Questions Considered — Exclusion op ■ Evidence.
    Assignments of error in excluding evidence will not be considered where no exception was taken and the court is not informed, by an offer to prove or otherwise, what the testimony would have been, though it is asserted in the brief that the record makes the purpose of the evidence clear.
    Error to Kent; Perkins, J.
    Submitted February 20, 1907.
    (Docket No. 68.)
    Decided April 30, 1907.
    Case by Mary L. Henderson, by next friend, against Leon Agon for an assault and battery. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      E. J. Adams, for appellant.

      Hatch & Wilson, for appellee.
   Ostrander, J.

Plaintiff recovered a verdict and judgment for |200 against defendant upon a declaration charging an assault and battery, with the averment that it was committed in the presence of divers persons, “to the great mortification, shame and disgrace of the said plaintiff.”

Plaintiff was a clerk in defendant’s store. Defendant, appealing, contends:

1. There was no assault or battery shown by the'evidence.

2. There was no actual damage, and could be no exemplary damage, for want of malice.

3. The court did not instruct the jury, as requested, that the $4.20 could not be considered in this case.

4. The court did not instruct the jury they could not consider defamatory words spoken in this action.

5. The court erred in not permitting defendant to show what information he had of plaintiff’s pilfering at the time of the alleged assault.

The evidence for plaintiff was sufficient, if believed, to support a finding that deféndant rudely and insolently laid his hands upon the per.son of plaintiff, in the presence of others, and that there was implied, in his action, an accusation of dishonesty. She was led by the hand through the store, in business hours, to the basement of the store, and money to the amount of $4.20, found in her purse, was taken from her and never returned. There was no personal injury, and after the affair was ended plaintiff worked the remainder of the day. The court did not permit the jury to give exemplary damages, but did instruct them that the damages assessed must be compensatory, and, if the assault was committed under circumstances of peculiar indignity and humiliation, they might consider the wounded feelings of plaintiff, the humiliation, and disgrace. This was proper. Detroit Daily Post Co. v. McArthur, 16 Mich. 447; Scripps v. Reilly, 38 Mich. 10; Lucas v. Railroad Co., 98 Mich. 1; Haviland v. Chase, 116 Mich. 214.

Counsel for defendant requested the court to charge the jury in the following language:

“If you should find for the plaintiff, in arriving at the amount of damages, you will not take into consideration any disgrace of humiliation or injury to her name or reputation by reason of the utterance of any words charging her with taking money.”

This was refused, and the refusal assigned as error. So far as any accusation, implied or other, was made by defendant in the store, it was not overheard. In the basement other employés were working, and in their presence, according to the testimony of plaintiff, defendant demanded to see the money she had on her person, that she give an account of it, and ended by taking the money, with the remark:

“Here is $4.20 belonging to her. I will put this in my pocket, and I will keep it until she proves that it is hers.”

She testified, further, that in the basement defendant was fumbling about her waist where her purse was. Plaintiff was entitled to lay the whole matter before the jury, and the jury were properly permitted to consider the actions and the words of defendant to determine the character of the assault and battery claimed to have been committed by him. The court confined the jury to an estimation of damages flowing from the assault which they found, from all the evidence, was committed. The court could not properly have instructed the jury as matter of law that the loss of the money was not damage flowing from the assault.

It is complained that certain testimony of defendant was improperly excluded. While the refusal to admit the testimony is assigned as error, no exception was taken, nor are we informed, by an offer to prove or otherwise, what the testimony would have been, although it is asserted in the brief that the record makes’ the purpose of the evidence clear.

We find no error. Judgment is affirmed.

