author: Moore, J. Ostrander, J.

text:
    MILLER v. MEILSTRUP.
    'Taxation — Tax Deeds — Title oe Purchaser — Subsequent Purchaser — Right to Reoonveyanoe.
    Complainant acquired a tax deed based upon the taxes of 1898 at a time when the taxes of 1899, 1900, and 1901 were due and unpaid, no part of which he paid. Subsequently he served on the record owners the notice to redeem provided by section 140 of the tax law (§3959,1 Comp. Laws) after which defendant purchased the State bid for the taxes of 1899 and paid the taxes of 1900 and 1901. The record owners then deeded to a third person who deeded to defendant. Held, that complainant had no title and was not entitled to compel a reconveyance from defendant on payment of the amount paid for the State bid for the taxes of 1899, with interest and charges, and without compensation for the taxes of 1900 and 1901, and the amount paid for the record title.
    Appeal from Arenac; Sharpe, J.
    Submitted February 1, 1906.
    (Docket No. 90.)
    Decided July 3, 1906.
    Bill by Floyd D. Miller against James S. Meilstrup and Anna J. Meilstrup to compel a reconveyance of certain real estate, and to quiet title thereto. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Brown & Farley, for complainant.

      DeVere Hall, for defendants.
   Moore, J.

The questions involved in this case are so clearly stated by the circuit judge in his written opinion -that we insert it here:

“ The facts in this case, as conceded, or, in my opinion, ¡established by competent proof, are as follows:

“1. That on April 26, 1902, the complainant purchased at the auditor general’s office the State bid for the taxes of 1898 on the lands in, question herein. That at that time the taxes of 1899, 1900, and 1901, were delinquent and unpaid. That complainant received a tax deed by virtue of such purchase on the 9th day of August, 1902, but the same was not recorded by him until after the-commencement of this suit.

“2. That the First National Bank of Detroit, Nicholas C. Hartingh, and W. Frank Whittemore were on said. August 9, 1902, the grantees in the last recorded conveyance in the regular chain of title to said land. That on October 7, 16, and 16, 1902, notice to redeem pursuant to the statute was served on said grantees, and proof of such personal service was filed in the office of the county clerk of said Arenac county on October 20, 1902.

“3. That on September 9, 1902, the defendant Anna J. Meilstrup purchased.at the auditor general’s office the State bid for the taxes of 1899 on said land, at the same time paying the taxes for the years 1900 and 1901, and on September 10, 1903, she received a tax deed pursuant to such purchase.

“4. That on December 4, 1902, said Hartingh and Whittemore, and on July 25, 1903, said bank, deeded their interests in said land to the Iosco Land Company, and said company on August 8, 1903, deeded the same to the defendant James S. Meilstrup.

“5. That on September 25,1903, the defendant James S. Meilstrup conveyed all his interest in said land by warranty deed, subject to taxes, to the defendant Anna J. Meilstrup.

“ 6. That on May 10, 1904, complainant tendered to defendant Anna J. Meilstrup the sum of $80 (this being "the amount of the State bid for the taxes of 1899, and 100 per cent, additional thereto and $5) and demanded a reconveyance from her, which she declined to give.

The complainant now files this bill to compel the defendant Anna J. Meilstrup to make such reconveyance* and to quiet the title of said land in him as to both said, defendants.

“It will be observed that both complainant and defendant Anna J. Meilstrup claim title under tax deeds. When the period of six months had elapsed after complainant filed with the county clerk proof of service of the notice to redeem, as stated in the second finding, to wit, on April 20, 1903, he became the absolute owner of the land in question. At that time he could have redeemed from the State bid purchased by Mrs. Meilstrup for the taxes of 1899 at either the office of the auditor general or county ■treasurer. He is certainly chargeable with notice that the taxes of 1899 were unpaid. There would seem to be no question of equity involved, as either of the parties by •consulting the public record of taxes could have relieved themselves from the effect of the conveyance obtained by the other. The question presented is a purely legal one. Did the conveyance by James S. Meilstrup to Anna J. Meilstrup, made on September 25, 1903, relieve her from serving the notice required by section 140 of the tax law (1 Comp. Laws, § 3959), in order to make her deed absolute ? This section, prior to the amendment of 1903 (Act No. 236, Pub. Acts 1903), provided that no writ of assistance or other process for possession, based on such title as Mrs. Meilstrup had, should be issued until six months after she should have filed with the county clerk proof of service of the notice, therein provided for, ‘ upon the grantee or grantees under the last recorded deed in the regular chain of title to said land.’ Section 141 provides that the party so served with notice may at any time within six months after the filing of proof of service of such notice make payment to the purchaser of certain sums stated therein and be entitled to a reconveyance of the interest acquired thereby. Section 142 provides that no such purchaser shall enter into possession until six months after notice has been given, as required by section 140, ‘ unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of their interest in said land.’ Section 143 limits the time within which the parties served with such notice may make such payment and demand such reconveyance of commence suit to set aside the tax deed to said six months and bars their right to question the validity of the tax deed thereafter.

“From the provisions in the section above noted it is apparent that Mrs. Meilstrup was not required to serve the complainant with notice, even if she knew of the existence of the tax deed. As it was not recorded, there can be no presumption that she did. The only person entitled to notice on September 10, 1903, when she received her tax deed, was James S. Meilstrup. But procuring a conveyance from him on September 25, 1903, she complied with the requirements of section 142 and was entitled to at once enter into possession of said land. Her deed then became absolute against all persons entitled to such notice -and all persons who had any title of record against said land. The serving of a notice and filing proof of service thereof would have been a useless formality so far as. James S. Meilstrup was concerned. If so, and his interest was the only one affecting her title and her right to possession at that time, so far as the records showed and so far as she knew, I am of the opinion that it should be held that she had substantially complied with the requirements of these different sections when construed together, and that her title became absolute as against the right of complainant to demand a reconveyance. The title passed to Mrs. Meilstrup when she obtained her deed. To entitle her to possession she is required-to comply with certain provisions of the law. These provisions are not to-Strengthen .her title, but to permit certain persons, who-are .particularly mentioned, and who appear by the records to have specific interests, to obtain a reconveyance^ from her on certain terms. She has obtained the interest, of the only ones thus entitled. I do not wish to be understood as holding that a narrow construction should be given to the words ‘ grantee or grantees ’ as used in these-sections, nor in passing upon the question as to the necessity for such notice in cases where the record showed that-the estate of such grantee was involved under levy, or* other proceedings. The complainant claims no such right-in this case.

' “As to whether or not complainant is barred from questioning the validity of her tax deed by the limitation in section 143, I express no opinion, as that question is; not involved in this proceeding.

‘ ‘ It follows that a decree may be prepared dismissing-the bill of complaint, with costs.”

The case is brought here by appeal. Counsel for appellant say in their brief:

“At the time the learned circuit judge filed his opinion in this case, the decision of Boucher v. Trembley, 140 Mich. 352, was not reported, and it would seem that the decision in that case would have an important bearing upon the correct construction to be placed upon the statutes, and would call for a reversal of the decree of the circuit , court, and the entry of a decree in this court in accordance with the prayer of the bill of complaint. This court, in the case last cited, used the following very-significant language:

“ ‘ Under this decision we cannot avoid the conclusion that a conveyance from the original owner who, during this period of redemption, is held to be the owner of the property and who is not, until due notice and the expiration of the time for redemption, divested of his title, of necessity merges the tax title into the original title so obtained. Consequently in this case the plaintiff took the title to the property in dispute subject to the equity of these defendants to claim for improvements, and the court did not err in holding that such right was not cut off by plaintiff’s tax title.’

“* * * We also claim that, under the provisions of section 143, Act No. 128, Pub. Acts 1901, the parties holding the original title were barred from questioning the validity of the tax title thus acquired by complainant. The Iosco Land Company, to whom they quitclaimed after such notice served on them, would also be barred and bound by such notice. James S. Meilstrup, the defendant who subsequently obtained a deed, would also be bound by such notice. Anna J. Meilstrup, who held the subsequent tax title, would also be bound by such notice and should be held to knowledge of the forfeited condition of such original title.”

The contention of counsel amounts to this: That by acquiring a tax deed based upon the unpaid taxes of 1898, which deed was acquired at a time when the taxes of 1899, 1900, and 1901 were unpaid, and no part of which has been paid by complainant, complainant has succeeded not only in extinguishing the original record title, but may compel defendant (who has a deed based upon the unpaid taxes of 1899, and who at the time she acquired her deed paid the taxes of 1900 and 1901, and who subsequently acquired the interest of the original holders of the title to the land) to convey to him without reimbursing her for the cost of the original title and the amount paid for the taxes for 1900 and 1901. Such a result is very inequitable and ought not to be reached unless the law compels it. If counsel are right in asserting that his tax deed and the notices which were given made him the absolute owner, it can hardly be said that Mrs. Meilstrup, by the conveyance to her on September 25, 1903, became so vested with the original title as to merge her tax title in the original title. The original title cannot be held as extinguished, and the title absolute in the complainant, and at the same time to be in existence so that when acquired by defendant her title based upon a valid tax deed is merged in the original title, both of which by that act become worthless.

We do not think the court erred in his disposition of the case.

The decree is affirmed.

Hooker, J., concurred with Moore, J.

Ostrander, J.

I concur in the result upon the ground that complainant had no title to the land.

McAlvay and Grant, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BLISS v. SLATER.
    1. Execution — Levy— Lien — Continuance — Limitation — Time for Sale.
    An execution levy remains a lien only for five years (§ 9233, 3 Comp. Laws), and a sale made under a levy after the expiration of that period will not defeat the title obtained under a deed executed by the execution debtor subsequent to the levy.
    2. Ejectment — Issues—Plaintiff’s Title.
    Where plaintiff in ejectment shows a title perfect on the record, such title cannot be attacked by evidence that the deed under which he holds was executed in fraud of the grantor’s creditors.
    ErrQr to Saginaw; Beach, J.
    Submitted February 16, 1906.
    (Docket No. 186.)
    Decided July 3, 1906.

      Ejectment by Aaron P. Bliss against Daniel H. Slater and others. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Harris & Kendrick, for appellants.

      ■James H. Davitt, for appellee.
   Moore, J.

This action is ejectment. The lands in question were formerly owned by Silas W. and Fred B. Tyler, from whom both parties claim to derive title; the plaintiff, under their deed to him, made May 27, 1897, and recorded two days later; the defendants, through a sheriff’s sale made May. 31, 1902, under an execution against the Tylers in favor of Daniel H. Slater, which was issued and levied May 7, 1897. All of the defendants xelv upon this deed to Mr. Slater, and the chief question Fere is whether or not he apqúired any title under it, as against the plaintiff, who bought 20 days after the levy was made and 5 years and 4 days before the execution sale. The circuit judge held Mr. Slater acquired no title, and directed a verdict in^favor of plaintiff. The case is brought here by writ of error.

Section 9233, 3 Comp. Laws, reads:

“ That each and every levy by execution on real estate heretofore made shall cease to be a lien on such real estate at the expiration of five years from the time when this act shall become a law, unless such real estate be sooner sold thereon; and all liens by execution on real estate hereafter to be made shall become and be void at and after the expiration of five years from the making of such levy, unless such real estate be sooner sold thereon.”'

Counsel for defendants say that the judgment and the execution remained, and that therefore the sale should be upheld, citing Ward v. Citizens’ Bank, 46 Mich. 332, and Ludeman v. Hirth, 96 Mich. 19. An examination of these cases will disclose that the execution sales therein were made before section 9233, 3 Comp. Laws, as it now reads was enacted. The language of the statute is not ambiguous, and we think it should be given effect. Stearns v. Perrin, 130 Mich. 456; Peters v. Trust Co., 131 Mich. 322. If the lien, established by making the levy before the deed to plaintiff, became void because of a failure to make a sale thereunder, it is difficult to see how plaintiff’s deed could be defeated by a sale under the execution levy made after the lien created by the levy had by virtue of the statute become void.

Error is assigned because the court said to counsel that he did not think it competent in this action to call witnesses to show that the deed was fraudulent as to creditors. Without discussing whether the record is in shape to properly present the question, it may be said that the title of the plaintiff was upon the record perfect, and it could not be attacked, for the reasons stated, in an ejectment suit. See Moran v. Moran, 106 Mich., at page 10; Daniel v. Palmer, 124 Mich. 335; Spring v. Raymond, 134 Mich. 84.

Judgment is affirmed.

McAlvay, Grant, Montgomery, and Hooker, JJ.. concurred.


text:
    COLLING v. McGREGOR.
    1. Limitations — Actions for Personal Injuries — Actions which Survive.
    The miming of the period of limitations provided for actions for personal injuries by Act No. 155, Pub. Acts 1899, is not suspended as to actions which survive, by section 9737, 3 Comp. Laws, during the time after the death of the injured person before an administrator is appointed, there being no-exception in favor of actions which survive in the more recent statute.
    2. Same — Commencement of Action —Alias Summons — Delay in Issuing.
    Where a summons is returned unserved, a delay of more than two months in issuing an alias summons interrupts the continuity of the aotion.
    3. Appearance — Waiver of Jurisdiction — Limitations.
    Appearance and plea, though waiving objections to the jurisdiction, do not waive the defense of the statute of limitations.
    Error to Wayne; Rohnert, J.
    Submitted February 28, 1906.
    (Docket No. 221.)
    Decided July 3, 1906.
    Case by Amelia Colling, administratrix of the estate of William Colling, deceased, against Charles E. McGregor for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Cassius Hallenbeclc, for appellant.

      Angelí, Boynton, McMillan & Bodman, for appellee.
   Moore, J.

This is a suit brought to recover damages for personal injuries sustained by decedent June 27, 1901, which resulted in' his death the following day. Suit was begun by summons June 11, 1904. The return day of the summons was June 28, 1904. The summons was returned unserved, and filed June 29, 1904. An alias was issued September 16,1904, returnable October 4, 1904. It was returned served on defendant September 37, 1904. Defendants entered their appearance October 3, 1904. The declaration was filed October 17,1904. To this declaration defendants, October 36,1904, pleaded the general issue, with notice of the statute of limitations. Upon the trial some testimony was given by plaintiff, at which time defendant’s counsel objected to further testimony on the ground that the claim was barred by the statute of limitations. The court ruled .that the statute of limitations was an absolute bar to the plaintiff’s right of action, and directed the jury to return a verdict in favor of defendants. The case is brought here by writ of error.

In 1899 Act No. 155 was enacted, which reads as follows :

“Section 1. No action shall hereafter be brought in any courts of this State to recover damages for personal injuries, unless the saíne shall be brought within three years from the occurrence upon which the claim for liability is founded.

“Sec. 3. All acts or parts of acts in anywise contravening any of the provisions of this act are hereby repealed.”

The appellant argues that as the cause of action survived, and passed to the administratrix, upon her appointment, the running of the statute was suspended by the death of Mr. Colling, and did not begin to run again until the appointment of the administratrix, because of the provisions of section 9737, 3 Comp. Laws, which read as follows :

‘ ‘ If any person entitled to bring any of the actions before mentioned in this chapter, or liable to any such actions, shall die before the expiration of the time herein limited, or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be commenced by or against the executor or administrator of the deceased person, or the claim may be proved as a debt against the estate of the deceased person as the case may be, at any time within two years after granting letters testamentary or of administration, and not afterwards if barred by the provisions of this chapter.”

In support of this contention, counsel cite Field v. Loveridge, 114 Mich. 227; Dolson v. Railway Co., 128 Mich. 444, and a number of other cases. The causes of action in these cases all occurred before the passage of Act No. 155, Public Acts 1899. This act does not make an exception in favor of causes of action which survive, and as it was competent for the legislature to pass such a law we think? its provisions are controlling. Davidson v. City of Muskegon, 111 Mich. 454, and cases cited therein.

Did the failure to take out the second summons for more than two months after the return day of the first summons interrupt the continuity of the action? We think' this question must be answered in the affirmative under -the following decisions: Johnson v. Mead, 58 Mich. 67, 73 Mich. 326; Peck v. Insurance Co., 102 Mich. 52.

It is said that because defendants appeared in the case and pleaded they waived all questions of jurisdiction. Doubtless this would be a waiver of jurisdiction, but it is not a waiver of the defense of the statute of limitations. The summons did not advise defendants of the claim made against them. This was stated in the declaration, and when thus stated defendants had a right to plead and give notice of their defense.

Judgment is affirmed.

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


text:
    BROWN v. BROWN.
    Divorce — Alimony—Sufficiency of Award.
    Where a wife is granted a divorce for her husband’s fault, an award of alimony that gives her a less interest in their joint property than she possesses at the date of the decree is wrong.
    Cross-appeals from Calhoun; Hopkins, J.
    Submitted March 2, 1906.
    (Docket No. 179.)
    Decided July 3, 1906.
    Bill by Lettie D. Brown against Martin E. Brown for a divorce. From a decree determining the amount of alimony, both parties appeal.
    Reversed.

      JR. J. Kelley and Edward Cahill, for complainant.

      Frank W. Clapp and J. M. Powers, for defendant.
   Moore, J.

The parties to this suit were married October 1, 1878. October 22, 1903, complainant filed her bill against the defendant for divorce on the ground of cruelty and adultery. A hearing was had, and a decree of divorce granted for the cause of adultery, on the 30th day of June, 1904. In the decree of divorce the court reserved the consideration of alimony. Afterwards the question of alimony was heard, and on the 31st day of July, 1905, a decree was made allowing the complainant the sum of $3,500 as a permanent alimony, upon condition that complainant convey to the defendant all her title and interest in certain pieces of property, some of which stood in the joint name of the parties as husband and wife, some in the name of complainant, and some in the name of defendant. Complainant claims the allowance was too little. The defendant claims it was too large. Both parties appeal.

It is the claim of defendant’s solicitors that his property and that in which he has an interest amounts to but $31,800, and that his liabilities, including the amount of this decree, are upwards of $40,000.

It is the claim of the solicitors for complainant that defendant underestimates the amount of his property and •overestimates the amount of his debts.

Without attempting to analyze the testimony contained fin the voluminous record, it may be said there are some pieces of property about which there is not very much dispute. The title to the homestead is in the name of the • complainant and defendant. The parties are substantially : agreed that it is worth $7,000 and is unincumbered. The ■ title to the Moon Block is in the complainant, it having been placed there by defendant. It is worth about $8,000 ■ and is incumbered nearly $6,000. The Brown-Sweet Block is worth in the neighborhood of $8,000 and is incumbered for nearly $4,000. The title is in Mr. Brown. The latter also has an interest worth $500 in the Grace Brown property, and an interest of like value in the Fos- ; ter Park contract. He is the owner of a newspaper, print- ' ing presses, machinery, and stock in connection with the publishing business. The witnesses are not agreed as to • the value of this business and plant. It is covered by a bill of sale to the bank to secure the payment of an indebtedness which it is claimed is for a larger amount than the property is worth.