McAlvat, C. J., and Carpenter, Hooker, and Moore, JJ., concurred. ,


text:
    BOARD OF ROAD COM’RS OF WAYNE COUNTY v. BOARD OF AUDITORS OF WAYNE COUNTY.
    1. Constitutional Law — Local Self-Government — County Road Law — Road Commissioners — Appointment.
    Act No. 146, Pub. Acts 1905, in so far as it provides in section 6 for the appointment of county road commissioners for Wayne county by the county clerk and the mayor of Detroit, conflicts with the theory of local self-government guaranteed by the Constitution, and cannot be sustained.
    2. Officers — County Road Commissioners — Officers De Jure— Right to Offices.
    The board of road commissioners for Wayne county, appointed by the county clerk and the mayor of Detroit, as provided by section 6, Act No. 146, Pub. Acts 1905, being appointed in an unconstitutional manner, are not officers de jure, and are therefore not entitled to disburse the fund raised by a tax levied by them, notwithstanding the board of supervisors recognized them as officers in so far as to spread the tax levied by them.
    3. Constitutional Law — Construction of Statutes — Invalidity of Part.
    Section 6, Act No. 146, Pub. Acts 1905, providing for the appointment of road commissioners for Wayne county by the county clerk and the mayor of Detroit, cannot be considered as providing for a provisional appointment, neither can the act be construed as if the commissioners in Wayne county had been given no legislative powers and sustained as to its other provisions without further legislation.
    4. Same — Self-Executing Provisions.
    Section 49, art. 4, of the Constitution, providing for county and township roads, cannot be construed as self-executing’in Wayne county and not self-executing in all other counties.
    5. Mandamus — Discretion to Refuse — County Officers — Payment of Doubtful Claims.
    On mandamus by county road commissioners against the county auditors and treasurer to compel audit and payment of the accounts and warrants of the road commissioners, where proceedings are pending to try the title of relators to their offices, and there has been little action by the public or public officers which can be said to amount to an acquiescence in their claims, and great confusion is likely to result if it is held that warrants drawn by them must be paid, the court may exercise its discretion in determining whether the writ shall issue.
    Certiorari to Wayne; Mandell, Brooke, and Murphy, JJ.
    Submitted February 19, 1907.
    (Calendar No. 22,122.)
    Decided April 30, 1907.
    Mandamus by the board of county road commissioners of Wayne county to compel the board of county auditors of Wayne county and Forbes Robertson, county treasurer, to audit and pay a warrant on the county road fund. There was an order denying the writ, and relator brings certiorari.
    Affirmed.
    In 1893, the Constitution.of this State was amended by adding to article 4 a new section, to stand as section 49, which section read as follows:
    “ Sec. 49. The legislature may provide for the laying out, construction and maintenance of county and township roads, and may provide that any road heretofore laid out shall be a county or township road. County roads may be maintained at the expense of the county, and township roads at the expense of .the township. County roads shall be under the control of a board of commissioners not to exceed five in number who shall be elected by the people, the number of said commissioners to be fixed by the board of supervisors of the county. For the construction and maintenance of county roads the commissioners may provide for an annual tax not exceeding two dollars upon each one thousand dollars of the assessment roll of the' county for the preceding year. No county shall incur any indebtedness or issue any bonds for the construction or maintenance of county roads, except upon a vote of two-thirds of all the supervisors elected, and then to be approved by a majority vote at any general or special election; nor shall any such indebtedness at any time exceed three per cent, of the valuation of the county upon the last preceding assessment roll. The legislature may modify, change or repeal the powers and duties of the township commissioner of highways and overseer of highways. The legislature may pass all necessary laws to carry this amendment into effect: Provided, That any act or acts passed by the legislature to carry this amendment into effect shall provide for a county and township system, and the county system shall become operative only in such counties as shall adopt it by a majority voteof the electors of said county, after the said question has been submitted to them by a two-thirds vote of all the members elect of the board of supervisors of such county, at a general or special election called for that purpose.”
    , The legislature of 1893 passed, and gave immediate effect to, Act No. 149, Pub. Acts 1893, entitled “An act to provide for a county and township system of roads and to prescribe the powers and duties of the officers having* the charge thereof,” various provisions of which act have been since amended. 2 Comp. Laws, §§ 4262-4290; Acts. Nos. 98, 127, Pub. Acts 1899; Acts Nos. 197, 199, Pub. Acts 1905. As originally adopted, the act provided for an election of commissioners in each county adopting the system, limited the rate of assessment in Wayne county, and gave the board of supervisors of that county authority to fix the term of office of the commissioners. It was provided by this act that the question of adopting the system might be submitted to the electors when a two-thirds vote of all of the members of the board of supervisors elect should deem it proper to do so. In 1899, section 49, art. 4, of the Constitution, was further amended, reading, now:
    “Sec. 49. The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges and culverts by counties and townships, and may authorize counties to take charge and control of any highways within their limits for such purposes; and may modify, change or abolish the powers and duties of township commissioners and overseers of highways. But the tax raised in any one year shall not exceed two dollars upon each thousand dollars valuation, according to the assessment roll of the county for the preceding year. The legislature may also prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts, and may provide for one or more county road commissioners, to be elected by the people, or appointed, with such powers and duties as may be prescribed by law.
    “No county shall incur any indebtedness for any purposes in excess of three per cent, of the valuation, according to the last assessment roll, and no such indebtedness beyond one-half of one per cent, of such valuation shall be incurred, unless authorized by a majority of the electors of said county voting thereon: Provided, That ány county road system provided by law shall not go into operation in any county until the electors of said county, by a majority vote, have declared in favor of adopting the county road system.”
    In 1905, section 9 of article 14 of the Constitution was also amended; that portion of it of importance here reading as follows:
    “Sec. 9. The State shall not be a party to, nor interested in, any work of internal improvement, nor engaged in carrying on any such work except in the improvement of or aiding in the improvement of the public wagon roads and in the expenditure of grants to the State of land or other property.”
    The legislature at the session of 1905 passed Act No. 146 (Pub. Acts 1905), entitled:
    “An act to create and establish a State highway department by the appointment of a State highway commissioner and assistants, and defining the powers and duties of the office, and to provide for a system of State co-operation with townships and counties in the improvement of the public wagon roads, and to make an appropriation therefor for the fiscal years ending June thirty, nineteen hundred six, and June thirty, nineteen hundred seven, and to provide a tax to meet the same.”
    The act provides for State aid in building roads of certain standards of excellence, to be paid upon the certificate of the State highway commissioner upon a warrant drawn by the auditor general upon the State treasurer. By the legislation first referred to, as it now stands, it is provided, in section 1 (amended in 1905) that the supervisors shall, on petition of not less than 10 freeholders residing in each of the several townships in any county, submit the question of adopting the system to a vote of the electors, and in section 6 thereof (as amended in 1905) that:
    “ In any county where the county road system shall be adopted, a board of county road commissioners, not exceeding five in number, shall be elected by the people of such county: Provided, however, If the county road system shall be adopted in Wayne county, there shall be three road commissioners, and they shall be appointed, and in the following manner: (a) The county clerk shall appoint one county road commissioner from that portion of the county lying west of the township line road running north and south through the village of Inkster, who shall serve two years from the first day of May in the year in which he receives his appointment. At the expiration of his term, the county clerk shall appoint his successor for the full term of six years, and another every six years thereafter from the same section of the county. (6) The county clerk shall appoint another county road commissioner from that portion of the county lying east of the aforesaid township line road, who shall serve four years from the first day of May in the year in which he receives his appointment. At the expiration of his term, the county clerk shall appoint his successor for the full term of six years, and another every six years thereafter from the same section of the county, (c) The mayor of the city of Detroit shall appoint one county road commissioner from that portion of Wayne county known as Detroit, who shall serve six years from the first day of 'May in the year in which he receives his appointment, and it shall be the duty of the mayor of the city of Detroit to make an appointment of a county road commissioner every six years thereafter from the city of Detroit.”
    Section 8 (as amended in 1905) provides that vacancies in office shall be filled by the board of supervisors, who—
    “ Shall fix the compensation of such commissioners, except in the county of Wayne, where the compensation shall be five dollars per diem, for such time as the commissioners shall serve the county in the capacity as county road commissioners, and all vacancies shall be filled by appointment for remainder of term by th'e same official who appointed the commissioner who has vacated the office, and from that same division of the county must the appointment be made.”
    There are various sections in which the powers of the board are enumerated, among which, and indicative of the- considerable powers given, are:
    “Sec. 11. Said board of county road commissioners may lay out such new roads within the county as they deem necessary. Such roads shall be not less than two rods wide. Said board may also change the width or the location or straighten the line of any road over which they take jurisdiction. * * *
    “Sec. 19. Said board of county road commissioners shall have authority to grade, drain, construct, gravel or macadamize any road under their control, or to place thereon any other form of improvement which in their judgment may be best, and may extend and enlarge such improvements ; they shall have authority to construct bridges and culverts on the line of such road, and to repair and maintain the said roads, bridges and culverts; they shall have all the authority in respect to such roads which is vested in highway officers in townships, relative to encroachments and obstructions thereon. * * *
    “ Sec. 20. On or before the first day of October of each year, said board of county road commissioners shall determine the amount of tax to be raised for such year in said county for the purposes aforesaid, and shall cause such determination to be entered upon their records. Such tax shall not exceed two dollars on each one thous- and dollars of the assessed valuation upon the assessment rolls of the county'for the preceding year, nor shall it exceed one dollar on' each one thousand dollars of such valuation, without authority therefor being first given by the board of supervisors of the county, except in Wayne county, which shall not exceed fifty cents on each one thousand dollars of the assessed valuation upon the assessment rolls of the county for the preceding year. At the annual meeting of the board of supervisors held in October, the county clerk shall lay said determination before the board of supervisors, and such board of supervisors shall thereupon apportion such tax between the several townships and cities of said county according to their equalized valuation, and the supervisors or other assessing officers in such townships and cities shall levy and apportion the taxes so apportioned to their respective townships' and cities, upon the tax rolls of such townships and cities respectively, upon which the county taxes are assessed. The taxes so assessed shall be carried out upon the tax rolls in a separate column to be headed ‘county road tax,’ and shall be collected and paid to the county treasurer, the same as other county taxes. All the provisions of law relating to the assessment, levy, collection and return of county taxes and the sale of property delinquent therefor, shall apply to taxes to be raised pursuant to this act. The county treasurer shall keep a separate account of the taxes collected and moneys received under this act, and shall pay the same out only upon the order of such board of county road commissioners and upon warrants signed by the chairman and countersigned by the clerk of the board. All moneys raised under the provisions of this act shall be expended by. such board of county road commissioners exclusively for the purposes herein mentioned.”
    At a special election, held in September, 1906, the electors of Wayne county adopted the county road system, and thereafter, in accordance with the provisions of section 6 of said act, three county road commissioners were appointed, two by the county clerk, and one by the mayor of the city of Detroit, and these gentlemen qualified and entered upon the performance of their official duties. At a meeting held October 6, 1906, at which two of them were present it was resolved that the amount of tax to be raised for the current year in the county of Wayne for the purposes stated in Act No. .149 of the Public Acts of 1893 should be 50 cents on each $1,000 of the assessed valuation according to the assessment rolls of the county for the preceding year. This action of the board was certified to the board of supervisors of the county of Wayne. Later, on October 24th, at another meeting of said board, at which the same two commissioners were present, the following action, as shown by the record of the board, was had:
    “ It was regularly moved and supported that in view of the sentiment of the members of the board of supervisors, that we amend the proposition of raising one-half mill tax and substitute therefor one-fourth mill tax, and advise the board of supervisors of action taken.”
    On the same day, the committee on roads and bridges of the board of supervisors of Wayne county reported, and the report was adopted, as follows:
    “Tour committee on roads and bridges, to whom was referred the communication of the Wayne county road commissioners printed on page 136 of the proceedings, respectfully report that we have had the matter under consideration, and recommend that a tax of one-quarter (•£) of a mill be spread upon the tax rolls of the cities of Detroit and Wyandotte and the several townships of the county of Wayne.”
    Pursuant to the action described, the said levy was apportioned and spread upon the tax rolls in Wayne county; the total of said tax being $87,125.72. Of this, a large amount has been collected. It was carried out upon the tax rolls in a separate column, headed “County Road Tax.” On December 22, 1906, the board of county road commissioners of the county of Wayne determined to purchase certain tools and appliances for cash, to be paid for on delivery, and the board ordered that the amount of money required should be drawn for that purpose from the county treasurer, and a warrant for the sum of $25, signed by the chairman of said board and by the clerk, dated December 22,1906, was drawn on the county treasurer of the county of Wayne. The chairman of the board presented it to the board of county auditors of Wayne county for audit and allowance, and, later, to the county treasurer for payment. The board of auditors refused to allow or pass upon the account, and the county treasurer refused to honor the warrant, stating that he would not honor any warrant drawn by said board of county road commissioners. Proceedings had been begun in the circuit court for the county of Wayne in the name of the prosecuting attorney of the county to try the title of the persons holding the offices of county road commissioners, which proceedings were then, and are still, pending in said court. The commissioners, having failed to obtain money upon their warrant, filed in the circuit court for the county of Wayne their petition praying that a writ of mandamus issue to the county auditors of the county of Wayne, commanding them to consider, audit, and approve the account which had been presented to said auditors with said warrant, and to approve and allow the accounts and bills of the board of county road commissioners, a'nd commanding the county treasurer of the county to pay out of the county road tax, so called, such moneys as shall be ordered by the said board of county road commissioners upon warrants signed by the chairman and countersigned by the clerk of the board. An order to show cause having been issued, the respondents filed their joint answer. The matter coming on to be heard in the circuit court for the county of Wayne, said court, by three of the judges thereof, denied the writ. The proceedings so had and the determination so rendered in the circuit court for the county of Wayne have been brought into this court by writ of certiorari for review.
    It is stated in the briefs that the county road system has been adopted, and is in operation, in 20 counties. It is contended that the entire act is unconstitutional and void; that, if not wholly void, it has and can have no operation in the county of Wayne. The specific objections may be rather broadly stated, as follows: Section 1 of the act, read, in connection with section 25, Act No. 96, Pub. Acts 1895, is unconstitutional. In Wayne county, the cities of Detroit and Wyandotte pay five-sixths of the tax under the law, none of the money raised can be expended within their limits, and the inhabitants of those cities have no voice in the action required to adopt or to rescind, and are therefore denied the equal protection of the laws. Sections 6 and 8 of the act are unconstitutional because of the method of appointment established. The appointments made are not provisional. The relators are not de facto officers. The unconstitutional provisions of the act may not be eliminated and leave the act valid for any purpose.
    For relators, it is argued that, if the provisions of the law giving to relators the power to audit their own accounts and the power to determine the amount of the county road tax, and providing for their appointment by the mayor and the county clerk, are unconstitutional (which is not admitted), it is unnecessary, for the purpose of sustaining the law and the validity of the tax which has been levied in Wayne county, to hold those portions of the act to be constitutional, for the reason that they may be entirely eliminated from the act, and, if eliminated, the act will remain a constitutional, workable provision. If the appointments are invalid as permanent appointments, and are not provisional appointments, and if, consequently, there are no road commissioners for Wayne county, still the tax was properly levied and is valid. It is admitted that taxation is a legislative function, and that the legislature cannot give to the board of county road commissioners, an appointive body, the power to levy a tax; that such part as this board took in determining the amount of the tax should be treated as a nullity, at most as a mere recommendation to the board of supervisors.
    In the brief filed by the attorney general, it is contended that the appointment of the Wayne county road commissioners by the county clerk and mayor of Detroit does not invalidate the tax levy for county road purposes, because (a) the legislature had power to authorize the appointments to be so made; (b) if not, it is because the appointments should have been left to the board of supervisors, and, that board having recognized these appointments, the present commissioners are lawfully in office; (c) if not, they are, nevertheless, de facto officers, and any official action on their part is valid. Under the constitutional amendment of 1893, the county road commissioners were to be elected by the people, and, if so elected, no constitutional objection exists to conferring upon such a board legislative powers. The constitutional amendment of 1899 did not operate to repeal this statute so far as it applied to Wayne county, but only so much of it as was inconsistent with the new constitutional provision, and that the court may still give an effect to this statute consistent with the present Constitution. The provisions which authorize the board of county road commissioners to draw warrants directly on the county treasurer, without any allowance or approval by the board of county auditors in Wayne county, and in other counties without an allowance or approval by the board of supervisors, whether good ‘ or bad as a constitutional provision, cannot affect the validity of the tax levied under the act.