Without pursuing the questions of values further, some deductions may be made. The complainant is two years younger than defendant. The title to the homestead is just as much in her as in defendant. Calling her interest one-half, for the purpose of ascertaining its value, her interest in the homestead is $3,500. The title of the Moon Block is in the complainant. The margin in this property over the incumbrance may be fairly called $2,000. The margin in the Brown-Sweet Block over incumbrance is $4,000. It may be safely assumed that defendant will receive some profit from the very large business he is doing. Having wronged his wife, in the way he has, and deprived her of a home, we think he should contribute something toward enabling her to establish a new one. A decree which does not allow her as much property as. she now possesses is wrong. The decree should be. so. modified as to give to complainant the title to the homestead upon the condition stated? in the decree below.

The decree is reversed, and one may be entered here in. accordance with this opinion, with costs to complainant.

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


author: Grant, J. Ostrander, J.

text:
    DOLBEE v. DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY.
    1. Carriers — Injuries to Passenger — Cause — Electricity — Evidence.
    In an action against an electric railway for injuries to a passenger, evidence examined, and held, not to tend to prove that plaintiff was injured by electricity.
    2. Same — Issues—Variance.
    In an action by a passenger against an electric railway for personal injuries consisting of a broken arm alleged to have been caused by a current of electricity falling from a pole in too close proximity to the track or from the overhead appliances on defendant’s road, evidence examined, and held, not to make a case within the averments of the declaration or the opening statement of plaintiff’s counsel.
    Error to Washtenaw; Kinne, J.
    Submitted April 6, 1906.
    (Docket No. 30.)
    Decided July 3, 1906.
    Case by John V. Dolbee against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.,
    Affirmed.
    Plaintiff, on August 6, 1904, was a passenger on one of defendant’s cars from Ypsilanti to Ann Arbor. He was sitting on the left-hand side, in the rear seat of the smoking room, next to the window, which was up. In some way his left hand, which was next to the window, received a severe injury. Plaintiff testified as follows:
    “ The bones of my wrist were broken in a number of places. One of the breaks was on the bone of the forearm running back from the thumb. One is on the back of the hand. The last break is about 10 inches from the ends of my fingers, and the first break about 4£ or 5 inches from the' end of the fingers. *' * * It was badly out of shape. The bones were all knocked in together. I do not know whether you call it ‘ crushed ’ or not, but it was all literally smashed.”
    He claims that the injury was the result of a shock of electricity. He was taken to an eminent surgeon and physician in the city of Ann. Arbor, his bones set, and he remained there several weeks under treatment. He did not call the physician as a witness. He testified that he was sitting close to the side of the car, his arm against the casing, his head resting on his hand towards the rods that ran across the window; that, while sitting in that position, he raised his foot and placed it on a ridge below the seat; and that was the last he remembered until somebody picked him up over in the aisle. No one else in the cab received any shock. All the machinery and apparatus were found to be in perfect condition. His claim is that the iron rods across the window became charged with electricity, and that, when he placed his foot on the ridge — whatever it was — under the seat, it formed the circuit, and the electricity passed through his body. Several theories of negligence and of the cause of the accident were advanced. In his original declaration he states that the defendant “carelessly, recklessly, and negligently placed its poles supporting the feed wires so near to the window of the car that they then and there struck the said plaintiff,” etc. In his amended declaration he alleges negligence in “leaving the pole or poles so heavily charged and loaded with electricity so near the said tracks that his elbow then and there came in violent contact with' the pole or poles, which were then and there so negligently and carelessly heavily loaded with electricity, and carelessly and negligently left so near to the tracks.” Another theory was that the rods or rod along the window were not insulated, and became heavily charged with electricity. Still another theory was that the car came down the hill so fast that the trolley wheel jumped the wire, and that in consequence, electricity came from off the feed or trolley wire and overhead electrical appliances.
    At the close of the plaintiff’s case the court directed a verdict for the defendant, saying:
    “There is in this case no positive evidence as to the cause of the injuries which the plaintiff received. I may state here that, while perhaps it is not important, I regret that Dr. Darling, a very prominent man, a physician and learned in his profession and the surgeon who was called immediately after this accident and who {attended the plaintiff for some weeks, could not have been called so that we could have heard from him his view as to the probable cause of these injuries. However, for the purpose of this trial I shall accept the plaintiff’s theory that vthe accident was due to the reception of a charge of electricity. If it was the law that negligence on the part of the railway company could be presumed from the bare fact that the plaintiff received a shock of electricity, then •the plaintiff would be entitled to recover, but such a doctrine as that is opposed to all the laws of this State. The Jaw is the other way.
    “There is no evidence in this case that the railway company has been guilty of negligence or carelessness, either fn the construction of its railway, or cars, or their equipment, nor in the operation, conduct, and management of its cars and system. So far as the evidence goes nothing is shown but that the railroad company has fully performed its duty in these respects. If this accident was ■ due to a shock of electricity, yet there has been no evidence as to what caused or occasioned it? there has been .no evidence that the car or trolley wire or motive power was irregular or out of order, or that the propelling current of electricity was in any manner disarranged.
    “If this accident was due to a shock of electricity it was incumbent upon the plaintiff to show the existence of this or that condition which might explain the accident, and to show that these conditions were due to the carelessness or negligence of the defendant railway company. This the plaintiff has failed to do. Hi's inability so to do may be his great misfortune, but there is no remedy for it. So far as the evidence goes, if this accident was due to electricity, because of its escape or misdirection, or want of management of it, there is not a particle of light thrown upon that.”

      Lee N. Brown, for appellant.

      Corliss, Leete & Joslyn, for appellee.
   Grant, J.

(after stating the facts). There is no •evidence tending to show that a shock of electricity of 600 volts, the voltage in use upon this car, would produce any ■such injury as that which the plaintiff received. Neither .is there any evidence tending to show that any voltage would produce that result. The theory of his original declaration is reasonable. If his arm had been out of the window and struck the pole, which was within reach, his .injury is easily explained. Plaintiff introduced witnesses who were familiar with electricity and the construction and use of trolley cars. No one had ever known these two guard rods along the windows. to become charged with electricity. The ends were screwed into the wood, and had no connection with any of the electric wires or apparatus. Plaintiff’s own expert testimony showed that these rods cóuld not be charged with electricity from the poles or from the trolley. No other similar accident was shown. No defect was .shown in the construction or management of the car. On the contrary an immediate ■examination showed the car and its appliances to be in good condition, arid nothing out of order. If the plaintiff’s injury resulted from a shock of electricity, which is. very doubtful, the ^record fails to show any reasonable theory for it, or any negligence on the part of the defendant which caused it. Verdicts cannot be based upon mere conjecture or guess.

The judgment is affirmed.

Hooker, J., concurred with Grant, J.

Ostrander, J.

(concurring). The first count of the amended declaration avers that plaintiff was injured because of his arm being in contact with a pole, charged with electricity, standing near the track and car. The second count avers the injury to have been caused:

“ By a bolt of electricity falling off from or coming off from the feed wire or trolley wire and overhead electric-appliances used in propelling the said car, * * * said bolt of electricity coming down the side of said car * * * and entered the plaintiff’s body.”

In his opening to the jury, plaintiff’s attorney said:

“We will show it happened by a current of electricity coming down the side of the car and entering the body of the plaintiff. * * * We will show you that the poles were so close to the car, when in motion,- it would be almost impossible for a car to run along; those poles being so close to the car as they are when in motion and the poles-charged with electricity. We will show you that they are, and that the result was that in passing that pole he was-shocked.”

Plaintiff testified on cross-examination as follows:

Q. Did the pole come in contact with any part of your hand ?

“A. No, sir; the pole came in contact with nothing.”

Again:

Q. Did you have your hand outside the car ?

“A. No, sir; I-did not.”

I agree in affirming the judgment upon the ground that the testimony for the plaintiff does not tend to prove that he was injured by electricity, and upon the further ground that the testimony did not tend to make a case within the ■averments of the declaration or the opening statement of counsel for the plaintiff. I am not clear that, under the circumstances disclosed, if the declaration had set out a case of injury by electricity and such injury was shown, plaintiff would be bound to account for the presence of ■the current of electricity in the car.

Blair and Montgomery, JJ., concurred with Ostrander, J.


author: Grant, J.

text:
    GILLULY v. SHUMWAY.
    Mortgages — Mortgagee in Possession — Rents —Collection-Compensation.
    A mortgagee in possession for the purpose of collecting and using the income of the property for the purpose of paying the mortgage debt is not entitled to any compensation for his management of the property in the absence of an agreement therefor.
    Appeal from Ingham; Wiest, J.
    Submitted April 10, 1906.
    (Docket No. 33.)
    Decided July 3, 1906.
    Bill by John Gilluly against Frank W. Shumway for .an accounting and for the cancellation of a mortgage. From a decree granting insufficient relief, complainant appeals.
    Reversed.
    On March 22, 1894, complainant became obligated to ■defendant in the sum of $375 upon two promissory notes. 'To secure this indebtedness he gave a quitclaim deed on his life estate in a farm, which life estate had been bequeathed to him by his father. At the same time defendant executed to complainant a lease of the premises.
    It is conceded that the relation between the parties' was that of lender and borrower, or mortgagor and: mortgagee. Complainant continued in possession of the farm until December, 1896. He then removed to Lansing, aind arranged, with the consent of the, defendant, with some neighbors of his to take and work the farm. While complainant occupied it he sold the proceeds, turning thev amounts received over to the defendant. In 1901 complainant demanded an accounting. Defendant rendered, an account, in which he claimed $50 per year for services, in looking after the farm, collecting the amounts due, etc.. Complainant refused to acknowledge his liability therefor, and, claiming that the rents received had fully paid the-mortgage, filed this bill to obtain an accounting and to. procure a cancellation of the mortgage. The court allowed defendant $25 a year from the time complainant-left the farm. From the allowance of this commission,, complainant appeals.