      John F. Bird, Attorney General, and Charles T. Wilkins, for relators.

      Fred A. Baker, amicus curias.

      Allan H. Frazer and Ormond F. Hunt, for respondents.
   Ostrander, J.

(after stating the facts). The case has been so fully stated in order that the scope of the attack which is made upon the act may be seen, and the points which we do not consider, as well as those which we consider, may be understood. We cannot avoid a consideration of the validity of the act to the point where we conclude that reason is shown for granting Or for denying the relief which is asked for. Beyond that point, we are not required to go.

It will be noticed that the constitutional amendment of 1893, like the one of 1899, while in some respects limiting the powers of the legislature, is not operative without legislative action. Unlike the last, the first amendment directs that county roads shall be under the control of a board of commissioners not exceeding five in number, who shall be elected by the people. The legislation which followed the first amendment was in conformity therewith. The system evolved by the legislature was a uniform one, with certain unimportant exceptions applicable to Wayne county only. With the adoption of the constitutional amendment of 1899, the act underwent considerable changes; the most of them, of importance, affecting Wayne county only. The legislature did not provide for ‘ ‘ one or more county road commissioners, to be elected by the people, or appointed,” but provided that in all counties excepting Wayne they should be elected by the people, and later, and in 1905, that in Marquette county they should be appointed by the board of supervisors. The powers confided by the legislature to county commissioners, in a system which required such officers to be, in all counties, elected by the people, were not modified after the adoption of the last amendment to the Constitution, and are substantially the same in counties where the commissioners are elected, and in Wayne county where they are appointed. Among the powers confided to them is the extraordinary one of taxation.

An office is created before it is occupied, or executed, and an appointment to a particular office is an appointment to exercise the powers of the office. The name given to these officers, the powers conferred, and the obvious purpose of the law support the conclusion that they are local public officers, to whom is delegated a portion of the sovereign power of the State. The statute empowers them to execute duties heretofore devolved upon highway commissioners. See Campau v. Highway Commissioner of Grosse Pointe, 132 Mich. 365, 369. The property of the county is taxed for county roads, the statute imposes upon counties the duty to maintain such roads, and imposes a liability for injuries received on account of their being out of repair. In the sense that township and city highways are matters of local concern, so county roads are of local concern; and this conclusion cannot be affected by the fact that aid in building roads may be obtained from the State, or the fact that counties have heretofore exercised few powers of a purely local nature. The language of the constitutional provision is:

“The legislature may also prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts, and may provide for one or more county road commissioners to be elected by the people, or appointed, with such powers and duties as may be prescribed by law.”