      D'unnebacke & Montgomery, for complainant.

      Jason E. Nichols, for defendant.
   Grant, J.

(after stating the facts ). Defendant was: a mortgagee in possession under his mortgage for the sole-purpose of collecting and using the proceeds from the mortgaged property in payment of the mortgage debt. It. is conceded that there was no express agreement to pay him for any services or commission. In the absence of an express agreement, and of evidence from which one-can be implied, no compensation will be allowed. Barnard v. Paterson, 137 Mich. 633. We find no such evidence in the record. It follows that this allowance was. erroneous.

The decree as to this will be reversed, and a decree en~ tered in this court in accordance with this opinion. Complainant will recover the costs of both .courts.

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


text:
      In re YOUNG’S ESTATE.
    Executors and Administrators — Claims or Administrator — Limitations.
    Where an administratrix paid with her own money claims against the estate, and later filed an account showing the indebtedness of the estate to her, which- account was allowed by the probate court and no appeal taken therefrom, the judgment was final and she could have taken steps immediately to enforce it; and she having taken no further steps except over four years thereafter to petition for permission to sell real estate to pay debts, and nothing further after that for ten years, her claim was barred, notwithstanding she was, as widow, entitled to possession of the entire estate for life, and there were oral negotiations between her and the heirs looking towards reimbursing her for what she had paid.
    Case made from Calhoun; Hopkins, J.
    Submitted April 13, 1906.
    (Docket No. 70.)
    Decided July 3, 1906.
    Elizabeth Young, administratrix with the will annexed of the estate of Christian Young, deceased, petitioned for the appointment of an administrator de bonis non with the will annexed of said estate. .The petition was granted in the probate court, and Christian Young and others appealed to the circuit court. There was judgment sustaining the order of the probate court, and contestants appeal.
    Reversed.

      The question involved in this litigation is the right of the probate court to appoint an administrator de bonis non with the will annexed. The case upon appeal from the probate court was tried before the circuit court without a jury and the facts agreed upon.
    Christian Young died May 6, 1884, leaving a last will and testament, by which he bequeathed to his wife all his real and personal estate during her life “ to use for herself and for her comfortable maintenance.” And after her decease the entire estate was to be divided equally among his children. Upon the proper petition his widow, Elizabeth, was appointed administratrix with the will annexed June 7, 1884, and duly qualified. The inventory showed $245 in personal and $4,500 in real estate. Commissioners on claims filed their report December 8, 1884, showing an allowance of claims of $741.60. On the same day an order was duly entered directing the administratrix to pay them. The administratrix filed her first account December 11, 1884, showing that she had paid out as administratrix $508.35 more than she had received. This account was allowed, and the order recited that she was discharged as administratrix. No petition had been filed for her discharge. On July 6, 1889, she was required to file a second account. She filed one showing a balance due her from said estate of $1,553.04, which consisted, according to her petition, of debts allowed, cost of a monument, with interest thereon, and the allowance to her as widow. This was heard on July 30, 1889, and allowed “as the annual account of said Elizabeth Young, executrix.” On April 30, 1894, she filed a petition for leave to mortgage or sell the real estate to pay that amount. On June 11th an answer was filed to said petition by her son-in-law, who was the father of a child of a deceased daughter. Nothing further was done under the petition. On October 10, 1904, she filed this petition setting forth in substance the above facts, showing that her own delay in filing her account and settling the estate and applying for leave to sell the real •estate was caused by negotiations between herself and heirs for a payment of the amount so found to be due to her, tendering her resignation as such administratrix on account of her age and feeble condition, and praying for •an appointment of an administrator de bonis non. To this petition two of the heirs and the grantee of two others objected, for the reason that the claim is barred by the -statute of limitations. The probate court appointed an administrator de bonis non, and upon appeal in the circuit court the order was affirmed.

      Edward J. Dennison and James J. Noon, for appellants.

      Winsor & Miller, for appellee.
   Grant, J.

{after stating the facts). That part of the •order of the probate court of January 2, 1885 (the adjourned day for hearing the account of December 11, 1884), reciting that she was discharged as administratrix; must be treated as a nullity. The court had no jurisdiction to make such an order. There was nothing in her account justifying her final discharge. Undoubtedly it was an oversight in entering the order. The same court -afterwards treated it as a nullity in ordering and allowing a second annual account.

The meritorious question is that involving the statute of limitations. She promptly paid most of the debts out •of her own funds. If she had not paid them, the creditors of the estate would clearly have been barred by the statute of limitations upon failure to proceed within the statutory period against her or her bondsmen. Winegar v. Newland, 44 Mich. 367; Biddle v. Wendell, 37 Mich. 452. By paying them out of her own funds, she stood in the position of an equitable assignee of the creditors. The statute fixes the time for disposing of the estate and paying the debts and legacies as one year and six months, and provides that upon due application and due notice of such application to all persons interested, the probate court may extend the time for a period not exceeding four years., 3 Comp. Laws, §§ 9397-9399. There was no appeal from the judgment of the probate court, made July 30, 1889, adjudging her $1,553.04. She permitted nearly five years-more to pass without taking any steps to enforce her claim, and then did nothing except to file a petition to sell the real estate. Nothing was done under that petition, and she rested upon her rights for more than 10 years longer. We think the claim is within the rule of Hoffman v. Beard, 32 Mich. 218.

Counsel for petitioner seek to avoid the running of the statute of limitations by insisting that the estate could not-be closed during the lifetime of the widow, and that it: is the order upon the final accounting of an administrator-that becomes a final judgment. We cannot adopt either of these contentions. The administration of the estate could have been closed at any time, and, after the payment-of the debts and expenses of administration, the widow was entitled to the possession and' control of the residue of the entire estate. The judgment of the probate court allowing her account was final, and could only be set; aside on the ground of fraud or mistake. She could have taken steps immediately to enforce it. The fact, if fact it be, that she and her children had verbal negotiations looking towards reimbursing her for what she had paid, would not operate to prevent the running of the statute, or to revive the claim after the statute had run.

The judgment must be reversed, and this decision certified to the probate court for action thereon.

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


text:
    KONKLE v. HAVEN.
    1. Libel and Slander — Evidence—Admissibility.
    In an action against a husband and wife for libel, consisting of a letter purporting to be signed by both of them, but appearing to be entirely in the husband’s’handwriting, it is error to admit evidence of acts and statements of the wife tending to show malice in advance of anything to connect her with the publication, and, the evidence being of very damaging character, the error is not cured by striking the evidenoe out.
    3. Same — Publication—Responsibility—Instructions.
    ' In an action for libel, consisting of a letter derogatory to plaintiff’s character as a clergyman, written to the board of a church over which he was about to assume charge, it appeared that plaintiff read the letter from his pulpit in the church he was about to • leave, and the only other evidence claimed to show publication at that place was a statement in a deposition of one of the church board to whom the letter was addressed, that he was directed by the board to write to the officers of the church and did so and received letters from them. Held, that an instruction that defendant was not responsible for the publication at the place plaintiff was about to leave should have been given on request, there being nothing in the deposition tending to show that the letter or its contents were disclosed in the letter passing between the church boards.
    Error to Van Burén; Carr, J.
    Submitted April 10,, 1906.
    (Docket No. 46.)
    Decided July 3, 1906.
    Case by Israel Konkle against John M. Haven and Hattie A. Haven for libel. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Frank J. Weston and Thomas J. Cavanaugh (Dallas Boudeman, of counsel), for appellants.

      Benj. F. Heckert and Barnard & Lewis, for appellee.
   Grant, J.

This case is before us for the second time. 140 Mich. 472. A further statement than is there found is unnecessary. A second trial resulted in a verdict for the plaintiff. Upon the second trial the plaintiff was a witness in his own behalf, and gave evidence tending to show the falsity of the charges made in the letter, except one, the use of tobacco, which the plaintiff admitted. Plaintiff called both Mr. and Mrs. Haven and questioned them in regard to the authorship of the letter. Mr. Haven admitted writing the letter, and testified that his wife had no hand in writing it, knew nothing about it until after it was written, and was in no manner responsible for it. She testified to the same thing.

1. It is now urged, as it was upon the former trial, that there was no evidence to show malice on the part of Mr. Haven. Without entering into a detail of the evidence, we are satisfied that this question was properly left to the jury. Mr. Haven was not a witness in his own behalf. There was testimony that three of the charges made were false, and we think there was sufficient evidence from which the jury might question his good faith in the matter.

%. Before giving any evidence to connect Mrs. Haven with the publication of the libelous letter, plaintiff was allowed to introduce very damaging statements made by her and also evidence of her conduct towards him. This evidence was continued all through the trial, even after the judge had intimated that there was nothing to connect MrS. Haven with the publication. We held in the former opinion that Mr. Haven was not responsible for the acts and statements of his wife. . This evidence was of such a character that we cannot hold that the error was cured by the order of the court at the close of the trial in striking the testimony out and instructing the jury not to regard it. The evidence of any statements made by Mr. Haven or of his conduct towards plaintiff tending to show actual malice is rather meager. Mr. Haven and other members of the church objected to the plaintiff’s marrying a couple, one of whom had been divorced. Plaintiff testified that about the same time he had a conversation with Mr. Haven’s father in regard to dividing his property among his children, and that he advised the father, in the presence of Mr. Haven, to keep control of his property while he lived. Plaintiff testified that “after these difficulties Mr. Haven did not speak to him; that he passed him frequently, but he did not look up.” Plaintiff admits that he did not speak to Mr. Haven, but “walked by with my head up like a man.” There is little, if anything, in such testimony to show malice on the part of one more than the other. But the statements proven to have been made by Mrs. Haven were different. Plaintiff was permitted to show her appearance and attitude towards the plaintiff. One witness testified that she was bitter against Mr. Konkle on account of that marriage, and that she told witness that Mr. Konkle told her husband that a saloon-keeper could be just as good a Christian as a farmer. Another witness was permitted to testify under objection and exception:

‘ ‘ Did you at any time before this suit was started against Mr. and Mrs. Haven, hear her say anything in reference to Mrs. Konkle having an abortion performed ?

“A. I don’t think that Mrs. Haven stated that to be the fact, she merely intimated it.”'

Counsel then pursued the matter further and elicited the following:

“A. Mrs. Konkle was not in Bloomingdale at the time this conversation took place. She was away visiting, if I remember right. Something was said. Mrs. Haven — I can’t remember which of us stated, spoke of Mrs. Konkle’s condition at that time. She was in a delicate condition at the time, and Mrs. Haven stated that she — we were speaking about something — I don’t remember exactly how it was. Any way Mrs. Haven stated that she had heard it rumored or understood that she was over it at this time.

Q. Say anything with reference — connect anybody’s name with it, or anything ?

“A. I think she did.

“Q. Whose?

“A. Dr. Ransome’s.”

Plaintiff was also permitted to testify to a conversation with Mrs. Haven. It was the duty of the court to exclude any such testimony until Mrs. Haven’s responsibility for the libelous article had been established.

3. We held on the former hearing that the defendant was not responsible for the" publication of the letter made by the plaintiff himself, and that he could not recover damages for such publication. He read the letter from his pulpit in the church at Bloomingdale. The court below did not instruct the jury that the plaintiff could not recover, damages for any publication made by himself, and it does not appear that any request was made to do so. The court was requested to instruct the jury that “ the defendant is not responsible and cannot be held liable for the publication of this letter at Bloomingdale.”

It is claimed on behalf of plaintiff that there was evidence that this letter was published at Bloomingdale aside from the publication made by the plaintiff himself. The only evidence cited to maintain this claim is the deposition of one Dougal Thompson, taken at Hillsburg, in Canada. This witness testified that the letter was received by one McMillan, a member of the church at Hills-burg. The church board was convened and the letter evidently placed before it. Mr. Thompson testified:

“I was instructed by the secretary of the church board to write to the officers of the church board at Bloomingdale, and received letters from them.”

This testimony is not evidence of a publication of the libelous letter at Bloomingdale. .It is not stated that the letter or a copy of it was sent to Bloomingdale, or that its contents were stated in the letters written by the witness, or that the name of the defendant was mentioned in the letter written by Thompson. He may have written simply to ascertain more about the character of Mr. Konkle, without any reference whatever to the letter they had received. Upon this record, we think this instruction should have been given.

Judgment reversed, and new trial ordered.

Carpenter, C. J.,andMcALVAY, Blair, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    THOMPSON v. COUCH.
    'Officers — De Facto Officers — Right to Office — Color of Authority — Collateral Attack.
    Where the section of a city charter providing for three justices of the peace is repealed and a provision adopted in its place that there shall be one justice, and that court shall be held in certain oases by other officers, the title to his office of a justice elected under the latter statute cannot be collaterally attacked, even on the ground that, the statute being unconstitutional, there is no office to be filled and therefore no officer; .since one eleoted under an unconstitutional law is a de facto ■officer until the unconstitutionality is adjudged, and whichever law is in effect, there is such an office as justice of the peace.
    Petition by Andrew Thompson against John A. Couch for a writ of prohibition to restrain respondent from assuming jurisdiction as a justice of the peace.
    Submitted May 26, 1906.
    (Calendar No. 21,715.)
    Writ denied July 3, 1906.

      Alexander B. Maedonell, for relator.

      Warner & Sullivan, for respondent.
   Montgomery, J.

The relator was defendant in an action involving a trifling sum instituted in the court held by the respondent. Relator, after raising the question of respondent’s right to hold the office, has asked this court to issue a writ of prohibition forbidding further proceedings in said cause by respondent. The respondent is assuming to act as a justice of the peace of the city of Sault Ste. Marie, and it appears that he had exercised the duties of such supposed office for nearly four years before this proceeding was instituted. The charter of the city of Sault Ste. Marie (Act No. 533, Local Acts 1887, chap. 3, § 1) provided that the officers of-the city should consist of “mayor * * * and three justices of the peace who shall be elected by the qualified voters of the whole city.” It also provided for the right of succession and for succeeding elections, and that one justice should be elected, each year.

In 1901, by Local Act No. 468, the provision first above quoted was amended by substituting “ one justice of the peace ” in place of the words “three justices of the peace.” The amended statute also provided for the holding of' court in certain emergencies by the probate judge or circuit court commissioner. On account of these last provisions the constitutionality of the amendatory act is attacked.

The respondent’s counsel contend that the title to this office cannot be tried in this proceeding, that the respondent is at least an officer de facto, and that an officer de. facto is as to the public an officer de jure. This rule is well settled and is not controverted by the relator. It is contended, however, that there cannot be a de facto officer of an office which has no existence, and that if the amendatory act is unconstitutional the respondent cannot be. held to be a de facto incumbent of an existing office. There are cases which hold that, as an unconstitutional statute is not law, such statute creating an office does not. give color of right to an incumbent. 11 Cyc. p. 724; Me-chem on Public Offices and Officers, § 326. But where this is held the holding is said not to be inconsistent with the rule that one chosen under color of an election, or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be so, is an officer de facto. The distinction taken by the line of cases referred to may be stated thus: While there can be no such thing as a de facto office, there may be a de facto officer, whose apparent right arises out of action taken by the electorate or the appointing power under the supposed authority of an unconstitutional law before the same is declared unconstitutional. See Mechem on Public Offices and Officers, §§ 318, 327; Walcott v. Wells, 21 Nev. 47 (9 L. R. A. 59). The present case falls clearly within this distinction. Clearly there is such an office as justice of the peace in the city of Sault Ste. Marie. Whether the old charter or the amendment was in force, a justice of the peace was due to be elected on the day the people chose respondent over his competitor. Respondent was inducted into that office, and became an officer de facto. Whether the distinction was accurately noted in Donough v. Dewey, 82 Mich. 309, may be doubted. That case would seem to go to a greater length than necessary to answer the relator’s contention here. We do not in this case decide what rule should be applied if a new office had been created by the amended charter. This is not the complaint. The grievance appears to be that two justices were dispensed with. The office was not wholly abolished, and, as before pointed out, the respondent was elected to an office which a valid law created. His right to hold that office is not open to collateral attack.

The writ is denied, with costs.

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


author: Ostrander, J.

text:
    WEBB v. WAYNE CIRCUIT JUDGE.
    Marriage — Suit to Annul — Allowance to Wife — Power of Court — Statutes.
    Where suit is brought under section 8618, 3 Comp. Laws, to annul a marriage, the court has power to require the husband to pay money to the wife to enable her to carry on the suit, though there is no statutory authority therefor, either in section 8638, 3 Comp. Laws, or elsewhere; the power being incident to the jurisdiction in such cases.
    Mandamus by George B. Webb to compel Flavius L. Brooke, circuit judge of Wayne county, to proceed with thehearing of a bill for divorce.
    Submitted May 26, 1906.
    (Calendar No. 21,726.)
    Writ denied July 3, 1906.

      Franklin L. Lord, for relator.
   Ostrander, J.

To a bill to have a marriage declared void upon the ground that at the time of the marriage the wife had a living husband, the bill charging that he still is living and still her husband, the wife filed an answer in which she neither directly affirms nor denies the principal fact alleged, but asserts a valid and legal marriage to relator in Windsor, in the Province of Ontario, followed by eight years of cohabitation. She asks for affirmative relief by way of alimony, temporary and permanent, and a decree of divorce. To the answer a replication was filed, and to the cross-bill a demurrer was interposed. Upon petition, and after a hearing, the court made an order for the payment by complainant to defendant of a solicitor’s fee of $15. Complainant did not comply with this order, but brought on the demurrer for hearing, when the court refused to proceed until the order had been obeyed, and made an order denying the motion to proceed with the hearing. It is this order which is in question.

Relator contends that the court had no jurisdiction to make the order for expenses of defendant, because the provisions of 3 Comp. Laws, § 8628, have no application to proceedings under 3 Comp. Laws, § 8618. It is also •contended that the court has no discretion in the premises, because the answer of defendant, in substance and effect, •admits the invalidity of the marriage.

It is true that the statute does not in terms empower the court to require the husband to pay money to the wife to •enable her to carry on a suit like this one. Neither does it in terms embrace the subject of allowances for her support. The power to grant allowances, however, has been .held to be incident to divorce cases. Goldsmith v. Goldsmith, 6 Mich. 285; Ross v. Ross, 47 Mich. 185; Haines v. Haines, 35 Mich. 138. The reason asserted in Goldsmith v. Goldsmith, supra, and in Story v. Story, Walk. Ch. (Mich.) 421, for the exercise of this power, is that, without this power in the court, the wife who should have no separate property of her own would be without the requisite means of prosecuting or defending the suit and of supporting herself in the meantime. The same reasoning applies, with equal force, in cases like the present. The power of the court below to make the order is affirmed. The brief for relator admits that, if the court had jurisdiction to make the order, it was and is in force.