The words “the people” can refer to none other than those of the county. If it was determined by the legislature that these officers should be appointed instead of being elected “by the people,” provisions for such appointment were required to be in conformity with the theory of local self-government. This conclusion may be rested as well upon mere construction of the language employed in the Constitution, as upon the idea that the source of the appointment must conform with the extent of the powers given. The power of appointment to public office belongs primarily to the people. The constitutional provision confers upon the legislature the power to determine whether the office shall be filled by election or by appointment, and, if by appointment, to prescribe the manner of appointment. The legislature did not appoint. It provided by whom appointments, and successive appointments, should be made. Relators were named according to the manner provided. In no sense, therefore, is it true that their appointments were provisional; and no person, officer, or body representative of the county made, or is charged with the duty of making, the appointments. Courts may not supply a method of appointment, since that would involve the exercise of legislative power. For the same reason, we are required to deny the soundness of the argument that because the board of supervisors of Wayne county have recognized the relators as officers, it would be held, in quo warranto proceedings, and upon the authority of People, ex rel. Attorney General, v. Lothrop, 24 Mich. 235, they are entitled to their offices. We conclude that the act, in so far as it provides for the appointment of county road commissioners for Wayne county, cannot be sustained?

The tax which makes the fund upon which the relators’ warrant is drawn was not laid by the board of supervisors, and was laid by the board of county road commissioners. We agree with the court below that the only rational conclusion to be drawn from the record upon this point is that the supervisors understood they had no power in the premises, and, in fact, exercised none. The power of the board of supervisors to lay a tax’ for such a purpose is found in section 9 of article 10 of the Constitution, and the limitation there found is not removed by the provisions of section 49 of article 4 without legislative action. The legislature has acted. The action taken does not give to the supervisors of Wayne county the power to levy a tax for county roads. Rather, as will be seen by reading section 20 of the act, the supervisors are denied any authority in the matter. It is clear, then, that the powers of supervisors to raise money for roads have not been expressly increased by the legislature, and that they are no greater than they would be if there was no legislation upon the subject, unless we are able to say that, because counties, including Wayne county, have been authorized to take charge of and control highways within their limits, this necessarily carries with it the power to raise money to an amount not exceeding the limitation expressed in section 49,.art. 4. It is a part of the argument advanced that, although the legislature has not expressly modified the powers of county road commissioners since the amendment of 1899, that amendment itself operates as a modification of such powers, and has the - effect to divest these officers of legislative, and to leave them clothed with executive, powers; that we should construe the act as if the road commissioners in Wayne county had been given no legislative powers. Undoubtedly, courts do, and should, if it is possible, sustain a statute by eliminating objectionable provisions, leaving those which are not objectionable to stand. The rule is:

“If, when the unconstitutional portion is stricken out, that which remains is compMte in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more- objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” Cooley on Constitutional Limitations (7th Ed.), pp. 247, 248.

There are many reasons why we may not so construe this statute. The method of appointing commissioners for Wayne county was fixed after the constitutional amendment of 1899 was in effect, the powers given to them are the same as those possessed by such commissioners in other counties, the legislative scheme for county control of roads is distinctly invaded if commissioners do not possess and exercise the statute powers, and. last, but not least, of reasons, the electors of Wayne county adopted the system as it was presented. Nor can we admit the soundness of the argument made, except by determining in effect that, without further legislation, the scheme may be carried into effect in Wayne county by merely advisory or executive action on the part of the road commissioners, leaving all necessary legislative action to the board of supervisors. We cannot so determine, because boards of supervisors possess, generally, only such powers as are expressly given to them, the legislature has not given to the supervisors of Wayne county the powers necessary to carry the act into effect in that county, and the Constitution cannot be held to be, in this regard, self-executing in Wayne county, and not self-executing in all other counties. The tax must stand or fall as one laid by the commissioners. Whether their acts, under color of office, in so far as they involve public and private interests, may be sustained, is a subject upon which we express no opinion. In doing this, we necessarily decline to consider the contention that the entire act is void. We have reached the conclusion that relators are not officers de jure. We infer that further legislation is to be sought.

We do not understand that any contract made by relators is involved in this proceeding, or will be affected by our decision. Nor is this a direct proceeding to test the right of relators to office, or to determine the validity of a tax.

We affirm the judgment of the court below, because we are of opinion that relators should be denied the right to disburse the fund which has been created. It is, at least, a serious question whether many of the powers confided by the act to the commissioners, other than the one to tax, are not legislative in character. In asking relief, relators are asserting the legal right to the office and to the money — the right to continue to exercise the powers of the office. Proceedings are pending to try their right to the office. There has been, so far, little action by the public or by public officers which can be said to amount to acquiescence in their claims, and great confusion is likely to result if it is held that warrants drawn by them must be paid. That the courts may, under the circumstances disclosed, exercise their discretion in determining whether the writ of mandamus shall issue, is not to be doubted. Lawrence v. Hanley, 84 Mich. 399; Board of Sup’rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386. And see Board of Park Com’rs of Detroit v. Common Council of Detroit, 28 Mich. 228.

McAlvay, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Blair, J.

text:
    STEARNS v. GRAND TRUNK RAILWAY CO.
    1. Carriers — Freight—Wrong Delivery —Action—Evidence.
    In an action against a carrier for the amount of a sight draft attached to a bill of lading of a car of lumber, which the carrier delivered without payment of the draft, the carrier may show that, owing to the inferiority of the lumber shipped on the contract between consignor and consignee, the contract price of the lumber, of which the car load was a part, had been fully paid, and nothing was due the consignor.
    2. Custom — Evidence.
    Where each of the parties to a contract testify to an express contract which excludes a custom, evidence of the existence of a custom which should control the parties is immaterial.
    Error to Oakland; Smith, J.
    Submitted January 11, 1907.
    (Docket No. 26.)
    Decided April 30, 1907.
    Assumpsit by Charles T. Stearns and Edgar F. Stearns, copartners as Stearns Brothers, against the Grand Trunk Railway Company for the amount of a sight draft attached to a bill of lading. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Lodge, Trevor & Brown, for appellant.