The writ is denied, and, as no brief has been filed on the part of respondent, without costs.

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


author: Caepentee, C. J.

text:
    COLE v. COLE.
    1. Deeds — Delivery—Deposit for Delivery After Death— Bight to Beoall.
    Where a landowner executes deeds and deposits them with another with instructions to deliver them after his death, he has a right to recall them and destroy them, unless at the-time of depositing them he intended to deprive himself of that right.
    2. Same — Intention—Evidence.
    It being sufficient in such a case that it is understood both by the grantor and the depositary that the grantor reserves the right to control the deeds, an express agreement to that effect is unnecessary, and it appearing that there was such an understanding, no title passes, and the grantor has a right to recall and destroy the deeds.
    Appeal from Eaton; Smith, J.
    Submitted May 8, 1906.
    (Docket No. 126.)
    Decided July 3, 1906.
    Bill by Diantha M. Cole against Nancy Cole for the restoration of certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Huggett & McPeek, for complainant.

      Lewis J. Dann and Garry C. Fox, for defendant.
   Caepentee, C. J.

Defendant, who is the mother of complainant and two other daughters, is the owner of 80 acres of land situated in the county of Eaton, in this State. In 1900, she executed three deeds, by which she conveyed to each of her three daughters a portion of said land, and placed the same in the custody of one John Triphagen with instructions to deliver the same after her death. In 1904, defendant recalled these deeds and destroyed them. Thereupon complainant commenced this suit in chancery for the purpose of obtaining a decree compelling their restoration. The case was heard upon pleadings and proofs in the lower court, and a decree therein entered dismissing complainant’s bill. Complainant appeals, and asks us to reverse that decree upon the ground that when the deeds were placed in Triphagen’s custody the grantees named therein acquired rights of which the defendant ■could not divest them.

Defendant had a right to recall these deeds and destroy them, unless at the time she. deposited the same with Triphagen she intended to deprive herself of that right. See Burk v. Sproat, 96 Mich. 404; Pennington v. Pennington, 75 Mich. 600; Osborne v. Eslinger, 155 Ind. 351; Thompson v. Calhoun, 216 Ill. 161. Did defendant, when she deposited these deeds with Triphagen, intend to divest herself of all right whatever to control them? The only persons who were present' when that deposit was made were Triphagen and defendant herself. They do not agree as to what was said at that time. Defendant testifies that she expressly reserved to herself the right to control the deeds. Triphagen denies that there was any such express reservation, but admits that he understood that he did not “have any control of the papers [deeds] if she [defendant] wanted them.” To give defendant the right to control these deeds in Triphagen’s liands, it was not necessary that that right be expressly reserved. It is sufficient that it was understood both by her and Triphagen that it was so reserved. It was so -understood, and therefore we must hold that she had that right. Other evidence in the case convinces us that defendant, by placing these deeds in the custody of Triphagen, did intend to effect an arrangement whereby the title to the property described in the deeds should pass to the grantees therein named when the deeds were delivered after her death. It is argued that this intention could not be effected unless the title passed when the deeds were delivered to Triphagen (see Taft v. Taft, 59 Mich. 185, Prutsman v. Baker, 30 Wis. 644, Osborne v. Eslinger, and Thompson v. Calhoun, supra), and that it therefore follows that on the delivery to Triphagen the title passed to complainant and her sisters. We may concede the premise of this argument, and at the same time deny the conclusion. Assuming it to be true that a deed to be effective after death must take effect before death, it follows that one who has. made an endeavor to make a deed effective has either deprived himself of all right to change that deed or he has-accomplished nothing whatever. Under this assumption, we must decide either that defendant has made an irrevocable deed to complainant — that is, that she did precisely what she did not intend to do — or that she has done nothing. If there is any difficulty in choosing between these two alternatives, that difficulty entirely disappears by a-restatement of law — and a restatement of it in accordance with complainant’s contention — viz., nothing was effected, by defendant’s deposit of the deeds with Triphagen, unless-defendant intended her act to be irrevocable. As she did not so intend, nothing was effected. Complainant, then, acquired no title, and defendant had a right to recall and destroy the deeds.

The decree of the trial court is affirmed.

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


author: Per Curiam.

text:
    SCHMID v. WEXFORD CIRCUIT JUDGE.
    1. Venue — Change — Statute — Construction — Successive Changes.
    A party is not entitled, as a matter of right, to more than one change of venue under Act No. 809, Pub. Acts 1905.
    3. Same — Additional Grounds — Prejudice oe Judge.
    Where, in applying for a change of venue under the act of 1905, relator did not set up the ground of prejudice of the judge, though he had knowledge thereof, and the court in granting the application changed the venue to another county in his own circuit, relator is not entitled to another change on the ground of prejudice of the judge.
    • Mandamus by Frederick Schmid to compel Clyde C. Chittenden, circuit judge of Wexford county, to vacate an order denying a change of venue.
    Submitted May 36, 1906.
    (Calendar No. 21,609.)
    Writ denied July 3, 1906.

      B. M. Thompson, for relator.

      D. Gf. F. Warner, for respondent.
   Per Curiam.

Plaintiff made application for change of venue under Act No. 309, Pub., Acts 1905. The respondent changed the venue to another county in his circuit, notwithstanding the suggestion of the relator’s counsel that it be changed to some county other than one presided over by him. After this change had been made from the county of Benzie to the county of Wexford, relator made an application on the ground of the prejudice of the presiding judge. This motion was denied, and the relator now asks the writ of mandamus to compel an order for the change. ,

We think the relator is not entitled, as a matter of right, to more than one change of venue under the statute. We cannot hold that the legislature intended to confer upon a party litigant the right to successive changes of venue from one county to another.

It is, however, urged that the prejudice of the judge is sufficient for the second change, and that this was not sufficiently known to the relator in his first application. It was his duty to state in his first application all the' causes he then had for asking the change. We think the record discloses that the reason for the present application was known to the relator when he made his first application.

The writ must therefore be denied.


text:
    SCHMID v. BENZIE CIRCUIT JUDGE.
    Courts — Jurisdiction — Concurrent Jurisdiction — Law and Equity — Discretion.
    It is within the discretion of the trial judge to refuse to proceed with the hearing of a chancery case while a suit at law involving the same controversy is pending in this court; but upon reversal of the judgment at law and the granting of a new trial the cases stand upon an equal footing and the defendant in the chancery suit has a right to bring it to a hearing.
    Mandamus by Frederick Schmid to compel Clyde C. Chittenden, circuit judge of Benzie county, to grant leave to file a supplemental answer to a bill of complaint, and to modify an order setting aside a stipulation.
    Submitted May 26, 1906.
    (Calendar No. 21,610.)
    Writ granted July 3, 1906.

      B. M. Thompson, for relator.

      B. Or. F. Warner, for respondent.
   Per Curiam.

This is an application for mandamus to require respondent to grant relator’s petition for leave to filó a supplemental answer in the chancery case of Village of Frankfort v. Schmid, setting forth the status of the case pending at law in said court of Schmid v. Village of Frankfort, 131 Mich. 197, and also to modify respondent’s order setting aside the stipulation of the parties vacating complainant’s default in said chancery cause and providing that the testimony theretofore taken in the case at law might be used on the hearing of the chancery suit: A similar application was denied by this court in Schmid v. Benzie Circuit Judge, 138 Mich. 452, where and in the cases therein referred to the facts are sufficiently set forth.

Respondent contends that the orders were within his ■discretion, which cannot, or at least ought not, to be reviewed, and that this court has sustained the ruling of the respondent that the matters involved in the chancery suit should be held in abeyance till the determination of the suit at law. It appears from the record that the court’s opinion that the hearing of the chancery case should await the final determination of the law case was the real basis of his rulings. The construction placed upon our ■decision in 138 Mich. 452, is incorrect. We held in that case that it was within the discretion of the trial judge to refuse to proceed with the hearing of the chancery case when the suit at law involving the same controversy was pending in this court and its determination might settle the entire controversy. Upon the reversal of the judgment and granting of a new trial in the lawsuit [141 Mich. 291], the cases stood upon an equal footing and the defendant in the chancery suit had a right to bring it to a bearing.

Under the circumstances, we think both petitions should bave been granted, and the writ will issue as prayed.


text:
    COSGROVE v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Propriety—Allowing Appeal prom Justice’s; Court — Remedy by Error.
    Mandamus will not lie to review the action of the circuit judge in allowing a delayed appeal from justice’s court, there being an adequate remedy by writ of error.
    2, Courts — Decisions—Stare Decisis.
    Cases in which mandamus was improperly allowed, the impropriety of the remedy not being suggested, and not occurring to the court, are not precedents which the court is bound to» follow when the impropriety of the remedy is urged in similar cases. .
    Mandamus by Frank J. Cosgrove to compel Morse Rohnert, circuit judge of Wayne county, to vacate an order allowing an appeal from a judgment of a justice of the peace.
    Submitted June 5, 1906.
    (Calendar No. 21,730.)
    Writ denied July 3, 1906.

      Eberi R. Ayres, for relator.

      Robert W. Webb, for respondent.
   Per Curiam.

On the 6th of December, 1905, relator obtained judgment against James D. Burns, sheriff of Wayne county, in the justice’s court of the city of Detroit, for the sum of $418 damages and $1.75 costs. Respondent made an order granting said Burns leave to appeal from said judgment more than five days after its. rendition upon a showing that he, said Burns, had been prevented from taking an appeal within said five days by circumstances not under his control. Relator by these proceedings seeks a mandamus compelling respondent to-vacate said order upon the ground that he had no authority whatever to grant it.