      Andrew L. Moore, for appellees.
   Blair, J.

This is an action to recover of defendant the amount of a sight draft on J. P. Scranton & Co. attached to the bill of lading of a car load of lumber consigned to plaintiffs’ order, and shipped by them over defendant railway, to be delivered to said Scranton & Co. upon payment of the draft. Defendant delivered the lumber to Scranton & Co. without payment of the draft, and defends this action upon the ground that Scranton & Co. were the true owners. The draft was for 1116.68, which was about half the value of the lumber in the car, and, according to plaintiff, represented the balance due on four cars of lumber. Plaintiffs succeeded to the fights of Andrews & Stearns, with whom the contract forthe lumber v/as made by Scranton & Co. It is agreed that Mr. Scranton came to Pontiac, where the lumber was, from time to time, made an estimate of the amount of the lumber in the piles purchased, wrote his name on the piles, paid the amount of the estimate, and had the lumber insured in his name.

Plaintiff Stearns testified:

“ At the time he made the various estimates, the estimate did not include the entire scaling of the lumber marked. It was to be paid for when it was delivered on board at Pontiac. The draft was attached to the last car, because I scaled the lumber myself. Mr. Scranton refused to come out and do it. I scaled it, and there was that much due us after deducting the payments he made, and I drawed the draft on that car for payment of that amount. * * *
“Under the agreement between Andrews & Stearns and Mr. Scranton, all of this lumber was to be of a grade of common and better. The mill culls should be kept out. The mill culls are the lowest grade, then seconds, then common and better. This was to be common and better. Sixty per cent, better, I think, in that neighborhood. I am willing to swear that all of this car was common and better, except a few pieces. He told me I could put them in at half scale. I didn’t set any price on the seconds. I didn’t scale them by themselves. I just scaled them half scale and scaled them with the rest. The first and seconds would run to the common over 60 per cent., nearer 75 than 60. It is not a fact that on that car of elm that I shipped them over six thousand feet were seconds and mill culls. Those poles that went on the last car were good grade of poles. * * *
“ It was agreed between us that, when the lumber was loaded, the difference of the scale should be paid us. * * *
“ When Mr. Scranton was out and looked this lumber over, it was being piled. He didn’t handle any of the lumber. He could see the ends and top. When he estimated this lumber, it was counted by the number of courses in making the estimate, and then he paid me the amount of the estimate and wrote his name on the pile. After that he had an interest in it, but not until it was scaled and the balance paid was it to be his. * * *
“When he estimated it, he said, ‘This will be my lumber.’ I said it would be his when he paid the balance. That balance had not been paid when this car on the 21st of November had been shipped. The only interest that I had in this car of lumber was for a claim of unpaid balance.”

Mr. Scranton testified:

“I first saw Mr. Andrews in Detroit the latter part of 1904. Mr. Andrews spoke to me there with reference to having me purchase some lumber. Mr. Andrews stated' that he would sell me this lumber, common and better, for $22 for the elm and $24 for the black ash, and there was some other lumber included. What I thought was about $35 common and better, and percentage of it was to run. He said this lumber would run 60 per cent, to common and better. He also stated that he didn’t want to sell me any seconds because he had a market for seconds. * * *
“I paid the amount of these different estimates. I wrote the number of tiers and the amount of feet that they amount to, and, after doing that, I marked the piles and wrote my name on them. I wrote J. P. Scranton & Co. on every pile several times. I said in every instance I put my name on it, I said: * This lumber is mine, and, if any trouble occurs to you people, this is my lumber. I am putting my money into it.’ They assented to it. I afterwards insured this lumber in my name. Nothing was said by myself or Mr. Andrews or Mr. Stearns at any of these conversations as to where the lumber was to be scaled. * * *
‘ ‘ I understood this lumber was to be scaled and inspected and the balance determined that was coming to Andrews & Stearns. I based that understanding on my general custom and rule. I don’t think there was any agreement that the balance due Andrews & Stearns, if any, should be determined at Detroit by a scale and inspection, but it was understood that after it was determined whether there was a balance that the boys should get their pay if there was a balance, and that I should get what there was coming to me. The price that I made them was f. o. b. the cars on Andrews & Stearns’ siding. I was to pay tbe freight.”

Defendant sought to show that the lumber was so inferior in grade, quality, and value to the lumber contracted for, that the payments made covered the value of the entire amount shipped, and there was therefore no balance due plaintiffs. The court excluded this testimony. The court also refused to permit defendant to show a general custom to inspect lumber at the place of reception by the consignee when the contract is silent as to the place of inspection. The assignments of error relate to one or the other of these rulings. The court excluded the testimony as to grade, etc., of the lumber for the reason—

That the title of the alleged true owner can be shown only by testimony of a clear, direct, and positive character as to the title and ownership by testimony that does not involve a collateral issue before the title can be determined. It is believed to be against public policy to allow a carrier, contrary to the terms of the bill of lading, to deliver property to every or any consignee who claims the quality or quantity is not as agreed by the consignor, because it will create great uncertainty as to shipments and bills of lading, and because it will greatly increase litigation, should carriers frequently avail themselves of such a privilege.”

We think it was error to exclude this testimony. The essence of defendant’s offer of proof was a showing that Scranton & Co. had paid in full for all the lumber purchased, even if the contract required such payment before title passed, as claimed by plaintiffs. The mode of proving payment is no different in a case like this than in a case between the parties to the original contract. As said by the. Supreme Court of the United States, the shipper “cannot confer rights which he does not himself possess, and, if he cannot withhold the possession from the true owner, one claiming under him cannot.” The Idaho, 93 U. S. 575.