The question arises whether this application for a mandamus is the appropriate method of redressing relator’s grievance according to our recent decisions (Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; Cattermole v. Ionia Circuit Judge; 136 Mich. 274; Sharp v. Montcalm Circuit Judge, 144 ante, 328), which hold that mandamus will not lie to review a ruling which may be reviewed by writ of error. If, as relator claims, respondent erred in making the order complained of, this is a case in which respondent has improperly assumed jurisdiction. It is quite clear that relator can raise this question by writ of error after final judgment, provided, of course, that he does nothing which waives his right to raise that question. See cases above cited. We are bound to hold, therefore, that relator can obtain adequate redress by writ of error, and that he is not entitled to a writ of mandamus.

It is true that we have granted the writ of mandamus to redress a grievance precisely like that asserted by relator. Stock v. Wayne Circuit Judge, 143 Mich. 339, is a recent instance. In this case — and I think the same may be said of all similar cases — the impropriety of that remedy was not suggested and did not occur to the court. Such decisions are not precedents which we are bound to follow. See Moinet v. Burnham, Stoepel & Co., 143 Mich. 489; Atwood v. Mayor, etc., of Sault Ste. Marie, 141 Mich. 295.

The writ is denied.


author: Moore , J.

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    WEDDERBURN v. CITY OF DETROIT.
    1. Highways and Streets — Defective Sidewalks — Municipal Corporations — Personal Injuries — Negligence — Question for Jury.
    Whether it was negligence for a city to leave for a long time, upon a sidewalk that was traveled by a large number of persons, a flagstone inches thick, is a question for the jury.
    3. Same —Contributory Negligence — Defective Sight —Evidence.
    Where plaintiff stumbled over a flagstone 3-J inches thick, which had been left upon the sidewalk, the defective condition of her sight may be shown as bearing upon the question of due care upon her part.
    Error to Wayne; Frazer, J.
    Submitted June 6, 1906.
    (Docket No. 6.)
    Decided July 3, 1906.
    Case by Emma Wedderburn against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Harry G. Van Syckle, for appellant.
    P. J. M. Hally (T. E. Tarsney, of counsel), for appellee.
   Moore , J.

This action is brought to recover for injuries received by plaintiff upon a sidewalk which she claims was not kept reasonably safe and fit for travel. The circuit judge directed a verdict in favor of defendant. The case is brought here by writ of error.

Counsel for the city say in their brief that there is practically but one question, namely: Was the defendant guilty of negligence ? The negligence complained of was the leaving for a long time upon a sidewalk that was traveled by a large number of persons, a flagstone 3£ inches thick, over which the plaintiff stumbled when she claims she was in the exercise of due care. The circuit judge was of the opinion that it was not such negligence to leave this obstruction as would create liability upon the part of the city, and for that reason directed a verdict. We think this was error, and that it should have been left to the jury to say whether, under all the circumstances, the defendant was negligent. See the opinion written by Chief Justice Hooker in Finch v. Village of Bangor, 133 Mich. 149.

The plaintiff was not allowed to show the condition of her eyesight. We think this was admissible as bearing upon the question of due care upon her part.

Judgment is reversed, and new trial ordered.

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


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    WALKER v. LANSING & SUBURBAN TRACTION CO.
    Parties — Substitution—Pleadinss—Amendment.
    In an action by a husband for damages occasioned by negligent injury of his wife and her consequent death, an amendment permitting him to recover as administrator of her estate is not permissible.
    Error to Ingham; Smith (Stearns F.)', J., presiding.
    Submitted June 12, 1906.
    (Docket No. 18.)
    Decided July 3, 1906.
    Case by Charles H. Walker, administrator of the estate of Minnie M. Walker, deceased, against the Lansing &. Suburban Traction Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Moore, Brown, Miller & Ladd, for appellant.

      Frank L. Dodge and L. B. Gardner, for appellee.
   Moore, J.

Mrs. Walker, the wife of plaintiff, was, in February, 1905, a passenger on a car belonging to defendant company. It is plaintiff’s claim that after descending from the car Mrs. Walker attempted to pass behind the car to reach the opposite side of the street, that without warning the car was backed, striking and severely injuring her, and that on the 17th of May following she died from the effects of said injury. The plaintiff commenced this action to recover damages for the loss of his wife. He recovered a judgment. The case is brought here by writ of error.

The errors assigned may be arranged into groups. It is the claim of defendant that it was not shown it was in any way responsible for the injury, and that a verdict should have been directed in its favor. We shall not attempt to recite the testimony, but there was evidence requiring the case to be submitted to the jury.

The second group of errors relates to the court’s permitting an amendment to the declaration. The result of the amendment was to allow the plaintiff to appear in the action, not as an individual, entitled to the damages which he had sustained as the husband of decedent because of her injury and death, but as her personal representative, entitled to very different damages. The effect of the amendment was to permit Mr. Walker as an individual representing one cause of action to get out of court, and Mr. Walker as administrator representing an entirely different cause of action to get into court. This is not permissible. People v. Judges of Washtenaw Circuit Court, 1 Doug. (Mich.) 434; People v. Wayne Circuit Judge, 13 Mich. 206, and cases cited; Hurst v. Rail way, 84 Mich. 539; Wood v. Insurance Co., 96 Mich. 437; Angell v. Pruyn, 126 Mich. 16, and the cases there cited.

Judgment is reversed, and a new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ., ■concurred.


author: Blair, J.

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    TRAVELERS’ INSURANCE CO. OF HARTFORD v. KENT CIRCUIT JUDGE.
    '1. New Trial — Default Judgment — Remedy Ineffectual.
    Where judgment has been taken against a garnishee defendant, after default for failure to disclose, the granting of a motion for a.new trial is of no benefit to the garnishee without setting aside the default, since the new trial will be a mere reassessment of damages in which the result will be the same.

      :2. Judgment — Default—Setting Aside — Time to Move.
    It is not competent to procure, by motion for a new trial, the vacation of a judgment entered on default, and then, the judgment out of the way, obtain the opening of the default, more than six months after its entry, on the ground that there have been no “ proceedings taken after default on the strength thereof,” since this would result in accomplishing by indirect action what Circuit Court Rule 12b prohibits being secured by direct action.
    .'3. Garnishment — Default of Garnishee — Opening—Time.
    A garnishee defendant, who moves to have the judgment against him vacated and the default upon which it is founded set aside, is entitled to prevail, where, at the time he moves, there is no judgment against the principal defendant.
    ■4. Mandamus — Propriety—Vacation of Default — Remedy by Error.
    Whether the entry nunc pro tunc of a judgment against the principal defendant in a garnishment case, as of the date of a motion to set aside the default and judgment against the garnishee, affects the legal status of the motion, cannot be determined on mandamus, being reviewable on writ of error ■ from the judgment.
    Mandamus by the Travelers’ Insurance Company of Hartford to compel Alfred Wolcott, circuit judge of Kent county, to vacate an order extending the time to file a motion for a new trial.
    Submitted June 19, 1906.
    (Calendar No. 21,755.)
    Writ granted July 3, 1906.

      Drew & Heald, for relator.

      Carroll & Nichols, for respondent.
   Blair, J.

This is an application for mandamus to require the respondent to vacate an order extending the time within which the Valley City Desk Company might file a motion for a new trial in the case of Travelers’ Insurance Company v. Valley City Desk Company et al. Different phases of the matters embraced in this proceeding have been before this court in Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194, and Valley City Desk Co. v. Insurance Co., 143 Mich. 468, to which cases reference is made for a statement of the facts.

The granting of a motion for a new trial in this case would be ineffective, unless the default were also set aside, since the new trial would merely be an assessment of damages, and the result must be the same as before. 3 Comp. Laws, § 10604. We do not think it would be competent to procure the vacation of the judgment on motion for new trial and then, having got the judgment out of the way, obtain the opening of the default on the ground that there were no “proceedings taken after default on the strength thereof.” This would result in accomplishing by indirect action what the rule [Cir. Ct. Rule 126] prohibits being secured by direct action.

We deem it proper to say, however, that we have not as yet passed upon the question whether the garnishee defendant’s motion to set aside the default was not filed in time. The judgment against the garnishee defendant was entered on November 21, 1904. On November 23, 1904, the garnishee defendant made his motion to vacate this judgment and set aside the default. At the time of this motion, no judgment had been entered against the principal defendant, and as the record then stood the garnishee defendant was entitled to prevail. Whether the entry of a judgment nunc pro tunc on November 25th, under the circumstances of this case, could affect the legal status of this motion, is a question which we cannot determine until it is properly before us for review upon writ of error, as we held in Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194.

The writ is granted.