If there was no balance due the plaintiffs, they were not entitled to recover. If they had sued Scranton & Co. for such balance or had replevied the property from them, the proof excluded would have been competent in their behalf, and it was equally competent in behalf of defendant. The court did not err in excluding the testimony offered to show a general custom. Each party testified to an express contract which excluded such custom, and the testimony was therefore immaterial and irrelevant.

The judgment is reversed, and a new trial granted.

McAlvay, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Montgomery, J.

text:
    FARRELL v. JERRY MADDEN SHINGLE CO.
    Appeal and Error — Review—Matters Submitted to Jury.
    Where, tinder the instructions, it was permissible for the jury to include improper items in the verdict, and the verdict was so extreme that it cannot be assumed that they were not included, the judgment will be reversed.
    Error to Delta; Stone, J.
    Submitted April 5, 1907.
    (Docket No. 15.)
    Decided April 30, 1907.
    Assumpsit by Thomas Farrell against the Jerry Madden Shingle Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      J. F. Carey (F. D. Mead, of counsel), for appellant.

      John Gummiskey (A. H. Byall and Mills & Gain, of counsel), for appellee.
   Montgomery, J.

The plaintiff entered into an agreement with the defendant, by the terms of which the latter agreed to advance money to enable him to engage in and carry on a lumbering operation to an amount not exceeding $15,000. Plaintiff agreed that defendant should control the output, manufacture the logs into lumber, market the same, and, after retaining 3£ per cent, commission for this service, account for the balance. Plaintiff also secured the repayment of advances by a mortgage on his camp outfit, teams, etc. The operation cost much more than either party expected, but defendant continued advances until about $35,000 had been advanced, when, apparently becoming apprehensive of serious loss, they took control of the operation, foreclosed the mortgage on the camp outfit, etc., manufactured the logs into lumber, and, after paying the expenses thereof, found that their advances totaled $57,378.74, and that after crediting the total amount realized on the sale of the property, including the amount realized on sale of the camp equipage, found a balance due from plaintiff of $18,437.13.

The plaintiff, claiming that he had not had credit for all the lumber manufactured, brought this action and succeeded in obtaining a judgment for $4,667.79. This result was reached by the jury finding that the defendant’s claimed scale was inaccurate, or that they had diverted a large part of the product to their own use. To prove this, the plaintiff relied upon the log scale, supplemented by evidence tending to show that the logs would overrun the scale when cut into lumber a certain estimated per cent., viz., on all except the hemlock 35 per’ cent., and on hemlock 30 per cent. The defendant’s testimony tended strongly to show that all the logs actually produced were in fact accounted for. If this was true, it should have ended the case. The defendant also gave testimony tending to show that logs of the character delivered — the particular logs in question — would not show any such overrun as claimed.

The circuit judge permitted a recovery for the value of the camp outfit and horses sold under chattel mortgage, less the sum credited thereupon, if the jury should find that there was nothing due at the time of foreclosure. After verdict, a motion for a new trial was entéred. The circuit judge required plaintiff to remit $3,161.15, thus leaving the verdict to stand at $1,506.64. In reaching this result, the circuit judge held that .he was in error in submitting the question of the improper foreclosure of the mortgage on the camp outfit, etc., and also held that from' the testimony there was no such overrun on the maple logs as was claimed. The circuit judge estimated the overrun on maple at 10 per cent., instead of 25 per cent., as claimed, a difference of $1,506.64.

The plaintiff’s testimony as to the value of the camp outfit,” etc., was that they were worth $4,300 to $4,500. The amount realized on foreclosure and credited to plaintiff was $1,004, so that there may have been included in the verdict erroneously on this account the sum of $3,296 to $3,496. If it be assumed that the full claimed overrun on maple was allowed by the jury — which is possible— there was included in the verdict the total of $4,836.53, which in the opinion of the circuit judge should not have been allowed. This is more than the total of the verdict. It would seem to follow that the verdict should have been set aside, unless other data existed which enabled the court to make the correction intended. There was no such data. It is true it is not certain that both of these items were included in the verdict, but it was permissible for the jury to include them under the instructions. It may be said that it was not error to submit the question of over-, run on maple, and that, as it does not affirmatively appear that this item was included in the verdict, it does not legally follow that the defendant is entitled to have that item deducted. This is true in a sense, but the only way to avoid the conclusion that the item was not included is to infer that the extreme allowance was made for other classes of logs, and that the jury discriminated as to the maple. The verdict was so extreme in all respects that we think this assumption should' not be made. We are satisfied that the verdict was clearly against the weight of testimony, and that a new trial should have been granted.

The judgment is reversed, and anew trial ordered.

Grant, Blair, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    SHARP v. SHARP.
    1. Deeds — Construction—Intention or Parties.
    In the construction of deeds, the intention of the parties must prevail, unless it is contrary to law.
    2. Partition — Property Subject — Burial Lot.
    Where a grantor reserved out of property conveyed to a cemetery association a certain lot for burial purposes, such lot is not a part of his estate subject to partition among his heirs.
    Appeal from Livingston; Miner, J.
    Submitted April 8, 1907.,
    (Docket No. 31.)
    Decided April 30, 1907.
    Bill by Henry Sharp against James Sharp and Etta Sharp to quiet title to land. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.
    One Thomas Sharp early settled in Deerfield, Livingston county, Michigan, and for many years prior to 1855 was the owner of the east half of the southeast quarter of section 21, on which he lived and cultivated as a farm. On January 23, 1855, he and his wife executed a deed to three persons (naming them) as trustees of the Deerfield Center Burying Ground and their successors in office, conveying to them one acre (describing it). The deed contained the following:
    “ It is understood that the parties of the first part are to retain a certain lot in said burying ground that they have used, and said lot is two rods square.”
    No cemetery association had then been formed, but one was subsequently formed. The burying ground was then platted into lots, and the ground referred to in the deed was set apart to Mr. Sharp, and numbered lot 22. Previous to the execution of this deed, the grantors had buried three children in it. Mr. Sharp died, and was buried there. Subsequently his wife died, and was also buried there. After his death the farm was partitioned between his children, and that portion on which was this burying ground was allotted to the complainant. In the report of the commissioners, no reference was made to the burial ground.
    Defendant James obtained a quitclaim deed from two of the heirs of Thomas Sharp, and the bill alleges that the defendant James claims an interest in this lot, and that the cemetery association has granted to the defendant certain rights of burial upon said lot, and that the association has no right to issue any right of burial to him. Complainant, claiming to own the entire lot, filed this bill to quiet his title. The court entered a decree for the complainant, holding that he had title to the entire lot.

      Louis .27. Howlett and Glenn S. Mack, for complainant.

      William P. Van Winkle, for defendants.
   Grant, J.

(after stating the facts). In the construction of deeds, the intention of the parties must prevail, unless it is contrary to law. 2 Devlin on Deeds (2d Ed.), § 836; Erickson v. Iron Co., 50 Mich. 604.

The land deeded by Thomas Sharp was conveyed for no other purpose or intention than to make a burial place for the dead. If, as contended by the complainant, Mr. Sharp excepted this lot, two rods square, from the grant for other purposes than for the burial of the dead, the exception would be repugnant to the grant, and void. The use of this lot as a potato or cabbage patch would be repugnant to the purpose for which the land was deeded, and as well that for which Mr. Sharp retained it. The very language of the deed shows that he retained it as a lot “ in said'burying ground that they have used.” The right, therefore, which the grantor obtained by this deed, was none other or greater than that which he would have obtained by the omission of this language from the deed and the purchase of the same lot for burial purposes. The only right retained was the right of burial in the lot-Neither Mr. Sharp in his lifetime could have conveyed this lot, nor can his heirs now convey it, for any other purpose. It was not a part of his estate, subject to partition. The graves of the dead cannot be partitioned among the heirs of one who owns a burial lot in a cemetery.

The question of the right of burial by his heirs is not before us, and upon that we pass no opinion.

It follows that the decree of the court is erroneous.

It is therefore reversed, and the bill dismissed, with the costs of both courts.

MoAlvay, C. J., and Carpenter, Blair, and Ostrander, JJ., concurred.


text:
    AMERICAN COPYING CO. v. STERN.
    1. Justices of the Peace — Venue—Nonresident Parties,
    When, a nonresident plaintiff brings suit in justice’s court he is not required to bring it in the township of the defendant’s residence or an adjoining township. Weaver v. Iiix, 109 Mich. 697, followed.
    3. Judgment — Justices of the Peace— Collateral Attack— Irregularities.
    Objections to a judgment of a justice of the peace that he made an unauthorized adjournment, that he did not require security for costs, the plaintiff being a nonresident, and that no notice was given of a commission to take a deposition, relate to irregularities in the proceedings after the court had acquired jurisdiction of the parties and the subject-matter of the suit, and cannot be raised by motion to set aside the'judgment and levy of the execution thereon.
    Certiorari to Kalamazoo; Adams, J.
    Submitted April 10, 1907.
    (Docket No. 46.)
    Decided April 30, 1907.
    Assumpsit in justice’s court by the American Copying Company against Herman Stern for goods sold and delivered. There was judgment for plaintiff, and a transcript filed in the circuit court. From an order denying a motion-to vacate said judgment, defendant brings certiorari.
    Affirmed.
    Plaintiff, a nonresident corporation, brought suit before a justice’s court in the township of Brady, in the county of Kalamazoo, against the defendant, a resident of the city of Kalamazoo. The summons was personally served upon the defendant in that city. On the return day, defendant not appearing, the court, at the request of the plaintiff’s attorney, granted an adjournment from May 36th until'June 9th, for the purpose of taking a deposition in Chicago, 111. The return of the justice does not show whether the plaintiff made an affidavit to obtain the adjournment. The commission was issued and the deposition returned before the adjourned day and filed with the justice. The plaintiff did not furnish security for costs before the issuance of the writ or afterwards. Execution was issued by the justice and returned nulla bona. A transcript of judgment was filed in the circuit court, judgment and execution entered thereon, and levy made upon real estate of the defendant. The defendant then appeared in the circuit court and moved that the judgment be vacated and the levy set aside. The motion was denied, and the case is now before us for review upon the writ of certiorari.

      William A. Luby, for appellant.

      Jesse B. Gropsey, for appellee.
   Grant, J.

(after stating the facts). Four objections are assigned to the validity of the judgment:

1. That the court obtained no jurisdiction because the plaintiff and defendant were nonresidents of the township of Brady, and that that township did not adjoin the city of Kalamazoo.

2. That the adjournment was unauthorized.

3. That no security of costs was given.

4. That no notice was given of the issuance of the commission to take the deposition.

The first objection is ruled against the defendant by the case of Weaver v. Rix, 109 Mich. 697, the facts of which are parallel to those in this case.

The other objections raised are collateral attacks upon the judgment, and cannot be considered. These objections should have been made in the original suit. They relate to irregularities in the proceedings after the court had acquired jurisdiction of the parties and of the subject-matter of the suit. Reed v. Gage, 33 Mich. 179; Mayhew v. Snell, 33 Mich. 182; Harris v. Doyle, 130 Mich. 470; Miller v. Smith, 115 Mich. 427; Deitz v. Groesbeck, 32 Mich. 303.

Judgment affirmed.

McAlvay, C. J., and Carpenter, Blair, and Ostrander, JJ., concurred.