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


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    WELLS v. TORREY.
    1. Municipal Corporations — Ordinances—Police Regulations —Intoxicating Liquors — Licenses — Validity — Regulation or Revenue.
    A city council being authorized by charter to restrain, license, and regulate saloons, adopted an ordinance requiring saloon-keepers to apply to the council for license by written application approved by a certain number of reputable citizens, pay a fee of $500 therefor, and accept the license subject to the right of the council to revoke it at any time upon notice and hearing, and providing a penalty for violation of any of its provisions. Held, that the exercise of the charter power was for the purpose of regulation and not revenue, that the license was not unreasonable in amount, and need not be passed by ■a two-thirds vote as is required in case of imposing a tax.
    3. Intoxicating Liquors — License—Ordinance—Validity.
    A city ordinance requiring saloonkeepers to apply to the city council for license by written application accompanied by the approval of a certain number of reputable citizens and containing an agreement to accept the license subject to the condition that it may be revoked at any time by the council, and providing for the revocation of licenses by the council on notice and a hearing, is not invalid because it allows any one .to be disqualified from business by the mere will of the council, does not permit the applicant any hearing on the facts nor assure him any hearing which can be examined by a competent court in case of capricious abuse, and permits the .samepersons tobe judges of the proper causes of rejection .and of the fitness of persons under such causes.
    3. Constitutional Law — Persons Entitled to Raise Questions.
    Where mandamus is applied for to compel a justice of the peace to entertain a complaint for engaging in the business of liquor selling without complying with a city ordinance, and it does not appear that the person against whom the complaint is made has complied with the ordinance or offered ■to, the objection that the ordinance is unreasonable, and empowers the council to act in a capricious and arbitrary manner in its enforcement, will not be considered; it being time •enough to consider such questions when a case arises involving :such conduct.
    Certiorari to Genesee; Wisner, J.
    Submitted June 26, 1906.
    (Calendar No. 21,794.)
    Decided July 3, 1906.
    Mandamus by Frank L. Wells to compel James M. Torrey, justice of the peace, to entertain a complaint and issue a warrant. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.
    The common council of the city of Flint has power to enact ordinances:
    “To restrain, license and regulate saloons and other places where intoxicating or spirituous liquors or malt, brewed, fermented spirituous, or vinous liquors are sold nr to be sold, and to regulate and prescribe the location thereof; to forbid and, prevent the vending or other disposition of any intoxicating liquors in violation of the laws of the State.” Act No. 373, Local Acts 1903, chap. 14,- § 10, subd. 37. -
    The common council passed an ordinance by a majority vote (a two-thirds vote is required for imposing a tax), approved February 38, 1906, to restrain, license, and regulate saloons and other places where intoxicating liquors are sold, and prescribing the location thereof, in and by the terms of which persons are forbidden to engage or continue in the business of selling liquors in the city without having obtained a license from the common council. It is required that persons desiring to engage in such business shall make application in writing to the common council for a license, stating the number or location of the place where the business is to be carried on, accompanied by a ■recommendation signed by at least 13 reputable citizens, certifying to the good reputation, fame, and moral character of the applicant, and containing an agreement on the part of the applicant that he will accept the license if it is granted him upon the condition that it may be revoked at the will of the common council. The applicant is required to pay into the city treasury the sum of $500, take the treasurer’s receipt therefor, and deliver such receipt to the city clerk with his application for the license. The ordinance further provides that the common council may at any time revoke any license granted under the ordinance and order the business closed “ and all licenses granted hereunder are issued and accepted with the understanding that they are subject to revocation at the will of the council.” A subsequent section of the ordinance provides that, before any such license is revoked, charges in writing shall be preferred against the licensee, presented to the common council, a time and place fixed for hearing, and notice of the charges given to the licensee and of the time and place of hearing. The licensee is given the right to be represented at such a hearing by counsel and to produce written or oral evidence. The ordinance further provides that, if any person shall violate any of the requirements or provisions of the ordinance, upoñ conviction he shall be punished by a fine of not less than $25 or more than $100, or by imprisonment, etc.
    It appears by the record that on May 15, 1906, one George Webb was engaged in the business of selling liquors in the city of Flint without a license. The chief of police, the relator, tendered to James M. Torrey, a justice of the peace of the city, a complaint in writing, charging said George Webb with having on the day aforesaid unlawfully engaged in and continued in the business of selling and keeping for sale spirituous and other liquors as a beverage at a certain place in the city of Flint without having first obtained a license for that purpose from the common council, according to the terms of the ordinance hereinbefore referred to. The justice refused to entertain the complaint .and refused to issue a warrant for the arrest of the said Webb. The chief of police thereupon applied to the circuit court for the county of Genesee for a writ of mandamus to be directed to the said justice, commanding him to entertain said complaint and issue a warrant thereon, and in answer to the order to show cause which was issued out of the circuit court the said justice gave the following reasons why relator was not entitled to said writ:
    “ First. That while the city of Flint has a population of upwards of 15,000, and that there are now 24 licensed places where intoxicating liquors are sold at retail therein, and while its extensive manufacturing and trade interests attract a large number of persons daily who reside outside of the city of Flint, and while it is true that the expense of maintaining the police department the past year was $4,440.42, and that an increase in the number and expense of said police force has been recommended by the common council of said city, and while this respondent is satisfied that the total sum received yearly from the imposition of such license would be practically all expended for the additional labor of its officers and expenses thereby imposed on account of the liquor traffic in said city, yet this respondent is not able to say with certainty that no revenue will result to the city of Flint in excess of such expense.
    “ Second. That this respondent does not feel justified in ordering an arrest or imposing a sentence of imprisonment pursuant to the terms of said ordinance, the validity of which is questioned.”
    Upon a hearing, the validity of the ordinance was sustained, and an order was made that the writ issue. Thereupon the respondent sued out a writ of certiorari, by which writ all of the proceedings were removed to this court for review. In the application for the writ of certiorari, the following reasons are set out as ground for reversing the order of the court below:
    “1. That the ordinance under which this complaint is based is an ordinance of the city of Flint, and that the said ordinance is unreasonable, prohibitive, excessive, and oppressive.
    “ 2. The ordinance attempts to license the sale of intoxicating liquors which is not authorized by the charter of the city of Flint.
    “3. That said ordinance inflicts an unreasonable penalty and forfeiture of property.
    ‘ ‘ i. That said ordinance allows any one to be disqualified from business on the mere will of the common council of the city of Flint.
    “5. That said ordinance does not by its terms or intent operate as an ordinary license law limiting the number of vendors.
    “6. That said ordinance does not permit the applicant any hearing on the facts, nor is he assured or given any hearing under said ordinance which could be examined by any competent court in case of capricious abuse.
    “7. That said ordinance permits the same person to be the judges of the proper causes of rejection as well as of the fitness of persons under such causes, and subjects every one to the mere will of the common council, and submits all persons’ rights to engage in business to the discretion of the common council.
    “ 8. That the effect of said ordinance is to levy a special tax which the city of Flint cannot do, and if it could said ordinance is not passed by the requisite number of aider-men elect.”
    Our attention has not been directed to any provision of the charter of the city of Flint, and an examination has discovered none, permitting the raising of revenue by way of taxation upon the business of selling intoxicating liquors..

      John H. Farley, for relator.

      Black & Roberts, for respondent.'
   Ostrander, J.

(after stating the facts). The validity of the most of the objections set up could not be admitted in this court without overruling the cases of Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580), and People v. Blow, 120 Mich. 45, and we are not inclined to overrule either of these cases. It is settled law that license fees may be imposed for regulation or for revenue, and that the grant of a license may be made by the State directly, or it may be made indirectly through one of the municipal corporations of the State. A municipal corporation has no inherent power to grant licenses or to exact license fees. It must derive all its authority from the State, and the power must come by direct grant and cannot be taken by implication. 2 Cooley on Taxation (3d Ed.), pp. 1133, 1138. The same author says further:

“ The terms in which a municipality is empowered to grant licenses will be expected to indicate with sufficient precision whether the grant is conferred for the purposes of revenue, or whether, on the other hand, it is given for regulation merely. It is perhaps impossible to lay down any rule for the construction of such grants that shall be general and at the same time safe; but, as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that, when a power to license is given, the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainty that the raising of revenue by means thereof was contemplated.”

After laying down the rule that if a revenue authority is conferred, the extent of the tax, when not limited by the grant itself, is left to the judgment and discretion of the municipal government, subject tó the implied limitation that it must not be so heavy as to be prohibitive, thereby defeating the purpose of the power; and after stating that, generally, a fee for a license should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers, the same learned author proceeds as fol-. lows:

“ But the limitation of the license fee to the necessary expenses will still leave a considerable field for the exercise of discretion, when the amount of the fee is to' be-determined. The fee, of course, must be prescribed in advance, and when it cannot be determined with any accuracy what the cost of regulation is to be. It must therefore be based upon the estimates, with more or less probability that the result will fail to come anything near a. verification of the calculations. Moreover, in fixing upon the fee, it is proper a.nd reasonable to take into account,, not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed. In some cases the incidental consequences are much the most important, and, indeed, are what are principally had in view when the fee is decided upon. The regulation of the business of huckster, for instance, could seldom be troublesome or expensive, but that of the manufacture and sale of intoxicating drinks could not be measured by anything like the same standard. * * * It cannot be questioned, therefore, if it is to be licensed by the public authorities, that it is legitimate and proper to take into the account all the probable consequences, or that the payment to be exacted should be sufficient to cover all the incidental expenses to which the public are likely to be put by means of the business being carried on. And all reasonable intendments must favor the fairness and justice of a fee thus fixed. It will not be held excessive unless it is manifestly something more than a fee for regulation. ’*

The power to license saloons in the city of Flint is expressly conferred by the charter. The exercise of that power by the passage and enforcement of the ordinance which is in question must be held to be for the purpose of regulation, and not revenue, and must be sustained so far as the amount of the license fee is concerned. This disposes of the first, second, third, fifth, and eighth of the objections set out in the application for the writ of certiorari. I think the fourth, sixth, and seventh objections are answered by the terms of the ordinance itself. If they are not, it does not appear that George Webb, the person against whom it was sought to have the warrant issued, has ever made any application to the council for a license or paid or tendered the license fee. It will be time enough to consider some of the points which are argued when a case is made involving a capricious or arbitrary enforcement of the ordinance.

The duty of the magistrate to entertain the complaint and issue the warrant is clear, and the judgment of the court below is affirmed, with costs.

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